Background
Dean Lovejoy was charged in February 2022 with lewd or lascivious conduct with a child under 13 V.S.A. § 2602(a)(1). The charges alleged that between January 2018 and December 2019, Lovejoy touched and rubbed his nine-year-old step-daughter J.B.’s buttocks, thighs, and legs without consent. A jury convicted him in July 2024.
On appeal, Lovejoy raised two arguments: first, that the evidence was insufficient to prove beyond a reasonable doubt that his conduct was lewd and that he acted with the requisite intent to gratify lust or sexual desires; and second, that the trial court erred by denying his request for a jury instruction on the lesser-included offense of open and gross lewdness under 13 V.S.A. § 2601a(a).
The Court’s Holding
The Vermont Supreme Court affirmed the conviction on both grounds. On sufficiency of evidence, the court found substantial proof of both lewdness and intent. The victim testified that Lovejoy touched her buttocks, thighs, and legs three to four times per week over two years, often reaching under her pants and underwear. He concealed this behavior from her mother and, when questioned by police, initially denied the touching before gradually admitting to it. Critically, Lovejoy told the investigating officer that the touching made him feel “terrible,” that it “wasn’t right,” and that he stopped because she “felt like a daughter to him.” By contrast, Lovejoy testified that he hugged and showed affection toward his three biological sons but touched their bottoms only when they were infants, stopping by age three or four. The court held that this pattern of behavior—ongoing abuse of only his step-daughter, concealment, and his own admissions—furnished sufficient circumstantial evidence for a jury to infer that he acted with intent to gratify his sexual desires.
On the lesser-included offense issue, the court clarified Vermont’s lewdness statutes. Section 2602(a)(1) requires proof of a “lewd or lascivious act” (joined by “or”), while § 2601a(a) requires proof of “open and gross lewdness.” The court held that these are not the same—the Legislature used distinct language advisedly. “Lascivious” means tending to excite lust, while “lewd” means obscene or indecent. The use of “any” before “lewd or lascivious act” in § 2602(a)(1) indicates the Legislature did not intend to require proof that the act was “open” or “gross.” Because § 2601a(a) requires elements—specifically, that the act be open and gross—not present in § 2602(a)(1), the lesser offense is not properly submitted to a jury when charging the greater offense.
Key Takeaways
- Intent to gratify sexual desires need not be proven by explicit contemporaneous statements; circumstantial evidence suffices, including the defendant’s actions, concealment efforts, and post-hoc admissions.
- A pattern of selective abuse—targeting only a particular child while treating other children differently—supports an inference that the conduct was sexual rather than innocent familial affection.
- Under § 2602(a)(1), the State must prove the defendant committed either a lewd act or a lascivious act, not necessarily both; these are separate grounds for conviction.
- The requirement in § 2601a(a) that lewdness be “open and gross” is a distinct element not required under § 2602(a)(1); child sexual abuse statutes protect children even from non-public or less severe acts if done with sexual intent.
- Courts must respect the Legislature’s specific word choices, including the use of “or” versus “and,” the inclusion of limiting terms like “open and gross,” and the presence or absence of modifiers like “any.”
Why It Matters
This decision clarifies the breadth of Vermont’s child sexual abuse statute and limits avenues for defendants to obtain favorable jury instructions through lesser-included offenses. By holding that intent can be proven through circumstantial evidence and pattern evidence—such as selective abuse and concealment—the court makes convictions more attainable for prosecutors. The decision also establishes that the “lewd or lascivious” prohibition in § 2602(a)(1) does not require the conduct to be open, gross, or even explicitly sexual in nature, so long as the defendant acted with intent to gratify lust or sexual desires.
For practitioners, the decision underscores the interpretive principle that statutory language matters. The Legislature’s choice to use “or” rather than “and,” to include the word “any,” and to separately define what “open and gross” means in related statutes all carry significance. Courts will not collapse distinct statutory crimes into lesser-included relationships simply because they share some elements or prohibit similar conduct.