State v. DEVOID

2010 VT 86, 8 A.3d 1076, 188 Vt. 445, 2010 Vt. LEXIS 85

• Court: Supreme Court of Vermont
• Decided: September 17, 2010
• Docket: 2009-208
• Status: Published

Opinions

Dooley, J.

¶ 1. Defendant Carl Devoid, Jr. appeals his jury conviction for attempted voyeurism, a crime that the State did not originally charge, but that the court instructed the jury could find was committed. Among other arguments, defendant contends that the evidence at trial does not support the conviction. We agree and reverse.

¶2. Complainant resides on the second floor of an apartment building located in a secluded area in Colchester, Vermont. There is a window in her bathroom shower that overlooks a parking lot used by residents of the building. The bottom of the window is at the level of complainant’s mid-chest. When complainant moved in, her landlord suggested that she cover the window with a shower curtain to protect the window from water damage. Complainant, however, did not do so. She did not think anyone could see her through the window.

¶ 3. Defendant is complainant’s neighbor who resides on the first floor. He can hear complainant’s shower turn on and off from his apartment. On September 1, 2008, complainant saw defendant for a few moments while he stood in the parking lot looking at her bathroom window as she was showering. On September 15, 2008, complainant again saw defendant standing in the parking lot looking at her bathroom window while she was in the shower. This time, defendant stared at her window for three minutes with a hand on his crotch. Complainant left the shower, went into her bedroom and took a picture of defendant — still looking up with a hand on his crotch — with her cell phone.

¶ 4. Later that day, complainant asked her roommate — who is the same height as complainant — to stand in her shower. Meanwhile, complainant went to the parking lot and looked up at her bathroom window to determine whether anyone could see her from the ground. The parties disagree on what complainant saw when she looked up at her window and whether defendant could see any part of complainant’s body that is protected by the voyeurism statute.

¶ 5. On September 16, 2008, complainant reported the incident, and the State charged defendant with voyeurism “by viewing [complainant] . . . through a window while she was showering in the privacy of her home” in violation of 13 V.S.A. § 2605(b)(1). The statute provides in relevant part that “[n]o person shall intentionally view . . . the intimate areas of another person without that person’s knowledge and consent while the person being viewed . . . is in a place where he or she would have a reasonable expectation of privacy.” 13 V.S.A. § 2605(b)(1). The statute further defines “view” as “the intentional looking upon another person for more than a brief period of time, in other than a casual or cursory manner,” and states that the term “intimate areas” includes a “female breast,” which is defined as “any portion of the female breast below the top of the areola.” Id. § 2605(a)(2), (4), (7).

¶ 6. The case went to trial, and defense counsel moved for judgment of acquittal, arguing that the evidence was insufficient to conclude either that defendant intended to view the intimate areas of complainant’s body or that defendant did view those areas. The court denied the motion and submitted the case to the jury. During deliberations, the jury sent a note to the judge that read: “If we think that he is guilty of trying; but was not able to see her nipples. What kind of verdict do we give? We have not proven that he saw anything. But we believe he was trying.” In response, the judge, over defendant’s objection, issued the following supplemental instruction on attempt:

Under Vermont law, a person who attempts to commit an offense and does an act toward the commission thereof, but by reason of being interrupted or prevented in the execution of the same, may be found guilty of the offense charged if the jury finds, beyond a reasonable doubt, that the attempt to commit the offense was made.

¶ 7. The jury then asked the judge to clarify whether “by reason of being interrupted or prevented in the execution of the same” could mean a physical block, such as a windowsill, rather than an occurrence whereby someone physically prevented commission of the act. The judge did not give a direct answer, but instead cited a case that discusses the elements of attempt. The jury returned a verdict finding defendant guilty of attempted voyeurism. Defendant renewed his motion for judgment of acquittal, arguing that the evidence presented at trial was insufficient for a conviction of attempted voyeurism, and that the supplemental instructions were prejudicial to him. The court denied defendant’s motion. The court held that the evidence that defendant looked up at complainant’s window for three minutes while holding his crotch was sufficient to support a conviction for attempted voyeurism, and that the timing of the supplemental instructions was not prejudicial to defendant. This appeal followed.

