Summary
The Vermont Supreme Court affirmed Sanel Masic’s conviction for luring a child under 13 V.S.A. § 2828. The court rejected his facial and as-applied constitutional challenges, holding that the statute criminalizes speech integral to criminal conduct and is not unconstitutionally overbroad or vague. The court remanded for additional findings concerning a probation condition restricting where Masic could reside.
Topics
Practice areas
Questions Presented
- Whether 13 V.S.A. § 2828 is an unconstitutional content-based restriction on speech under the First Amendment and Article 13 of the Vermont Constitution.
- Whether 13 V.S.A. § 2828 is facially overbroad.
- Whether 13 V.S.A. § 2828 is void for vagueness under the Fourteenth Amendment's Due Process Clause and the Vermont Constitution.
- Whether the statute's knowingly mental-state requirement is constitutionally sufficient and whether the statute was unconstitutional as applied to defendant.
- Whether the probation condition requiring defendant to reside where directed by a probation officer was properly imposed.
Holdings
- Section 2828 does not violate the First Amendment or Article 13 because it criminalizes speech integral to criminal conduct—offers to engage in illegal sexual activity with children or persons believed to be children—and such speech is categorically excluded from First Amendment protection.
- Section 2828 is not unconstitutionally overbroad because its plainly legitimate sweep is broad and the potentially problematic applications identified by defendant do not constitute a substantial number of unconstitutional applications.
- Section 2828 is not unconstitutionally vague because it defines prohibited conduct with sufficient definiteness for ordinary people to understand and does not invite arbitrary or discriminatory enforcement.
- The Constitution does not require § 2828 to contain a mental-state requirement higher than knowingly, and the statute was not unconstitutional as applied to defendant.
- The residence condition cannot stand on the existing record because the trial court made no findings justifying the restriction and the condition lacked standards for implementation, effectively delegating the sentencing court's authority to a probation officer.
Key quotations
“This speech is “categorically excluded from First Amendment protection,” Williams, 553 U.S. at 297, and § 2828 accordingly is not subject to strict scrutiny.” (¶ 11)
“However, we agree with the State that given the nature of defendant’s crime, restrictions on his residence may be warranted, especially those related to proximity to children.” (¶ 26)
Factual background
In an undercover child-exploitation investigation, an officer posed online as a fourteen-year-old boy named Grayson. Defendant repeatedly requested oral sex after being told that Grayson was fourteen, agreed to meet at a South Burlington location, and was arrested when he arrived. A jury convicted defendant of luring a child under 13 V.S.A. § 2828.
Procedural history
A federal-state task force operation led to defendant's arrest after he communicated with an undercover officer posing as a fourteen-year-old boy and arranged a meeting for oral sex. Defendant moved to dismiss the charge on constitutional grounds, but the Superior Court denied the motion. A jury convicted him, and the court sentenced him to two to five years, with two years to serve, followed by ten years of probation, including a condition requiring residence at an approved location as directed by a probation officer. The Vermont Supreme Court affirmed the conviction but remanded for additional findings concerning the residence condition.
Remand instructions
The Superior Court must make additional findings and either justify and revise the residence-related probation condition with appropriate standards or strike the condition if appropriate. The judgment of conviction is affirmed.