Fraser v. Sleeper (2005-554)

2007 VT 78

[Filed 24-Aug-2007]


       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,
  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.


                                 2007 VT 78

                                No. 2005-554


  Paul Fraser                                    Supreme Court

                                                 On Appeal from
       v.                                        Washington Superior Court


  Kerry Sleeper, Commissioner                    February Term, 2007
  of Public Safety


  Helen M. Toor, J.

  William A. Nelson, Middlebury, for Plaintiff-Appellee.

  William H. Sorrell, Attorney General, and Harvey Golubock and Timothy B.
    Tomasi, Assistant Attorneys General, Montpelier, for Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

       ¶  1.  BURGESS, J.   The Commissioner of Public Safety appeals a
  superior court summary judgment ruling that Paul Fraser is not required to
  register as a sex offender in Vermont.  Mr. Fraser was previously convicted
  of possessing child pornography in New York.  The essential issue is
  whether New York's child pornography possession law is equivalent in its
  elements to Vermont's law.  We conclude that it is not in this case and
  therefore affirm.
   
       ¶  2.  The undisputed facts are as follows.  Paul Fraser was a
  social worker living and working in New York when, in 1998, he took his
  computer to a repair shop.  An employee of the repair shop discovered child
  pornography on Fraser's computer and reported it to police.  Fraser was
  convicted in 1999 under New York law of two counts of possessing child
  pornography.  Fraser raised the issue of bona fide use of the images for
  research purposes before the New York trial court.  The court rejected bona
  fide use by a social worker as a defense and refused to instruct the jury
  on it.  An intermediate appellate court and the state high court both
  affirmed the determination that a bona fide use exception was not available
  to Fraser and upheld the convictions.  People v. Fraser, 704 N.Y.S.2d 426
  (App. Div. 2000), aff'd, 752 N.E.2d 244 (N.Y. 2001). 

       ¶  3.  Fraser subsequently moved to Vermont where he was directed to
  register as a sex offender and did so.  Fraser then sought to have his name
  removed from the registry, first by requesting that the Commissioner no
  longer require him to register.  When the Commissioner refused his request,
  Fraser brought suit in superior court pursuant to Vermont Rule of Civil
  Procedure 75, seeking mandamus and declaratory relief.  Fraser argued that
  the acts for which he was convicted in New York would not constitute a
  crime in Vermont because Vermont's law contains a bona fide use exemption
  for which he would have been eligible.  The Commissioner responded that
  Vermont's bona fide use exemption is a defense, not an element of the
  crime, and New York's crime of possessing child pornography is therefore
  equivalent in its elements to Vermont's.  The court granted Fraser's motion
  for summary judgment, concluding that bona fide use is not an affirmative
  defense under the Vermont statute but is, rather, an element of the crime
  which the state must affirmatively disprove beyond a reasonable doubt.  The
  court declined to reach the issue of whether Fraser actually had a bona
  fide reason for possessing child pornography. 
   
       ¶  4.  In reviewing a grant of summary judgment, we employ the same
  standard as the trial court, finding summary judgment appropriate if there
  are no genuine issues of material fact and a party is entitled to judgment
  as a matter of law.  V.R.C.P. 56(c)(3); In re Barrows, 2007 VT 9, ¶ 5, __
  Vt. __, 917 A.2d 490.  Conclusions of law are reviewed de novo.  Barrows,
  2007 VT 9, ¶ 5.

       ¶  5.  Under Vermont's sex offender registration statute, a person
  moving to Vermont who has been convicted of a sex offense elsewhere must
  register as a sex offender in Vermont.  13 V.S.A. § 5407(a)(1).  This
  requirement extends to persons with a conviction "for a sex crime the
  elements of which would constitute a crime" under § 5401(10)(B) if
  committed in Vermont.  Id. § 5401(10)(C).  Subsection (10)(B) encompasses
  crimes of sexual exploitation of children under Chapter 64 of Title 13, id.
  § 5401(10)(B)(v), and includes possession of child pornography as set out
  in 13 V.S.A. § 2827.  The child pornography possession statute provides:

     (a) No person shall, with knowledge of the character and content,
    possess any photograph, film or visual depiction, including any
    depiction which is stored electronically, of sexual conduct by a
    child (FN1)or of a clearly lewd exhibition of a child's genitals
    or anus.

