NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.


                                         2016 VT 48

                                        No. 2015-296

State of Vermont                                             Supreme Court

                                                             On Appeal from
   v.                                                        Superior Court, Chittenden Unit,
                                                             Criminal Division

Julianne Graham                                              January Term, 2016


Michael S. Kupersmith, J.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General,
 Montpelier, for Plaintiff-Appellant.

Brooks G. McArthur of Jarvis, McArthur & Williams, Burlington, for Defendant-Appellee.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   SKOGLUND, J.         The State appeals the dismissal of three counts of sexual

exploitation of a minor, in violation of 13 V.S.A. § 3258. The charges were filed against

defendant, a high school employee, based on her having engaged in sexual acts with a student

over the summer break between defendant’s school contracts.          The issue is whether the

circumstances of this case support the charges. We conclude that they do not, and affirm.

        ¶ 2.   In reviewing the grant of a motion to dismiss, “we consider whether the evidence,

taken in the light most favorable to the State, excluding modifying evidence, would fairly and

reasonably tend to show defendant committed the offense, beyond a reasonable doubt.” State v.

Baron, 2004 VT 20, ¶ 2, 176 Vt. 314, 848 A.2d 275 (quotation omitted). The salient facts are

not in dispute.    Beginning in August 2012, defendant was employed by Chittenden South
Supervisory Union (CSSU) for each of three consecutive years at Champlain Valley Union High

School (CVU). During the 2012-2013 school year, she was employed as a paraeducator. During

the 2013-2014 and 2014-2015 school years, defendant was employed as a program assistant.

She worked with the putative victim, K.S., in a school program during the 2013-2014 school

year. In May 2014, defendant’s supervisors told her that she could no longer work with K.S.

because of concerns that she was spending an inappropriate amount of time with him to the

detriment of the other students in the program. K.S. was transferred to a different program, at

which point defendant no longer had direct supervision over him.

       ¶ 3.    During each of the years defendant worked at CVU, she was hired as a full-time

“school-year employee” under the collective bargaining agreement. This classification meant

that she was employed on a year-to-year basis, with the employment commencing two days

before the students started school and ending one day after the last day of instruction, for a total

of less than 200 days per year.

       ¶ 4.    Initially, in May 2014, defendant was advised that her position at the school had

been eliminated for the following year. Later that month, however, defendant received a letter

stating that CSSU would be able to retain her services for the following school year. In response

to the letter, defendant confirmed in writing her intent to work for CVU during the 2014-2015

school year.

       ¶ 5.    At defendant’s option, employment benefits were not extended to defendant

beyond the 2013-2014 school year, except for certain benefits that did not require her to make

premium payments.      Defendant was not offered a summer position and thus was neither

employed by CSSU nor given any supervisory role over students during the summer of 2014.

On August 25, 2014, defendant resumed employment at CVU under a new contract with CSSU.




                                                 2
       ¶ 6.    In February 2015, the State filed an information that, in relevant part, charged

defendant with three counts of sexual exploitation of a minor, in violation of 13 V.S.A.

§ 3258(a), which provides as follows:

               (a) No person shall engage in a sexual act with a minor if:

                (1) the actor is at least 48 months older than the minor; and

                (2) the actor is in a position of power, authority, or supervision
               over the minor by virtue of the actor’s undertaking the
               responsibility, professionally or voluntarily, to provide for the
               health or welfare of minors, or guidance, leadership, instruction, or
               organized recreational activities for minors.

The information alleged that “on or about the summer of 2014” defendant engaged in sexual acts

with a minor at least forty-eight months younger than her “while the defendant was in a position

of supervision over the minor by undertaking the responsibility to provide for the instruction of

minors.”1

       ¶ 7.    Defendant filed a motion to dismiss the sexual-exploitation counts for lack of a

prima facie case pursuant to Vermont Rule of Criminal Procedure 12(d), asserting that the State

would be unable to prove beyond a reasonable doubt that defendant: (1) was in a position of

supervision over K.S. during the summer of 2014; (2) was undertaking the responsibility to

provide for the instruction of minors; or (3) abused her position of supervision over K.S. to

engage in a sex act.

