State v. Scott Vogel ( 2022 )

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.
2022 VT 5No. 2021-105
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Lamoille Unit,
Criminal Division
Scott Vogel December Term, 2021
Nancy J. Waples, J.
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. COHEN, J. 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
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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). 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).
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¶ 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] (explaining 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) (identifying similar purposes behind Indiana’s child-solicitation statute);
State v. Coonrod, 652 N.W.2d 715, 723 (Minn. Ct. App. 2002) (stating purpose of Minnesota’s
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child-solicitation statute is “to prohibit any persuasive conduct by adults that might entice children
to engage in sexual activity,” and therefore defendant could be liable for solicitation of fictitious
child (quotation omitted)). 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 (criminalizing bodily injury to “another”).
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 intended victim of defendant’s crime was a minor,” even
though he was really communicating with an adult. Charette, 2018 VT 48, ¶ 6. We reasoned that
this interpretation was consistent with the plain language of the statute, which included attempted
crimes, as well as the statutory purpose and authority from other states. Id. ¶¶ 8-13.
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¶ 12. Similarly, the plain language of § 2828 makes clear that the pivotal question is
defendant’s belief that he is arranging to have sex with an actual minor, regardless of whether the
child he targets turns out to be real or fictitious. As explained above, this interpretation is
supported by the purposes behind the statute. It is also consistent with decisions from other
jurisdictions.
¶ 13. In Cayton v. Commonwealth, 580 S.W.3d 553 (Ky. Ct. App. 2019), the defendant
was convicted of knowingly using an electronic communications system to procure a minor for
sexual activities based on his emails and text messages to a law enforcement officer posing as the
mother of a thirteen-year-old daughter. The Kentucky Court of Appeals rejected the defendant’s
claim that he could only be convicted if he believed he was communicating with a minor. It
explained that “the identity of the person receiving the communication is not the dispositive issue
under [the Kentucky statute]. It is whether the defendant believed he was soliciting an actual child
for sexual activities.” Id. at 556 (citation omitted). Because the evidence presented at trial showed
that the defendant intentionally used an electronic means to arrange for a sexual encounter with a
minor, even though that minor did not exist, the defendant was properly found guilty under the
statute. Id. at 556-57. Courts in other states have reached similar conclusions when faced with
similar fact patterns. See Schlesselman v. State, 773 S.E.2d 413, 416 (Ga. Ct. App. 2015)
(affirming child-solicitation conviction where defendant believed he was exchanging email
messages with mother of fourteen-year-old girl, who turned out to be fictional); Pavlovich v. State,
6 N.E.3d 969, 982 (Ind. Ct. App. 2014) (affirming child-solicitation conviction where defendant
believed he was communicating with adult sister of minor child and that sister was passing along
his communications to child); State v. Wilson, 128 So. 3d 946, 949 (Fla. Dist. Ct. App. 2013)
(Torpy, C.J., concurring) (“[S]olicitation can occur if . . . the request is communicated through
another person, with the intent that the message reach the minor. This could be established in
either of two circumstances: where the solicitor believes that the intermediary is acting as the agent
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for the child or where the solicitor intends for the intermediary to pass the message on to the
child.”).
¶ 14. Defendant argues that the trial court erroneously concluded that defendant could be
liable for attempted luring under the statute because he was charged with the completed crime.
Assuming there was any error, it does not merit reversal, because the State’s allegations are
sufficient to support the charge that defendant violated § 2828 by soliciting sex with a minor.
Solicitation means “[t]he act or an instance of requesting or seeking to obtain something; a request
or petition.” Solicitation, Black’s Law Dictionary (11th ed. 2019). It can also mean “[t]he criminal
offense of urging, advising, commanding, or otherwise inciting another to commit a crime.” Id.
The crime of soliciting a child for sex under § 2828 is completed at the time the perpetrator asks
or requests to engage in sexual activity, regardless of whether the sexual act is carried out. See
State v. Masic, 2021 VT 56, ¶ 11, __ Vt. __, 261 A.3d 646(explaining that § 2828 “criminalize[s]
offers to engage in . . . illegal transactions”); Pavlovich, 6 N.E.3d at 981 (“[T]he crime of child
solicitation is completed at the time of the utterance, and there need not be any attempt to carry
out the solicited act at any time in the immediate future.” (quotations omitted)); Ganung v. State,
502 S.W.3d 825, 829 (Tex. App. 2016) (“Because the requisite intent arises within the conduct of
soliciting a minor, it does not matter what happens after the solicitation occurs because the offense
has been completed; it does not matter whether the solicited meeting actually occurs, or that the
defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a
fantasy at the time of the solicitation.” (quotation omitted)). Here, the State alleged that defendant
sent messages to the undercover officer requesting to have sex with the putative victim, whom he
believed to be a thirteen-year-old girl. This was sufficient to support the charge for the completed
crime under § 2828. See Model Penal Code § 5.02 (Am. L. Inst. 1985) (explaining that defendant
is guilty of solicitation even if command, encouragement, or request was not actually
communicated to solicited person, so long as solicitation was designed to be communicated); State
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v. Brown, 147 Vt. 324, 327, 515 A.2d 1059, 1062 (1986) (explaining that crime of solicitation
under 13 V.S.A. § 7 “is completed when a person advises, counsels or solicits another to commit
a felony regardless of whether the crime solicited is actually completed”). We therefore decline
to reverse on this basis.
The decision of the trial court denying defendant’s motion to dismiss is affirmed and the
matter is remanded for further proceedings.
FOR THE COURT:
Associate Justice
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