¶ 8. On appeal, defendant argues that the trial court erred by giving supplemental instructions to the jury, by denying defendant’s motion for acquittal, and by admitting evidence of a prior bad act — defendant’s first alleged viewing of complainant. We first consider whether the evidence was sufficient to support the attempted voyeurism conviction. We hold that the evidence was insufficient and, therefore, reverse the conviction without reaching the other appeal issues.

¶ 9. When reviewing a denial of motion for judgment of acquittal, we view the evidence “in the light most favorable to the prosecution, . . . and determine whether the State’s evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt.” State v. Lemay, 2006 VT 76, ¶ 11, 180 Vt. 133, 908 A.2d 430 (quotation omitted). Defendant claims he was entitled to judgment of acquittal because the State provided no evidence from which the jury could reasonably conclude that: (1) he intended to view complainant’s intimate areas; (2) his actions constituted an overt act of attempt; (3) he was interrupted or prevented from committing the act, other than by physical impossibility; and (4) complainant had a reasonable expectation of privacy. Specifically, defendant argues that given the impossibility of his being able to see complainant’s intimate areas from his vantage point on the ground, his act of merely looking at her window did not constitute an attempt. We agree that the evidence, taken in the light most favorable to the State, fails to support the charge of attempted voyeurism.

¶ 10. Vermont’s attempt statute provides that “[a] person who attempts to commit an offense and does an act toward the commission thereof, but by reason of being interrupted or prevented fails in the execution of the same, shall be punished as herein provided.” 13 V.S.A. § 9(a). As we have previously held, two elements¹ required for attempt are: (1) intent to commit a certain crime; and (2) “ ‘an overt act designed to carry out that intent.’ ” State v. Synnott, 2005 VT 19, ¶22, 178 Vt. 66, 872 A.2d 874 (quoting State v. McGee, 163 Vt. 162, 165, 655 A.2d 729, 732 (1995)).

¶ 11. An overt act must advance beyond mere intent and “reach far enough toward accomplishing the desired result to amount to the commencement of the consummation.” Id. (quotation omitted). Preparation counts as an act if it “would be likely to end, if not extraneously interrupted, in the consummation of the crime intended.” State v. Hurley, 79 Vt. 28, 31, 64 A. 78, 78 (1906). Once an actor commits an overt act, “the offense is complete, and abandonment of the enterprise does not negate guilt.” Synnott, 2005 VT 19, ¶ 22.

¶ 12. Here, the alleged overt act committed by defendant is standing on the ground, staring at complainant’s second-floor bathroom window for three minutes with a hand on his crotch. The key point of disagreement is whether defendant was able to see complainant’s intimate areas, as defined by the voyeurism statute, from his location on the ground. The State asserts that defendant could and did; defendant contends that he could not. Based on our review of the jury’s conclusions and the evidence, we agree with defendant.

¶ 13. At trial, complainant agreed, in response to the prosecutor’s question, that the bottom of the window was at her “mid-chest area,” without specifying whether the intimate areas protected by the voyeurism statute were lower or higher than the windowsill. She also testified that she observed her roommate at the window from defendant’s vantage point, but the prosecution did not ask whether she could see an intimate area of her roommate’s body as defined by the voyeurism statute. Other evidence on this issue includes a picture taken from inside of complainant’s bathroom that shows complainant standing in front of her bathroom window. This picture clearly demonstrates that intimate areas of complainant are lower than the windowsill. We must conclude from this evidence that the jury could not find that defendant could see intimate areas of complainant’s body, as defined by the statute, particularly given that complainant’s shower was located on the second floor and defendant was looking at her bathroom window from the ground. Obviously, the jury agreed. The jury’s notes to the judge indicate that the jurors concluded that the State had failed to prove that defendant was able to see an intimate area of complainant’s body from his vantage point. Thus, even when viewed most favorably to the State, the evidence reveals that the window was too high to allow defendant to see any intimate areas of complainant’s body.

