State v. Alangcas.

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Electronically Filed
Supreme Court
SCWC-30109
09-FEB-2015
09:05 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
RANGIE B. ALANGCAS,
Petitioner/Defendant-Appellant.
SCWC-30109
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30109; CR. NO. 09-1-0308)
February 9, 2015
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND
CIRCUIT JUDGE TOʻOTOʻO, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY POLLACK, J.
Over the last fifteen years, states have struggled to
address internet solicitation of minors because traditional
attempt and solicitation statutes do not sufficiently address
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internet activity.1 In response, “state legislatures have
revised their criminal statutes to create a new species of crime
called ‘Internet luring,’ or ‘enticement.’”2 In 2002, Hawaiʻi
enacted Hawaiʻi 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 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.
1
Julie Sorenson Stanger, Salvaging States’ Rights to Protect
Children from Internet Predation: State Power to Regulate Internet Activity
Under the Dormant Commerce Clause, 2005 B.Y.U. L. Rev. 191, 192 (2005); see
also Danica Szarvas-Kidd, Electronic Luring Statutes Under Fire: How the
Courts Have Responded to Constitutional Challenges and Notable Defenses to
Luring Crimes, Prosecutor, July/August 2006, at 42 (“TO DATE, 40 states have
enacted electronic luring statutes which criminalize the act of soliciting
children online for illegal sex acts, and a multitude of case law has emerged
as courts have struggled to interpret these statutes.” (footnote omitted)).
2
Stanger, supra note 1, at 192.
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I. Background
A. Facts3
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
3
The facts are derived from a police report attached as “Exhibit
A” to Rangie Alangcas’ second motion to dismiss. The parties have accepted
the police report as an accurate recitation of the events throughout the
litigation.
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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 § 707-756,4 and in counts II and IV upon the
4
HRS § 707-756 (Supp. 2008) states,
(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;
(continued. . .)
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charge of attempted promotion of child pornography for minors,
in violation of HRS § 705-500(1)(a) and HRS § 712-1215(1)(b)(i).5
Alangcas filed two motions to 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).
(. . .continued)
(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.
5
Counts II and IV are not at issue in this appeal.
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On September 2, 2009, a hearing was held on Alangcas’
motions to dismiss.6 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,
2009.7 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.
i.
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
6
The Honorable Glenn J. Kim presided.
7
The orders did not include findings and conclusions.
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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
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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.”8
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.9
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
8
Alangcas pointed out that the State’s position on appeal, that
the criminal mens rea of the second element should apply to all three
elements, was inconsistent with the State’s position in the circuit court.
Alangcas noted that the trial deputy argued that the criminal intent only
applied to the second element.
9
Alangcas maintained that irrespective of the legislative intent
to criminalize predatory criminal behavior, the statute was overbroad and
vague because “there is no actus reus of luring in § 707-756.”
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Clauses).10 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).11
10
The “Catch-all Clauses” refer to provisions within HRS § 846E-1
definitions of “Crimes against minors” section 4 and “Sexual offenses”
section 6, which read:
“Crime against minors” excludes “sexual offenses” as
defined in this section and means a criminal offense that
consists of:
. . . .
(4) A criminal offense that is comparable to or which
exceeds one of the offenses designated in paragraphs
(1) through (3); . . .
. . . .
“Sexual offense” means an offense that is:
. . . .
(6) A criminal offense that is comparable to or that
exceeds a sexual offense as defined in paragraphs (1)
through (5) . . . .
HRS § 846E-1 (Supp. 2009).
11
The “Conviction Clauses” refer to provisions within HRS § 846E-1
definitions of “Crimes against minors” section 5 and “Sexual offenses”
section 7, which read:
“Crime against minors” excludes “sexual offenses” as
defined in this section and means a criminal offense that
consists of:
. . . .
(5) Any federal, military, out-of-state, tribal, or foreign
conviction for any offense that, under the laws of this
State, would be a crime against minors as designated in
paragraphs (1) through (4).
(continued. . .)
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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.”
iii.
Alangcas contended in his third argument on appeal
that HRS § 707-756 violates the “dormant commerce clause”
because it regulates conduct wholly outside of Hawaiʻi, places a
(. . .continued)
“Sexual offense” means an offense that is:
. . . .
(7) Any federal, military, out-of-state, tribal, or foreign
conviction for any offense that under the laws of this
State would be a sexual offense as defined in
paragraphs (1) through (6).
HRS § 846E-1.
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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 Hawaiʻi. 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 Hawaiʻi 312, 318 P.3d 602 (App.
2013). In determining whether a statute is overbroad, 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
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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.”12 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,
12
In this passage and others in its opinion, the ICA appears to
interpret the felonious intent set forth in subsection (b) of the statute to
apply to all of the conduct elements. See also id. at 318, 318 P.3d at 608
(“[T]he statute plainly criminalizes conduct . . . that is coupled with the
intent to promote or facilitate the commission of a felony.”).
Yet, the ICA Opinion also seems to suggest a contrary interpretation—
that the felonious intent of HRS § 707-756 only applies to the agreement
element and not to the communication and traveling elements. The ICA Opinion
states that the offense “sufficiently identifies the mens rea for each of the
acts which together constitute the criminal offense.” Id. at 317, 318 P.3d
at 607; see also id. at 326, 318 P.3d 616 (“A plain reading of the statute
makes clear that HRS § 707–756 only attaches culpability when a defendant
intentionally or knowingly communicates with a minor, agrees to meet the
minor with the intent to promote or facilitate a felony, and then
intentionally or knowingly travels to the agreed upon place at the agreed
upon time.”).
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i.e., conduct that occurs with the intent to promote or
facilitate the commission of a felony.”13 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
13
See supra note 12.
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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.
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 is not appropriate.” Id. at 328, 318
P.3d at 618.
On January 14, 2014, the ICA issued its judgment on
appeal affirming the circuit court’s orders.
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C. Application for Writ of Certiorari
In his Application for Writ of Certiorari
(Application), Alangcas presents two questions:
1. Whether the ICA gravely erred in only using an “as
applied” analysis and holding that HRS § 707-756 is not
unconstitutionally overbroad and/or vague and that the
Circuit Court did not err in denying Mr. Alangcas’ motion
to dismiss the indictment on that basis.
2. Whether the ICA gravely erred in holding that HRS §
707-756 does not violate the dormant Commerce Clause of the
United States Constitution and that the Circuit Court
properly denied Mr. Alangcas’ motion to dismiss the
indictment on that ground.
Alangcas argues that the ICA applied the “wrong
vagueness and overbreadth analysis” because the ICA used an “as
applied” analysis instead of the “more stringent ‘facial’
analysis.” Alangcas contends that HRS § 707-756 “does not limit
its affect to words that are inherently criminal in nature or
that in and of themselves constitute the crime.” On the issue
of overbreadth, Alangcas argues that since “the First Amendment
is involved” in this case, he only has to show that HRS § 707-
756 “is broad enough in its terms to suppress protected speech,
without the need of showing that the specific conduct before the
court is protected.” Alangcas also maintains that the ICA’s
dormant commerce clause analysis was based on its erroneous
application of an “as-applied” standard.
In its response, the State contends that the
overbreadth doctrine does not apply because HRS § 707-756 “only
regulates communication that is integral to a course of criminal
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conduct[] and such speech receives no First Amendment (or
overbreadth) protection.”14 The State argues that even if the
speech involved in HRS § 707-756 were protected, the statute
would still survive a facial challenge.
Concerning vagueness, the State maintains that “it is
irrelevant whether the statute could be vague in other
circumstances or as to others not before the court” because it
is not vague as applied to Alangcas. The State also asserts
that the ICA correctly determined the dormant commerce clause
challenge.
II. Standards of Review
When confronted with a constitutional challenge of a
penal statute on the grounds of vagueness or overbreadth, the
following principles apply:
The constitutionality of a statute is a question of law
which is reviewable under the right/wrong standard.
Additionally, where it is alleged that the legislature has
acted unconstitutionally, this court has consistently held
that every enactment of the legislature is presumptively
constitutional, and a party challenging the statute has the
burden of showing unconstitutionality beyond a reasonable
doubt. The infraction should be plain, clear, manifest, and
unmistakable.
State v. Gaylord, 78 Hawaiʻi 127, 137, 890 P.2d 1167, 1177
(1995).
14
The State agrees with Alangcas that the “most natural reading of
the statute, based on its plain language and structure, is that the felonious
intent only applies to the agreement element.”
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Where possible, a penal statute will be read in such a
manner as to preserve its constitutionality.
To accord a constitutional interpretation of a provision of
broad or apparent unrestricted scope, courts will strive to
focus the scope of the provision to a narrow and more
restricted construction.
Provisions of a penal statute will be accorded a limited
and reasonable interpretation under this doctrine in order
to preserve its overall purpose and to avoid absurd
results.
Id. at 138, 890 P.2d at 1178 (quoting State v. Taylor, 49 Haw.
624, 634, 425 P.2d 1014, 1021 (1967)). “[A] statute will not be
held unconstitutional by reason of uncertainty if any sensible
construction embracing the legislative purpose may be given it.”
Id.
III. Discussion
“In a facial challenge to the overbreadth and
vagueness of a law, a court’s first task is to determine whether
the enactment reaches a substantial amount of constitutionally
protected conduct.” State v. Beltran, 116 Hawaiʻi 146, 152, 172
P.3d 458, 464 (2007) (quoting Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)). “If
it does not, then the overbreadth challenge must fail.”
Hoffman, 455 U.S. at 494.
“In determining whether a substantial amount of
protected activity was affected, a court should evaluate the
ambiguous as well as the unambiguous scope of the enactment.”
Id. Thus in evaluating whether a statute is overbroad or vague,
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the scope of the prohibited conduct requires determination.
Id.; see also United States v. Williams, 553 U.S. 285, 293
(2008) (“The first step in overbreadth analysis is to construe
the challenged statute; it is impossible to determine whether a
statute reaches too far without first knowing what the statute
covers.”).
A. Scope of Prohibited Conduct
The conduct prohibited by the offense of electronic
enticement of a child in the first degree is stated as follows:
(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 . . . .
HRS § 707-756(1) (emphases added). Therefore, HRS § 707-756
contains three distinct conduct elements: (1) communication with
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a Minor15 (communication element), (2) agreement to meet
(agreement element), and (3) travel to the agreed place at the
agreed time (travel element); (collectively, conduct elements).
The scope of the applicability of the mens rea “intent to
promote or facilitate the commission of a felony” (felonious
intent) to the conduct elements has not been directly addressed
by this court.
