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 

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before this opinion goes to press.

2021 VT 56

No. 2019-386

State of Vermont Supreme Court

On Appeal from

 v. Superior Court, Chittenden Unit,

Criminal Division

Sanel Masic December Term, 2020

Martin A. Maley, J.

Thomas J. Donovan, Jr., Attorney General, and John D.G. Waszak, Assistant Attorney General,

 Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, Dawn Matthews, Appellate Defender, and 

 Mary Harrington, Legal Intern, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. COHEN, J. Defendant Sanel Masic was convicted on jury verdict of luring a child 

under 13 V.S.A. § 2828. On appeal, he argues that the statute is an unconstitutional restriction on 

speech and void for vagueness under the U.S. and Vermont Constitutions. He further challenges 

the superior court’s imposition of a probation condition as part of his sentence. We affirm the 

conviction but remand for additional findings regarding the condition of probation. 

¶ 2. The State introduced the following evidence at trial. In September 2017, a taskforce

of federal and state law enforcement officers conducted an operation to investigate child 

exploitation in the Burlington area. As part of this operation, a special agent posed as a fictitious 

fourteen-year-old boy named “Grayson” by posting profiles and personal advertisements in 
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various websites and applications. Defendant responded to one of these ads, asking through email

if Grayson was “still looking” and then stating in explicit language that he was interested in oral 

sex and did not care about age or appearance. Though Grayson had indicated in the ad that he was 

eighteen years old, he replied that he was under eighteen and asked if that was okay with defendant. 

Defendant answered affirmatively, indicating again that he did not care about age as long as he 

received oral sex. Grayson then wrote that he was fourteen and asked if that was okay. Defendant 

again answered in the affirmative and asked for an address. When a few minutes passed without 

a response, defendant threatened to report Grayson’s ad while repeatedly requesting oral sex, 

saying, “Now dude send me ur address and blow me or I’m reporting ur ad.” Defendant requested 

oral sex several times throughout the conversation, using similar language. He agreed to meet 

with Grayson at a South Burlington location to execute the transaction and was arrested upon 

arriving at said location.

¶ 3. Defendant was charged with luring a child under 13 V.S.A. § 2828(a), which 

provides that “[n]o person shall knowingly solicit, lure, or entice, or . . . 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 “in lewd and lascivious conduct.” 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). It does not apply, 

however, “if the person is less than 19 years of age, the child is at least 15 years of age, and the 

conduct is consensual.” Id. § 2828(c).

¶ 4. Defendant filed a pretrial motion to dismiss the charge, arguing that § 2828 is

unconstitutional under the U.S. and Vermont Constitutions. The superior court denied the motion, 

and a jury trial was held where defendant was found guilty. Entering judgment accordingly, the 

court sentenced defendant to two to five years, with two years to serve, and ten years of probation. 
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One of the probation conditions provides that defendant “will reside at [his] approved residence as 

directed by [his] assigned Probation Officer or designee.” 

¶ 5. On appeal, defendant first advances facial challenges to § 2828, arguing that the 

statute is unconstitutional under the First Amendment to the U.S. Constitution and Article 13 of 

the Vermont Constitution because it creates a content-based restriction on speech that fails strict 

scrutiny and because it is overbroad. He also contends that the statute is void for vagueness under 

the Fourteenth Amendment’s Due Process Clause. Defendant further argues that § 2828 is 

unconstitutional as applied to him and challenges the use of the mental element “knowingly” in 

the statute. Finally, he argues that the probation condition governing where he may live was 

improper and must be vacated.

