TRANSITION TO LESSER INCLUDED LEWDNESS -- 13 V.S.A. § 2601a
[This instruction contemplates a charge of lewd and lascivious conduct, such as the charge described in instruction CR27-031.]
If you decide that the State has not proven each and every one of the essential elements of lewd and lascivious conduct, then you must consider whether (Def)_______________ is guilty of the offense of lewdness. Or, if you are unable to agree upon a verdict concerning the charge of lewd and lascivious conduct, after all reasonable efforts to reach a unanimous verdict, then you may move on to consider the offense of lewdness.
LESSER INCLUDED OFFENSE: LEWDNESS (13 V.S.A. § 2601a)
The crime of lewdness is considered a lesser offense to the crime of lewd and lascivious behavior. Even if (Def)_______________ is not guilty of lewd and lascivious behavior, you may still find that the evidence has proven the offense of lewdness.
For (Def)_______________ to be found guilty of lewdness, you must find that the evidence has proven each of the following essential elements beyond a reasonable doubt: that on the date alleged and at the place alleged,
(2) intentionally engaged in the conduct alleged in the charge, specifically _______________;
(3) the conduct was open and gross; and
(4) the conduct was lewd.
In addressing these essential elements, you should consider the instructions I have already given you. The lewd conduct must be “open” to at least one other person who does not consent to the conduct.
The offense of lewdness does not include lasciviousness. The two words, “lewdness” and “lasciviousness,” though similar, have different meanings. Lewdness is defined as “gross and wanton indecency in sexual relations.” Nudity alone is not sufficient to prove lewdness. The State must have proven lewdness beyond a reasonable doubt. The State need not have proven that (Def)_______________’s behavior was also lascivious.
PRESUMPTION OF INNOCENCE
When considering the degree of crime involved in this case, the presumption of innocence plays two roles. First, (Def)_______________ is presumed to be innocent of any crime. Second, if you find beyond a reasonable doubt that (Def)_______________ committed a lewd act, then you must give [him] [her] the benefit of any reasonable doubt in deciding the degree of the offense. In other words, you must apply the presumption of innocence, and weigh it against the evidence, at each step of your deliberations. Nevertheless, if all of the evidence, weighed along with the presumption of innocence, convinces you beyond a reasonable doubt that (Def)_______________ is guilty of lewd and lascivious conduct, then you must find [him] [her] guilty of that charge.
Your verdict on this count will be one of three possible verdicts:
§ Guilty of lewd and lascivious conduct; or
§ Guilty of lewdness; or
§ Not guilty of any crime