1. Plain Language
The fundamental starting point of statutory
interpretation is the language of the statute itself. Hawaii
Gov’t Emps. Ass’n v. Lingle, 124 Hawaiʻi 197, 202, 239 P.3d 1, 6
(2010). Thus, where the statutory language is unambiguous, our
duty is to give effect to its plain and obvious meaning. Id.
The plain language and structure of HRS § 707-756
indicate that the felonious intent does not apply to all of the
conduct elements of HRS § 707-756. HRS § 707-756 includes three
distinct elements with separate mens rea requirements: (a)
intentionally or knowingly communicating with a Minor; (b)
agreeing to meet the Minor with the intent to promote or
facilitate the commission of a felony; and (c) intentionally or
15
For convenience of discussion the term “Minor” includes all three
categories encompassed by HRS § 707-756(1)(a): (1) a person known by the
actor to be under the age of eighteen years, (2) a person who represents to
the actor that the person is under the age of eighteen years, or (3) a person
under the age of eighteen years where the actor communicates with the person
in reckless disregard of the risk the person is underage.
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knowingly traveling to the agreed meeting place at the agreed
time. Thus, for each element, there is a specific mental state
that corresponds to the required physical act.
The three elements are listed in discrete subsections:
(1)(a), (1)(b), and (1)(c). Both the communication element of
subsection (1)(a) and the traveling element of subsection (1)(c)
must be “intentionally or knowingly” committed. HRS § 707-
756(1)(a), (c). Only the second element of agreeing to meet the
Minor in subsection (1)(b) must be made with “the intent to
promote or facilitate the commission of a felony.” HRS § 707-
756(1)(b). There is nothing to indicate that the mens rea of
the agreement element found in subsection (1)(b) was meant to
apply to the communication and traveling elements found in
subsections (1)(a) and (1)(c), respectively; such an
interpretation of the statute is contrary to the plain and
unambiguous meaning of the statute.
Our reading of HRS § 707-756 is consistent with this
court’s application of the statute in State v. McKnight, 131
Hawaiʻi 379, 319 P.3d 298 (2013). In that case, the majority and
the dissent, while not specifically analyzing the application of
the felonious intent to the conduct elements, separated the
felonious intent from the communication and traveling elements
when discussing the statute. Id. at 389, 319 P.3d at 308
(finding “it apparent that each of these elements serv[es] a
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distinct purpose”); see also id. at 400, 319 P.3d at 319
(Recktenwald, C.J., dissenting) (noting that “the statute
requires the State to prove that the defendant did three things”
and listing each element separately).
2. Legislative History
The legislative history of a statute remains relevant
“even when the language appears clear upon perfunctory review.”
Richardson v. City & Cnty. of Honolulu, 76 Hawaiʻi 46, 68-69, 868
P.2d 1193, 1215-16 (1994). “Were this not the case, a court may
be unable to adequately discern the underlying policy which the
legislature seeks to promulgate and, thus, would be unable to
determine if a literal construction would produce an absurd or
unjust result, inconsistent with the policies of the statute.”
Id. (quoting Survivors of Medeiros v. Maui Land & Pineapple Co.,
66 Haw. 290, 297, 660 P.2d 1316, 1321 (1983)).
The legislative history of HRS § 707-756 also supports
an interpretation that the felonious intent applies only to the
agreement element. When HRS § 707-756 was first enacted in
2002, 2002 Haw. Sess. Laws. Act 200, § 1 at 841-42, the House
Standing Committee on the Judiciary & Hawaiian Affairs reported
that the purpose of the House Bill that eventually became HRS §
707-756 was “to deter crimes against minors by . . .
prohibit[ing] the use of a computer or other electronic device
to lure a minor to a meeting with intent to commit a felony.”
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H. Stand. Comm. Rep. No. 417, in 2002 House Journal, at 1399
(emphasis added). The Senate Standing Committee on Health and
Human Services reported:
Your Committee finds that the use of the Internet to entice
children into meetings has become widespread. Current laws
do not specifically address using computers to communicate
with minors for purposes of committing crime. This measure
would close that loophole, and would allow sex offenders to
be investigated and prosecuted before they commit a
kidnapping or other crime.
S. Stand. Comm. Rep. No. 2867, in 2002 Senate Journal, at 1384
(emphasis added); see also S. Stand. Comm. Rep. No. 3131, in
2002 Senate Journal, at 1498 (using the same language).
Interpreting the felonious intent so that it also
applies to the travel element would appear inconsistent with the
underlying policy of the statute, which is to protect children.
H. Stand. Comm. No. 417, in 2002 House Journal, at 1399 (“The
purpose of the bill is to deter crimes against minors.”). A
person who arranges a meeting with a Minor with a felonious
intent and then travels to that meeting presents an immediate
physical danger to the Minor. See McKnight, 131 Hawaiʻi at 389,
319 P.3d at 308 (“[R]equiring that the defendant travel to an
agreed-upon meeting place at an agreed-upon meeting time ensures
that an individual is prosecuted only in situations where his
behavior poses an actual physical threat to the child.”). A
statute that absolves a person from liability based upon the
abandonment of felonious intent en route to the meeting would
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not protect children in conformance with the purpose of the
legislation.16
3. Pari Materia
“Laws in pari materia, or upon the same subject
matter, shall be construed with reference to each other. What
is clear in one statute may be called upon in aid to explain
what is doubtful in another.” State v. Kamanʻo, 118 Hawaiʻi 210,
218, 188 P.3d 724, 732 (2008); see also HRS § 1-16 (1993).
