State v. Benjamin Charette , 189 A.3d 67 ( 2018 )


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  • NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
    revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
    of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
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    before this opinion goes to press.
    
    2018 VT 48
    No. 2017-147
    State of Vermont                                                Supreme Court
    On Appeal from
    v.                                                           Superior Court, Criminal Unit,
    Lamoille Division
    Benjamin Charette                                               November Term, 2017
    Thomas Carlson, J.
    David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
    Brice C. Simon of Breton & Simon, PLC, Stowe, for Defendant-Appellant.
    PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Wesley, Supr. J. (Ret.),
    Specially Assigned
    ¶ 1.   ROBINSON, J. The issue in this case is whether an individual who is convicted
    of a sex offense can be compelled to register as a sex offender if the putative victim was an adult
    undercover police officer posing as a minor child. Defendant appeals the trial court’s decision
    requiring him to register as a sex offender. He argues the plain language of the sex offender
    registration statute requires that the underlying crime be committed against an actual minor victim.
    Considering the structure and purpose of the statute, we conclude that 13 V.S.A. § 5401(10)(B)
    encompasses attempted crimes against a putative victim who the defendant perceives to be a minor.
    We accordingly affirm.
    ¶ 2.   Defendant pled guilty to a charge of attempted luring of a child pursuant to 13
    V.S.A. § 2828 based on his attempt to meet with a person he believed to be a minor child for the
    purpose of having sex. The charging affidavit reflects that, after receiving complaints concerning
    defendant’s inappropriate online contact with minors, an investigator, posing as a thirteen-year-
    old girl named “Alexa,” reached out to defendant through Facebook. Defendant had an extended
    course of communications with “Alexa,” and ultimately asked her to meet with him to have sex.
    Police arrested defendant when he showed up at the arranged location at the agreed upon time and
    date.
    ¶ 3.   The parties agreed to a minimum sentence of twenty-eight months, ten days, with
    a five-year maximum, but disagreed as to whether defendant was required to register as a sex
    offender. Defendant argued that the sex offender registration statute, by its plain terms, requires
    the presence of an actual minor victim. See 13 V.S.A. § 5401(10)(B). The trial court concluded
    that the Legislature intended to include in the sex offender registration statute convictions where
    the “minor victim” was in fact an undercover police officer posing as a minor. Accordingly, the
    court issued an order requiring defendant to register in the sex offender registry. Defendant
    appealed.
    ¶ 4.   The sex offender registration statute defines “sex offender” as a person convicted
    of any of various identified charges. 13 V.S.A. § 5401(10)(B). This definition includes, in relevant
    part:
    (B) A person who is convicted of any of the following offenses
    against a victim who is a minor . . . .
    ....
    (v) sexual exploitation of children as defined in chapter 64 of this
    title . . . .
    ....
    (x) an attempt to commit any offense listed in this subdivision (B).
    13 V.S.A. § 5401(10)(B)(v), (x). Chapter 64, which addresses the sexual exploitation of children,
    includes the luring statute, 13 V.S.A. § 2828, under which defendant was convicted.
    ¶ 5.   On appeal, defendant renews his argument that the registration requirement only
    applies when a person is convicted of an offense “against a victim who is a minor.” Defendant
    2
    contends that this language requires an actual minor victim. Thus, an adult investigator posing as
    a minor does not satisfy this requirement. The State counters that insofar as the registration statute
    expressly encompasses attempts to exploit children, including attempted luring, see
    §§ 5401(10)(B)(v), (x), it applies in cases like this where defendant intended to have sex with a
    minor even though the person he was communicating with was an adult posing as a minor and
    there is no actual minor victim.
    ¶ 6.    Statutory interpretation is a question of law, which we review without deference.
    State v. Hurley, 
    2015 VT 46
    , ¶ 8, 
    198 Vt. 552
    , 
    117 A.3d 433
    . The purpose of interpreting a statute
    is to effectuate legislative intent. 
    Id. ¶ 9.
    “Where the plain meaning of the words of the statute is
    insufficient guidance to ascertain legislative intent, we look beyond the language of a particular
    section standing alone to the whole statute, the subject matter, its effects and consequences, and
    the reason and spirit of the law.” State v. Thompson, 
    174 Vt. 172
    , 175, 
    807 A.2d 454
    , 458 (2002).
    Maxims of statutory construction may help us discern a statute’s meaning, but “they are secondary
    to our primary objective of giving effect to the intent of the legislature.” 
    Id. (quotation omitted).
    With these principles in mind, we conclude that the registration requirement applies in this case
    because the intended victim of defendant’s crime was a minor. We base this conclusion on the
    language of the registration statute as a whole, its inclusion of convictions for attempts, the
    statute’s purpose, and the incongruous consequences of defendant’s interpretation. Our analysis
    is consistent with persuasive authority from multiple states.
    ¶ 7.    Defendant’s interpretation is not compelled by the plain language of the statute. He
    asks us to construe the term “victim” in 13 V.S.A. § 5401(10)(B) to mean “actual victim,” as
    opposed to an intended victim, even though the statute does not expressly say so. See State v.
    Kerr, 
    143 Vt. 597
    , 605, 
    470 A.2d 670
    , 674 (1983) (explaining that this Court will not read language
    into statute unless necessary to make it effective). Even if this construction might make sense
    when viewing the relevant prefatory language in isolation, it does not make sense in the context of
    the statute as a whole. Section 5401(10)(B) includes attempts as among the crimes triggering that
    3
    subdivision’s application. Although attempts may be directed at identifiable victims, they do not
    necessarily involve actual, identified victims. Nothing in the language of this subdivision limits
    the attempts that trigger the registration requirement to those that involve an identified and actual
    victim. To the contrary, the prefatory language of subdivision B is broad and inclusive. See 13
    V.S.A. § 5401(10)(B) (defining sex offender as “[a] person who is convicted of any of the
    following offenses against a victim who is a minor” (emphasis added)).
    ¶ 8.    The State’s reading is not only consistent with the language of the statute, but it
    more clearly advances the statute’s purpose “to provide appropriate authorities with information
    to assist in the investigation and prevention of sex offenses.” 
    Thompson, 174 Vt. at 176
    , 807 A.2d
    at 459. It is difficult to see how excluding offenders like defendant from the registration
    requirement could be consistent with this goal. Defendant’s interpretation would lead to an odd
    situation in which offenders who engage online with people they believe to be minors and are
    convicted of attempted crimes stemming from that engagement may be required to register if the