       ¶ 8.    Following a motion hearing in which three witnesses testified for the State, the

criminal division of the superior court granted defendant’s motion to dismiss. The court ruled

that the plain meaning of § 3258(a) requires the actor to be in a position of power, authority, or

supervision at the time of the sex act, and that defendant was not employed by CSSU at the time

of the charged sex acts. The court acknowledged that a defendant need not be engaged in a


       1
           The information further alleged that defendant abused her position of supervision over
K.S. in order to engage in a sexual act with him, in violation of § 3258(c), which permits an
enhanced penalty for the actor’s abuse of the position of power, authority, or supervision to
attain the sexual act. This provision is not at issue in this appeal.
                                                   3
specifically charged supervisory task at the exact time of the sex act. But, according to the court,

although a school employee in a position of authority could be charged for sex acts with students

occurring during the school year outside of school hours, criminal liability under the statute does

not extend to situations, such as this, where defendant was not employed by the school, and thus

not in a position of authority, at the time of the charged sex acts.

       ¶ 9.    Pursuant to Rule 12(d)(2), a trial court must dismiss an information if the State

“does not establish by affidavits, depositions, sworn oral testimony, or other admissible evidence

that it has substantial, admissible evidence as to the elements of the offense challenged by the

defendant’s motion . . . sufficient to prevent the grant of a motion for judgment of acquittal at the

trial.” The State “need only show that it has enough evidence to go to the jury on the issue raised

by the defendant—that is, taking the evidence in its most favorable construction to the state it

reasonably tends to show defendant’s guilt beyond a reasonable doubt.” Reporter’s Notes,

V.R.Cr.P. 12. The question of whether the State has met its burden is one of law, which we

review de novo. State v. Valyou, 2006 VT 105, ¶ 4, 180 Vt. 627, 910 A.2d 922 (mem.).

       ¶ 10.   The State argues on appeal that, under the circumstances of this case, the trial

court erred by not allowing a jury to determine whether defendant was in a position of

supervision over the minor pursuant to § 3258(a) by virtue of defendant’s undertaking the

responsibility to provide for the instruction of minors. The State breaks this argument into two

parts. First, the State argues that whether she was an employee of CSSU during the summer of

2014 was a factual question that should have been left for a jury to decide. In support of this

argument, the State notes for the first time on appeal that defendant would not have been entitled

to unemployment compensation during the summer of 2014 because she had “reasonable

assurance” of employment at CVU for the 2014-2015 academic year.                    See 21 V.S.A.

§ 1343(c)(1) (providing that, with respect to services performed in instructional capacity at

educational institution, unemployment benefits are not available during period between two


                                                  4
successive academic years). The State also notes in support of this argument that during the

summer of 2014 defendant continued to receive certain employment benefits for which she did

not pay any premiums. Apparently, she was covered under the CSSU’s life insurance and long-

term disability policies, as well as the Vermont Municipal Retirement Plan, although she was not

receiving contributions under the plan during that period because she was not under contract and

being paid a salary. Finally, the State notes that defendant “may have been subject to certain

school policies during the summer.”

       ¶ 11.   We find no merit to this argument. The evidence, viewed most favorably to the

State, supports the trial court’s findings that defendant was a school-year employee who was not

under contract with CSSU during the summer of 2014 and had no supervisory responsibilities for

CVU students at that time. Even assuming defendant could not have collected unemployment

benefits during the summer of 2014 and continued to receive carryover employment benefits for

which she paid no premiums, that did not make her an employee of CSSU at that time.

Accordingly, the trial court did not err by not submitting to a jury the question of whether

defendant was an employee of CSSU during the summer of 2014.