The offense of electronic enticement of a child in the
second degree, HRS § 707-757 (Supp. 2013), which concerns the
same subject matter as the first degree offense, HRS § 707-756,
is defined as:
(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; and
(b) With the intent to promote or facilitate the
commission of a felony, 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
16
If the felonious intent also applied to the travel element, then
its abandonment during the travel element would not permit the offense to be
charged, even if that actor again changed his or her mind upon meeting the
Minor.
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(c) Intentionally or knowingly travels to the
agreed upon meeting place at the agreed upon
meeting time . . . .
HRS § 707-757 (emphasis added). HRS § 707-757 directly links
the felonious intent with the agreement element. Because HRS §§
707-756 and 707-757 are manifestly in pari materia, the clarity
with which HRS § 707-757 connects the felonious intent to the
agreement element buttresses the conclusion that the intent of
the legislature was to assign the felonious intent to the
agreement element only.
Therefore, in light of the plain language of HRS §
707-756, its legislative history, and the doctrine of in pari
materia, we conclude that the “intent to promote or facilitate
the commission of a felony” set forth in the agreement element
applies to that element only.
B. Overbreadth
Overbreadth analysis addresses laws that, if enforced,
would allow the prosecution of constitutionally-protected
conduct. Andrew E. Goldsmith, The Void-for-Vagueness Doctrine
in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279, 284
n.39 (2003). Overbreadth doctrine assumes that individuals
understand what a statute prohibits and as a consequence,
refrain from that behavior, even though some of it is protected.
Id.
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Generally, “one who alleges that a statute is
unconstitutionally overbroad . . . must be directly affected by
the claimed overbroad aspects.” Gaylord, 78 Hawaiʻi at 142, 890
P.2d at 1182 (quoting State v. Tripp, 71 Haw. 479, 483, 795 P.2d
280, 282 (1990)). That is, the doctrine is generally limited to
challengers who allege that their innocent conduct has been
improperly swept into the reach of the statute. Id.
Alangcas admitted his intent to engage in sexual
conduct with a Minor; thus, Alangcas cannot and does not assert
that constitutionally protected conduct is being prosecuted by
the State. Therefore, the law is not overbroad as applied to
his conduct, and Alangcas does not have standing to challenge
the law as overbroad on that basis.
However, a law may be challenged as overbroad under
two additional circumstances. A statute may be challenged as
overbroad if it affects freedom of expression that is
constitutionally protected. See Beltran, 116 Hawaiʻi at 150-51,
172 P.3d at 462-63. A court may also entertain a facial
overbreadth challenge when “the enactment reaches a substantial
amount of constitutionally protected conduct.” Id. at 152, 172
P.3d at 464 (quoting Hoffman, 455 U.S. at 494.
1. Constitutionally Protected Expression
Alangcas contends that HRS § 707-756 affects the first
amendment right to freedom of expression.
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The First Amendment and article I, § 4 of the Hawaiʻi
Constitution prohibit the enactment of any law that abridges
freedom of speech.17 However, when the scienter requirement of a
statute sufficiently limits criminal culpability to reach only
conduct outside the protection of the First Amendment,
legitimate speech is not endangered. United States v. Dhingra,
371 F.3d 557, 561 (9th Cir. 2004). Thus, criminal sexual
conduct, such as when the prosecution can prove that “one of the
parties . . . intended to target a minor for criminal sexual
activity,” “does not enjoy First Amendment protection.” United
States v. Meek, 366 F.3d 705, 722 (9th Cir. 2004).
In Dhingra and Meek, the Ninth Circuit Court of
Appeals reviewed 18 USC § 2422(b),18 a federal anti-enticement
17
The U.S. Constitution provides that
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
U.S. Const. amend. I. The Hawaiʻi Constitution provides as follows:
No law shall be enacted respecting an establishment of
religion, or prohibiting the free exercise thereof, or
abridging the freedom of speech or of the press or the
right of the people peaceably to assemble and to petition
the government for a redress of grievances.
Haw. Const. art. I, § 4.
18
The federal law provides,
Whoever, using the mail or any facility or means of
interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United States
(continued. . .)
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provision similar to HRS § 707-756. The Ninth Circuit held that
“no . . . legitimate speech [is] jeopardized by § 2422 because
the statute only criminalizes conduct, i.e. the targeted
inducement of minors for illegal sexual activity.” Meek, 366
F.3d at 721; see also Dhingra, 371 F.3d at 561. The court noted
that speech is not protected when it is “merely the vehicle
through which a pedophile ensnares the victim.” Meek, 366 F.3d
at 721 (citing United States v. Rowlee, 899 F.2d 1275, 1278 (2d
Cir. 1990)). “Because persuading [a minor] to engage in . . .
sexual acts for which a person could be charged with a criminal
offense comes closer to incitement than it does to general
advocacy, the statute does not run afoul of the First
Amendment.” Id. (internal quotation marks omitted). Thus,
“inducement of minors to engage in illegal sexual activity
enjoys no First Amendment protection.”19 Id.