I. Facial Challenges to 13 V.S.A. § 2828

¶ 6. We first consider defendant’s facial challenges to § 2828. These challenges, 

presenting questions of law, are reviewed without deference to the superior court. State v. Noll, 

2018 VT 106, ¶ 21, 208 Vt. 474, 199 A.3d 1054.

A. Content-Based Restriction on Protected Speech

¶ 7. Defendant argues that § 2828 enacts a content-based restriction on constitutionally 

protected speech and fails strict scrutiny. The First Amendment, which is applicable to the states 

by operation of the Fourteenth Amendment, Thornhill v. Alabama, 310 U.S. 88, 95 (1940), 

prohibits laws “abridging the freedom of speech,” U.S. Const. amend. I. Similarly, Chapter I, 

Article 13 of the Vermont Constitution declares “[t]hat the people have a right to freedom of 

speech.” Vt. Const. ch. I, art. 13. We have so far declined to extend greater free-speech protection 

under Article 13 than under the First Amendment and thus engage in a First Amendment analysis, 

construing Article 13 as coextensive with its federal analogue. See State v. Read, 165 Vt. 141, 

153, 680 A.2d 944, 951 (1996). 
4

¶ 8. Generally, the First Amendment prohibits the government from restricting 

“expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. Am.

Civil Liberties Union, 535 U.S. 564, 573 (2002) (quotation omitted). Accordingly, content-based 

regulations are “presumptively invalid,” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992), and 

must withstand strict scrutiny to survive constitutional attack, Turner Broad. Sys., Inc. v. F.C.C., 

512 U.S. 622, 642 (1994). However, the U.S. Supreme Court has recognized several “well-defined 

and narrowly limited classes of speech” that may be restricted in furtherance of social order

without implicating First Amendment concerns. United States v. Stevens, 559 U.S. 460, 468-69

(2010) (quotation omitted). One of these is “speech integral to criminal conduct,” id. at 468, 

including offers to engage in illegal transactions, which are “categorically excluded from First 

Amendment protection,” United States v. Williams, 553 U.S. 285, 297 (2008). Indeed, “[m]any 

long established criminal proscriptions—such as laws against conspiracy, incitement, and 

solicitation—criminalize speech . . . that is intended to induce or commence illegal activities.” Id. 

at 298.

¶ 9. Thus, when the State of Missouri enacted a law that prohibited entering into an 

agreement to restrain trade, that state’s courts could, outside the purview of the First Amendment, 

enjoin union members from picketing outside a business because the picketing sought to compel

the business to enter into such an agreement. See Giboney v. Empire Storage & Ice Co., 336 U.S. 

490, 497-98 (1949). “It rarely has been suggested,” the Court observed, “that the constitutional 

freedom for speech and press extends its immunity to speech or writing used as an integral part of 

conduct in violation of a valid criminal statute.” Id. at 498. Similarly, when the federal 

government passed laws prohibiting the possession and distribution of child pornography, it could 

also, beyond the protection of the First Amendment, criminalize the pandering and solicitation of

child pornography. See Williams, 553 U.S. at 288, 299. “[O]ffers to give or receive what . . . is 

unlawful to possess have no social value and thus . . . enjoy no First Amendment protection.” Id. 
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at 298; see also Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 

388 (1973) (“We have no doubt that a newspaper constitutionally could be forbidden to publish a 

want ad proposing a sale of narcotics or soliciting prostitutes.”).

¶ 10. Relying on this principle, federal courts of appeals have rejected constitutional 

challenges to the federal child-luring statute, which is analogous to § 2828. As relevant, the federal 

statute exposes to criminal liability a person who “knowingly persuades, induces, entices, or 

coerces any individual who has not attained the age of 18 years, to engage in prostitution or any 

sexual activity for which any person can be charged with a criminal offense, or attempts to do so.” 