  Id. § 2827(a).  The next subsection provides, in pertinent part, however,
  that there is no prohibition against possessing child pornography for
  certain legitimate purposes:
    
     (b) This section does not apply:

      (1) if the depiction was possessed for a bona fide medical,
    psychological, social work, legislative, judicial or law
    enforcement purpose, by a physician, psychologist, social worker,
    legislator, judge, prosecutor, law enforcement officer, or other
    person having such a bona fide interest in the subject matter . .
    . .

  Id.§ 2827(b).  In yet a third subsection, the statute sets forth certain
  "affirmative defenses" to the crime:
   
     (c) In any prosecution arising under this section, the defendant
    may raise any of the following affirmative defenses, which shall
    be proven by a preponderance of the evidence:

      (1) that the defendant in good faith had a reasonable basis to
    conclude that the child in fact had attained the age of 16 when
    the depiction was made;

      (2) that the defendant in good faith took reasonable steps,
    whether successful or not, to destroy or eliminate the depiction.

  Id. § 2827(c).

       ¶  6.  The elements of the New York law under which Fraser was
  convicted are identical to those contained in subsection (a) of the Vermont
  law.  The New York law prohibits "possessing a sexual performance by a
  child when, knowing the character and content thereof, [a person] knowingly
  has in his possession or control any performance which includes sexual
  conduct by a child less than sixteen years of age."  N.Y. Penal Law §
  263.16.  The New York law does not, however, include any provision similar
  to § 2827(b)(1) to exempt social workers or any other professionals.  The
  question presented, then, is whether the exemptions provided in § 2827(b)
  are elements of the offense to be negated beyond a reasonable doubt by the
  state.  If the bona fide use exemption is an element to be disproved by the
  state, Vermont's law is not equivalent to New York's law and no sex
  offender registration is required in Vermont for New York convictions.  If
  the bona fide use exemption is an affirmative defense to be asserted and
  proven by the defendant, the essential elements of the two crimes are
  identical and New York offenders must register in Vermont.
   
       ¶  7.  The trial court concluded that because the bona fide use
  exception was not among the affirmative defenses specifically identified as
  such in subsection (c), it must be an element.  The Commissioner suggests,
  to the contrary, that the bona fide use exception can be best understood as
  an "ordinary defense."  Unlike affirmative defenses, for which the
  defendant has the burden of both production and persuasion, State v.
  Leopold, 2005 VT 94, ¶ 9, 179 Vt. 558, 889 A.2d 707, an ordinary defense
  places the burden of production on the defendant but leaves the burden of
  persuasion with the state.  See 1 C. Torcia, Wharton's Criminal Law § 39,
  at 266-67 (15th ed. 1993).  We have adopted this burden allocation for
  defenses such as self defense, State v. Barrett, 128 Vt. 458, 460, 266 A.2d
  441, 443 (1970), and, prior to a statutory amendment, insanity.  State v.
  Gokey, 136 Vt. 33, 37-38, 383 A.2d 601, 603 (1978) (describing sanity as an
  element of the crime with rebuttable presumption in its favor and burden on
  defendant to produce evidence sufficient to create a jury question),
  superseded by statute, 13 V.S.A. § 4801(b) (providing for insanity as an
  "affirmative defense"), as recognized in State v. Messier, 145 Vt. 622,
  626-27, 497 A.2d 740, 742 (1985); see generally State v. Baker, 154 Vt.
  411, 416-17, 579 A.2d 479, 481-82 (1990) (discussing historical development
  of criminal defense burden allocations).  As an ordinary defense, the
  Commissioner posits, bona fide use cannot be an element, and the elements
  of the New York and Vermont crimes are thus the same.
   