(. . .continued)
knowingly persuades, induces, entices, or coerces any
individual who has not attained the age of 18 years, to
engage in prostitution or any sexual activity for which any
person can be charged with a criminal offense, or attempts
to do so, shall be fined under this title and imprisoned
not less than 10 years or for life.
18 U.S.C. § 2422(b) (2006).
19
See also United States v. Gagliardi, 506 F.3d 140, 148 (2d Cir.
2007) (“[T]he statute punishes the act of enticing or attempting to entice a
minor when it is knowingly done; it does not implicate speech.”); United
States v. Tykarsky, 446 F.3d 458, 473 (3d Cir. 2006) (“There is no First
Amendment right to persuade minors to engage in illegal sex acts.”); United
States v. Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005) (“[T]he Defendant
simply does not have a First Amendment right to attempt to persuade minors to
engage in illegal sexual acts.”); United States v. Hornaday, 392 F.3d 1306,
(continued. . .)
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Meek also noted, “The potential for unconstitutional
chilling of legitimate speech disappears because § 2422(b)
requires the prosecution to prove that a defendant actually
knows or believes that the specific target of the inducement is
a minor.” Id. at 722. The statute required “the defendant to
know or believe that the person whom he seeks to induce into
sexual activity is a minor, § 2422(b) does not infringe on
legitimate speech between adults.” Id.; see also United States
v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000) (holding that
§ 2422(b) “only affects those who intend to target minors”).
State courts have come to the same conclusion that
comparable electronic enticement statutes do not implicate
freedom of expression because the laws only criminalize speech
that is intended to entice a minor to engage in prohibited
sexual conduct.20
(. . .continued)
1311 (11th Cir. 2004) (“Speech attempting to arrange the sexual abuse of
children is no more constitutionally protected than speech attempting to
arrange any other type of crime.”); United States v. Hite, 896 F. Supp. 2d
17, 22 (D.D.C. 2012) (“Section 2422(b) does not criminalize protected speech
as a means to prohibit certain conduct, it directly prohibits certain
conduct.”).
20
See, e.g., Moore v. State, 298 P.3d 209, 215 (Alaska Ct. App.
2013) (“In the present case, the online enticement statute is primarily
focused on speech that is intended to induce a minor to engage in otherwise
prohibited sexual activities.”); People v. Hsu, 99 Cal. Rptr. 2d 184, 194
(Ct. App. 2000) (upholding a prohibition of enticement of minors, and
stating, “The only chilling effect of the statute is on the conduct of those
who would use otherwise protected speech to seduce minors.”); Lopez v. State,
757 S.E.2d 436, 441 (Ga. 2014), cert. denied (Sept. 22, 2014) (holding that a
communication for the purpose of seducing or enticing a child so that the
defendant can commit an act of child molestation is not unconstitutional);
State v. Blankenship, 415 S.W.3d 116, 121 (Mo. 2013) (holding that
(continued. . .)
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In this case, HRS § 707-756 requires proof of three
conduct elements: (1) a communication with the Minor through the
use of a computer or other electronic device, (2) an agreement
to meet the Minor, and (3) traveling to the agreed place at the
agreed time. Additionally, HRS § 707-756 contains a clear
scienter requirement; in order to commit the offense, the
agreement to meet must be made with the “intent to promote or
facilitate the commission of a felony.” HRS § 707-756(1)(b).
The “felonious intent ensures that the defendant has a culpable
state of mind at the time [the defendant] entices the child into
meeting; and requiring that the defendant travel to an agreed-
upon meeting place at an agreed-upon meeting time ensures that
an individual is prosecuted only in situations where [the
defendant’s] behavior poses an actual physical threat to the
child.” McKnight, 131 Hawaiʻi at 389, 319 P.3d at 308.
Thus, HRS § 707-756 solely affects conduct in which a
person has a felonious intent at the time a meeting is arranged
with the Minor and thereafter the person travels to the meeting
(. . .continued)
defendant’s speech was an integral part of his attempt to induce a child for
the purpose of engaging in a sexual performance and was not constitutionally
protected); State v. Rung, 774 N.W.2d 621, 630 (Neb. 2009) (holding that the
state law “targets only speech used for the purpose of enticing a child to
engage in illegal sexual conduct, and . . . such speech is not protected by
the First Amendment”); Arganbright v. State, 328 P.3d 1212, 1220-21 (Okla.
2014) (upholding a prohibition on communications with minors that are likely
to result in sexual exploitation or sexual abuse as a permissible restriction
on speech).
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place at the agreed upon meeting time. The statute only
criminalizes speech when it is employed to arrange a meeting
with a Minor with the intent to promote or facilitate commission
of a felony. Since HRS § 707-756 does not implicate the
freedoms of expression guaranteed under the First Amendment or
article I, § 4 of the Hawaiʻi Constitution, Alangcas’ overbreadth
challenge on that basis fails.
