Date: Jun 19, 2026

State v. Lovejoy (2026 VT 26): “Open and Gross Lewdness” Is Not a Lesser-Included Offense of § 2602(a)(1), and “Lewd or Lascivious” Is Disjunctive

I. Introduction

In State v. Dean A. Lovejoy, the Vermont Supreme Court affirmed a jury conviction for lewd or lascivious conduct with a child under 13 V.S.A. § 2602(a)(1). The case arose from allegations that Lovejoy repeatedly touched his step-daughter J.B.’s buttocks—under her pants and underwear—between 2018 and 2019, when she was under sixteen.

On appeal, Lovejoy raised two issues:

Sufficiency of the evidence: whether the State proved beyond a reasonable doubt that the touching was “lewd” and done with the specific sexual-gratification intent required by § 2602(a)(1).
Lesser-included instruction: whether the trial court was required to instruct on 13 V.S.A. § 2601a(a) (“open and gross lewdness”) as a lesser-included offense of § 2602(a)(1).

The Court rejected both claims. The second holding—clarifying the element-by-element relationship between § 2602(a)(1) and § 2601a(a), and emphasizing the Legislature’s choice of “lewd or lascivious”—is the opinion’s most significant doctrinal contribution.

II. Summary of the Opinion

Sufficiency: Affirmed. Viewing the evidence in the light most favorable to the State, the jury could rationally infer that defendant’s repeated, concealed, under-clothing touching of a child’s buttocks was lewd and performed with the intent to gratify lust, passions, or sexual desires.
Lesser-included instruction: Affirmed. Section 2601a(a) is not a lesser-included offense of § 2602(a)(1) because § 2601a(a) contains elements not required for § 2602(a)(1), including that the conduct be “open and gross”. The Court further underscores that § 2602(a)(1) requires proof of a lewd or lascivious act, not both.

Justice Drescher concurred, agreeing with the result but questioning whether a “lascivious” act satisfying § 2602(a)(1) could ever fail to be “lewd” in practice; the concurrence deemed that question unnecessary given the independent “open and gross” element problem.

III. Analysis

A. Precedents Cited

1. Sufficiency of the evidence and circumstantial intent

State v. Anderkin: Reiterates the bedrock rule that the State must prove each element beyond a reasonable doubt, framing the sufficiency inquiry.
State v. Cameron and State v. Davis: Supply the deferential appellate standard for Rule 29 denials: evidence is viewed in the light most favorable to the State, and acquittal is warranted only where there is “no evidence” supporting guilt.
State v. Perrault: Authorizes juries to draw rational inferences from circumstantial evidence on disputed ultimate facts, supporting the Court’s willingness to rely on patterns of conduct and concealment.
State v. Downing, State v. Bourgoin, and State v. Cole: Establish that intent is rarely proven directly and may be inferred from a defendant’s acts—critical given defendant’s denial of arousal.
State v. Welch and State v. Squiers: Explain that sexual-gratification motive/intent is typically circumstantial, and that the factfinder may consider context such as relationship, concealment, and efforts to avoid detection.
State v. Caballero: Reaffirms that § 2602(a)(1)’s intent can be inferred from acts and circumstances; direct admissions are not required.
State .v Hoch: Used as an analogy—frequent inappropriate touching plus “avoid detection” behavior can support intent; contemporaneous lewd statements are not indispensable.
State v. Gibney: Confines sufficiency review to the State-favorable view of evidence and excludes “modifying” evidence (e.g., defendant’s innocent explanation) from the appellate calculus.
In re A.P.: Provides a dictionary-based definition of “lewd” (“obscene or indecent,” “tending to moral impurity or wantonness”), informing the Court’s treatment of “lewd” as a concept the jury may apply to the proven conduct.

2. Lesser-included offenses and element comparison

State v. Delisle and 13 V.S.A. § 14(a): Recognize the general entitlement to lesser-included instructions when requested and supported by evidence.
State v. Bean, State v. Corliss, and State v. Russo: Provide the controlling “elements test”: the lesser offense must be composed exclusively of elements of the greater; if the purported lesser contains any additional element, no instruction is required.

3. Statutory interpretation: plain meaning, structure, surplusage, and legislative awareness

State v. Hale, State v. Stell, and State v. DeRosa: Anchor the Court’s insistence on plain statutory language—especially the significance of the Legislature’s choice of “or” rather than “and,” and the presumption that words are used “advisedly.”
State v. Phillips: Cited for the proposition that the elements of §§ 2601 and 2601a(a) are not equivalent, supporting the statutory hierarchy the Court relies upon.
State v. Beaudoin: The central precedent for Part II.B. It held (in a related statutory context) that § 2602(a)(1)’s reference to “any lewd or lascivious act” does not import an “open and gross” requirement. Lovejoy reaffirms and extends that reasoning to § 2601a(a).
State v. Memoli, State v. Discola, In re A.C., and In re A.P.: Define and apply “open and gross” concepts, including the broad meaning of “open” (presence of at least one witness, including the complainant).
State v. Morrill: Supplies the anti-surplusage canon—courts should avoid constructions that render statutory words ineffective or superfluous.
State v. Read and Notte v. Rutland R. Co.: Support the idea that the Legislature legislates against the backdrop of existing statutes and judicial constructions; this informs the Court’s response to defendant’s legislative-history argument.
In re K.A.: Raised by defendant to suggest the Legislature enacted § 2601a(a) in response to prosecutorial overreach; the Court holds that, regardless, the Legislature chose the “open and gross” formulation, keeping Beaudoin’s plain-language logic in force.
State v. Penn and State v. Benoit: Appear in the Court’s discussion of openness/witnessing in other lewdness contexts and illustrate why the Legislature might require openness in some crimes but not in child-exploitation offenses.

