State v. Donald BouchardState v. Donald Bouchard
NOTICE: This opinion is subject to motions for reargument under
James Pepper, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Burgess, J. (Ret.)1 and Morris, Supr. J. (Ret.), Specially Assigned
¶ 1.
¶ 2. Defendant was convicted of two counts of lewd and lascivious conduct, and one count of unlawful restraint in the second degree. The offending conduct involved his niece and nephew. According to the State’s affidavit of probable cause, defendant’s niece alleged that when defendant hugged her, he would “ ‘grab [her] butt’ and kiss her on the mouth” and would sometimes “linger too long.” She reported that defendant would enter her room when he believed she was asleep and would “play with [her] butt,” including grabbing at and rubbing it, for several minutes at a time. This behavior began when niece was in “7th or 8th grade,” and stopped an indeterminate amount of time later, when she “got older” and started rolling over to “get him to stop.” Defendant’s nephew also reported that defendant would “ ‘grab’ and ‘squeeze’ his ‘butt’ when saying hello,” and had also touched nephew’s thigh and penis over his clothing. Defendant would grab nephew’s arm and bring him into the bedroom, where he
¶ 3. The plea agreement contemplated a total sentence of 118 to 120 months, all suspended except for thirty days, and a ten-year term of probation. It left the State free to argue for all special conditions of probation recommended by the Department of Corrections (DOC) in the presentence investigation report (PSI). The PSI documented defendant’s scores on two instruments that estimate the risk for sexual recidivism. In one, he fell in the moderate-low risk group, and in the other, the low risk group. Of individuals scoring similarly on the two instruments, an average of 2.2% were charged with a new sexual offense within five years of placement in the community. The PSI recommended a host of special sex-offender conditions to which defendant objected.
¶ 4. At the sentencing hearing, the court imposed the agreed-upon sentence. The State presented no evidence in support of any of the contested probation conditions. The trial court expressed its concern about defendant’s ability to complete the sex-offender treatment program, and told defendant that “if you don’t complete the program and a violation of probation is filed and your probation is revoked, there is no room in the sentence that you’ve negotiated with your attorney for any other programming. It really is as close to a flat ten-year sentence as I’ve ever seen.” The court imposed various probation conditions, including the “sex [-] offender special conditions of probation” at issue on appeal.
¶ 5. Those conditions are: condition 36, that defendant may not purchase, possess, or use pornography or erotica, or go into adult sex shops or similar establishments; condition 38, that upon reasonable suspicion of a probation violation, he must give his probation officer search-and-seizure privileges to search without a warrant and confiscate “drugs, pornography, erotica, digital media, computer, or any other item which may constitute a violation of [his] conditions;” condition 40, that he must allow his probation officer to monitor his computer and internet usage, including through the use of software for monitoring sex offenders; condition 41, that he may not initiate or maintain contact with persons under the age of eighteen, unless otherwise approved in advance and in writing by his probation officer; condition 42, that he may not work or volunteer for a business or organization that primarily provides services to persons under the age of either sixteen or eighteen;2 condition 31, that he notify his probation officer of a change of contact information within forty-eight hours; and condition 37, that he may not access or loiter “in places where children congregate, i.e., parks, playgrounds, schools, etc.,” unless otherwise approved in advance by his probation officer.
¶ 6. We review the trial court’s imposition of probation conditions for an abuse of discretion. State v. Lumumba, 2018 VT 40, ¶ 31, 207 Vt. 254, 187 A.3d 353. As set forth more fully below, we
I. Pornography
¶ 7. Condition 36 provides that defendant “may not purchase, possess or use pornography or erotica [and] may not go to adult bookstores, sex shops, topless bars, etc.” On appeal, defendant argues that this condition is neither reasonably related to his rehabilitation nor necessary for public safety. We agree that this condition is not supported by the evidence presented by the State, and strike the condition.
¶ 8. While trial courts have broad discretion in imposing probation conditions, see Lumumba, 2018 VT 40, ¶ 32, they may only impose conditions that are “reasonably necessary to ensure that the offender will lead a law-abiding life or to assist the offender to do so.”