       ¶  8.  The Commissioner's position is not without support in the
  case law of other jurisdictions, as well as our own.  United States v.
  McArthur concerned an exception contained in a federal statute prohibiting
  firearms possession in federal facilities.  108 F.3d 1350, 1352-53 (11th
  Cir. 1997).  In a separate subsection, the law provided that no person was
  to be convicted if notice was not posted at the entrance of the facility. 
  Id. at 1353.  The court determined that the notice exception was an
  affirmative defense and not an element.  Id. at 1356.  The court reached
  this conclusion by applying a three-part test consisting of (1) the
  language and structure of the statute, (2) the legislative history, and (3)
  a comparison of whether the government or the defendant is better situated
  to adduce evidence tending to prove the applicability vel non of the
  exception.  Id. at 1353.  This same test was applied to a statute more
  similar to the one before us in United States v. Kloess, where the court
  considered an exception to a federal obstruction of justice statute.  251
  F.3d 941 (11th Cir. 2001).  The exception provided that the statute did not
  " 'prohibit or punish the providing of lawful, bona fide, legal
  representation services in connection with or anticipation of an official
  proceeding.' "  Id. at 944 (quoting 18 U.S.C. § 1515(c)).  Like the statute
  before us, the obstruction of justice statute also contained a subsection
  explicitly providing for affirmative defenses.  Id. at 945 n.3.  The Kloess
  court nevertheless rejected the argument that lack of express affirmative
  defense language indicated that Congress intended the exception to be an
  element.  The court reasoned that Congress "routinely creates exceptions to
  criminal liability for various offenses" that "do not contain language
  indicating that they are affirmative defenses" but are nevertheless
  interpreted as affirmative defenses.  Id. at 945 (collecting cases).  Many
  other jurisdictions similarly hold that "when an exception is found in a
  separate clause or is clearly disconnected from the definition of the
  offense, it is the defendant's burden to claim it as an affirmative
  defense."  People v. Reed, 932 P.2d 842, 844 (Colo. Ct. App. 1996)
  (collecting cases); see also, e.g., State v. West, 929 S.W.2d 239, 242 (Mo.
  Ct. App. 1996) ("where the exception is found in a separate clause or part
  of the statute disconnected from the definition of the offense, the
  exception is not for the prosecution to negate, but for the defendant to
  claim as a matter of affirmative defense").
   
       ¶  9.  We came to a similar conclusion in State v. McCaffrey, 69 Vt.
  85, 37 A. 234 (1896).  The defendant in that case, charged with truancy for
  not sending his child to school, argued that he fit within certain
  statutory exceptions to the attendance requirement and that the state had
  the burden to negate the exceptions as elements.  Id. at 88-89, 90, 37 A.
  at 235.  In rejecting the defendant's argument and finding the exceptions
  to be defenses, the Court stated:

    The rule is that the exceptions must be negatived only where they
    are descriptive of the offense, or define it; but where they
    afford matter of excuse merely, and do not define nor qualify the
    offense created by the enacting clause, they are not required to
    be negatived.  In this case the exceptions are not descriptive of
    the offense.  If the respondent came within either of the
    exceptions, the fact was peculiarly within his knowledge, and
    should have been proved by him as a matter of defense.

  Id. at 90-91, 37 A. at 235-36.  The McCaffrey rule has been explicitly
  followed several times since, most recently in 1989 when we held that
  defendants bore the burden of proving that their alleged offenses were
  committed in "Indian country" and therefore outside of Vermont
  jurisdiction.  State v. St. Francis, 151 Vt. 384, 388-89, 563 A.2d 249,
  251-52 (1989). 

