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 52

                                         No. 2015-007

In re K.A., Juvenile                                           Supreme Court

                                                               On Appeal from
                                                               Superior Court, Caledonia Unit,
                                                               Family Division

                                                               September Term, 2015


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.    SKOGLUND, J.         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.




       
         “It is perfectly proper to regard and study the law simply as a great anthropological
document.” O.W. Holmes, Law in Science and Science in Law, 12 Harv. L. Rev. 443, 444
(1899).
       ¶ 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

                                                 2
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.

                                                  3
       ¶ 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

                                                 4
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 statutes be construed to

prevent absurd results. In re Jones, 2009 VT 113, ¶ 7, 187 Vt. 1, 989 A.2d 482 (“We interpret

penal statutes strictly, but not so strictly as to defeat the legislative purpose in enacting the law or

to produce irrational and absurd results.” (quotation omitted)).

        ¶ 10.   Here, the meaning of the term “lewd” in § 2632 is murky at best. See § 2631(2)

(defining lewdness as “open and gross lewdness”); State v. Roy, 140 Vt. 219, 229, 436 A.2d

1090, 1095 (noting “lewd” may be too vague in certain circumstances). When the language is

unclear, the legislative history of the statute should be examined to determine the underlying

purpose of the legislation. In re Porter, 2012 VT 97, ¶ 10, 192 Vt. 601, 70 A.3d 915 (“Only if

the language is unclear and ambiguous do we resort to legislative history to determine the

Legislature’s intent.”). Moreover, statutes that relate to the same matter are considered to be in

pari materia and must be read together as a whole, In re Preseault, 130 Vt. 343, 346, 292 A.2d

832, 834 (1972), as long as the result is consistent with legislative intent. State v. Fuller, 163 Vt.

523, 527, 600 A.2d 302, 305 (1995). To begin, we set forth the legislative history of 13 V.S.A.

§ 2632.

        ¶ 11.   Almost a century ago, during the Legislature’s twenty-fifth biennial session in

1919, an “Act Relating to Prostitution” was enacted. 1919, No. 199, § 1. Section 1 of the Act,

entitled “Unlawful Acts,” began as follows: “A person shall not occupy any place, structure,

building or conveyance for the purpose of prostitution, lewdness or assignation and no person

                                                   5
shall knowingly permit any place, structure, building or conveyance owned by him or under his

control to be used for the purpose of prostitution, lewdness or assignation.” Id. The section went

on to address transportation of people to engage in prostitution, lewdness, or assignation and

procurement of women for the purpose of prostitution, lewdness, or assignation. Id. In § 2 of

the Act, “Definitions,” the Legislature defined prostitution, lewdness, and assignation.

Assignation, which today is understood to be an appointment for a meeting between lovers (a

tryst), was specifically defined as “the making of any appointment or engagement for prostitution

or lewdness.” Id. § 2. “Prostitution,” consisted of “receiving of the body for sexual intercourse

for hire . . . or for indiscriminate sexual intercourse without hire.” Id. The statute defined

“lewdness” as “open and gross lewdness.” Id.

       ¶ 12.   In the 1933 Public Laws compilation, the Legislature continued the prohibition

against prostitution and included the crime under Title 37, Chapter 345, entitled “Offenses

Against Chastity and Morality.” 1933 P.L. ch. 345. Chapter 345 included a section sentencing a

person who commits adultery to five years, § 8600, and one providing that “parties found in bed

together, under circumstances affording presumption of an illicit intention,” shall be imprisoned

for not more than three years. Id. § 8602. Section 8604 outlawed bigamy, and § 8608 outlawed

abortion. Section 8618 outlawed “White Slavery,” which today can be thought of as sex

trafficking. See 13 V.S.A. § 2635.

       ¶ 13.   In Chapter 345, the portion of the law governing prostitution was entitled

“Lewdness and Prostitution.” See 1933 P.L. §§ 8611-17. The first section of the law, entitled

“Penalty,” read: “A person guilty of open and gross lewdness and lascivious behavior shall be

imprisoned not more than five years or fined not more than three hundred dollars.” Id. § 8611

(emphasis added). Section 8612 governed a “Disorderly house or house of ill fame” and read:

“A person who keeps a disorderly house, or a house of ill fame, resorted to for the purpose of

prostitution and lewdness, . . . shall be imprisoned not more than four years.” Id. § 8612. It

                                                6
defined the unlawful acts in the same manner as did the Legislature in 1919: “[O]ccupy[ing] a

place, structure, building or conveyance for the purpose of prostitution, lewdness or assignation.”

Id. § 8614. Definitions are again provided. See id. § 8613. Prostitution is “offering or receiving

of the body for sexual intercourse for hire and . . . offering or receiving of the body for

indiscriminate sexual intercourse without hire.” Id. Assignation was again defined as “the

making of an appointment or engagement for prostitution or lewdness.” Id. And, it retained the

splendidly helpful definition of lewdness as “open and gross lewdness.” Id.