18 U.S.C. § 2422(b). When, for instance, a defendant attempted to entice fictitious teenage girls

into conduct violative of Massachusetts laws prohibiting sexual intercourse or lascivious acts with 

minors, the First Circuit rejected a contention that the luring statute criminalizes protected speech, 

noting that “[s]peech intended deliberately to encourage minors’ participation in criminal sexual 

conduct has no redeeming social value and surely can be outlawed.” United States v. Dwinells, 

508 F.3d 63, 71 (1st Cir. 2007). The court observed that “where . . . speech is the instrumentality 

of the crime itself, the First Amendment provides no shelter from the government’s exercise of its 

otherwise valid police powers.” Id.; see also United States v. Gagliardi, 506 F.3d 140, 148 (2d 

Cir. 2007) (noting that because “[s]peech is not protected by the First Amendment when it is the 

very vehicle of the crime itself,” there is no “First Amendment right to persuade one whom the 

accused believes to be a minor to engage in criminal sexual conduct” (quotation omitted)); United 

States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) (“Speech attempting to arrange the 

sexual abuse of children is no more constitutionally protected than speech attempting to arrange 

any other type of crime.”).

¶ 11. The Vermont Legislature has criminalized engaging in a sexual act with a child 

under the age of sixteen. 13 V.S.A. § 3252(c), (e). And it has proscribed engaging in lewd or 

lascivious conduct with a child under that age. Id. § 2602(a)(1). In extending criminal liability to 
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someone who knowingly solicits, lures, or entices—or attempts to solicit, lure, or entice—a child 

under the age of sixteen—or another person believed to be a child under that age—to commit such 

an act or engage in such conduct, the Legislature criminalized speech integral to criminal conduct. 

Stated otherwise, the Legislature criminalized offers to engage in these illegal transactions. This 

speech is “categorically excluded from First Amendment protection,” Williams, 553 U.S. at 297, 

and § 2828 accordingly is not subject to strict scrutiny.

B. Overbreadth and Vagueness

¶ 12. Defendant next argues that § 2828 is unconstitutionally overbroad and vague. We 

consider these arguments together because the same considerations lead us to the same conclusion: 

It is neither. 

¶ 13. “[A] law may be invalidated as overbroad if a substantial number of its applications 

are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Stevens, 559 

U.S. at 473 (quotation omitted). This doctrine stems from judicial concern that an overly broad

“statute’s very existence may cause others not before the court to refrain from constitutionally 

protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). But “the 

mere fact that one can conceive of some impermissible applications of a statute is not sufficient to 

render it susceptible to an overbreadth challenge.” Members of City Council of Los Angeles v. 

Taxpayers for Vincent, 466 U.S. 789, 800 (1984).

¶ 14. The vagueness doctrine, in contrast, arises not from the First Amendment, but from 

due process. Williams, 553 U.S. at 304. It dictates that “a penal statute [must] define the criminal 

offense with sufficient definiteness that ordinary people can understand what conduct is prohibited 

and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. 

Lawson, 461 U.S. 352, 357 (1983). Due process does not, however, demand “perfect clarity and 

precise guidance.” Williams, 553 U.S. at 304 (quotation omitted). 
7

¶ 15. The premise for defendant’s overbreadth and vagueness arguments is that the 

statute lacks a specific-intent requirement. He maintains that the statute’s unconstitutional 

applications include proscribing sexual speech between consenting persons under the age of 

fifteen; sexual speech with literary, artistic, or scientific value; and roleplay scenarios between 

consenting adults in which one fantasizes that the other is a child.

¶ 16. Addressing these claims requires us to interpret the statute, an analysis in which we 

try to determine and implement the Legislature’s intent. State v. Doe, 2020 VT 78, ¶ 10, __ Vt. 

__, 249 A.3d 658. When the plain language of the statute clearly indicates legislative intent, “we 

implement the statute according to that plain language.” Id. (quotation omitted). 