       ¶ 12.   The second part of the State’s argument is more subtle, and the answer is less

obvious. The State contends that whether or not defendant was an employee of CSSU during the

summer of 2014 is not dispositive of whether she was in a position of supervision over the minor

“by virtue of” her having undertaken responsibility to instruct minors during previous school

years. In the State’s view, the trial court misread the statute by assuming that the only way

defendant could have been in a position of supervision over K.S. by virtue of having undertaken

instructional responsibility for minors is by being an employee of the school at the time of the

charged sex acts.2 Parsing the statutory language, the State acknowledges that the Legislature’s


       2
          The State acknowledges that the information in this case charged defendant with being
in a position of supervision, as opposed to power or authority. The State asserts, however, that
the three words are “practically synonymous,” and argues that, to the extent this Court concludes
                                               5
choice of the present tense “is” in the first sentence of § 3258(a) means that the defendant must

be in a position of power, authority, or supervision at the time of the charged sex act. The State

contends, however, that the position of power, authority, or supervision may have been reached

“by virtue of” defendant having undertaken instructional responsibilities prior to the charged sex

act but no longer remaining at the time of the act. According to the State, this construction of the

statute is bolstered by the fact that the statute governs not only professionals but also volunteers

who may have a less defined role with respect to minors covered under the statute. In the State’s

view, it is a jury’s role to determine whether a particular defendant remained in a position of

power, authority, or supervision at the time of the charged offense by virtue of having

undertaken past instructional responsibilities.

        ¶ 13.   The State reads too much into the statute. There is criminal liability under

§ 3258, in relevant part, only if “the actor is in a position of . . . supervision over the minor by

virtue of the actor’s undertaking the responsibility” to provide guidance or instruction for minors.

13 V.S.A. § 3258(a)(2) (emphasis added). The State agrees that the actor must be in a position

of supervision at the time of the sex act, but contends that the Legislature’s use of the gerund

“undertaking” does not preclude construing the statute to include circumstances in which the

actor gained the position of supervision by virtue of having undertaken past instructional

responsibilities. In so arguing, the State notes that the gerund form of the verb need not indicate

the present tense—for example, as in, “thank you for reading my brief.” Tellingly, in making

this argument, the State consistently uses the verb phrase “having undertaken”—a phrase that the

Legislature could have used, but did not, and which arguably would have provided some support

for the State’s position.




that defendant may have been in a position of power or authority, but not supervision, over K.S.,
the matter should be remanded to allow the State to amend its information. Our resolution of this
appeal does not fall on any distinction between the three words.
                                                 6
       ¶ 14.   We conclude that use of the verb tenses “is” and “undertaking” indicate that the

Legislature intended there to be criminal liability under the statute only when the sex act

occurred during the time period in which the actor was in a position of supervision and was

undertaking the responsibilities that put the actor in a position of supervision. See State v.

Brunner, 2014 VT 62, ¶ 11, 196 Vt. 571, 99 A.3d 1019 (“When interpreting a statute our goal is

to give effect to the intent of the Legislature, and to do so we first look at the plain, ordinary

meaning of the statute.” (quotation omitted)). This statutory language requires more than a

relationship of special trust arising from a former formal relationship—it requires that the formal

relationship be in place at the time of the sex act.

       ¶ 15.   The statute is intended to protect minors between the ages of sixteen and eighteen

who are the victims of sex acts perpetrated by persons who are in a position of power, authority,

or supervision over the minors by virtue of specified undertakings, thereby creating an imbalance

in the relationship that effectively deprives the minors of being able to consent to the sex acts.

To be sure, in some instances socially disfavored relationships may not be subject to criminal

liability under the statute by limiting its reach to situations where the sex act occurred during the

periods in which the actor was in a position of power over the minor and undertaking

responsibilities for the guidance or instruction of minors. The State contends that it would be

absurd for the Legislature to have intended the statute not to apply in situations where a position

of power, authority, or supervision existed at the time of the sex act by virtue of the actor

undertaking responsibilities that no longer remained at the time of the act. We disagree.