B. Legal Reasoning

1. Sufficiency: the Court’s inferential chain

Applying State v. Cameron’s deferential standard, the Court held that the jury could infer lewdness and sexual intent from: repeated under-clothing touching of the child’s buttocks; frequency over months; defendant’s situational selection (touching when alone); concealment (removing hand when the mother approached); shifting denials to police; and defendant’s own admissions that the conduct was “wrong,” that he was “crossing a boundary,” and that he “shouldn’t do this.”

The Court treated the sexual-intent element as a paradigmatic circumstantial-proof issue under State v. Downing, State v. Bourgoin, and State v. Welch. It also rejected the argument that “contemporary statements” expressing sexual purpose are required, noting State v. Caballero and analogizing to State .v Hoch.

2. Lesser-included offense: a strict elements analysis driven by statutory text

The Court’s lesser-included analysis is built on State v. Bean/State v. Corliss/State v. Russo: compare statutory elements; if the proposed “lesser” contains any element not necessarily proven by the “greater,” no instruction is required.

(a) “Lewd or lascivious” is disjunctive in § 2602(a)(1)

In Part II.A., the Court emphasizes that § 2602(a)(1) uses “lewd or lascivious,” not “lewd and lascivious,” and that courts must respect that choice under plain-meaning principles (State v. Hale; State v. DeRosa). It also reads the broader statutory landscape as reflecting a hierarchy: § 2601 (felony) includes “lascivious” language and higher penalties, while § 2601a(a) (misdemeanor) addresses “open and gross lewdness” alone—suggesting the Legislature treated “lewd” and “lascivious” as distinct concepts (with support from In re A.P. and State v. Phillips).

The Court also confronts an argument that the adverb “lewdly” (“willfully and lewdly commit any lewd or lascivious act”) collapses the disjunction. It rejects that reading: “lewdly” modifies the manner of commission, and cannot rewrite “or” into “and.”

(b) “Open and gross” are extra elements not required by § 2602(a)(1)

In Part II.B., the Court provides an independent and sufficient basis for its holding: § 2601a(a) requires “open and gross” lewdness, while § 2602(a)(1) criminalizes “any lewd or lascivious act” against a child with specific sexual intent. Reaffirming State v. Beaudoin, the Court reads “any” as negating an “open and gross” limitation: child-exploitation acts can be secret, unwitnessed in the ordinary sense, or perpetrated on a sleeping or unconscious child, and the statute is written to reach them.

The Court also uses the anti-surplusage canon (State v. Morrill): if § 2602(a)(1) implicitly required “open and gross,” the Legislature’s explicit insertion of “open and gross” in § 2601a(a) would be pointless.

C. Impact

Jury-instruction practice: The decision substantially narrows defendants’ ability to seek compromise verdicts by demanding a § 2601a(a) lesser-included instruction in § 2602(a)(1) prosecutions. Trial courts can deny such requests as a matter of law based on element mismatch (“open and gross”).
Charging strategy: Prosecutors must charge § 2601a(a) separately if they want it as an option; it will not automatically ride along as a lesser-included of § 2602(a)(1).
Statutory clarity: The Court’s emphasis that § 2602(a)(1) is “lewd or lascivious” (and that prior references to “lewd and lascivious” were misquotes) may influence pattern instructions, briefing conventions, and future disputes over what counts as “lascivious” independent of “lewd.”
Sufficiency litigation: The opinion reinforces that repetitive secret touching and concealment behavior can support an inference of sexual intent even without explicit sexual statements, strengthening the State’s position in circumstantial-intent cases.

IV. Complex Concepts Simplified

Motion for judgment of acquittal (V.R.Cr.P. 29): A request for the judge to end the case because the evidence is legally insufficient. On appeal, courts do not reweigh credibility; they ask whether any reasonable jury could find guilt beyond a reasonable doubt viewing the evidence favorably to the State.
Specific intent under § 2602(a)(1): The State must prove not merely the touching, but that it was done with the intent of arousing or gratifying sexual desire. Because intent is internal, it is usually proven by circumstances (what was touched, how, how often, secrecy, concealment, admissions).
Lesser-included offense: A “smaller” crime contained within a “bigger” one. Vermont uses a strict elements test: the “lesser” must not contain any element that the “greater” does not always require. If the “lesser” has an extra requirement (here, “open and gross”), it is not lesser-included—even if the facts of a particular case might satisfy it.
“Open and gross lewdness”: A distinct statutory concept. “Open” has been defined broadly to include conduct done in the presence of at least one witness (sometimes the complainant alone), and “gross” means patently offensive. Lovejoy holds these are not built into § 2602(a)(1).
“Lewd” vs. “lascivious”: “Lewd” is framed as obscene/indecent; “lascivious” as tending to excite lust or showing sexual desire. Lovejoy treats the Legislature’s choice to separate them with “or” as meaningful, even if their real-world application often overlaps (as the concurrence notes).

V. Conclusion

State v. Lovejoy does two important things. First, it reinforces Vermont’s circumstantial-evidence framework for proving sexual intent in § 2602(a)(1) cases, emphasizing that concealment, repetition, context, and admissions can support a rational inference of sexual gratification. Second—and more doctrinally—it holds that § 2601a(a) “open and gross lewdness” is not a lesser-included offense of § 2602(a)(1) because § 2601a(a) adds elements (“open and gross”) that § 2602(a)(1) does not require, and because § 2602(a)(1) is written disjunctively as “lewd or lascivious.”

The result strengthens textual, element-based analysis of lesser-included instructions and underscores the Legislature’s distinct treatment of public lewdness offenses versus child sexual exploitation crimes.