State of Vermont v. Benjamin Charette
No. 2017-147
Supreme Court
2018 VT 48
Thomas Carlson, J.
On Aрpeal from Superior Court, Criminal Unit, Lamoille Division. November Term, 2017.
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 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
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 cаse 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
¶ 2. Defendant pled guilty to a charge of attempted luring of a child pursuant to
¶ 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 аrgued that the sex offender registration statute, by its plain terms, requires the presence of an actual minor victim. See
¶ 4. The sex offender registration statute defines “sex offender” as a person convicted of any of various identified charges.
(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).
¶ 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 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
¶ 6. Statutory interpretation is a question of law, which we rеview 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 stаtute, 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 рrinciples 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
¶ 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 informаtion 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 attеmpted 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 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
¶ 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 whоse 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 рlace 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.
Because the General Assembly included attempt crimes in the [sexually violent prеdator] 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 attеmpted 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 casеs 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 dоes 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
Affirmed.
FOR THE COURT:
Associate Justice