State v. Vogel
| Decision Date | 28 January 2022 |
| Docket Number | 21-105 |
| Citation | 274 A.3d 37 |
| Parties | STATE of Vermont v. Scott VOGEL |
| Court | Vermont Supreme Court |
Thomas J. Donovan, Jr., Attorney General, and Ultan Doyle, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Robert J. Kaplan of Kaplan and Kaplan, Burlington, for Defendant-Appellant.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Teachout, Supr. J., Specially Assigned
¶ 1. This interlocutory appeal requires us to determine whether a defendant may be tried on a charge of violating 13 V.S.A. § 2828, which prohibits solicitation of a child or another person believed to be a child to engage in sexual activity, where the defendant believed that he was communicating with another adult to arrange sexual contact with a minor child but the child turned out to be fictitious. We conclude that the facts alleged by the State in this case are sufficient to make out a prima facie case that defendant violated § 2828. We therefore affirm the trial court's decision denying defendant's motion to dismiss, and remand for further proceedings.
¶ 2. In January 2018, defendant was charged with one count of luring a child in violation of 13 V.S.A. § 2828. According to the charging affidavit, in September 2017, defendant was in an online chatroom dedicated to "daddaughtersex." He began a chat with a Vermont undercover law enforcement officer who was posing as the mother of two daughters aged seven and thirteen years old. In a series of messages exchanged with the officer, defendant discussed having sex with her two daughters, specifically expressing interest in the thirteen-year-old. He provided details of what sexual acts he would perform with the child and stated that he would bring a special alcoholic punch for the child to drink. Defendant told the officer that he was from Morrisville, Vermont. He subsequently spoke to the undercover officer by phone, reiterated his interest in having sex with her daughters, and stated that he wanted to meet the next day. Police traced defendant's IP address to an address in Stowe, where he was eventually arrested.
¶ 3. In May 2018, defendant moved to dismiss the charge pursuant to Vermont Rule of Criminal Procedure 12(d), asserting that the State could not make out a prima facie case that he had violated 13 V.S.A. § 2828 because the statute prohibits soliciting or luring a child or a person believed to be a child, and he believed that he was communicating with an adult woman. He argued that the statute did not proscribe vicarious solicitations or indirect overtures to children. The trial court denied the motion, concluding that the statute expressly applied to solicitation of a child "by any means," including through an adult intermediary. Defendant moved for reconsideration, arguing that the term "by any means" was ambiguous and therefore should be construed in his favor. This motion was denied as well.
¶ 4. In April 2020, defendant filed a second motion to dismiss the charge, arguing that § 2828 requires the existence of an actual human being who is the subject of the solicitation by the perpetrator. According to defendant, because the undercover officer did not actually have children, the State could not prove that he knowingly solicited, lured, or enticed "another person" believed to be a child under sixteen, as charged in the information. Defendant argued that the statute required proof of an actual human child or an adult posing as the child, which was not present in his case.
¶ 5. The trial court rejected defendant's argument. Relying on the statutory language and case law from other jurisdictions interpreting similar statutes, the court determined that § 2828 did not require proof that the defendant was communicating with an actual child. The trial court subsequently granted the parties’ stipulated motion to take an interlocutory appeal of the following question: "For purposes of 13 V.S.A. § 2828, Luring a Child, are the elements of ‘solicit, lure or entice’ and ‘another person’ satisfied where [d]efendant knew that he was communicating with another adult about sexual contact with minor child which was said to exist but the minor child was in fact a fabrication and did not exist." As discussed below, we conclude that the elements of the statute are satisfied under these circumstances.
