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CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. ICA NO. 30109; CR. NO. 09-1-0308.
Victor J. Bakke, Paul J. Cunney, Marcus B. Sierra, Dean C.M. Hoe, and Daniel J. Kawamoto, for petitioner.
David M. Louie and Marissa H.I. Luning, for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND CIRCUIT JUDGE TO'OTO'O, ASSIGNED BY REASON OF VACANCY.
[134 Hawai'i 519] OPINION
Over the last fifteen years, states have struggled to address internet solicitation of minors because traditional attempt and solicitation statutes do not sufficiently address internet activity. In response, " state legislatures have revised their criminal statutes to create a new species of crime called 'Internet luring,' or 'enticement.'"  In 2002, Hawai'i enacted Hawai'i Revised Statutes (HRS) § 707-756, electronic enticement of a child in the first degree, to deter crimes against minors by prohibiting the use of an electronic
[134 Hawai'i 520] device to " lure a minor to a meeting with intent to commit a felony." H. Stand. Comm. Rep. No. 417, in 2002 House Journal, at 1399.
The appeal in this case challenges the constitutionality of HRS § 707-756 on overbreadth, vagueness, and dormant commerce clause grounds. In resolving the constitutional challenges, we also determine the scope of the conduct prohibited by the electronic enticement statute.
Honolulu Police Department (HPD) Detective Andrew Brito created an online persona of a 14-year-old girl, Heather Cabico, with the screen name " kaplma_girl." On August 29, 2008, a user with the screen name " eel_nana" started a chat with " kaplma_girl," in which it was represented that " kaplma_girl" was a fourteen-year-old girl. It was later confirmed that " eel_nana" was the screen name of Rangie B. Alangcas, a male adult. In subsequent online chats, Alangcas expressed his interest in meeting Heather Cabico for the purpose of having sex. Although Alangcas was informed that Heather Cabico was fourteen-years-old, he still indicated that he would meet her " for having sex" even if she was " not experienced."
Alangcas traveled to a decoy meeting at a coffee shop at an agreed upon time on September 3, 2008. Alangcas was surveilled at the coffee shop by HPD officers, and he later confirmed in an online chat that it was he who showed up at the decoy meeting.
On March 3, 2009, Alangcas again related his desire to engage in sexual conduct with Heather Cabico, and a meeting was set up for that day. In an online message, Alangcas indicated that he would meet Heather Cabico and her fourteen-year-old friend, " Shanna," at a Pearl City fast-food restaurant before all going to Shanna's house. Alangcas expressed that he would engage in various sexual acts with Heather, including sexual intercourse.
HPD officers watched Alangcas leave his house and travel to the fast-food restaurant, and Alangcas was arrested outside of the restaurant shortly after his arrival. Alangcas subsequently admitted that he went to the restaurant on March 3, 2009, with the intent to engage in sexual conduct with the two girls. Alangcas also admitted to sending pornographic web site information and a full-face picture of himself to the girls.
B. Procedural Background
1. Trial Court Proceedings
Alangcas was indicted in counts I and III upon the charge of electronic enticement of a child in the first degree, in violation of HRS § 707-756, and in counts II and IV upon the charge of attempted promotion of child pornography for minors, in violation of HRS § 705-500(1)(a) and HRS § 712-1215(1)(b)(i). Alangcas filed two motions to
[134 Hawai'i 521] dismiss Counts I and III of the indictment (collectively, " motions to dismiss" ). The first motion argued that HRS § 707-756 violates the dormant commerce clause (first motion to dismiss), and the second motion argued that the statute is unconstitutionally overbroad and vague (second motion to dismiss).
On September 2, 2009, a hearing was held on Alangcas' motions to dismiss. The court orally agreed with the State's opposing position and denied the motions to dismiss. The circuit court filed orders denying both motions on September 17, 2009. The court granted Alangcas' motion for leave to file an interlocutory appeal, and the appeal was filed on October 12, 2009.
