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Bailey v. Commonwealth

Court of Appeals of Virginia

July 30, 2019

JESUS DAVILA BAILEY, III
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF PATRICK COUNTY Martin F. Clark, Jr., Judge

          Vikram Kapil, Deputy Public Defender, for appellant.

          Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Chafin, Russell and Senior Judge Clements Argued by teleconference

          OPINION

          WESLEY G. RUSSELL, JR JUDGE.

         Jesus Davila Bailey, III, appellant, was convicted in a bench trial of failing to re-register as a sex offender in violation of Code § 18.2-472.1, second offense. First at trial and now on appeal, he argues that Code § 18.2-472.1 and the associated reporting requirements are unconstitutional because they infringe on his First Amendment rights of freedom of speech and association. For the reasons that follow, we disagree. Accordingly, we affirm the judgment of the trial court.

         BACKGROUND

         In all material respects, the evidence is undisputed. In 2007, appellant was convicted of four counts of "Unlawful Sexual Contact Second Degree" in Delaware. As a consequence of those convictions, he was and remains required to register as a sex offender and to comply with the requirements associated with that status.

         Sometime after his convictions in Delaware, appellant moved to Virginia, and the Commonwealth began supervising his sex offender registration and status. The parties stipulated that Trooper Darren Suthers of the Virginia State Police is in charge of supervising appellant's status as a registered sex offender. The parties stipulated that, if called to testify, Suthers would have testified that appellant was required to register with the state police every six months and to report certain information as required by law.

         Among the categories of information that appellant is required to report to law enforcement is certain information about his Internet usage. Specifically, pursuant to Code § 9.1-903(B), a sex offender is required to "provide [law enforcement his or her] electronic mail address information, any instant message, chat or other Internet communication name or identity information that the person uses or intends to use[.]" Furthermore, pursuant to Code § 9.1-903(G),

any person required to register shall reregister either in person or electronically with the local law-enforcement agency where his residence is located within 30 minutes following any change of the electronic mail address information, any instant message, chat or other Internet communication name or identity information that the person uses or intends to use, whether within or without the Commonwealth. If a probation or parole officer becomes aware of a change of the electronic mail address information, any instant message, chat or other Internet communication name or identity information for any of his probationers or parolees required to register, the probation or parole officer shall notify the State Police forthwith upon learning of the change.

         Pursuant to Code § 18.2-472.1, a failure of a sex offender to comply with Code § 9.1-903(B), Code § 9.1-903(G), or other reporting requirements is a Class 1 misdemeanor. A subsequent failure to comply is a Class 6 felony.

         While being supervised as a sex offender, appellant also was subject to probation.[1] Aaron Evans was his probation officer. Evans testified that, separate and apart from the conditions imposed upon him by Code § 9.1-903(B) and (G), there were separate conditions of probation that had been placed upon appellant, including a prohibition on his use of social networking Internet sites. Appellant told Evans that he did not have access to the Internet and was not using any type of social media. During a routine search of all offenders that he supervised, Evans discovered a Facebook account belonging to appellant. On November 8, 2016, Evans asked appellant about the account, and appellant responded that he had been using Facebook for a "long time" to contact out-of-state family members. As a result, appellant was arrested for both a probation violation and for violating Code § 18.2-472.1(A).[2]

         Appellant filed a pre-trial motion arguing that the reporting requirements related to his Internet use are unconstitutional as a violation of his First Amendment rights. Citing Packingham v. North Carolina, 137 S.Ct. 1730 (2017), in which the United States Supreme Court struck down as violative of the First Amendment a North Carolina statute that prohibited registered sex offenders from accessing certain Internet sites, appellant argued that Virginia's requirements regarding reporting of his online identifiers/screennames also was unconstitutional. Specifically, he contended that Code ยง 18.2-472.1's imposition of a felony for his ...


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