2. Facial Challenge
“[I]n a facial challenge to the overbreadth and
vagueness of a law, a court’s first task is to determine whether
the enactment reaches a substantial amount of constitutionally
protected conduct.” Beltran, 116 Hawaiʻi at 152, 172 P.3d at
464; see also United States v. Stevens, 559 U.S. 460, 473 (2010)
(holding that a law may be invalidated as overbroad if “a
substantial number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep”).21
Alangcas claims that HRS § 707-756 would criminalize
“a substantial amount of constitutionally protected conduct”; “a
21
In State v. Beltran, the ordinance at issue was one that banned
camping. Camping was defined as the use of a public park for living
accommodations, including making preparations to sleep or storing personal
belongings. Such activities constituted camping “regardless of the intent of
the participants or the nature of any other activities in which they may also
be engaging.” Beltran, 116 Hawaiʻi 146, 149, 172 P.3d 458, 461 (2007). The
Beltran court held that, by sweeping “any other activities” “regardless of
the intent of the participants” into its ambit, the ordinance cast a
“limitless net” that “seemingly reach[ed] a substantial amount of
constitutionally protected conduct.” Id. at 152, 172 P.3d at 464.
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sports coach, a music instructor, or just about anyone who works
with or has children could be found guilty of violating [HRS
§ 707-756] even though the only communication he or she ever had
with the minor on a computer or electronic device was completely
innocent.”
As noted, HRS § 707-756 requires three conduct
elements: (1) communication with the Minor via a computer or
other electronic device; (2) an agreement to meet the Minor,
made with the intent to promote or facilitate the commission of
a felony; and (3) traveling to the agreed place at the agreed
time. HRS § 707-756 solely affects conduct in which a person
has a felonious intent at the time a meeting is arranged with
the Minor and thereafter travels to the meeting place at the
agreed meeting time. Innocently communicating with Minors via
electronic devices and then meeting with those Minors is not
prohibited by HRS § 707-756; thus, a substantial amount of
constitutionally protected conduct is not implicated.
A person’s freedom of movement has also been found to
be a basis for challenging a statute under the overbreadth
doctrine. See Kolender v. Lawson, 461 U.S. 352, 358 (1983)
(citing Aptheker v. Secretary of State, 378 U.S. 500, 505-06
(1964); Kent v. Dulles, 357 U.S. 116, 126 (1958)). To the
extent Alangcas raised the freedom of movement in his
Application, any restriction on a person’s legitimate movements,
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assuming complete abandonment of the felonious intent en route
to the meeting place, would not sweep a substantial amount of
constitutional conduct into HRS § 707-756’s ambit. The person’s
freedom to travel would be limited only by the exclusion of that
agreed upon location and only at that agreed time.
Thus, HRS § 707-756 is not overbroad because it does
not reach a substantial amount of constitutionally protected
conduct.
C. Vagueness
1. Analyzing a Vagueness Challenge
A penal statute is vague if it does not define a
criminal offense “with sufficient definiteness [so] that
ordinary people can understand what conduct is prohibited and in
a manner that does not encourage arbitrary and discriminatory
enforcement.” Beltran, 116 Hawaiʻi at 151, 172 P.3d at 463.
Thus, a statute is void for vagueness under article I, § 5 of
the Hawaiʻi Constitution22 if (1) it is internally inconsistent
and incomprehensible to a person of ordinary intelligence, or
(2) it invites delegation of basic policy matters to police for
22
Article I, § 5 of the Hawaiʻi Constitution states as follows:
No person shall be deprived of life, liberty or property
without due process of law, nor be denied the equal
protection of the laws, nor be denied the enjoyment of the
person’s civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or
ancestry.
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resolution on an ad hoc and subjective basis. Id. at 153, 172
P.3d at 465.
The United States Supreme Court “has often noted that
criminal statutes are subject to stricter vagueness analysis
than civil statutes.” Goldsmith, supra, at 281 (citing
Hoffman, 455 U.S. at 498-99; Nat’l Endowment for the Arts v.
Finley, 524 U.S. 569, 588 (1998)) (referring to the criteria for
issuing NEA grants and noting, “The terms of the provision are
undeniably opaque, and if they appeared in a criminal statute or
regulatory scheme, they could raise substantial vagueness
concerns.”). “Subject to an even stricter standard are criminal
statutes that reach expression protected by the First Amendment,
any other constitutional right, or any ‘fundamental right.’”
Id. (citing Smith v. Goguen, 415 U.S. 566, 573 (1974); Hoffman,
455 U.S. at 499; Rose v. Locke, 423 U.S. 48, 50 n.3 (1975) (per
curiam)).23
Thus, as a criminal statute, HRS § 707-756 is subject
to a “stricter vagueness analysis” than a civil statute.
However, the standard for demonstrating that a statute is
contrary to our constitution remains high: “Every enactment of
23
Four justices also have suggested that statutes creating new
crimes also require special precision. Andrew E. Goldsmith, The Void-for-
Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279,
281 & n.19 (2003) (citing United States v. Harriss, 347 U.S. 612, 634 (1954)
(Jackson, J., dissenting); United States v. Petrillo, 332 U.S. 1, 16-17
(1947) (Reed, J., dissenting, joined by Murphy and Rutledge, JJ.)).
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the Hawaiʻi Legislature is presumptively constitutional, and the
party challenging a statute has the burden of showing the
alleged unconstitutionality beyond a reasonable doubt.” State
v. Bui, 104 Hawaiʻi 462, 466, 92 P.3d 471, 475 (2004).
This court has recognized that a statute may be found
void for vagueness on its face or as applied. See State v.
