APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 09-1-0308).
Paul J. Cunney, Victor J. Bakke, Marcus B. Sierra Dean CM. Hoe for Defendant-Appellant.
Rebecca A. Copeland, Deputy Solicitor General, Dorothy Sellers Solicitor General for Petitioner-Appellee.
FOLEY, PRESIDING JUDGE, FUJISE AND LEONARD, JJ.
Defendant-Appellant Rangie B. Alangcas (Alangcas) appeals from two interlocutory orders, entered on September 17, 2009, in the Circuit Court of the First Circuit (Circuit Court), denying Alangcas's motions to dismiss Counts I and III of Plaintiff-Appellee State of Hawaii's (State) indictment against him, both counts alleging electronic enticement of a child in the first degree in violation of Hawaii Revised Statutes (HRS) § 707-756 (Supp. 2012)
On appeal, Alangcas maintains that the Circuit Court erred in denying his motions to dismiss the indictment on the grounds that HRS § 707-756 is unconstitutionally vague and overbroad, and that it violates the "dormant" Commerce Clause of the United States Constitution. We affirm.
On March 5, 2009, the State obtained an indictment against Alangcas for two counts of electronic enticement of a child in the first degree in violation of HRS § 707-756 (Counts I and III), and two counts of attempted promoting pornography for minors in violation of HRS § 705-500 (1993) and HRS § 712-1215 (1993 & Supp. 2012) (Counts II and IV).
The charges arose from Alangcas's alleged improper electronic communications with police officers Andrew Brito and Sandi Fujitani, both posing as females under the age of eighteen, known respectively as "kaplma_girl" or "Heather Cabico" and "shoyubunnie" or "Shanna Lee." Regarding Counts I and III, the indictment alleged that while communicating with the police officers, Alangcas agreed to meet "Heather" and "Shanna" with the "intent to promote or facilitate the commission of a felony that is an offense defined in [HRS] Section 846E-1" and then "intentionally or knowingly travel[ed] to the agreed upon meeting place at the agreed upon meeting time." Alangcas is alleged to have started communicating with the "minors" on August 29, 2008, and he subsequently arranged two different meetings with them: one at a Starbucks on September 3, 2008; and one at a McDonalds on March 3, 2009. Immediately following the attempted meeting at McDonald's, Alangcas was apprehended and arrested.
On July 13, 2009, Alangcas filed two separate motions to dismiss the indictment. In the first motion, Alangcas argued that HRS § 707-756 was unconstitutional because the statute violates the dormant Commerce Clause of the United States Constitution. In the second motion, Alangcas argued that HRS § 707-756 is unconstitutionally vague and/or overbroad.
On September 2, 2009, the Circuit Court conducted a hearing on both motions. On September 17, 2009, the Circuit Court entered orders denying Alangcas's motions to dismiss. On September 28, 2009, Alangcas filed a motion for leave to assert an interlocutory appeal from the September 17, 2009 orders, pursuant to HRS § 641-17 (Supp. 2012), which was granted. Algancas timely filed a notice of appeal.
II. POINTS OF ERROR ON APPEAL
Alangcas raises the following points of error:
(1) the Circuit Court erred in determining that HRS § 707-756 does not violate constitutional prohibitions against vague and overbroad regulations; and
(2) the Circuit Court erred in determining that HRS § 707-756 does not violate Article I, Section 8 of the United States Constitution.
III. APPLICABLE STANDARD OF REVIEW
The appellate court reviews questions of constitutional law de novo under the 'right/wrong' standard. See, e.g.. State v. Fields, 115 Hawai'i 503, 511, 168 P.3d 955, 963 (2007). Every duly-enacted statute is presumptively constitutional, and the party challenging the statute must carry a heavy burden to overcome this presumption. State v. Gaylord, 78 Hawai'i 127, 137, 890 P.2d 1167, 1177 (1995). Whenever possible, a penal statute will be read narrowly and in such a manner as to preserve the statute's constitutionality. Id. at 137-38, 890 P.2d at 1177-78.
