246 A.3d 399
Vt.2020Background:
- A.P., age 18, was charged under 13 V.S.A. § 2601 (open and gross lewdness and lascivious behavior) for approaching and touching a 17-year-old student’s breast in a school hallway during the school day.
- The matter was heard in family division after A.P. sought youthful-offender treatment; at trial the court credited the complainant and found A.P. had touched her breast without consent.
- A.P. challenged the conviction on appeal, arguing (1) insufficient evidence that the act was “open” or “gross,” (2) that § 2601 is ambiguous such that the rule of lenity requires application of the lesser misdemeanor statute (§ 2601a), and (3) that § 2601 is unconstitutionally vague.
- The Supreme Court reviewed the evidence for sufficiency in the light most favorable to the State and analyzed statutory meaning, lenity, and void-for-vagueness challenges.
- The Court affirmed: it found the hallway touching sufficiently “open” and “gross,” held § 2601 unambiguous as applied (so lenity did not apply), and rejected the vagueness challenge.
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (A.P.) | Held |
|---|---|---|---|
| Sufficiency—"open" requirement | Hallway touching during school is public enough and was witnessed by the victim, satisfying openness. | "Open" requires being witnessed by at least one third party; a victim-only witness in a school hallway is insufficient. | Affirmed: "open" means undisguised/not concealed and may be satisfied by a public setting witnessed by the victim. |
| Sufficiency—"gross" requirement | Unwanted touching of a sexualized body part in a school hallway is patently offensive to a reasonable person and therefore "gross." | The contact was brief and over clothing; not patently offensive enough to be "gross." | Affirmed: nonconsensual touching of a breast in a school hallway may be "gross." |
| Rule of lenity / ambiguity between §2601 and §2601a | Terms are sufficiently definite; §2601 unambiguously covers A.P.’s conduct, so lenity does not apply; prosecutor may elect among overlapping offenses. | Statutory terms overlap and are ambiguous; lenity requires application of the lesser misdemeanor statute. | Affirmed: statute unambiguous as applied; rule of lenity inapplicable; prosecutor may charge felony where facts support it. |
| Void-for-vagueness / distinction between "lewd" and "lascivious" | Ordinary meanings (and case law) give adequate notice—"lewd" and "lascivious" have distinct ordinary meanings (indecent vs. tending to excite lust) and case law circumscribes application. | §2601 is vague: reliance on community standards and undefined moral terms permits arbitrary enforcement; "lascivious" adds no meaningful distinction from "lewd," undermining notice and statutory hierarchy. | Rejected (majority): statute gives adequate notice as construed by case law; not void-for-vagueness as applied here. (Dissent would void statute.) |
Key Cases Cited
- State v. Millard, 18 Vt. 574 (Vt. 1846) ("open" means undisguised/not concealed; need not depend on number of witnesses)
- State v. Benoit, 158 Vt. 359 (Vt. 1992) ("open" requires no more than one witness; court quoting Millard)
- State v. Discola, 2018 VT 7 (Vt. 2018) (affirming that unwanted public grabbing can constitute open and gross lewdness)
- In re A.C., 191 Vt. 615 (Vt. 2012) (mem.) (nonconsensual touching in a school hallway held patently offensive and "gross")
- State v. Penn, 176 Vt. 565 (Vt. 2003) (mem.) (lewd conduct may be "open" even when occurring in private residence)
- State v. Purvis, 146 Vt. 441 (Vt. 1985) (rejecting vagueness challenge to §2601 for an intentional exposure directed at minors)
- State v. Shippee, 176 Vt. 542 (Vt. 2003) (mem.) (prosecutor has discretion to choose among overlapping offenses)
- Kolender v. Lawson, 461 U.S. 352 (U.S. 1983) (void-for-vagueness doctrine: penal statutes must give sufficient definiteness to inform ordinary persons and limit arbitrary enforcement)