¶ 17. Based on the plain language of § 2828, we conclude that the Legislature enacted a 

criminal statute that is not facially vague or overbroad. To begin, contrary to defendant’s 

argument, the statute contains a specific-intent requirement. A conviction under § 2828 requires 

that the accused “knowingly solicit, lure, or entice, or . . . attempt to solicit, lure, or entice.” 13 

V.S.A. § 2828(a) (emphases added). “A person acts ‘knowingly’ when ‘he is aware that it is 

practically certain that his conduct will cause such a result.’ ” State v. Jackowski, 2006 VT 119, 

¶ 5, 181 Vt. 73, 915 A.2d 767 (quoting Model Penal Code § 2.02(2)(b)(ii)). An “attempt” requires 

“an intent to commit a crime, coupled with an act that, but for an interruption, would result in the 

completion of a crime.” State v. Sawyer, 2018 VT 43, ¶ 12, 207 Vt. 636, 187 A.3d 377 (mem.). 

As we have explained, crimes committed knowingly and intentionally would have been specificintent offenses at common law. See Jackowski, 2006 VT 119, ¶¶ 6-7 (explaining that 

“intentionally” is synonymous with “purposely”). The mental states required by § 2828 are well 

known and considerably narrow what the statute prohibits. See Williams, 553 U.S. at 294 

(rejecting overbreadth challenge to federal child pornography solicitation statute, among other 

reasons, because statute contains “knowingly” scienter requirement).
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¶ 18. Additionally, the requirement to “solicit, lure, or entice” contains meaningful, 

definite terms of common use and further narrows the statute’s scope. See United States v. 

Tykarsky, 446 F.3d 458, 473 (3d Cir. 2006) (reaching similar conclusion with terms “persuade,” 

“induce,” “entice,” and “coerce” in federal child-luring statute). Section 2828 is also clear 

regarding the target of the speech: “a child under 16 years of age or another person believed by the 

person to be a child under 16 years of age.” 13 V.S.A. § 2828(a). Finally, “sexual act” and “lewd 

and lascivious conduct” are limited, identifiable concepts. The former is defined explicitly by

statute, see id. § 3251(1); the latter is the subject of extensive judicial interpretation, see, e.g., In 

re A.P., 2020 VT 86, ¶ 19, __ Vt. __, 246 A.3d 399.

¶ 19. Defendant’s arguments do not convince us that a substantial number of the statute’s 

applications are unconstitutional. To engage in a roleplay scenario and fantasize that a sexual 

partner is a child is not to knowingly solicit, lure, or entice a child under the age of sixteen or a

person believed to be a child under that age. Nor would such facts support a conviction under the 

attempt prong of the statute, which requires proof of intent. See United States v. Dhingra, 371 

F.3d 557, 561 (9th Cir. 2004) (observing that federal child-luring statute “does not chill legitimate 

speech because the scienter and intent requirements of the statute sufficiently limit criminal 

culpability to reach only conduct outside the protection of the First Amendment”).

¶ 20. Defendant does not explain how § 2828 chills sexual speech with literary, artistic, 

or scientific value. We fail to see how a statute proscribing offers to engage in criminal sexual 

activity with children, or persons believed to be children, chills speech with literary, artistic, or 

scientific value to any degree, let alone to the substantial degree necessary to invalidate a statute 

on its face. At any rate, a future application to speech with literary, artistic, or scientific value may 

be invalidated in an as-applied challenge. See Broadrick, 413 U.S. at 615-16 (holding that state 

statute prohibiting political activities by government employees was not unconstitutionally 
9

overbroad and noting that “whatever overbreadth may exist should be cured through case-by-case 

analysis of the fact situations to which its sanctions, assertedly, may not be applied”).

¶ 21. We recognize that § 2828 could be applied to communications between two persons 

under the age of fifteen to engage in consensual sexual activities. See 13 V.S.A. § 2828(c) (making 

the statute inapplicable “if the person is less than 19 years of age, the child is at least 15 years of 

age, and the conduct is consensual”). Compared with the statute’s plainly legitimate sweep, 

however, this does not mean that a substantial number of the statute’s applications are 

unconstitutional. The U.S. Supreme Court has observed that “[t]he prevention of sexual 

exploitation and abuse of children constitutes a government objective of surpassing importance.” 