    people they communicated with were real, but not if they were fictitious, even though both sets of
    offenders engaged in precisely the same conduct and posed exactly the same risk to the community.
    ¶ 9.    On the bases of similar considerations, courts from several states have reached the
    same conclusion under similar circumstances. Construing the exact same phrase—“against a
    victim who is a minor”—the Georgia Court of Appeals concluded that a defendant convicted of
    attempted child molestation and attempt to entice a child for indecent purposes was required to
    register as a sex offender. Spivey v. State, 
    619 S.E.2d 346
    , 352 (Ga. Ct. App. 2005). The defendant
    interacted on the internet with a police officer posing as a fourteen-year-old. The defendant sent
    sexually explicit messages to the fictitious minor and ultimately went to an arranged meeting,
    where he was arrested. He did not challenge his convictions but argued that the trial court erred
    in requiring him to register as a sex offender. Because Georgia’s statute (like Vermont’s) required
    registration by offenders convicted of various enumerated offenses “against a victim who is a
    minor,” and because there was no actual minor victim of his crimes, the defendant argued that he
    4
    could not be required to register. 
    Id. at 348.
    The court rejected this contention, emphasizing the
    statute’s broad language—which did not limit the statute’s reach to attempt offenses involving
    actual victims who are minors—and the legislative intent to protect the community by notifying it
    of individuals who may pose a threat. 
    Id. at 350.
    It noted, “Individuals convicted of a criminal
    attempt are not necessarily less of a threat because they were prevented from completing their
    intended crimes.” 
    Id. The court
    emphasized that the statute reaches “attempt” crimes, and attempts
    do not always have victims. 
    Id. ¶ 10.
      Similarly, the New Hampshire Supreme Court concluded that a provision in that
    state’s sex offender registration statute applying the registration requirement to offenders
    convicted of certain offenses “where the victim was under [the age of] 18 at the time of the offense”
    must be interpreted to apply “to attempt crimes in which the offender subjectively believed that
    such a victim existed.” Czyzewski v. N.H. Dep’t of Safety, 
    70 A.3d 444
    , 447-48 (N.H. 2013).
    The court concluded that the defendant’s contrary interpretation read the word “victim” in isolation
    and failed to take into account that the statute reached attempt crimes—which may not involve an
    actual victim. 
    Id. at 446.
    If it construed the statute to require an “actual victim,” the statute would
    “distinguish between those caught in police sting operations, whose crimes typically have no
    ‘actual victims,’ and those who take a substantial step in targeting an ‘actual victim,’ but do not
    complete the crime.” 
    Id. at 447.
    The court concluded, “There is no indication in the statute that
    the legislature intended either to categorize attempt crimes in this way or to benefit a category of
    manifestly dangerous criminals for no other reason than the fortuitous fact that their intended
    victims turned out to be undercover police officers.” Id.1
    1
    On the other hand, where a statute does not include attempt, its reference to a “minor”
    may be understood to require a real, live minor person. See United States v. Dahl, 
    81 F. Supp. 3d 405
    , 407-08 (E.D. Pa. 2015) (relying in part on fact that federal statute did not reach “attempts” in
    concluding that statute providing for enhanced sentence for certain charges if defendant is
    registered sex offender and violation is one “involving a minor” does not apply when the persons
    being enticed are not real minors but rather undercover agents impersonating minors).
    5
    ¶ 11.   The Virginia Court of Appeals relied on many of the same considerations in
    construing a similar statute. Colbert v. Commonwealth, 
    624 S.E.2d 108
    (Va. Ct. App. 2006). In
    Colbert, the defendant was convicted of computer solicitation for sex with a minor based on a sting
    operation in which an undercover police officer posed as a thirteen-year-old. The applicable sex
    offender registration requirement applied to certain charges “[w]here the victim is a minor.” 
    Id. at 111.
    The defendant argued that based on the plain language of the registration requirement it
    did not apply to him because there was not an actual minor victim in his case. 
    Id. at 112.
    The
    court considered the purpose of the sex offender registration requirement and concluded that the
    defendant’s act of computer solicitation for sex with a minor “falls expressly within the evil
    contemplated” by the law. 
    Id. at 113.
    The court concluded that it would lead to an absurd result
    to exclude the defendant from the registration requirement “based solely upon a fortuity beyond
    his control—that the one receiving his sexual solicitations was actually an adult, despite his intent
    to target a child” because “he is indistinguishable from one committing the same offense whose
    sexual solicitations were actually received by a minor.” 
    Id. ¶ 12.
      On these bases, the Colorado Court of Appeals concluded that the reference to the
    “victim” in the statutory definition of “sexually violent predator” meant the intended victim in
    cases where the defendant was convicted of an attempt. People v. Buerge, 
    240 P.3d 363
    , 367-68
    (Colo. App. 2009). In Buerge, the defendant was charged as a result of an internet sting operation.
    He met a purported fourteen-year-old girl in an internet chat room. After he proposed to meet with
    her and one of her friends to use drugs and engage in sexual activity, police arrested him at the
    designated meeting place and found drugs and sexual paraphernalia in his possession. He pled
    guilty to attempted sexual assault on a child younger than fifteen. The contested issue before the
    trial court was whether he qualified as a “sexually violent predator” under the applicable statute.
    The designation of sexually violent predator applied when, among other factors, the offender’s
    “victim was a stranger to the offender or a person with whom the offender established or promoted
    a relationship primarily for the purpose of sexual victimization.” 
    Id. at 367.
    The defendant argued
    6
    that because the “victim” in his case was a fictional character, there was no victim, and he could
    not be classified as a sexually violent predator. 
    Id. The court
    disagreed, noting that not all attempt
    crimes have an actual or identified victim. 
    Id. at 367-68.
    The court reasoned:
    Because the General Assembly included attempt crimes in the
    [sexually violent predator] statute, it must have intended the statute
    to apply to perpetrators convicted of such crimes. To conclude that
    an offender convicted of an attempted sexual assault on a child
    cannot be determined to be a sexually violent predator because
    circumstances beyond the offender’s control prevented the
    completion of the crime, and no child was actually victimized,
    would lead to an illogical and absurd result . . . [and] would not give
    consistent, harmonious, and sensible effect to all of the statute’s
    parts because it would allow offenders convicted of attempted
    sexual crimes to avoid designation as sexually violent predators
    based on the mere fortuity of not having completed the crime with a
    resulting actual victim.
    