A. The Prohibition Against Vague and Overbroad Laws
The Hawai'i Supreme Court has adopted the following conceptual approach to constitutional challenges to penal statutes on vagueness grounds:
[T]his court has treated claims that a criminal statute is unconstitutionally vague as essentially facial attacks, subject to the following standard: Due process of law requires that a penal statute state with reasonable clarity the act it proscribes and provide fixed standards for adjudging guilt, or the statute is void for vagueness. Statutes must give the person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited so that he or she may choose between lawful and unlawful conduct.
This standard is essentially indistinguishable from the applicable standard under federal law. Thus we have so far not departed from federal constitutional law in the area of "void for vagueness" challenges to criminal statutes. Under the applicable federal law, a criminal statute is void for vagueness unless it: (1) gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he or she may act accordingly; and (2) provides explicit standards for those who apply the statute, in order to avoid arbitrary and discriminatory enforcement and the delegation of basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.
Gaylord, 78 Hawai'i at 138, 890 P.2d at 1178 (citations, brackets, internal quotation marks, and ellipsis omitted; format altered); see also State v. Beltran, 116 Hawai'i 146, 151, 172 P.3d 458, 463 (2007). Thus, the Due Process Clause of the Fourteenth Amendment requires that a criminal statute: (1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited; and (2) provide explicit standards that do not encourage arbitrary enforcement.
The supreme court has articulated the relationship between the void-for-vagueness doctrine and the doctrine of overbreadth as follows:
The doctrine of overbreadth, although closely related to a vagueness claim, is distinct in that while a statute may be clear and precise in its terms, it may sweep so broadly that constitutionally protected conduct as well as unprotected conduct is included in its proscriptions.
State v. Kaneakua, 61 Haw. 136, 143, 597 P.2d 590, 594 (1979) (citations omitted). Therefore, in order to determine whether a statute is overbroad, we must consider whether it reaches a substantial amount of constitutionally-protected conduct. See Beltran, 116 Hawai'i at 152, 172 P.3d at 464.
The statute at issue here, HRS § 707-756, provides in relevant part:
§ 707-756 Electronic enticement of a child in the first degree.
(1) Any person who, using a computer or any other electronic device:
(a) Intentionally or knowingly communicates:
(i) With a minor known by the person to be under the age of eighteen years;
(ii) With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or
(iii) With another person who represents that person to be under the age of eighteen years;
(b) With the intent to promote or facilitate the commission of a felony:
(i) That is a murder in the first or second degree;
(ii) That is a class A felony; or
(iii) That is .another covered offense as defined in section 846E-1, agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and
(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time, is guilty of electronic enticement of a child in the first degree.
HRS § 707-756(1) (Supp. 2012).
Alangcas argues that HRS § 707-756 is unconstitutionally overbroad and/or vague because it: (1) unnecessarily ensnares constitutionally-protected conduct; (2) overbroadly criminalizes mere thoughts without providing adequate safeguards; (3) does not require actual intent to commit a crime; (4) subjects criminal liability to the minors it seeks to protect; (5) attempts to ensnare offenses which are impossible to commit; (6) refers to a confusing labyrinth of language that results in guesswork and differences of opinion; and (7) would subject citizens to arrest and prosecution based on the moment-to-moment opinions of police officers. We consider each of these arguments in turn.
First, Alangcas argues that HRS § 707-756(1) broadly ensnares common and legitimate daily behavior by anyone who has a family member, relative, family friend, colleague, student, parishioner, employee, or customer under the age of 18 because the actureus prohibitions are: (1) use a computer or other electronic device to communicate with a person known or claiming to be under 18, or in reckless disregard that the person is under 18; (2) agree to meet that person; and (3) travel to the agreed upon meeting place at the agreed time. In making this argument, Alangcas ignores the language in subsection (b) of the statute that requires that these, otherwise "innocent" acts be done with the intent to promote or ...