¶ 6. The standard applicable to a motion to dismiss for lack of a prima facie case under Vermont Rule of Criminal Procedure 12(d) is "whether, taking the evidence in the light most favorable to the state and excluding modifying evidence, the state has produced evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt." State v. Fanger, 164 Vt. 48, 51, 665 A.2d 36, 37 (1995) (quotation omitted). The State has the burden of establishing "that it has substantial, admissible evidence as to the elements of the offense challenged by the defendant's motion." V.R.Cr.P. 12(d)(2) ; see State v. Dixon, 169 Vt. 15, 17, 725 A.2d 920, 922 (1999). "The question of whether the State has met its burden is one of law, which we review de novo." State v. Graham, 2016 VT 48, ¶ 9, 202 Vt. 43, 147 A.3d 639.
¶ 7. Here, defendant's argument turns on the proper interpretation of 13 V.S.A. § 2828. Our goal in interpreting a statute is to effectuate the Legislature's intent. State v. Noll, 2018 VT 106, ¶ 21, 208 Vt. 474, 199 A.3d 1054. We begin by looking to the plain language of the statute, "because we presume the Legislature intended the plain, ordinary meaning of the language." Dixon, 169 Vt. at 17, 725 A.2d at 922 (quotation omitted).
¶ 8. Vermont's child-luring statute makes it a felony offense to "knowingly solicit, lure, or entice, or to 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 engage in lewd and lascivious conduct." 13 V.S.A. § 2828(a). 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). Defendant argues that "another person" means an actual human being. He claims that the State therefore cannot prove that he violated § 2828 because the child he is alleged to have solicited did not actually exist.
¶ 9. We conclude that the plain language of § 2828 is broad enough to encompass the alleged actions of defendant in this case because he believed he was arranging to have sex with an actual child. The statute prohibits knowing solicitation by any means of sexual activity with children or persons believed to be children. Id. § 2828(a) - (b). The term "by any means" is broad enough to include solicitation through an adult intermediary, and the term "another person believed by the person to be a child" makes clear that the statute does not require an actual child victim. Rather, the State need only prove that a defendant believes he is soliciting sex from an actual child. This makes sense considering the purposes of the statute, which are to prevent adults from sexually exploiting real children and to deter adults from attempting to communicate with children over the internet or by other means for the purpose of engaging in sexual activity. See State v. Atwood, No. 2016-203, 2017 WL 2963080, at *4 (Vt. June 26, 2017) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo16-203_1.pdf [https://perma.cc/34M6-5BQV] ( that § 2828 provides law enforcement with mechanism "to proactively prevent people from committing crimes with real children and to discourage others from using the internet to locate children for sexual encounters"); see also LaRose v. State, 820 N.E.2d 727, 730-31 (Ind. Ct. App. 2005) (); State v. Coonrod, 652 N.W.2d 715, 723 (Minn. Ct. App. 2002) (). Because the statute is aimed in part at intercepting potential predators before they are able to exploit children, an actual child victim is not a required element.
¶ 10. For these reasons, we are unpersuaded by defendant's argument that when the term "another person" is used in other Vermont criminal statutes, it contemplates the existence of another human being, and therefore must mean the same thing here. It is true that Vermont's sexual-assault and reckless-endangerment statutes each require proof of harm to "another person." See 13 V.S.A. §§ 1025, 3252 ; see also 13 V.S.A. § 1023 (). However, § 2828 is targeted at different conduct and is structured differently than these statutes: it criminalizes a defendant's requests for sex from an actual child or a person believed to be a child. The person believed to be a child may be real or fictitious. The question under § 2828 is not the identity of the person to whom the defendant made the communications, but whether the defendant believed that he was soliciting sex from a child under the age of sixteen.
¶ 11. Our decision in State v. Charette, 2018 VT 48, 207 Vt. 372, 189 A.3d 67, is instructive. The issue before us in Charette was whether a person convicted of violating § 2828 could be compelled to register as a sex offender if the putative victim was an undercover police officer posing as a child. The defendant argued that the plain language of the sex-offender-registration statute, which defined a sex offender as a person who committed one of several listed offenses "against a victim who is a minor," required the underlying crime to be committed against an actual child. See 13 V.S.A. § 5401(10)(B). We concluded that the registration requirement applied to the defendant "because the...
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