Bates, 84 Hawaiʻi 211, 222, 933 P.2d 48, 59 (1997) (observing
that where a case does not involve any first amendment issues, a
“defendant has standing to raise a vagueness challenge only
insofar as the statute is vague as applied to his or her
specific conduct”); State v. Manzo, 58 Haw. 440, 573 P.2d 945,
955 (1977) (“A statute may be overbroad because its vagueness
extends its reach too far, and yet it may define the core of its
coverage with sufficient specificity to avoid challenge
for facial vagueness.”).
In order for a defendant to succeed on an as-applied
challenge, the defendant must demonstrate that the disputed
statute is vague with respect to his or her conduct. Id.
However, when a statute burdens a significant constitutional
right, such as the freedom of expression, a defendant whose
rights are not violated may raise the constitutional rights of
others. See Beltran, 116 Hawaiʻi at 151 n.4, 172 P.3d at 463
n.4.
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In Beltran, this court held that a camping regulation
was facially overbroad and vague. Id. at 151, 155, 172 P.3d at
463, 467. The camping regulation was found to “conceivably”
implicate activities “relating to freedom of movement and
association, or that involve expressive conduct.” Id. at 152,
172 P.3d at 464. In finding the statute facially overbroad and
vague, the Beltran court relied on Kolender v. Lawson, 461 U.S.
352, 353 (1983).
Kolender “concerned a facial vagueness challenge to a
criminal statute that require[d] persons who loiter or wander on
the streets to provide a ‘credible and reliable’ identification
and to account for their presence when requested by a peace
officer.” Kolender, 461 U.S. at 353. The Kolender court based
its application of facial analysis on concerns for First
Amendment liberties and the right to freedom of movement. Id.
at 358; see also Beltran, 116 Haw. at 151, 172 P.3d at 463. The
Kolender court observed that a facial challenge of a law is
permitted where the law “reaches a substantial amount of
constitutionally protected conduct.” 461 U.S. at 358 n.8.
Kolender also concluded that that “where a statute imposes
criminal penalties, the standard of certainty is higher.” Id.
The Kolender court expressly rejected the idea that a
statute “should not be held unconstitutionally vague on its face
unless it is vague in all of its possible applications.” Id.;
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see also Beltran, 116 Hawaiʻi at 155, 172 P.3d at 467 (“Kolender,
however, indicated that ‘[t]his concern has, at times, led us to
invalidate a criminal statute on its face even when it could
conceivably have had some valid application.’” (alteration in
original) (quoting Kolender, 461 U.S. at 358 n.8)). Therefore,
under Beltran’s adoption of Kolender, because a criminal statute
requires higher certainty, it may “at times” be challenged for
vagueness on its face “even when it could conceivably have had
some valid application,” just as a facial challenge is permitted
for overbreadth if the statute reaches a substantial amount of
protected conduct.24 Beltran, 116 Hawaiʻi at 151, 172 P.3d at
463.
Thus, in analyzing vagueness challenges, this court
first considers the meaning and specificity of the statute, and
if the statute is vague, then the court determines whether the
statute is vague as applied to the person’s specific conduct or
implicates a significant constitutional protection, such as a
first amendment right.
24
Kolender buttresses this argument by noting
The dissent concedes that “the overbreadth doctrine permits
facial challenge of a law that reaches a substantial amount of
conduct protected by the First Amendment.” However, in the
dissent's view, one may not “confuse vagueness and overbreadth by
attacking the enactment as being vague as applied to conduct
other than his own.” But we have traditionally viewed vagueness
and overbreadth as logically related and similar doctrines.
Kolender, 461 U.S. at 358 n.8.
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For example, in Bates, 84 Hawaiʻi at 222, 933 P.2d at
59, the court initially evaluated the challenged statute to
determine whether a person of ordinary intelligence would know
what conduct was prohibited. Bates, 84 Hawaiʻi at 222-226, 933
P.2d at 59-63. Bates began its analysis by examining the
legislative history of the relevant statute and reviewing
federal courts’ interpretation of similar statutes in order to
define the statutory terminology at issue. Id. at 222-224, 933
P.2d at 59-61. Having properly defined the statute, the Bates
court concluded a person of ordinary intelligence would know
what conduct was prohibited, and therefore the court found the
law was not unconstitutionally vague. Id. at 224-225, 933 P.2d
at 61-62. Having reached this determination, the Bates court
was not required to address the defendant’s standing in order to
determine whether “the defendant [can] succeed on a vagueness
challenge.” Id. at 222, 933 P.2d at 59.
Similarly, in Bui, a defendant challenged his
prosecution for possession of burglar’s tools, arguing that
“burglar’s tools,” as described in the statute, “could include
anything used in the commission of a burglary.”25 Bui, 104
25
The statute stated that the subject offense was
knowing[ ] possess[ion of] any explosive, tool, instrument,
or other article adapted, designed, or commonly used for
committing or facilitating the commission of an offense
involving forcible entry into premises or theft by a
(continued. . .)
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Hawaiʻi at 463, 465; 92 P.3d at 472, 474. This court held that
the statute was not vague because it described the proscribed
conduct in ordinary and understandable terms and also adequately
informed the public of how to avoid committing the offense. Id.
at 465, 92 P.3d at 474. Thus, as in Bates, the court initially
determined that the challenged statute was not vague, and as a
consequence of its determination, the court had no reason to
address whether the statute was vague as applied to the
defendant’s conduct. Bui, 104 Hawaiʻi at 465, 92 P.3d at 474.
