In re K.A., Juvenile, 147 A.3d 81

Twelve-year-old K.A. put his hands into a classmate S.K.’s coat pockets after she refused, pulled her toward a snowbank, pressed against her, threatened to throw her in the snow, and tried to get his hands under her waistband; a teacher intervened.
The State charged K.A. with simple assault (13 V.S.A. § 1023(a)(1)) and a prohibited act, "lewdness," under 13 V.S.A. § 2632(a)(8).
Trial court granted acquittal on the assault count but denied acquittal on the § 2632(a)(8) charge; after closing, the court allowed the State to amend the charge to attempted lewdness and adjudged K.A. delinquent on the attempted-offense charge.
K.A. moved for reconsideration arguing the court improperly denied the Rule 29 motion based on elements of the amended charge and that the oral amendment prejudiced him; the court denied reconsideration.
On appeal, the Vermont Supreme Court reviewed under plain-error review and held that charging K.A. under § 2632(a)(8) was improper because the statute targets prostitution-related conduct, not the kind of unwelcome sexual touching that occurred on a playground.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence supported an attempted lewd act under § 2632(a)(8)	The State: K.A.’s pushing, threats, and attempts to get hands under clothes showed attempt to commit lewdness	K.A.: Insufficient evidence of specific intent to attempt a prostitution-related lewd act; charge misapplied	Court: Reversed—acts did not constitute (attempted) lewdness under § 2632(a)(8)
Whether trial court erred in denying Rule 29 before amendment and permitting oral amendment to attempt	State: Amendment proper and supported by evidence of attempt	K.A.: Amendment was untimely, prejudicial, and court relied on attempted-offense elements before amendment	Court: Plain error—use of § 2632 was improper; reversal required
Whether § 2632(a)(8) reasonably applies to non-prostitution lewd conduct involving juveniles	State: § 2632 can be a catch-all for lewd acts	K.A.: Statute targets prostitution-related conduct and is vague as applied	Court: § 2632 is focused on prostitution; charging playground conduct under it is a misuse
Appropriate charging statute for this conduct	State: Chose § 2632 instead of other lewdness statutes	K.A.: If any statute applied, it would be § 2602 (lewd/lascivious acts on a child), not the prostitution provision	Court: Noted § 2602 would have been the proper fit; § 2632 is inapplicable here

McBoyle v. United States, 283 U.S. 25 (statute must give fair warning of criminality)
State v. Ploof, 116 Vt. 93 (1950) (statute outlawing solicitation for "lewdness" must specify nature of acts; indicates prostitution focus)
State v. George, 157 Vt. 580 (1991) (§ 2632 construed to prohibit prostitution-related acts by any person)
State v. Memoli, 189 Vt. 237 (2011) (interpreting "open and gross lewdness" as not disguised or concealed)
In re A.C., 191 Vt. 615 (2012) (upheld delinquency under § 2632 in different procedural posture; highlighted tension when § 2632 used as fallback for § 2601/2602)