THE CIRCUIT COURT OF PATRICK COUNTY Martin F. Clark, Jr.,
Kapil, Deputy Public Defender, for appellant.
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
G. RUSSELL, JR JUDGE.
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.
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.
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.
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 §
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
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.
being supervised as a sex offender, appellant also was
subject to probation. 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).
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 § 18.2-472.1's
imposition of a felony for his ...