Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2016-219

FEBRUARY TERM, 2017

State of Vermont } APPEALED FROM:

}

} Superior Court, Rutland Unit,

 v. } Criminal Division

}

}

Andrew Stevens } DOCKET NO. 1231-9-14 Rdcr

Trial Judge: Thomas A. Zonay

In the above-entitled cause, the Clerk will enter:

Defendant appeals from his conviction, by jury, of attempted sexual assault. He argues 

that the court erred in denying his motion for a judgment of acquittal. We affirm.

The State presented the following evidence at trial. In August 2014, the complainant 

attended a large family party. Defendant was also present. The complainant met defendant for 

the first time that day and spoke to him briefly. Around 11 p.m., the complainant, her cousin, and 

defendant were talking by a campfire. The complainant decided to go home and said goodbye. 

As she was walking to her car, defendant appeared behind her and said, “you don’t want to leave 

yet, do you?” The victim was startled and told defendant that she did want to leave. Defendant 

walked toward her and told her again that “she didn’t want to leave.” He put his arms tight around 

her. The complainant told him to stop but defendant did not stop, instead telling the complainant 

again that she did not want to leave. The complainant tried to get out from his embrace. Defendant 

then put his hand down her shirt and grabbed her left breast under her bra. With his other hand, 

he unfastened her belt, unbuttoned her pants, and put his hand down her pants outside of her 

underwear. She was scared and tightened her legs, trying to prevent defendant from going any 

further. She thought that she was going to be raped. Defendant pushed the complainant to the 

ground, and was on top of her, trying to remove her pants. She told him to stop but he continued 

trying to pull down her pants. The complainant struck defendant in the eye. Defendant then 

covered her mouth with his hand. She pushed his hand away and screamed “stop.” They continued 

to struggle and then defendant got up and said something like “fuck you” or “forget you,” and 

walked away. The victim got into her car and locked the doors. When her cousin came over to 

the car, the complainant told him that she had nearly been raped. The complainant later provided 

a sworn written statement to police. The victim’s cousin also testified, as did several law 

enforcement officers. Defendant told the officers inconsistent stories about what had occurred. 

He acknowledged to police, however, that he went to talk to the complainant “to try to have sex 

with her.” 
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At the close of the State’s case, defendant moved for a judgment of acquittal. He argued 

that there was no evidence that he had encroached on the complainant’s vaginal area, and thus that

the State had failed to show that a sexual assault was imminent. The court denied the motion. 

Defendant did not put on any evidence. The jury found defendant guilty, and this appeal followed. 

Defendant asserts that the court erred in denying his motion for judgment of acquittal. He

acknowledges that there is evidence that he wanted to have sex with the complainant, that he 

touched her breast, and that he had his hand down her pants touching her thigh. Other than undoing 

her belt and unbuttoning her pants, defendant contends that there is no evidence that he unzipped 

her pants or tried to remove them. Because he failed to put his hand under her underwear, 

defendant argues that he cannot be guilty of attempted sexual assault. 

“The standard of review for denial of a V.R.Cr.P. 29 motion for judgment of acquittal is 

whether the evidence, when viewed in the light most favorable to the State and excluding any 

modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the 

defendant is guilty beyond a reasonable doubt.” State v. Delisle, 162 Vt. 293, 307 (1994) (citation 

and alterations omitted). The evidence supports the jury’s verdict here. 

To establish defendant’s guilt, the State needed to prove that defendant intended to commit 

sexual assault and did an overt act toward the commission of that crime. See 13 V.S.A. § 3252(a);

id. § 9(a) (attempt includes committing act towards commission of crime); State v. Synnott, 2005 

VT 19, ¶ 22, 178 Vt. 66. “The act must advance the actor’s conduct beyond mere intent, and reach 

far enough toward accomplishing the desired result to amount to the commencement of the 

consummation.” Synnott, 2005 VT 19, ¶ 22 (quotation and alteration omitted). “[O]nce the actor 

has committed the requisite overt act, the offense is complete, and abandonment of the enterprise 

does not negate guilt.” Id. Sexual assault includes “any intrusion, however slight, by any part of 

a person’s body . . . into the genital . . . opening of another,” 13 V.S.A. § 3251(1), without the 

other person’s consent. Id. § 3252(a)(1). 

In Synnott, we found sufficient evidence to support an attempted sexual assault conviction 

where the defendant pushed the victim down, fondled her, removed her shirt and bra, removed his 

clothing, ground his crotch against hers, tried to remove her pants, and squeezed her throat. 2005 

VT 19, ¶ 23. We reached a similar conclusion in State v. Goodhue, where the evidence showed 

that the defendant threw the victim to the floor, got on top of her, tried to put his hand down her 

pants, ripped her shirt, and unbuttoned her pants. 2003 VT 85, ¶¶ 2, 6, 175 Vt. 457. 

We are faced with similar facts here. As reflected above, the evidence showed that 

defendant approached the complainant and embraced her tightly. He then began untoward sexual 

advances, including touching her bare breast. Defendant unbuttoned the complainant’s pants, took 

off her belt, and put his hand down her pants. He was on top of the complainant, trying to remove 

her pants. The fact that defendant did not succeed in putting his hand under the complainant’s

underwear and touching her vagina does not absolve him of guilt. The jury could view his acts as 

steps toward inserting his finger in the complainant’s vagina, a sexual assault. It could also 

conclude that defendant sought to have sexual intercourse with the complainant. This case is not 

like State v. Boutin, 133 Vt. 531, 533 (1975), cited by defendant. In that case, we found 

insufficient evidence to show that the defendant attempted to cause bodily injury to another where 

he was holding a bottle in an upraised hand, ten feet away from the victim. We concluded that this 
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act was not “of such a character as to advance the conduct of the actor beyond the sphere of mere 

intent.” Id. The same cannot be said of the instant case. It is evident here that defendant’s “actions 

had advanced from mere intent to the commencement of the consummation of a sexual assault.” 

Goodhue, 2003 VT 85, ¶ 6 (quotation marks omitted). Because the evidence supports the jury’s 

verdict, defendant’s motion for a judgment of acquittal was properly denied. 

Affirmed.

BY THE COURT:

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Marilyn S. Skoglund, Associate Justice

_______________________________________

Beth Robinson, Associate Justice

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Harold E. Eaton, Jr., Associate Justice