¶ 9. Our decision in Lumumba, 2018 VT 40, ¶ 37, guides our analysis in this case. In Lumumba, we struck an identical condition because there was no evidence that it was “reasonably related to the offender’s rehabilitation or necessary to reduce risk to public safety.” Id. ¶ 32 (quoting
¶ 10. Likewise, the court in this case made no finding, and the State presented no evidence, that pornography was related to defendant’s offense, his individual history, or his behaviors. Nor did the State present any evidence that the condition is generally necessary for the rehabilitation of all individuals convicted of any crime categorized as a sex offense. See id. ¶ 33 (“[The State] offered no expertise to support the assertion that the conditions were necessary in all cases involving sex offenders”.). Instead, the court imposed the condition because it is an “integral part of the treatment program” required pursuant to another condition. The court also explained, “I want to be as specific as I can for [defendant] to understand that he can’t
¶ 11. The fact that the pornography condition is part of the sex-offender treatment program defendant is otherwise required to complete is not sufficient to support the condition for several reasons. First, in Lumumba, we rejected the notion that, absent competent evidence that the condition is reasonably related to defendant’s rehabilitation, a court can rely on the bare fact that the probation condition is consistent with a rule of a required sex-offender treatment program in imposing a condition under
II. Warrantless Search
¶ 12. Condition 38 requires defendant to “give [his] Probation Officer or designee upon reasonable suspicion of a violation of probation search and seizure privileges to search without a warrant and confiscate drugs, pornography, erotica, digital media, computer, or any other item which may constitute a violation of [his] conditions.” At sentencing, defendant objected that this condition is “a pretty broad blanket general warrant,” and that “the probation officer would at least need probable cause to search any of the items.” The State said, “we would request the condition as written, especially if the court is imposing the pornography condition.” The court added a reasonable-suspicion requirement to the condition, but otherwise imposed it as proposed. On appeal, defendant contends that the broad search condition violates
¶ 13. We strike condition 38 because Article 11 requires that probation conditions authorizing warrantless searches like this one be narrowly tailored to promote a State interest strong enough to outweigh a probationer’s privacy interests; in the absence of a condition prohibiting adult pornography, the broad warrantless search condition here, even subject to a “reasonable suspicion” threshold, is not sufficiently narrowly tailored.
¶ 14. Under Article 11, “the State may depart from the warrant and probable-cause requirements ‘only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ ” State v. Bogert, 2013 VT 13A, ¶ 17, 197 Vt. 610, 109 A.3d 883 (quoting State v. Berard, 154 Vt. 306, 310-11, 576 A.2d 118, 120-21 (1990)). In such cases, we apply a balancing test “to identify a standard of reasonableness, other than the traditional one, suitable for the circumstances.” Id. (quoting Berard, 154 Vt. at 311). In particular, if we find a special need for a warrantless search distinct from a law-enforcement need, we “turn to a balancing of the competing public and private interests at stake.” Id. (quoting State v. Medina, 2014 VT 69, ¶ 14, 197 Vt. 63, 102 A.3d 661).
¶ 15. That probation conditions serve a special need apart from law enforcement, and thus satisfy the first condition for an exception to the Article 11 warrant requirement, is well established. See, e.g., Bogert, 2013 VT 13A, ¶ 18 (“In Lockwood, we recognized that ‘the special needs of the state in administering probation’ allow a departure from the warrant and probable cause requirements, and require a balancing of probationers’ rehabilitative needs, concerns for protection of the community, and probationers’ Article 11 interests.” (quoting State v. Lockwood, 160 Vt. 547, 556, 632 A.2d 655, 661 (1993))). The more substantial question here is whether the “reasonableness” balancing test supports the condition in this case.
¶ 16. In applying the balancing test in similar cases, we have held the State must demonstrate that a warrantless incursion on a probationer’s rights is narrowly tailored to promote the government interests justifying the incursion. Cornell, 2016 VT 47, ¶ 38. Specifically, in reviewing a warrantless search condition similar to the one at issue here, we concluded that, in order to satisfy the balancing test, a warrantless search condition must require at least reasonable suspicion and must be “narrowly tailored to fit the circumstances of the individual probationer.” Lockwood, 160 Vt. at 559, 632 A.2d at 663 (citing Griffin v. Wisconsin, 483 U.S. 868, 875 (1987)).