¶ 14. The critical question before us, then, is whether, given defendant’s inability to see complainant’s intimate areas, the jurors could still find him guilty of attempted voyeurism. We hold that they could not, as his actions did not constitute an overt act of attempted voyeurism and the State could not prove the requisite intent.

¶ 15. An overt act of attempted voyeurism requires an action that “would be likely to end” in acquiring a view of complainant’s intimate areas. See Hurley, 79 Vt. at 31, 64 A. at 78. Here, because defendant was unable to see complainant’s intimate areas from his position on the ground, his actions of standing and looking would not be likely to end “in the consummation of the crime intended.” See id. Had he attempted to elevate himself from the ground to a position from which he would be able to gain a view of complainant’s intimate areas, this case would be different. The act of merely looking at complainant’s window from a place where no view of her intimate areas was possible, however, is insufficient for the jury to find defendant guilty of attempted voyeurism. Cf. State v. Boutin, 133 Vt. 531, 533, 346 A.2d 531, 532 (1975) (noting that “the holding of a bottle in one hand ten feet from the intended victim does not make it likely to end in the consummation” of an assault); State v. Woodmansee, 124 Vt. 387, 391, 205 A.2d 407, 410 (1964) (holding that attempt to commit arson took place where defendant was “kneeling in the middle of the kitchen floor, matches in hand, together with a cone-shaped roll of newspaper, with a jar of paint thinner beside him and in the presence of a strong odor of gasoline,” and where “the striking of a match would have . . . consummated the crime”); Hurley, 79 Vt. at 33, 64 A. at 79 (holding that procurement of tools for jail breaking did not constitute an overt act of an attempt to break jail).

¶ 16. The State’s theory in this case is that defendant’s looking at the window is a sufficient overt act. There are significant difficulties with this theory. Under it, any looking in the direction of a person known to be naked is an overt act even if the person were fully behind a wall. Because defendant could not see the intimate areas of complainant’s body and must have been aware of that circumstance, we cannot distinguish between desire to view those intimate areas and intent to do so. Thus, the alleged overt act is not corroborative of defendant’s criminal purpose. See Model Penal Code § 5.01(2) (for conduct to be a “substantial step” to commission of the crime, the conduct must be “strongly corroborative of the actor’s criminal purpose.”).

¶ 17. For related reasons, we do not believe that the State has provided sufficient evidence of defendant’s intent to view complainant’s intimate areas as required for a criminal attempt. Defendant apparently obtains sexual gratification from watching the upper body of a woman he believes is naked, and we can infer from that fact that he would like to see her naked. We cannot infer from the facts in the record, however, that he had the intent to commit voyeurism or would have committed that crime. As Professor LaFave notes in discussing the interrelationship between impossibility and intent, “a defendant’s declared intent to kill another person may be put in doubt if he only attacks with a small switch.” 2 W. LaFave, Substantive Criminal Law § 11.5, at *2 (2009).

¶ 18. Defendant has argued that commission of the crime of voyeurism was impossible, and we should hold that impossibility is a complete defense to the intent crime. This argument is superficially attractive because the facts demonstrate that it was impossible for defendant to view complainant’s intimate areas. In State v. Curtis, however, we considered and rejected the availability of an impossibility defense in a case where defendant shot at a deer decoy, believing it was a deer, and was charged with attempt to shoot a live deer out of season. 157 Vt. 629, 603 A.2d 356 (1991). We noted that defendant’s behavior demonstrated the intent to shoot a deer out of season and that he performed an overt act towards commission of the crime. Id. at 631, 603 A.2d at 358. We concluded that “[h]is conduct went as far as it could in achieving the goal of taking a wild deer out of season.” Id. In holding that defendant could be convicted of attempt even though it was impossible for him to kill a live deer by his action, we held that he had been “prevented” from shooting a live deer only by the trick of the game warden and the situation was indistinguishable from one in which a live deer was made a decoy but protected from being killed. Id. at 632, 603 A.2d at 358. We added that the trend in the states, and in the Model Penal Code, was to eliminate impossibility as a defense to an attempt. Id. at 632-33, 603 A.2d at 358-59. We also added that defendant’s conduct was unequivocal and did not evidence an intent “to do both a legal and an illegal act.” Id. at 634, 603 A.2d at 359.

