On Appeal from Superior Court, Caledonia Unit, Family Division M. Kathleen Manley, J.
Matthew F. Valerio, Defender General, and Sara Puls, Appellate Defender, Montpelier, for Appellant.
Lisa A. Warren, Caledonia County State's Attorney, and Maria L. Byford, Deputy State's Attorney, St. Johnsbury, for Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. As an anthropological text, the law reflects the principles a society holds dear and attempts to establish agreed upon community standards of behavior.[*] But over years of legislative enactments, some statutes cease to coexist peacefully with changes in society's mores and may be misused. In this case, K.A.-a twelve-year-old, middle-school boy-committed inappropriate acts outside his school, but he was adjudged delinquent under a statute prohibiting lewd acts relating to prostitution. We reverse.
¶ 2. The delinquency hearing established the following undisputed facts. In March 2014, K.A., S.K., and at least six other students were outside playing four square near their school lobby. It was after school, and no adults supervised the students. S.K. (a female) wore a winter jacket with two diagonal zippered pockets along the front, one for each hand. S.K. and K.A. were friends. K.A. approached, said his hands were cold, and asked to put his hands in her jacket pockets. S.K. said no, but K.A. reached his hands into her pockets anyway. Then K.A. began walking backward towards a snowbank a few feet away, pulling S.K. with him by her pockets. As he pulled her, K.A. pressed against S.K. and told her to kiss him or he would throw her in the snowbank. S.K. again said no and tried to remove his hands from her pockets. Then, the trial court found, K.A. tried to get his hands under the waistband of the girl's jeans while his hands were still in her outside coat pockets. S.K.'s belt prevented K.A.'s hands from going down the front of her pants. Ultimately, K.A. did not kiss S.K. or throw her into the snowbank; instead, he pulled her back towards the school, again using his hands in her pockets as leverage. As the two neared the building, a teacher saw them and yelled at K.A. to take his hands out of S.K.'s pockets.
¶ 3. The State subsequently filed a delinquency petition alleging that K.A committed simple assault under 13 V.S.A. § 1023(a)(1) and engaged in a prohibited act, lewdness, under 13 V.S.A. § 2632(a)(8). At the close of the State's evidence, K.A. moved, pursuant to Vermont Rule of Criminal Procedure 29, for judgment of acquittal on both counts due to insufficient evidence, specifically any assaultive act or lewd intent. The trial court granted the judgment of acquittal with regard to simple assault, but not with regard to engaging in lewdness.
¶ 4. After the parties presented their closing arguments, the trial court indicated that it would consider a motion to amend the charge under Vermont Rule of Criminal Procedure 7 from the completed offense of engaging in lewdness to an attempt to do so. The trial court allowed K.A. the opportunity to put on further evidence, which he declined. The State then orally moved to amend the charge to an attempted lewd act under 13 V.S.A. § 2632(a)(8), which the trial court granted over K.A.'s objection. The trial court entered an adjudication of delinquency on the amended charge of an attempted lewd act, finding that the evidence showed that K.A. attempted to engage in a lewd act by trying to put his hands down S.K.'s pants against her will.
¶ 5. K.A. subsequently filed a motion to reconsider, to which the State objected. K.A.'s motion challenged the court's decision to deny K.A.'s Rule 29 motion for acquittal as to the original charge of a prohibited lewd act, arguing that the court improperly based its denial on the elements of the amended charge-an attempted prohibited lewd act-prior to that amendment actually occurring. The motion also challenged the court's decision to grant the State's oral motion to amend the charge to an attempted lewd act, arguing that the motion was an improper sua sponte motion, that the motion was untimely, and that K.A. was prejudiced by the amendment. The trial court denied K.A.'s motion to reconsider.
¶ 6. On appeal, K.A. raises two claims of error concerning the trial court's delinquency decision. First, K.A. argues the evidence presented at trial was insufficient to support the trial court's conclusion that, beyond a reasonable doubt, K.A. attempted to commit a prohibited lewd act under 13 V.S.A. § 2632(a)(8). Specifically, K.A. raises, for the first time on appeal, three distinct issues relating to the sufficiency of the evidence and specific intent: (1) that the trial court erred by failing to find that K.A. had the specific intent to attempt a lewd act; (2) that the evidence presented at trial was insufficient to support a finding that he acted with specific intent to attempt a lewd act; and (3) that, without a finding of specific intent, § 2632(a)(8) is void for vagueness. Second, K.A. contends the trial court improperly amended the charge from committing a lewd act to attempting to commit a lewd act. The State disagrees with K.A.'s claims and contends that the evidence was sufficient beyond a reasonable doubt to support the trial court's decision and that the trial court did not abuse its discretion when it amended the charge.
¶ 7. We hold that the acts charged do not constitute a crime under 13 V.S.A. § 2632(a)(8). In other words, the charge against K.A. fails for insufficient evidence that his actions were an attempt to engage in a lewd act of prostitution. We note that, at trial and in his motion to reconsider, K.A. did not specifically raise concerns about the application of the statute to the acts alleged. As a result, our review is confined to a plain error analysis. V.R.Cr.P. 52(b) ("Plain errors or defects affecting substantial right may be noticed although they were not brought to the attention of the court."). Here, plain error occurred that interfered with K.A.'s constitutional right to due process. Cf. State v. Welch, 136 Vt. 442, 444-45, 394 A.2d 1115, 1116 (1978) (declining to reach constitutional claim not raised below because error was not "so grave and serious" as to "strike at the heart of defendant's constitutional rights"). Although the legislative history and text of the statute demonstrate that § 2632 was intended to proscribe "lewd" acts relating to prostitution, the State used the statute to charge this boy for committing a lewd act on a playground. That is an improper result that cannot stand.
¶ 8. Chapter 59 of Title 13 is divided into two subchapters: the first governs "Lewd and Indecent Conduct, " the second contains statutes relating to "Prostitution." See 13 V.S.A. ch. 59, sub. chs. 1-2. Section 2632(a)(8) is located in the subchapter governing prostitution and provides that "[a] person shall not: . . . [e]ngage in prostitution, lewdness or assignation." "Lewdness" is defined in § 2631(2) as "open and gross lewdness." This Court has interpreted this clause as lewdness that is "neither disguised nor concealed." State v. Memoli, 2011 VT 15, ¶ 33, 189 Vt. 237, 18 A.3d 567 (quotation omitted).
¶ 9. Criminal statutes must be interpreted and applied to ensure the text provides fair warning of the legal consequences for committing certain, defined acts. See McBoyle v. United States, 283 U.S. 25, 27 (1931) ("[I]t is reasonable that fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed."). The interpretation and application of a statute presents a question of law that the appellate court reviews de novo. State v. Therrien, 2011 VT 120, ¶ 9, 191 Vt. 24, 38 A.3d 1129. The intent of the Legislature governs the interpretation of criminal statutes and that intent is usually expressed in the statute's plain language. State v. Wainwright, 2013 VT 120, ¶ 6, 195 Vt. 370, 88 A.3d 423 ("As we have repeatedly stated, in interpreting statutes our goal is to implement the intent of the Legislature."). Further, the terms used in the statute should be interpreted on the basis of their ordinary meaning and the context in which they are used. Id. The rules governing the interpretation of statutes also require that ...