       ¶ 14.   The Vermont Statutes of 1947 continued much of the same language found in the

1933 Public Laws. Again, the chapter was entitled “Offenses Against Chastity and Morality.”

1947 V.S. ch. 370. It included subchapters prohibiting “Adultery and Bigamy,” “Abortion,” and

“Obscene Books, Pictures, and Shows.” Id. But the chapter also included a new crime, entitled

“Lewdness, penalty.” § 8479. This separate “Lewdness” crime prohibited “lewd or lascivious”

acts that were “wilfully and lewdly” committed against a child under sixteen.            Id.   The

definitions of prostitution, lewdness, and assignation found in the statute were the same as those

found in the current statute. Compare 1947 V.S. § 8482, subdiv. VI (defining “lewdness” as

“open and gross lewdness”), with 13 V.S.A. 2631(2) (same).

       ¶ 15.   In 1949, George Ploof was charged with violating what was by then V.S. § 8483,

subdiv. VI: “Procure or solicit or offer to procure or solicit a female person for the purpose of

prostitution, lewdness or assignation.” State v. Ploof, 116 Vt. 93, 96, 70 A.2d 575, 577 (1950).

The State alleged that Ploof “solicited a female person, . . . for the purpose of committing lewd

lascivious acts upon the (body of the) [female person].” Id. at 94, 70 A.2d at 576. Ploof

demurred to the charge, arguing that it did not set forth the nature of the acts alleged to be lewd

and lascivious. The Court wrote:

                 The statute does not define with any certainty the crime, and the
               complaint should set forth the nature of the acts alleged to be
               ‘lewd’ and ‘lascivious’ with such particularity that it will clearly

                                                7
               appear upon the fact of the complaint whether their character is
               such as to come within those terms.

Id. at 96, 70 A.2d at 577. The Court reversed the conviction. The Ploof case is instructive in

determining the intentions of the Legislature—that § 8483 was intended to prohibit the

procurement or solicitation of a woman for lewdness as understood in the world of prostitution.

The case also established the need for a specific description of the lewd act, something the Court

found the statute itself did not provide. See also State v. Ryea, 97 Vt. 219, 219, 122 A. 422, 422

(1923) (noting prior law prohibiting “open and gross lewdness . . . does not define the crime with

any particularity”).

       ¶ 16.   The current law derives from 1947 V.S. ch. 370, and shows an attempt at

modernization. Chapter 59 of Title 13 now governs “Lewdness and Prostitution,” instead of

“Offenses Against Chastity and Morality.” 13 V.S.A. ch. 59. And, in response to modern mores,

the current chapter eliminates the subchapters criminalizing adultery, abortion, and obscene

books, pictures, and shows.

       ¶ 17.   More important, Subchapter 1 of Chapter 59 specifically governing “Lewd and

Indecent Conduct,” has been separated from Subchapter 2, covering “Prostitution.” 13 V.S.A. ch.

59. Within Subchapter 1, § 2601 prohibits lewd and lascivious conduct. Section 2602 governs

lewd or lascivious conduct with a child under sixteen.

       ¶ 18.   Then there is Subchapter 2: “Prostitution.” It is within this subchapter that we

find § 2632, criminalizing “Prohibited Acts.” Subchapter 2 begins with a definition section that

provides the same definitions of prostitution, assignation, and lewdness that were crafted initially

in 1919. Specifically: “As used in this chapter the term ‘lewdness’ shall be construed to mean

open and gross lewdness.” 13 V.S.A. § 2631. Apparently, the passage of years has not yielded a

more helpful definition of this criminal act.

       ¶ 19.   But the separation of the subchapters and the new title announces the focus of

Subchapter 2: Prostitution. See State v. Lynch, 137 Vt. 607, 613, 409 A.2d 1001, 1005 (1979)
                                                 8
(noting “caption is relevant in determining the legislative intent”). That Subchapter 2 is intended

solely to proscribe acts associated with prostitution is further evidenced by the other sections in

that subchapter, including one that limits probation or parole for a person infected with a

venereal disease, 13 V.S.A. § 2534; slave trafficking, id. § 2635; and pimping—otherwise

known as “appropriating or levying upon earnings of prostitute.” Id. § 2637. Distilling the

behaviors that society will not tolerate in this manner, and reading the subchapters in pari

materia, as parts of one system, the intent of the Legislature is more evident: Subchapter 1

governs lewd behavior, while Subchapter 2 governs prostitution.              That understanding is

consistent with a legislative history that sought to criminalize “offenses against chastity and

morality.”

       ¶ 20.   Our case law provides few interpretations of § 2632. In one such case, State v.

George, 157 Vt. 580, 602 A.2d 953 (1991), defendant was charged and convicted of soliciting a

female person for the purpose of prostitution pursuant to section 13 V.S.A. § 2632(a)(6). He

appealed his conviction claiming his prosecution violated both the Vermont and federal

constitution. He argued that the statute discriminated against heterosexual males because it

proscribes solicitation only of a female for prostitution by a male. The Court construed the

statute and held that the prohibition of § 2632(a)(6) extended to any “person” without regard to

gender. Id. at 585-86, 602 A.2d at 956. The Court further noted: “Prostitution by any person,

male or female, is prohibited by § 2632(a)(8) and aiding or abetting prostitution . . . is prohibited

by § 2632(a)(9).” Id.