¶ 19. As Curtis states, the modern trend has been to eliminate impossibility as a defense in attempt cases. Thus, it is important to distinguish Curtis and attempt cases involving impossibility generally. Like virtually all attempt cases where impossibility is raised as a defense, Curtis involved a defendant who was trying to commit a completed crime but was mistaken about law or fact such that the defendant could not commit the crime. See 1 A.L.I., Model Penal Code and Commentaries § 5.01 cmt. 3, at 307 (1985) (Code addresses impossibility by measuring defendant’s conduct “according to the circumstances as he believes them to be, rather than the circumstances as they may have existed in fact.”); J. Hasnas, Once More Unto the Breach: The Inherent Liberalism of the Criminal Law and Liability for Attempting the Impossible, 54 Hastings L.J. 1, 1-3 (2002) (using mistake hypothetical to explain the impossibility defense); P. Westen, Impossibility Attempts: A Speculative Thesis, 5 Ohio St. J. Crim. L. 523, 528 (2008) (A criminal undertaking fails because of impossibility when “though the actor would be committing a crime if he did everything he intends under the conditions that he believes exist at the time, what he actually does — or what he would do if he fully acted on his intent — is not the offense he intends to commit, because the conditions are not what he believes them to be.”). In Curtis, defendant was mistaken in his belief that his target was a live deer, but his intent to commit a crime was clear. Here, there was no mistake; defendant necessarily knew that he could not complete the crime, and thus his conduct was equivocal. As a result, this case lacks the criminal culpability apparent in Curtis,² Despite the superficial similarity, this is not an impossibility case like Curtis; the rejection of impossibility as a defense in Curtis does not affect our analysis here.

¶20. We hold that in this case the evidence presented did not “sufficiently and fairly” support a verdict of guilt of attempt to commit voyeurism. For that reason, the motion for judgment of acquittal should have been granted.

Reversed.

1 Defendant argues that there is a third element in the statutory language, that defendant failed in the execution of the crime “by reason of being interrupted or prevented.” As we quote in the text, the decision in State v. Hurley distinguishes preparation for a crime from an attempt to commit a crime, stating that the preparation “must be such as would be likely to end, if not extraneously interrupted, in the consummation of the crime intended.” 79 Vt. 28, 31, 64 A. 78, 78 (1906) (emphasis added). This quotation suggests that extraneous interruption or prevention is a prerequisite for the offense. In State u Curtis, we considered this language in a case where defendant was convicted of attempting to kill a deer out of season when he shot at a wooden deer decoy. 157 Vt. 629, 603 A.2d 356 (1991). We held that defendant was “ 'prevented’ from shooting a wild deer because he was tricked into shooting a decoy.” Id. at 632, 603 A.2d at 358.

Despite these discussions of interruption and prevention, we ruled in State v. Brown, 153 Vt. 263, 272, 571 A.2d 643, 648 (1989), that failure to include an allegation of interruption or prevention in the information was not fatal to the charge. We noted in a footnote that the Wisconsin Supreme Court had ruled that similar language in its statute did not add an element to the crime of attempt. Id. (citing Berry v. State, 280 N.W.2d 204, 209 (Wis. 1979)).

Because of our disposition, we do not examine whether the language contains an additional element or, if so, how it would apply in this case.

2 Curtis notes that the Model Penal Code rejected the impossibility defense to an attempt, suggesting that the defendant in Curtis would have been guilty under the Model Penal Code definition. 157 Vt. at 633-34, 603 A.2d at 359. Here, we note the opposite. Despite the Model Penal Code’s rejection of an impossibility defense, defendant in this case would not be guilty under the Code’s definition of the crime of attempt, see Model Penal Code § 5.01(l)(a)-(c), primarily because there is no difference between the circumstances as defendant believes them to be and the circumstances in fact, see A.L.I., supra, cmt. 3, at 307.