2. Proceedings before the ICA
a. Arguments of the Parties
On appeal to the ICA, Alangcas argued that the circuit court erred in denying his motions to dismiss because HRS § 707-756 is unconstitutional as it is (i) overbroad, (ii) vague, and (iii) burdens interstate commerce.
In support of his contention that HRS § 707-756 is unconstitutionally overbroad because it criminalizes lawful conduct, Alangcas first evaluated the actus reus of HRS § 707-756. He argued that the actus reus is overbroad because it sweeps in lawful conduct, such as making innocent plans to meet a person under the age of eighteen. Next, Alangcas evaluated the mens rea of HRS § 707-756 and asserted that the criminal mens rea, " the intent to promote or facilitate the commission of a felony," only applies to one of the statute's three elements. Thus, he submitted that the mens rea " scheme" is overbroad as it does not narrow the offense sufficiently to exclude lawful conduct.
Alangcas maintained that the " purpose of the overbroad mens rea and actus rea" was to create a de facto attempt statute. He contended that HRS § 707-756 " is so overbroad that it can be committed solely in the mind without any criminal acts or outward manifestations of criminal intent."
In response, the State contended that HRS § 707-756 is not overbroad and only applies to criminal behavior. The State argued that Alangcas' analysis improperly considered the actus reus elements separately from the mens rea, and the State maintained that " a person who merely contacts a minor, agrees to meet the minor, and travels to the agreed upon meeting place cannot be prosecuted under the electronic enticement statute, unless the act is performed with the additional scienter--that is, to promote or facilitate a certain felony."
The State noted that HRS § 707-756 sets forth three distinct mens rea requirements to correspond with each element of the offense and only the second element requires the intent to promote or facilitate the commission of a felony. The State maintained that while all three mens rea requirements must be met for criminal liability to attach, only criminal behavior is proscribed by HRS § 707-756 " because the statute requires all three paragraphs to be read together." 
The State disagreed with Alangcas' argument that HRS § 707-756 is a de facto attempt statute and asserted that the purpose of the statute was to criminalize predatory computer behavior rather than circumvent the attempt statute. The State maintained that in criminalizing predatory computer behavior, the statute " requires overt acts including electronic communication and traveling to an agreed meeting place" and cannot be committed solely by thoughts as Alangcas suggests.
[134 Hawai'i 522]ii.
Alangcas' also contended that HRS § 707-756 is void for vagueness because its referral to HRS § 846E-1 makes it unconstitutionally confusing. He pointed to the fact that " covered offenses" under HRS § 846E-1 include a criminal offense that is comparable or exceeds other defined offenses (Catch-all Clauses). Alangcas surmised that persons of reasonable intelligence could differ on what crimes are comparable or exceed others and that such subjectivity creates an unconstitutional danger of discriminatory enforcement. Alangcas also suggested that HRS § 707-756 is vague because it includes " undefined offenses and possibly offenses in other federal, military and state jurisdictions" (the Conviction Clauses). Lastly, Alangcas argued that " the key action word, 'communicates' is left undefined" and that " [t]his vagueness invites delegation of basic policy matters to policemen. .. for resolution on an ad hoc and subjective basis."
The State responded that HRS § 707-756 is clear in its criminal prohibitions because it unambiguously defines the covered offenses of " crimes against minors" and " sexual offenses". The State argued that the Conviction Clauses are not vague or overbroad because they clearly refer to crimes that would be the equivalent of those listed in other jurisdictions. In response to Alangcas' argument that HRS § 707-756 subjects citizens to arbitrary police enforcement, the State maintained that the statute " clearly proscribes only conduct that is intended to harm minors."
Alangcas contended in his third argument on appeal that HRS § 707-756 violates the " dormant commerce clause" because it regulates conduct wholly outside of Hawai'i, places a burden on interstate commerce that outweighs the benefits the state received, and creates an inconsistent patchwork of regulations that has a chilling effect on interstate commerce over the internet. Alangcas asserted that " state attempts to regulate the flow of information over the internet will almost always be invalid."
In its response, the State countered that under its police power it may regulate internet conduct intended to endanger children's welfare. The State reasoned that HRS § 707-756 does not burden interstate commerce because it only applies if the conduct or the result of the offense occurs within the State of Hawai'i. The State maintained that the statute does not contribute to a patchwork of inconsistent regulations and that any burden imposed on interstate commerce is far outweighed by the State's interest in protecting children.
b. ICA Opinion
On November 29, 2013, the ICA issued its published opinion.
State v. Alangcas, 131 Hawai'i 312, 318 P.3d 602 (App. 2013). In determining whether a statute is overbroad,
[134 Hawai'i 523] the ICA concluded it must " consider whether it reaches a substantial amount of constitutionally-protected conduct."
Id. at 316, 318 P.3d at 606.
The ICA considered Alangcas' argument that HRS § 707-756 could be violated by a person who innocently uses an electronic device to communicate with a person under eighteen, agrees to meet that person, and travels to the agreed meeting place at the agreed time, all without a criminal intent. The ICA held that this argument " ignores the language in subsection (b) of the statute that requires that these otherwise 'innocent' acts be done with the intent to promote or facilitate the commission of certain, specified, felonies." 
Id. at 317, 318 P.3d at 607. Thus, the ICA concluded that " [w]hen the statute is read as a whole, it is clear that only criminal conduct is proscribed." Id.
In response to Alangcas' argument that HRS § 707-756 is overbroad because it requires criminal intent for only the second element, the ICA noted that " because the statute requires all three paragraphs of the statute to be read together, only behavior done with the requisite criminal intent is proscribed, i.e., conduct that occurs with the intent to promote or facilitate the commission of a felony." 
Id. The ICA concluded that " [s]uch a prohibition does not broadly sweep in innocent electronic communications with minors." Id.
The ICA next addressed Alangcas' vagueness challenge.
Id. at 320, 318 P.3d at 610. The ICA held that the reference in HRS § 846E-1 to convictions in other jurisdictions was " merely redundant" and the " criminal prohibition is clear."
Id. at 321, 318 P.3d at 611. The ICA determined that the reference in HRS § 846E-1 to " comparable" offences was not vague because a " person of ordinary intelligence can easily understand that a comparable offense is an equivalent one."
Id. However, the ICA found that the word " exceeds," as used in the Catch-all Clauses of HRS § 846E-1, was unconstitutionally vague because the statute and its legislative history provided no guidance for determining whether an offense exceeded the enumerated ones.
Id. at 325, 318 P.3d at 615.
Nonetheless, the ICA concluded that the statute was not unconstitutional as applied to Alangcas because " before a law may be held to be unduly vague, in violation of due process, it must be demonstrated that the law is impermissibly vague in all its applications."
Id. The ICA held that Alangcas engaged in conduct that was clearly proscribed by the statute and that he could not " complain of the vagueness of the law as applied to the conduct of others." Id.
In response to Alangcas' argument that the word " communicates" in the statute is undefined and fails to distinguish between " conduct that is calculated to harm and that which is essentially innocent," the ICA held that " when read in conjunction with the rest of the statute, the meaning [of 'communicates'] gains even greater clarity" and provides " much less leeway" to police in their enforcement of the statute and gave the " general public. .. a much better understanding of just what conduct is prohibited."
Id. at 326, 318 P.3d at 616.
The ICA concluded that HRS § 707-756 " is not unconstitutionally overbroad and/or vague as applied to Alangcas, and the Circuit Court did not err in denying Alangcas' motion to dismiss the indictment on that basis." Id .
[134 Hawai'i 524] Lastly, the ICA rejected Alangcas' argument that HRS § 707-756 violated the dormant commerce clause, concluding that it " does not concern interstate commerce, and, therefore, scrutiny under the Commerce Clause ...