Criminal – unlawful use of electronic means to induce minor : Filzek v. Commonwealth (COA 2/20/09 release for publication)

Filzek v. Commonwealth
2008-CA-000536 2/20/09 2009 WL 414462 Released for pub

Opinion by Senior Judge Graves; Judges Taylor and Lambert concurred.

The Court affirmed a judgment of the circuit court entered subsequent to appellant’s conditional guilty plea to four counts of violating KRS 510.155, which prohibits the unlawful use of electronic means to induce a minor to engage in sexual or other prohibited activities.

The Court first held that the peace officer provision of KRS 510.155 did not violate the First Amendment of the United States Constitution on its face or as applied when no actual child was involved in the communications between appellant and an undercover police detective posing as a fourteen-year-old girl. Offers to engage in illegal transaction are categorically excluded from First Amendment protection and KRS 510.155 merely prohibits the use of electronic means to engage in or solicit already otherwise prohibited activities. Further, it was not material that the child turned out to be a police officer, as it was appellant’s belief that he was soliciting an actual child. The Court then held that the multiple counts of the indictment did not violate the protection against double jeopardy. The singular use of the words “any” and “activity” in KRS 510.155(1) indicated that the Legislature intended prosecution for each incident involving electronic means to engage in the proscribed conduct. The facts did not demonstrate a course of conduct which culminated in a single proscribed activity but rather, each count of the indictment referred to temporally discrete incidents.

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