       ¶  10.  The trial court acknowledged the case law suggesting that the
  subsection 2827(b) exemptions may be defenses, but nevertheless concluded
  that it must draw meaning from the omission of the phrase "affirmative
  defenses" from that subsection in contrast to the express use of that
  phrase to describe the defendant's burden in subsection (c).  We agree that
  "[w]here the Legislature includes particular language in one section of a
  statute but omits it in another section of the same act, it is generally
  presumed that the Legislature did so advisedly."  Hopkinton Scout Leaders
  Ass'n v. Guilford, 2004 VT 2, ¶ 8, 176 Vt. 577, 844 A.2d 753.  However,
  application of that tenet of statutory interpretation does not inevitably
  lead to a conclusion that the exemptions are elements when, as the
  Commissioner points out, the exemptions could be intended as ordinary
  defenses.  
   
       ¶  11.  Under McCaffrey, an element is that which defines or
  describes the crime.  69 Vt. at 90, 37 A. at 235.  The crime of possessing
  child pornography is defined by subsection 2827(a).  Provisions that make
  an excuse or exception to the definition, particularly those principally
  within the knowledge of the defendant, are defenses.  Id. at 90-91, 37 A.
  at 235-36; see, e.g., State v. Rowell, 120 Vt. 166, 169-70, 136 A.2d 349,
  351-52 (1957) (citing McCaffrey in holding that defendant had burden to
  show vehicle had been inspected in absence of inspection sticker); State v.
  Romano, 101 Vt. 53, 56, 140 A. 492, 493 (1928) (citing McCaffrey in holding
  that exception to prohibition on liquor sales for licensed sellers was a
  defense, not an element).  The subsection 2827(b) exemptions fit this
  description.  A bona fide reason for possession of child pornography would
  typically not be apparent from the material itself and may never be
  apparent until explained by the possessor.  Therefore, in keeping with the
  McCaffrey rule and the approach taken by many jurisdictions, we hold that
  the bona fide use and other subsection (b) exemptions are ordinary
  defenses, for which the defendant has the burden of production and the
  state has the burden of persuasion.  But the case before us is not merely
  about determining a defendant's burden in showing an exemption applies. 
  Rather, we are tasked with discerning the Legislature's intent by use of
  the phrase "the elements of which would constitute a crime . . . if
  committed in this state" in describing convictions for which sex offender
  registration is required.  13 V.S.A. § 5401(10)(C).
   
       ¶  12.  Sex offender registry statutes are remedial rather than
  penal.  See State v. Bollig, 2000 WI 6, ¶¶ 18-20, 605 N.W.2d 199
  (finding that overwhelming majority of states have held sex offender
  registration is not penal but rather intended to enhance community safety). 
  As a remedial statute, we give liberal interpretation to advance the
  Legislature's intended remedy.  Dep't of Corr. v. Human Rights Comm'n, 2006
  VT 134, ¶ 7, __ Vt. __, 917 A.2d 451.  We do not believe the Legislature
  intended the result urged by the Commissioner: to include in the sex
  offender registry requirement persons whose acts would have been excused
  under Vermont's prohibition against possessing child pornography.  Nor do
  we believe the Legislature intended to exclude from registration - because
  of a non-applicable exemption in our law - those persons convicted of
  possessing child pornography in other states whose act of possession would
  have also been a crime if committed in Vermont.  This would be the result
  if we were to conclude that New York's statute contains different elements
  - no person convicted in New York of possessing child pornography would
  have to register as a sex offender in Vermont, regardless of whether their
  possession was bona fide or otherwise.  We interpret statutes to avoid
  absurd and illogical results such as this in favor of reasonable
  construction "when a plain reading of the statute would produce a result
  demonstrably at odds with any conceivable legislative purpose."  Judicial
  Watch, Inc. v. State, 2005 VT 108, ¶ 16, 179 Vt. 214, 892 A.2d 191
  (quotations omitted).  Thus, we understand the term "elements" in the
  phrase "the elements of which would constitute a crime . . . if committed
  in this state"  as referring to the elements of the crime that was actually
  committed, including any applicable exemptions for which the state would
  have the burden of persuasion if committed in Vermont.  See Model Penal
  Code § 1.13(9)(c) (defining elements of a crime to include the negative of
  any defense). 
        