¶ 17. We have recognized two ways in which a search-and-seizure condition can be sufficiently narrowly tailored to satisfy Article 11. First, we have found a search condition to be narrowly tailored where it “authorizes a search only for contraband—that is, items defendant is prohibited from possessing under the conditions.” Cornell, 2016 VT 47, ¶ 39. Such a condition may not include as contraband items that a defendant has a legal right to own. Id. ¶ 40 (amending search-and-seizure condition to remove computers and digital media where defendant was no longer prohibited from possessing either). Second, we have found that a “broad general search authorization” was permissible in special circumstances, where the State could show an extraordinary probationary need for warrantless searches. Id. ¶ 30. Specifically, in Lockwood, the combination of defendant’s developmental delays and sexual deviancy resulted in “compulsive sexual behavior without awareness of the consequences of this behavior,” and therefore an unusually high risk of recidivism. Lockwood, 160 Vt. at 557, 632 A.2d at 662. In that context, we did not suppress the fruits of a warrantless search, conducted upon reasonable suspicion pursuant to a relatively broad warrantless search condition. By contrast, in State v. Moses, we struck a probation condition authorizing a broad warrantless search because the condition was not “based on findings that set a proper balance between [the] probationer’s privacy rights and the state’s special needs and [was] not narrowly tailored to reflect that balance.” 159 Vt. 294, 305, 618 A.2d 478, 484 (1992) (noting that “a ‘necessary’ search is not always a reasonable one”).
¶ 18. Here, none of the specific items named in the warrantless-search condition
¶ 19. If we struck all of the specific targets of a potential warrantless search in condition 38, we would be left with only the residual category of “any other item which may constitute a violation of [defendant’s] conditions.” The condition would be comparable to the one we struck in Moses allowing “enforcement of the conditions of probation through ‘search and investigation without warrant when necessary.’ ” Moses, 159 Vt. at 301, 618 A.2d at 482. Just like the condition in Moses, the remaining condition would not “provide guidance as to when the probationer may be searched without a warrant.” Id. at 305, 618 A.2d at 484. Moreover, the State has not presented any evidence that defendant in this case presents particularly challenging penological needs, like the probationer in Lockwood, such that the broader search authorization satisfies the balancing and narrow tailoring requirements of Article 11. As noted above, the PSI reflects that the risk of defendant committing further sexual offenses is relatively low. For these reasons, we strike Condition 38 in its entirety.4
III. Computer Monitoring
¶ 20. Condition 40 provides that defendant “will allow [his] Probation Officer or designee to monitor [his] computer/internet usage, to include, through the use of specific software for monitoring sex offenders.” He must also pay for charges associated with the monitoring.5 On appeal, defendant argues that this condition is unrelated to his rehabilitative needs or public safety, infringes on his Article 11 and Fourth Amendment privacy rights, and constitutes an unlawful delegation to the probation officer to choose the monitoring method.
¶ 21. We strike the condition. For the purposes of
we have grounded our decision in
¶ 22. The framework for determining whether the condition complies with
¶ 23. At trial, the State offered two reasons for the condition: first, it is “necessary to monitor the pornography prohibition,” and second, access to the internet would give defendant “arguably . . . more access to children than going to parks or places where kids congregate in person.” The first rationale no longer applies, because we strike the pornography prohibition. But defendant is prohibited from maintaining contact with children under the age of sixteen (and perhaps minors under the age of eighteen, as we note in § IV.A below). For that reason, a computer-monitoring condition tailored to enforcing this prohibition may be reasonably necessary to ensure that defendant will lead a law-abiding life,
¶ 24. Whether it does satisfy the respective requirements of
¶ 25. And there’s the rub: “monitoring” could describe a wide range of things, and it is impossible to tell here how great an invasion of defendant’s privacy the monitoring software would represent. Evaluating the constitutionality of a computer-monitoring condition “is fundamentally a question of technology.” United States v. Balon, 384 F.3d 38, 45 (2d Cir. 2004). For instance, less invasive monitoring techniques could include “software that alerted a probation officer only when [a probationer] was engaging in impermissible communications.” United States v. Lifshitz, 369 F.3d 173, 192 (2d Cir. 2004). On the other hand, more invasive technology might “record any and all activity on computers . . . including the capture of keystrokes, application information, internet use history, email correspondence, and chat conversations.” United States v. Shiraz, 784 Fed.Appx. 141, 142 (4th Cir. 2019) (per curiam). The Second Circuit has described in detail how monitoring programs differ:
[T]he varieties of products and techniques currently available diverge vastly in their breadth, and in their implications for computer users’ privacy. . . . First, some monitoring uses software installed on an individual’s personal computer, whereas other monitoring relies on records from the Internet Service Provider (“ISP”), through whom an account user’s requests for information or e-mails may be routed. The former type of monitoring might be more conducive to investigating all of a probationer’s computer-based activities, including those performed locally without connection to the Internet or any network—such as . . . word processing activities or [business-related activities]—whereas the latter would be limited to transmissions mediated by the ISP. Second, some software focuses attention upon specific types of unauthorized materials, whereas other kinds monitor all activities engaged in by the computer user. These distinctions may be material to determining whether the scope of the monitoring condition’s infringement on privacy is commensurate with the ‘special needs’ articulated in this case.