       ¶ 16.   We cannot say that such a construction makes the statute ineffective or creates

absurd results. See id. (“We generally interpret penal statutes strictly, but not so strictly as to

defeat the legislative purpose in enacting the law or to produce irrational or absurd results.”

(quotation omitted)); State v. Fuller, 163 Vt. 523, 528, 660 A.2d 302, 305 (1995) (“[I]t is

inappropriate to expand a statute by implication, that is, by reading into it something which is not


                                                   7
there, unless it is necessary in order to make it effective.” (quotation omitted)). Line-drawing in

determining criminal liability is part of the legislative process. It is not irrational or absurd for

the Legislature to elect not to leave for jurors to determine at what point an actor was no longer

in a position of power, authority, or supervision after the responsibilities upon which that

position was attained had ended. The Legislature could have reasonably elected not to create

potentially open-ended criminal liability based on responsibilities undertaken in the past. If the

Legislature had intended to create criminal liability under § 3258 in situations where a position

of power was attained by virtue of the actor’s undertaking responsibilities that no longer

remained at the time of the sex act, it could have said so. See, e.g., N.H. Rev. Stat. Ann. § 632-

A:2(I)(g) (stating that person is guilty of aggravated felonious sexual assault if person engages in

sexual penetration with another person during course of therapeutic or medical treatment or

“within one year of termination of that therapeutic or treating relationship”); Tex. Pen. Code

Ann. § 22.011(b)(9) (providing that sexual assault is without consent if actor is health care

provider who causes patient or former patient to submit to assault by exploiting patient’s

dependency).

       ¶ 17.   At most, from the State’s perspective, the statute is ambiguous. See Brunner,

2014 VT 62, ¶ 18 (“Ambiguity exists where a statute is capable of more than one reasonable

interpretation, each vying to define a term to the exclusion of other potential interpretations.”).

But even if we were to consider the statutory language in § 3258(a) to be ambiguous, we would

construe the criminal statute narrowly, as long as that construction did not render the statute

ineffective or lead to absurd or irrational results. “In interpreting a criminal statute, the rule of

lenity requires us to resolve any ambiguity in favor of the defendant.” State v. LaBounty, 2005

VT 124, ¶ 4, 179 Vt. 199, 892 A.2d 203; see also Brunner, 2014 VT 62, ¶ 11 (same).

       ¶ 18.   We emphasize that our construction of § 3258(a) does not suggest the absence of

criminal liability under the statute in situations where the actor was presently undertaking


                                                 8
responsibilities for minors but the sex act occurred off-hours on weekends or during school

breaks when those responsibilities remained. Nor does it suggest that liability under the statute is

restricted to situations in which the minor is in a class or activity directed by the actor. 3 Liability

exists under § 3258(a) as long as the actor is in a position of power, authority, or supervision by

virtue of undertaking to provide guidance, leadership, or instruction, which could take many

forms. Cf. Carter v. State, 775 So. 2d 91, 96 (Miss. 1999) (stating that no language in statute

criminalizing sexual penetration of minor by person in position of trust or authority “would limit

the meaning to a student who is in a specific class of the teacher”); State v. Kaster, 663 N.W.2d

390, 395 (Wis. Ct. App. 2003) (upholding conviction under statute criminalizing sexual assault

of student by school staff person where evidence indicated that even though swimming season

had ended defendant coach continued swimming activities and provided services during time of

assault).

        ¶ 19.   Criminal liability does not extend to defendant in this case, however, given the

temporal restrictions contained in § 3528(a). Cf. People v. Lewis, 839 N.W.2d 37, 42 (Mich. Ct.

App. 2013) (reversing dismissal of third-degree sexual conduct charge based on conclusion that

plain language of statute “does not contain any temporal requirement regarding the timing of the

sexual penetration”).

        Affirmed.

                                                 FOR THE COURT:



                                                 Associate Justice




        3
           By this description, we are not deciding whether defendant would have violated the
statute by engaging in sexual activity with K.S. after she no longer had any direct responsibility
over him during the school year. That determination would be based on a factual analysis we
have not considered.
                                                9
