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State v. Charette

Supreme Court of Vermont

April 27, 2018

State of Vermont
v.
Benjamin Charette

          On Appeal from Superior Court, Criminal Unit, Lamoille Division Thomas Carlson, J.

          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

          ROBINSON, J.

         ¶ 1. The issue in this case 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 13 V.S.A. § 5401(10)(B) encompasses attempted crimes against a putative victim who the defendant perceives to be a minor. We accordingly affirm.

         ¶ 2. Defendant pled guilty to a charge of attempted luring of a child pursuant to 13 V.S.A. § 2828 based on his attempt to meet with a person he believed to be a minor child for the purpose of having sex. The charging affidavit reflects that, after receiving complaints concerning defendant's inappropriate online contact with minors, an investigator, posing as a thirteen-year-old girl named "Alexa, " reached out to defendant through Facebook. Defendant had an extended course of communications with "Alexa, " and ultimately asked her to meet with him to have sex. Police arrested defendant when he showed up at the arranged location at the agreed upon time and date.

         ¶ 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 argued that the sex offender registration statute, by its plain terms, requires the presence of an actual minor victim. See 13 V.S.A. § 5401(10)(B). The trial court concluded that the Legislature intended to include in the sex offender registration statute convictions where the "minor victim" was in fact an undercover police officer posing as a minor. Accordingly, the court issued an order requiring defendant to register in the sex offender registry. Defendant appealed.

         ¶ 4. The sex offender registration statute defines "sex offender" as a person convicted of any of various identified charges. 13 V.S.A. § 5401(10)(B). This definition includes, in relevant part:

(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 ...

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