Lifshitz, 369 F.3d at 191 (footnotes omitted). In another case, the Second Circuit noted that it was unclear “whether the monitoring displays in real time on the probation officer’s computer screen the full content appearing on the user’s screen or merely a log describing that content.” Balon, 384 F.3d at 43. In some cases, monitoring may be completed not by the probation officer, but by a third-party organization, which notifies the probation officer only if it detects contraband. See United States v. Browder, 866 F.3d 504, 512 (2d Cir. 2017).
¶ 26. Because the condition here on its face authorizes limitless monitoring of defendant’s computer and internet use, it is not narrowly tailored to ensure a permissible balance between the government’s interests and defendant’s privacy rights, and we cannot conclude that it is “reasonably necessary” to help defendant lead a law-abiding life.8 On its own, “the term ‘monitoring’ is broad, encompassing some methods that are quite intrusive and therefore, perhaps, problematic.” United States v. Quinzon, 643 F.3d 1266, 1271 (9th Cir. 2011); see also Shiraz, 784 Fed.Appx. at 145 (condition allowing monitoring of “any and all activity on computers” lacked “any tailoring to avoid an overbroad interpretation”). Given the universe of possible computer
monitoring techniques, in order to be narrowly tailored to the State’s rehabilitation and public-protection goals, the condition must specify what digital materials the officer may monitor and how. This will likely require the State to present evidence about the monitoring process it seeks to use so that the court can understand the scope of the monitoring; the likelihood of detecting private information beyond that reasonably subject to the monitoring condition; the extent to which the technology can be customized to the narrow needs of a particular case; and other factors impacting the balancing and narrow-tailoring analyses. While the State has demonstrated some basis for monitoring some of defendant’s online activity, it has not demonstrated a need sufficient to justify the most intrusive monitoring programs, or that its proposed monitoring is narrowly tailored to the State’s legitimate needs. And the trial court has not narrowly tailored a condition consistent with the above requirements. Therefore, the condition runs afoul of
¶ 27. In light of our analysis under state law, we need not conduct a full Fourth Amendment analysis of the same monitoring condition; however, we note that our analysis squares with that of many federal courts applying federal law. Decisions from the Second and Ninth Circuits convince us that, like Article 11, the Fourth Amendment also requires narrow tailoring in the context of computer monitoring conditions. See United States v. Sales, 476 F.3d 732, 737 (9th Cir. 2007) (“A computer monitoring condition in some form may be reasonable. However, to comply with the Fourth Amendment, it must be narrowly tailored—producing no greater deprivation
IV. Contact with Minors
¶ 28. Conditions 41 and 42 relate to defendant’s contact with minors. Defendant argues that these conditions are unrelated to his offense, his rehabilitation, or public safety to the extent they prevent him from being in contact with sixteen- and seventeen-year-olds. He also argues that the condition relating to his employment or volunteer opportunities is impermissibly vague. As explained below, the record is not entirely clear as to whether the court did, in fact, impose conditions restricting defendant’s contact with sixteen- and seventeen-year-olds, and we remand for clarification. If the court does prohibit defendant from contacting sixteen- and seventeen-year-olds, it must provide a rationale for restricting otherwise lawful behavior. In any event, we conclude that the condition concerning employment and volunteering with organizations that primarily serve underage people is not impermissibly vague.
A. Confusion as to Scope of Contact Restrictions
¶ 29. The PSI recommended a restriction prohibiting defendant from initiating or maintaining contact with people under the age of eighteen, or working or volunteering for an entity that primarily serves people under the age of eighteen, unless approved in advance by his probation officer. At the sentencing hearing, as the trial court reviewed the PSI and its recommendations, defendant’s counsel stated that he “would not object to sixteen. I do object to eighteen.” The court stated, “I am going to impose eighteen.”
