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State v. Purvis

Supreme Court of Vermont
Dec 13, 1985
146 Vt. 441 (Vt. 1985)

Summary

holding criminal intent under statute prohibiting lewd and lascivious conduct implicated where, in deference to the "common sense of the community," factors including the defendant's "intentional public exposure of himself, with a view to excite unchaste feelings and passions . . . calculated to outrage the feelings of the person, to whom he thus exposed himself," as opposed to mere nudity, made his conduct punishable

Summary of this case from State v. Squiers

Opinion

No. 84-470

Opinion Filed December 13, 1985

1. Appeal and Error — Interlocutory Review — Constitutional Questions

Where trial court denied defendant's motion to dismiss criminal complaint and defendant raised constitutional challenge to statute, interlocutory review was not inappropriate since parties had stipulated to factual context within which certified question arose.

2. Constitutional Law — Void-for-Vagueness Doctrine — Elements

Void-for-vagueness doctrine stresses two aspects: (1) fair warning to potential offenders that their conduct is proscribed; and (2) sufficiently precise standards to avoid arbitrary and discriminatory enforcement.

3. Constitutional Law — Void-for-Vagueness Doctrine — Lewd and Lascivious Behavior

Where defendant was prosecuted under 13 V.S.A. § 2601 for lewd and lascivious behavior based on charge that he exposed himself to three young girls between ages of 11 and 14 from window of his house as they were walking home from school, defendant was not being prosecuted for mere nudity since facts revealed that he intentionally drew attention to himself before exposing himself; thus, statute was upheld against vagueness challenge based on contention that terms "lascivious" and "lewd" are not defined.

Interlocutory appeal by defendant from denial of motion to dismiss complaint charging him with lewd and lascivious conduct in violation of 13 V.S.A. § 2601 and raising constitutional challenge to statute. District Court, Unit No. 2, Chittenden Circuit, Levitt, J., presiding. Certified question answered in negative.

Robert Andres, Chittenden County Deputy State's Attorney, and Jeff Maskowitz, Law Clerk (On the Brief), Burlington, for Plaintiff-Appellee.

David Carpenter, Appellate Defender, Montpelier, for Defendant-Appellant.

Present: Allen, C.J., Hill, Peck, Gibson and Hayes, JJ.


This interlocutory appeal comes to us on report pursuant to V.R.A.P. 5(a) from the district court's denial of defendant's motion to dismiss the State's complaint charging him with lewd and lascivious conduct in violation of 13 V.S.A. § 2601. The question of law sought to be reviewed is as follows: Whether, as applied to the facts of this case, 13 V.S.A. § 2601 is unconstitutionally vague under the United States and Vermont Constitutions. We answer this certified question in the negative.

The State first argues that interlocutory review is inappropriate here because "factual distinctions could control the result." This contention is plainly without merit. In State v. Elwell, 131 Vt. 245, 247, 303 A.2d 134, 135 (1973), we noted that we would only rule on the constitutionality of a statute in the context of "the factual situation in the case out of which it arises." In this case, however, the parties have stipulated to the factual context within which we decide the certified question before us.

To briefly summarize, three young girls between the ages of 11 and 14 attested that the defendant exposed himself to them from a window of his house as they were walking home from school. According to two of the girls, the defendant knocked on his window to attract their attention before he revealed himself.

The statutue at issue here provides:

A person guilty of open and gross lewdness and lascivious behavior shall be imprisoned not more than five years or fined not more than $300.00, or both.

13 V.S.A. § 2601. As the defendant rightly points out, the terms "lascivious" and "lewdness" are, for all practical purposes, not defined by statute.

The void-for-vagueness doctrine stresses two aspects: (1) fair warning to potential offenders that their conduct is proscribed; and (2) sufficiently precise standards to avoid arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U.S. 352, 357 (1983) (stop and identify statute, which vests virtually complete discretion in hands of police to determine whether suspect provides "credible and reliable" identification, held unconstitutional); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 67 n.3 (1960). The defendant focuses on the second component of the void-for-vagueness doctrine, claiming that the statute permits a "standardless sweep" proscribing, as this case allegedly demonstrates, mere nudity. We disagree with the defendant's analysis primarily because we reject his characterization of the facts.

In State v. Millard, 18 Vt. 574, 577 (1846), this Court upheld the constitutionality of a statute very similar to the one that is now before the Court. Although the Millard Court declined to define what constitutes lewd and lascivious conduct, deferring instead to the common sense of the community, it did identify factors which rendered the defendant's conduct "lascivious . . . beyond question." Id. It was the intentional public exposure of himself, "with a view to excite unchaste feelings and passions . . . calculated to outrage the feelings of the person, to whom he thus exposed himself" that made his conduct punishable under the statute. Id. at 577-78.

This defendant is not being prosecuted for mere nudity. The facts, as stipulated to, reveal that he intentionally drew attention to himself before he exposed himself to the complainant. The criminal intent identified by the Court in Millard is thus present here, and we have no trouble concluding that the statute is sufficiently certain to inform a person of reasonable intelligence that this type of conduct is proscribed. See State v. Roy, 140 Vt. 219, 229, 436 A.2d 1090, 1095 (1981) (court rejected vagueness challenge to statute prohibiting lewd and lascivious conduct upon a child). Since "[v]agueness challenges to statutes not involving First Amendment freedoms must be examined in light of the facts" presented, id., we need not decide whether this statute passes constitutional muster under all possible applications.

The certified question for review is answered in the negative.


Summaries of

State v. Purvis

Supreme Court of Vermont
Dec 13, 1985
146 Vt. 441 (Vt. 1985)

holding criminal intent under statute prohibiting lewd and lascivious conduct implicated where, in deference to the "common sense of the community," factors including the defendant's "intentional public exposure of himself, with a view to excite unchaste feelings and passions . . . calculated to outrage the feelings of the person, to whom he thus exposed himself," as opposed to mere nudity, made his conduct punishable

Summary of this case from State v. Squiers

rejecting argument that § 2601 was being applied arbitrarily to punish defendant for mere nudity, where defendant deliberately exposed himself to three young girls and such conduct was lascivious beyond question

Summary of this case from In re A.P.

rejecting vagueness challenge to § 2601 where defendant knocked on window to attract attention of three young girls walking by his house and exposed himself to them

Summary of this case from In re A.P.

recognizing that no precise definition of the offense exists even though some cases have identified various factors that render certain conduct lascivious "beyond question"

Summary of this case from State v. Penn

explaining that this Court has declined to define lewd and lascivious conduct, "deferring instead to the common sense of the community"

Summary of this case from State v. Discola

complaining witnesses were walking home from school when defendant exposed himself from window of his house

Summary of this case from State v. Synnott
Case details for

State v. Purvis

Case Details

Full title:State of Vermont v. Joseph Purvis

Court:Supreme Court of Vermont

Date published: Dec 13, 1985

Citations

146 Vt. 441 (Vt. 1985)
505 A.2d 1205

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In re A.P.

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