       ¶  13.   There was, of course, no determination in New York concerning
  Fraser's claim of bona fide use, since the court rejected it as a defense. 
  Nor is there any provision in Vermont's sex offender registry statute for
  an evidentiary hearing to resolve such a claim, other than perhaps charging
  an alleged offender under 13 V.S.A. § 5409 (FN2) for failure to register
  and trying the issue of whether he or she is a "sex offender" as defined in
  Vermont - in essence a retrial of the underlying out-of-state conviction
  but instead applying Vermont's equivalent criminal statute.  As the
  Commissioner points out, such an evidentiary hearing could be difficult,
  given the gap in time and distance that any out-of-state conviction would
  necessarily present.  We conclude that, despite those potential evidentiary
  obstacles, a convicted offender should be given the opportunity through a
  declaratory judgment action, such as the present case, to meet the burden
  of production of one or more exemptions to the Vermont statute. 
                               
       ¶  14.  When a person convicted of possessing child pornography in
  another state either produced or could have produced evidence at their
  underlying criminal proceeding sufficient to meet the burden of production
  of bona fide use, or any other of the subsection 2827(b) exemptions, that
  exemption becomes an "element" of our statute for purposes of 13 V.S.A. §
  5401's sex offender registration requirement.  Meeting the burden of
  production may be accomplished by simply presenting the record of
  proceedings underlying the out-of-state conviction, where evidence of an
  exemption was introduced, or allowing the offender an opportunity to
  present evidence to meet the burden of production, if such opportunity was
  not available in the underlying proceedings. (FN3)  The Commissioner, or
  reviewing court, need only determine that a burden of production has been
  met - not whether the offender actually had a bona fide use.  The Vermont
  statute, including any applicable exemptions, may then be compared to the
  convicting state's statute.  If the convicting state's law includes such an
  exemption - either as a defined element or as an exception with the burden
  of persuasion on the prosecution - registration is required in Vermont.  If
  the convicting state's law does not contain an equivalent exemption, as is
  the case in New York, registration is not required in Vermont.

       ¶  15.  Here, there is no dispute that Fraser raised the issue of bona
  fide use before the New York court and produced evidence of bona fide use
  in the form of his own testimony.  At his New York trial, Fraser testified
  to his credentials as a social worker and further explained that he
  possessed the material "in connection with his scientific research to
  develop treatment for persons transmitting child pornography on the
  Internet."  Fraser, 752 N.E.2d at 245-46.  The evidence was sufficient to
  meet Fraser's burden of production for Vermont's ordinary defense of
  possession for a bona fide social work purpose.  See Baker, 154 Vt. at 414,
  579 A.2d at 480 (explaining that to meet burden of production, defendant
  must establish a prima facie case on each element of the defense).  Having
  met the burden of production, bona fide use became an element of the
  equivalent Vermont crime for purposes of § 5401(10)(C).  Accordingly, the
  New York crime, lacking a bona fide use exception, does not contain the
  equivalent elements in this case, and Fraser is not a sex offender in
  Vermont as that term is defined in § 5401.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  " 'Child' means any person under the age of 16 years."  13 V.S.A. §
  2821(1).

FN2.  That statute penalizes "a sex offender who knowingly fails to comply
  with any provision of [the sex offender registration] subchapter."  13
  V.S.A. § 5409.

FN3.  In allowing offenders an opportunity to meet their burden of production
  in Vermont, post-conviction, we anticipate that offenders would not
  otherwise have an opportunity to make a prima facie case for bona fide use
  or other exemptions in the convicting state when the state does not
  recognize such exemptions.  Even in the state of Fraser's conviction, New
  York, the next defendant seeking to raise a bona fide use defense would
  likely be unable to even present evidence because the issue was settled as
  a matter of New York law by Fraser's case.