¶ 30. However, in the probation order signed by the court, both conditions restrict defendant’s contact with children under the age of sixteen. Condition 41 reads that defendant “may not initiate or maintain contact with males or females under the age of 16, unless otherwise approved in advance and in writing by your Probation officer or designee. Said contact may require being accompanied by a responsible adult, approved by your Probation Officer or designee.” Condition 42 reads that defendant “shall not work or volunteer for any business or organization that primarily provides services to persons under the age of 16 years, unless otherwise approved in advance[] by your Probation Officer or designee.”
¶ 31. We cannot fully reach the merits of this argument because there is an inconsistency in the record with regard to these conditions. Based on the general principle that an oral pronouncement at sentencing trumps a subsequent written sentencing order in the event of a conflict, defendant understands the condition to prohibit contact with people under the age
¶ 32. For these reasons, we remand to allow the trial court to clarify these two conditions. If the trial court intended for the age minimum to be eighteen, it should amend the probation order accordingly. See
B. Merits of Defendant’s Challenges
¶ 33. If the trial court does correct the order to restrict defendant’s access to all minors under the age of eighteen, it must state its rationale for doing so. Both condition 41 and condition 42 prohibit defendant from engaging in legal behavior.10 Therefore, under
since it implicates defendant’s First Amendment right to association. We have noted that “where fundamental rights are involved, special care should be used to avoid overbroad or vague restrictions.” State v. Whitchurch, 155 Vt. 134, 137, 577 A.2d 690, 692 (1990). The trial court’s only explanation for applying this condition to minors under the age of eighteen was that “[u]ntil he’s involved in active treatment, given his age, I just don’t see it in any way, shape, or form being appropriate for him having access or contact with sixteen- or seventeen-year-olds at this point.” It is unclear whether the trial court was basing its decision on defendant’s need for rehabilitation,
¶ 34. In any event, we reject defendant’s argument that condition 42, preventing him from working for any organization that “primarily provides services to persons under the age of 16 years” (or, per the above discussion, 18 years) unless approved by his probation officer, is fatally vague and delegates too much authority to the probation officer. When defendant voiced these concerns at sentencing, the trial court reasoned that the intent of the condition was to prevent defendant from working at “ABC Daycare” or any workplace that was designed to primarily serve minors. Defendant now argues that while he is clearly prohibited from working at a daycare, it is unclear whether he could work at a library, movie theater, supermarket, or fast-food restaurant. See State v. Rivers, 2005 VT 65, ¶ 13, 178 Vt. 180, 878 A.2d 1070 (listing these locations as places where children are regularly present). The State responds that the language of the condition puts defendant on notice of what would constitute a violation. In the State’s view, none of the examples listed as questionable by the defendant would constitute a violation of probation unless he worked for a business that specialized in serving minors rather than the general public.
¶ 35. A probation condition must be “precise enough to allow [its] implementation but not so broad that probation officers are effectively establishing the probationary terms.” State v. Putnam, 2015 VT 113, ¶ 64, 200 Vt. 257, 130 A.3d 836. The degree of discretion given to a probation officer must be “limited in relation to the court’s ability to anticipate the relevant issues and construct a proper condition.” Id. (quotation omitted).
¶ 36. We agree with the State that this condition on its face adequately puts defendant on notice as to what would constitute a violation, and does not delegate too much authority to his probation officer. The court sought to prohibit defendant from working or volunteering for an organization that served primarily minors, such as daycares or schools. It could not necessarily produce a list of every such organization, but instead described the critical metric by which defendant (and his probation officer) can evaluate a prospective employer or volunteer site: does it primarily serve people under the age of eighteen? If the State seeks to enforce this condition with respect to an organization that does not clearly fall within this parameter, defendant would be free to raise an as-applied notice issue at that time, but we conclude that it is not impermissibly vague on its face. See, e.g., Cornell, 2016 VT 47, ¶¶ 20-22 (holding that condition prohibiting violent or threatening behavior is not facially invalid but may fail to provide adequate notice as applied in a particular case).
¶ 37. Moreover, the condition did not grant the probation officer discretion to approve or veto any position that defendant applied for—only a position with an organization that primarily serves children. This condition strikes a permissible balance of authority, offering the probation officer “some degree of flexibility” but not “open-ended authority.” See Putnam, 2015 VT 113, ¶ 64 (quotation omitted).