    Id. at 368
    (citations omitted). Accordingly, the court concluded that in the context of an attempted
    sexual assault, the term “victim” in the definition of sexually violent predator referred to the
    intended victim, “even when it is factually or legally impossible to commit the offense, as long as
    the actor could have done so if the circumstances were as [the defendant] believed them to be.”
    
    Id. at 368
    .2
    ¶ 13.   The respective courts’ analyses in the above cases are persuasive and consistent
    with our own assessment of the legal question before us. Defendant was convicted of an attempted
    crime directed at someone he believed to be a thirteen-year-old minor. The fact that the purported
    victim turned out to be an undercover officer does not change defendant’s intent or conduct, nor
    the risk to the community arising from his sex offense. For the above reasons, we conclude that
    2
    In United States v. Dodge, the Eleventh Circuit Court of Appeals concluded with little
    analysis that if the defendant believed he was communicating with a thirteen-year-old girl when
    he engaged in the criminal act for which he was convicted, the federal sexual offender registration
    statute applied. 
    597 F.3d 1347
    , 1350, 1355 (11th Cir. 2010) (en banc) (considering applicability
    of federal sex offender registration statute applicable to “specific offense against a minor” and
    concluding that because the defendant believed victim was minor, the word “against” a minor was
    “non-issue”).
    7
    13 V.S.A. § 5401(10)(B) applies to an attempt where the defendant believes the victim to be a
    minor even if the defendant was actually communicating with an adult posing as a minor.
    Affirmed.
    FOR THE COURT:
    Associate Justice
    8
    

Document Info

Docket Number: 2017-147

Citation Numbers: 189 A.3d 67

Judges: Reiber, Robinson, Eaton, Carroll, Wesley, Supr

Filed Date: 4/27/2018

Precedential Status: Precedential

Modified Date: 10/19/2024