State v. Devoid, 2010 VT 86

Summary

The Vermont Supreme Court reversed Carl Devoid, Jr.'s conviction for attempted voyeurism because the evidence did not establish an overt act likely to result in viewing the complainant's intimate areas or the requisite criminal intent. The court held that merely looking at a second-floor bathroom window from a position where viewing the protected areas was impossible was insufficient to constitute attempted voyeurism. A concurrence additionally criticized the trial court's decision to instruct the deliberating jury on a new attempt charge after the jury had begun deliberations.

Holdings

1. The evidence was insufficient to support defendant's conviction for attempted voyeurism because defendant's conduct of standing on the ground and looking at the second-floor bathroom window was not likely to result in viewing the complainant's intimate areas.
2. The evidence did not sufficiently establish that defendant intended to commit voyeurism, rather than merely desiring to watch the upper body of a woman he believed to be naked.
3. The court did not adopt impossibility as a general defense to attempt; instead, it distinguished this case from factual-mistake attempt cases because defendant's conduct was equivocal and there was no mistake about the circumstances preventing completion.

Questions Presented

1. Whether the evidence was sufficient to support a conviction for attempted voyeurism when defendant looked at a second-floor bathroom window from a location where he could not see the complainant's statutorily defined intimate areas.
2. Whether defendant's conduct constituted the overt act and demonstrated the intent required for attempted voyeurism.
3. Whether the trial court erred by instructing the jury during deliberations on attempted voyeurism, a crime not originally charged.

Disposition

reversed