       ¶ 21.   The legislative history and organization of Chapter 59 lead inescapably to the

conclusion that Subchapter 2 of Chapter 59 specifically governs the procurement or solicitation

of a person for the purpose of prostitution. It follows that § 2632(a)(8) prohibits procuring or

soliciting a person for lewd acts relating to prostitution. In this case, it was plain error to charge

obnoxious and unwelcome touching on the playground as an act of prostitution.

                                                  9
       ¶ 22.   Only once has this Court addressed community standards and “lewd” conduct in

relation to § 2632(a)(8), in In re A.C., 2012 VT 30, 191 Vt. 615, 48 A.3d 595. The procedural

history of the case demonstrates that § 2632(a)(8) was used as a catch-all for offenders who are

not charged under § 2601 and § 2602. See id. ¶ 5; see also State v. Belanus, 144 Vt. 166, 167,

475 A.2d 227, 227 (1984) (noting State agreed to reduced charge from violation of § 2602 to

violation of § 2632(a)(8) in plea deal); State v. Maunsell, 170 Vt. 543, 543-44, 743 A.2d 313,

313 (noting contemplated plea agreement would have reduced defendant’s violation from § 2601

to § 2632(a)(8)). In In re A.C., this Court upheld an adjudication of delinquency based on

prohibited acts pursuant to § 2632. 2012 VT 30, ¶ 22. In that matter, the State originally

brought a delinquency petition charging that A.C. had engaged in open and gross lewdness and

lascivious conduct pursuant to § 2601, based on evidence that he slid his hand up the skirt of a

classmate and touched her buttocks through her underwear. Id. ¶ 2. The trial court, sua sponte,

struck its conclusion that the State had proved lewd and lascivious conduct and instead held that

the State had established the misdemeanor of prohibited acts under § 2632. Id. ¶ 5. Both parties

acquiesced to the trial court’s amended finding, and the issue of the trial court’s substitution of a

different, lesser charge was not raised on appeal. Id. ¶ 6.

       ¶ 23.   On appeal, A.C. challenged the sufficiency of the evidence under § 2632, but did

not allege the statute was vague as applied. Id. The majority imported the standard applied

under § 2602, defining “lewd” as depending “ ‘on the nature and quality of the contact, judged

by community standards of morality and decency in light of all the surrounding circumstances,

accompanied by the requisite, specific lewd intent on the part of the defendant.’ ” Id. ¶ 18

(quoting State v. Squiers, 2006 VT 26, ¶ 11, 179 Vt. 388, 896 A.2d 80). As a result of the

procedural posture, the majority employed this definition without considering the legislative

history of § 2632, the lack of specific intent in the text of § 2632, or the omission of “lascivious”

from § 2632. The concurrence, however, recognized that the trial court did not specify what

                                                 10
prohibited act it found supported by the evidence and surmised that the trial court landed on

“lewdness” from the section that focused on prostitution, which was, “to put it mildly, a stretch.”

Id. ¶ 27 (Skoglund, J., concurring).

       ¶ 24.   This case again presents a distorted use of § 2632. Under the facts before us,

moreover, there was another charging option; the prosecution could have brought a delinquency

petition based on a claimed violation of § 2602, which states, “No person shall willfully and

lewdly commit any lewd or lascivious act upon . . . a child under the age of 16 years, with the

intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person

or of such child.” 13 V.S.A. § 3602. It is conceivable that the State thought it too difficult to

prove one of the elements of that offense—that of appealing to or gratifying one’s sexual desires.

See State v. Wiley, 2007 VT 13, ¶ 11, 181 Vt. 300, 917 A.2d 501 (“[L]ewd and lascivious

conduct includes the element of appealing to or gratifying one’s sexual desires.”). With a twelve

year old perpetrator, it could be difficult identifying his lusts, passions, or sexual desires. See,

e.g., Roper v. Simmons, 543 U.S. 551, 569 (2005) (noting scientific consensus that juvenile

conduct is frequently “impetuous and ill-considered” (quotation omitted)). However, the State

chose to charge K.A. under an inapplicable statute.

       ¶ 25.   K.A. did not commit a delinquent act of prostitution. The use of § 2632 in this

case is an example of prosecutorial discretion gone awry. As noted by the dissent in In re P.M.,

“Discretion to prosecute persons who have committed crimes is one thing; prosecutorial

discretion to decide whether conduct is criminal in the first instance is another. The latter invites

arbitrary enforcement and contravenes the separation of powers inherent in our constitutional

government.” 156 Vt. at 315, 592 A.2d at. 868 (Dooley, J., dissenting).

       The judgment of delinquency is reversed.



                                                Associate Justice

                                                 11