V. Notification of Changes in Contact Information
¶ 38. Condition 31 requires defendant to “give [his] probation officer [his] home address, mailing address, telephone
¶ 39. On appeal, defendant argues that his homelessness makes compliance with the 48-hour notification requirement unfeasible. He points out that the trial court stated it did not perceive a risk from giving defendant 72 hours to notify his probation officer, and that under these circumstances it was an abuse of discretion to order a 48-hour notification requirement. The State responds that this Court has upheld 48-hour notification conditions in the past and that the trial court’s decision in this case was within its discretion.
¶ 40. We upheld a 48-hour notification condition in Putnam, where the defendant had argued that the condition (as well as several others) were not related to his crime or rehabilitation. We stated that “[i]mposition of substantially similar conditions relating to the administration of probation would be within the trial court’s discretion in any case in which probation is ordered.” 2015 VT 113, ¶ 48. This was because “defendant’s probation officer needs to know where defendant is living and working to understand defendant’s environment, to visit with defendant, and to identify any impediments to successful rehabilitation.” Id.
¶ 41. Our rationale in Putnam applies here as well. Defendant argues that the circumstances of his case set it apart from our general proclamations in Putnam. We agree that, because defendant is homeless, this condition of probation places a high burden on him. However, his homelessness does not negate the purpose of the condition as we described in Putnam. Defendant’s probation officer still must know where he is living, visit with him, and identify impediments to successful rehabilitation. Given the need for a notification condition, we do not believe that the trial court’s imposition of a requirement that he provide notice of changes within 48 hours, when defendant had asked for 72 hours, was an abuse of discretion. We affirm condition 31.
VI. Locations Where Children Congregate
¶ 42. Condition 37 provides that defendant “may not access or loiter in places where children congregate, i.e., parks, playgrounds, schools, etc., unless otherwise approved, in advance, by your Probation Officer or designee.”
¶ 43. At the sentencing hearing, defendant objected to “the overbreadth of the condition,” arguing that “the i.e. and the etcetera do not put him on sufficient notice of what may or may not be included.” The State responded that if defendant sought an exception, such as entering a school to vote, “he can talk with his probation officer about that and make arrangements to go,” and that “there’s no reason for him to be at parks or places where children congregate.” The court imposed the condition on public-safety grounds, reasoning that “he’s pled guilty to two charges involving two minor children in this case.” The court noted that the condition “doesn’t mean he has to stay out of all parks, but if he’s in a park in the children’s playground portion,
¶ 44. On appeal, defendant argues that this condition was rendered fatally vague when the trial court stated that the condition “doesn’t mean he has to stay out of all parks.” We disagree, since the trial court’s restatement of the condition was accurate.
¶ 45. We have previously upheld this condition against facial vagueness challenges. See State v. Gauthier, 2016 VT 37, ¶ 24, 201 Vt. 543, 145 A.3d 833; Cornell, 2016 VT 47, ¶ 23. We held that the condition was not overly vague because “the phrase ‘where children congregate’ is descriptive enough to put a defendant on notice that it includes all places where children are likely to be found in large numbers.” Cornell, 2016 VT 47, ¶ 24 (quoting Gauthier, 2016 VT 37, ¶ 25).
¶ 46. We reject defendant’s argument that the court’s statements during his sentencing hearing rendered the otherwise permissible condition impermissibly vague. The trial court’s statements during sentencing did not contradict the meaning of the condition, but exactly described the condition as it has been interpreted by this Court. The trial court stated that defendant did not have to stay out of all parks, but only the portions of parks where children congregate. This is an accurate description of condition 37; it does not, for instance, prohibit defendant from accessing a state park or a dog park. Cf. United States v. Peterson, 248 F.3d 79, 86 (2d Cir. 2001) (noting that impermissibly vague condition could be read to prohibit access to any park, including “Yellowstone National Park or . . . an adult gym”); Gauthier, 2016 VT 37, ¶ 26 (comparing vague Peterson condition to condition at issue here). The instant condition makes clear that it applies to places where children congregate, and applies to parks only insofar as they fall into that category. The trial court’s guidance on this point was therefore consistent with the condition and did not render it impermissibly vague on its face.
We affirm as to conditions 31 and 37; strike and reverse conditions 36, 38, and 40; and strike and remand conditions 41 and 42 for further action consistent with this opinion.
FOR THE COURT:
Associate Justice