New York v. Ferber, 458 U.S. 747, 757 (1982). At the same time, it has recognized that the 

overbreadth doctrine is “strong medicine” and has employed the remedy “only as a last resort.” 

Id. at 769, 773 (quotation omitted) (holding that a state statute prohibiting child pornography was 

not unconstitutionally overbroad despite some overbreadth where impermissible applications of 

the statute amounted to no more than “a tiny fraction of the materials within the statute’s reach”). 

Here, the statute’s plainly legitimate sweep is broad. The problematic applications defendant 

suggests are, in comparison, few. The circumstances presented in this case do not call for the 

strong medicine of facial invalidation on overbreadth grounds. 

II. As-Applied Challenge

¶ 22. We have largely disposed of defendant’s as-applied challenge to § 2828 in the 

preceding discussion. This challenge is similarly grounded on the incorrect proposition that the 

statute does not contain a specific-intent requirement. At trial, defendant pursued a defense that 

he wanted to meet “Grayson” only to warn him of the dangers of online sexual predators. He 

requested a jury instruction that to find him guilty, he must have acted purposely, rather than 

knowingly, as the statute provides. Following the language in the statute, the court instructed the 

jury that to find defendant guilty, he must have “acted knowingly and not inadvertently or because 
10

of mistake or by accident.” As noted, the statute requires that the person “knowingly solicit, lure, 

or entice,” 13 V.S.A. § 2828(a), and “[a] person acts knowingly when he is aware that it is 

practically certain that his conduct will cause such a result,” Jackowski, 2006 VT 119, ¶ 5

(quotation omitted). For the reasons explained above, the Constitution does not require the statute 

to contain a higher mental element than knowingly. 

¶ 23. Defendant presented his defense to the jury, but the latter rejected it. The evidence 

supports the jury’s finding that defendant acted knowingly. Defendant asked Grayson, who said 

he was fourteen years old, for oral sex multiple times. Defendant was vulgar, insistent, and 

impatient, saying, “Now dude send me ur address and blow me or I’m reporting ur ad.” He then 

drove to a predetermined location to meet with his interlocutor. There is no basis to invalidate the 

statute as applied. 

III. Probation Condition

¶ 24. Finally, defendant appeals the probation condition providing that he “will reside at 

[his] approved residence as directed by [his] assigned Probation Officer or designee.” He objected 

to the condition at the sentencing hearing and now arguesthat the court made no findings to support 

the condition. The State acknowledges the deficiency and counsels a remand for findings. 

¶ 25. While the superior court retains expansive discretion in crafting probation 

conditions, we will reverse where the court abuses that discretion. State v. Urban, 2018 VT 25, 

¶ 7, 207 Vt. 13, 184 A.3d 731. “Vermont law authorizes a sentencing court to set probation 

conditions that reasonably relate to the crime committed or that aid the probationer in avoiding 

criminal conduct.” State v. Moses, 159 Vt. 294, 297, 618 A.2d 478, 480 (1992) (citing 28 V.S.A. 

§ 252). The court may not delegate its authority to impose probation conditions to probation 

officers, which includes imposing such a standardless condition that the probation officer is in 

effect imposing the condition. Id. at 481-82.
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¶ 26. Here, the superior court did not make any findings to justify this probation 

condition, which restricts where defendant may reside without any standards for implementation. 

Under these circumstances, the condition cannot stand. See, e.g., State v. Freeman, 2013 VT 25, 

¶ 17, 193 Vt. 454, 70 A.3d 1008; Moses, 159 Vt. at 299-300, 618 A.2d at 482. 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. Accordingly, we remand the matter

to the superior court so that it may justify and revise the condition or strike it if appropriate.

The judgment of conviction is affirmed, and the matter is remanded for additional findings 

regarding the probation condition restricting where defendant may reside.

FOR THE COURT:

Associate Justice