State v. Masic

• Decision Date: 23 July 2021
• Docket Number: No. 19-386,19-386
• Citation: 261 A.3d 646
• Parties: STATE of Vermont v. Sanel MASIC
• Court: Vermont Supreme Court

261 A.3d 646

STATE of Vermont

v.Sanel MASIC

No. 19-386

Supreme Court of Vermont.

December Term, 2020

July 23, 2021

Thomas J. Donovan, Jr., Attorney General, and John D.G. Waszak, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, Dawn Matthews, Appellate Defender, and Mary Harrington, Legal Intern, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

COHEN, J.

¶ 1. Defendant Sanel Masic was convicted on jury verdict of luring a child under 13 V.S.A. § 2828. On appeal, he argues that the statute is an unconstitutional restriction on speech and void for vagueness under the U.S. and Vermont Constitutions. He further challenges the superior court's imposition of a probation condition as part of his sentence. We affirm the conviction but remand for additional findings regarding the condition of probation.

¶ 2. The State introduced the following evidence at trial. In September 2017, a taskforce of federal and state law enforcement officers conducted an operation to investigate child exploitation in the Burlington area. As part of this operation, a special agent posed as a fictitious fourteen-year-old boy named "Grayson" by posting profiles and personal advertisements in various websites and applications. Defendant responded to one of these ads, asking through email if Grayson was "still looking" and then stating in explicit language that he was interested in oral sex and did not care about age or appearance. Though Grayson had indicated in the ad that he was eighteen years old, he replied that he was under eighteen and asked if that was okay with defendant. Defendant answered affirmatively, indicating again that he did not care about age as long as he received oral sex. Grayson then wrote that he was fourteen and asked if that was okay. Defendant again answered in the affirmative and asked for an address. When a few minutes passed without a response, defendant threatened to report Grayson's ad while repeatedly requesting oral sex, saying, "Now dude send me ur address and blow me or I'm reporting ur ad." Defendant requested oral sex several times throughout the conversation, using similar language. He agreed to meet with Grayson at a South Burlington location to execute the transaction and was arrested upon arriving at said location.

¶ 3. Defendant was charged with luring a child under 13 V.S.A. § 2828(a), which provides that "[n]o person shall knowingly solicit, lure, or entice, or ... attempt to solicit, lure, or entice, a child under 16 years of age or another person believed by the person to be a child under 16 years of age, to engage in a sexual act" or "in lewd and lascivious conduct." The statute applies to "solicitation, luring, or enticement by any means, including in person, through written or telephonic correspondence or electronic communication." Id. § 2828(b). It does not apply, however, "if the person is less than 19 years of age, the child is at least 15 years of age, and the conduct is consensual." Id. § 2828(c).

¶ 4. Defendant filed a pretrial motion to dismiss the charge, arguing that § 2828 is unconstitutional under the U.S. and Vermont Constitutions. The superior court denied the motion, and a jury trial was held where defendant was found guilty. Entering judgment accordingly, the court sentenced defendant to two to five years, with two years to serve, and ten years of probation. One of the probation conditions provides that defendant "will reside at [his] approved residence as directed by [his] assigned Probation Officer or designee."

¶ 5. On appeal, defendant first advances facial challenges to § 2828, arguing that the statute is unconstitutional under the First Amendment to the U.S. Constitution and Article 13 of the Vermont Constitution because it creates a content-based restriction on speech that fails strict scrutiny and because it is overbroad. He also contends that the statute is void for vagueness under the Fourteenth Amendment's Due Process Clause. Defendant further argues that § 2828 is unconstitutional as applied to him and challenges the use of the mental element "knowingly" in the statute. Finally, he argues that the probation condition governing where he may live was improper and must be vacated.

I. Facial Challenges to 13 V.S.A. § 2828

¶ 6. We first consider defendant's facial challenges to § 2828. These challenges, presenting questions of law, are reviewed without deference to the superior court. State v. Noll, 2018 VT 106, ¶ 21, 208 Vt. 474, 199 A.3d 1054.

A. Content-Based Restriction on Protected Speech

¶ 7. Defendant argues that § 2828 enacts a content-based restriction on constitutionally protected speech and fails strict scrutiny. The First Amendment, which is applicable to the states by operation of the Fourteenth Amendment, Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), prohibits laws "abridging the freedom of speech," U.S. Const. amend. I. Similarly, Chapter I, Article 13 of the Vermont Constitution declares "[t]hat the people have a right to freedom of speech." Vt. Const. ch. I, art. 13. We have so far declined to extend greater free-speech protection under Article 13 than under the First Amendment and thus engage in a First Amendment analysis, construing Article 13 as coextensive with its federal analogue. See State v. Read, 165 Vt. 141, 153, 680 A.2d 944, 951 (1996).

¶ 8. Generally, the First Amendment prohibits the government from restricting "expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (quotation omitted). Accordingly, content-based regulations are "presumptively invalid," R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), and must withstand strict scrutiny to survive constitutional attack, Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). However, the U.S. Supreme Court has recognized several "well-defined and narrowly limited classes of speech" that may be restricted in furtherance of social order without implicating First Amendment concerns. United States v. Stevens, 559 U.S. 460, 468-69, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quotation omitted). One of these is "speech integral to criminal conduct," id. at 468, 130 S.Ct. 1577, including offers to engage in illegal transactions, which are "categorically excluded from First Amendment protection," United States v. Williams, 553 U.S. 285, 297, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Indeed, "[m]any long established criminal proscriptions—such as laws against conspiracy, incitement, and solicitation—criminalize speech ... that is intended to induce or commence illegal activities." Id. at 298, 128 S.Ct. 1830.

¶ 9. Thus, when the State of Missouri enacted a law that prohibited entering into an agreement to restrain trade, that state's courts could, outside the purview of the First Amendment, enjoin union members from picketing outside a business because the picketing sought to compel the business to enter into such an agreement. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 497-98, 69 S.Ct. 684, 93 L.Ed. 834 (1949). "It rarely has been suggested," the Court observed, "that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." Id. at 498, 69 S.Ct. 684. Similarly, when the federal government passed laws prohibiting the possession and distribution of child pornography, it could also, beyond the protection of the First Amendment, criminalize the pandering and solicitation of child pornography. See Williams, 553 U.S. at 288, 299, 128 S.Ct. 1830. "[O]ffers to give or receive what ... is unlawful to possess have no social value and thus ... enjoy no First Amendment protection." Id. at 298, 128 S.Ct. 1830 ; see also Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 388, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) ("We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes.").

¶ 10. Relying on this principle, federal courts of appeals have rejected constitutional challenges to the federal child-luring statute, which is analogous to § 2828. As relevant, the federal statute exposes to criminal liability a person who "knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so." 18 U.S.C. § 2422(b). When, for instance, a defendant attempted to entice fictitious teenage girls into conduct violative of Massachusetts laws prohibiting sexual intercourse or lascivious acts with minors, the First Circuit rejected a contention that the luring statute criminalizes protected speech, noting that "[s]peech intended deliberately to encourage minors’ participation in criminal sexual conduct has no redeeming social value and surely can be outlawed." United States v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007). The court observed that "where ... speech is the instrumentality of the crime itself, the First Amendment provides no shelter from the government's exercise of its otherwise valid police powers." Id. ; see also United States v. Gagliardi, 506 F.3d 140, 148 (2d Cir. 2007) (noting that because "[s]peech is not protected by the First Amendment when it is the very vehicle of the crime itself," there is no "First Amendment right to persuade one whom the accused believes to be a minor to engage in criminal sexual conduct" (quotation omitted)); United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) ("Speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech...