January 28, 2022 Update

Seems apposite

By Andy Delaney

I will attempt to write an update (on the weeks SCOV issues opinions) on a weekly basis this year. Will I succeed in doing so? Who knows?   

Two opinions this past week: one entry order and one regular opinion, both in criminal law.

 We’ll start with the entry order. Mr. Labrecque has been trying to get out of jail on bail for a few years now. He’s accused of repeatedly sexually assaulting his partner’s daughter. Last go-‘round, in July ’21, he got SCOV to reverse and remand on the trial court’s failure to properly consider his electronic-monitoring proposal. This sequel is a different story and SCOV affirms this hold-without-bail order. This time, the trial court did consider the electronic monitoring issue and decided against it for articulated reasons—specifically that his partner would be working 50 hours a week, defendant’s criminal history, and defendant’s proximity at the proposed residence to a school and teenagers. An interesting wrinkle here is that Odyssey (the relatively new e-filing system in Vermont) is involved and there’s an indication that counsel didn’t attend a hearing where a decision was issued because of Odyssey irregularities and two different appeals got filed as a result. SCOV just glosses right over those issues, even though to find jurisdiction it has to acknowledge that the record in Odyssey ain’t exactly accurate. At any rate, SCOV concludes that defendant’s criminal history and the evidence in the case weigh in favor of detention in this case, over any mitigation of public-safety concerns presented by electronic monitoring. State v. Labrecque, 2022 VT 6 (mem.)

This week’s full-court opinion is an interlocutory appeal on whether a person can be charged under the “luring a child” statute, when the person charged believes he’s communicating with an adult to arrange sexual contact with a child, and the child turns out to be fictitious. Survey says . . . Yep. Defendant met a woman in an online chat room who said she had a seven-year-old and thirteen-year-old daughter. Defendant attempted to arrange to have sex with the woman’s thirteen-year-old daughter. Turns out woman was a cop and thirteen-year-old daughter was not real. The police tracked down defendant and charged him under the statute. (A brief aside: in general, I don’t like the idea of law enforcement baiting people to commit crimes and then charging them, but here I can make an exception.)

Defendant moved to dismiss, arguing that he thought he was communicating with an adult woman, not a child and therefore the statute didn’t apply. The trial court reasoned that the statute prohibited solicitation “by any means” and that covered this situation. Defendant moved to reconsider and that was denied. Defendant then filed a second motion to dismiss, arguing that the statute requires existence and proof of a human child who is the subject of the solicitation, which was not present in his case. The trial court rejected the argument reasoning that the elements were satisfied in this factual scenario but certified the question for interlocutory appeal.

On appeal, SCOV affirms the trial court’s denial of defendant’s motions to dismiss, reasoning that the term “another person believed by the person to be a child” makes it clear that the only thing required is the defendant’s belief that a child exists, not an actual child. SCOV runs through some case law from other jurisdictions and explains that under the statute, the crime of solicitation is complete upon its attempt—there is no requirement of an act. This one goes back to the trial court for further proceedings. State v. Vogel, 2022 VT 5.