In summary, in resolving a challenge to a criminal
statute as vague, the challenged statute is analyzed to
determine if it (1) is internally inconsistent and
incomprehensible to a person of ordinary intelligence, or (2)
invites delegation of basic policy matters to police for
resolution on an ad hoc and subjective basis. Beltran, 116
Hawaiʻi at 153, 172 P.3d at 465. If the statute is determined to
be vague, the challenger is then required to demonstrate that
“the statute is vague as applied to his or her specific conduct”
(. . .continued)
physical taking and the person intends to use the
explosive, tool, instrument, or article, or knows some
person intends ultimately to use it, in the commission of
the offense of the nature described aforesaid . . . .
Bui, 104 Haw. at 465, 92 P.3d at 474 (emphasis and alterations in
original) (quoting HRS § 708–812(1)(a) (1993)).
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or demonstrate that the statute burdens a significant
constitutional right such as a first amendment right.26
We have already determined that HRS § 707-756 does not
burden freedom of expression under the First Amendment or
Article I, § 4 of the Hawaiʻi Constitution or the freedom of
movement. Alangcas has not alleged other significant
constitutional rights that are burdened by the asserted
vagueness of HRS § 707-756. Thus, we look first to determine
whether HRS § 707-756 is unconstitutionally vague, and if so,
whether it is vague as applied to Alangcas’ conduct.
2. Application of Vagueness Analysis
HRS § 707-756(1) provides that the agreement to meet
with the Minor at a certain place and at a certain time may
occur with the intent to promote or facilitate murder, a class A
felony, or, alternatively, “[w]ith intent to promote or
facilitate the commission of a felony . . . that is another
covered offense as defined in HRS § 846E-1.” HRS § 707-756(1)
(emphasis added). HRS § 846E-1 is the definition section of the
State’s sex offender registration Chapter. Id. HRS § 846E-1
defines two types of “covered offenses”; a “covered offense”
26
Thus, the statement of the ICA that “before a law may be held to
be unduly vague, . . . it must be demonstrated that the law is impermissibly
vague in all its applications,” Alangcas, 131 Hawaiʻi at 325, 318 P.3d at 615,
is contrary to our prior decision in Beltran. 116 Hawaiʻi at 154-55, 172 P.3d
at 466-67 (permitting a vagueness challenge to “invalidate a criminal statute
on its face even when it could conceivably have had some valid application”).
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means a criminal offense that is either (1) a “crime[] against
[a] minor[]” or (2) a “sexual offense.” HRS § 846E-1 (Supp.
2009). For each covered offense, the statute lists crimes that
are included in the definition, and each definition also
includes a Catch-all Clause providing that the definition
includes any criminal offense that “is comparable to or that
exceeds” one of the listed offenses.27 Beltran, 116 Hawaiʻi at
152, 172 P.3d at 464.
27
A “crime[] against [a] minor” includes
(1) Kidnapping of a minor, by someone other than a
parent;
(2) Unlawful imprisonment in the first or second degree
that involves the unlawful imprisonment of a minor by
someone other than a parent;
(3) An act, as described in chapter 705, that is an
attempt, criminal solicitation, or criminal conspiracy to
commit one of the offenses designated in paragraph (1) or
(2);
(4) A criminal offense that is comparable to or which
exceeds one of the offenses designated in paragraphs (1)
through (3); or
(5) Any federal, military, out-of-state, tribal, or
foreign conviction for any offense that, under the laws of
this State, would be a crime against minors as designated
in paragraphs (1) through (4).
HRS § 846E-1 (emphases added). Similarly, a “sexual offense” is defined as
an offense that is,
(1) Set forth in section 707-730(1), 707-731(1), 707-
732(1), 707-733(1)(a), 707-733.6, 712-1202(1), or 712-
1203(1), but excludes conduct that is criminal only because
of the age of the victim, as provided in section 707-
730(1)(b), or section 707-732(1)(b) if the perpetrator is
under the age of eighteen;
(continued. . .)
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A Conviction Clause is also included in each
definition; under the Conviction Clauses, any previous
(. . .continued)
(2) An act defined in section 707-720 if the charging
document for the offense for which there has been a
conviction alleged intent to subject the victim to a sexual
offense;
(3) An act that consists of:
(A) Criminal sexual conduct toward a minor, including but
not limited to an offense set forth in section 707-759;
(B) Solicitation of a minor who is less than fourteen
years old to engage in sexual conduct;
(C) Use of a minor in a sexual performance;
(D) Production, distribution, or possession of child
pornography chargeable as a felony under section 707-750,
707-751, or 707-752;
(E) Electronic enticement of a child chargeable under
section 707-756 or 707-757 if the offense was committed
with the intent to promote or facilitate the commission of
another covered offense as defined in this section; or
(F) Solicitation of a minor for prostitution in violation
of section 712-1209.1;
(4) A violation of privacy under section 711-1110.9;
(5) An act, as described in chapter 705, that is an
attempt, criminal solicitation, or criminal conspiracy to
commit one of the offenses designated in paragraphs (1)
through (4);
(6) A criminal offense that is comparable to or that
exceeds a sexual offense as defined in paragraphs (1)
through (5); or
(7) Any federal, military, out-of-state, tribal, or
foreign conviction for any offense that under the laws of
this State would be a sexual offense as defined in
paragraphs (1) through (6).
Id. (emphases added).
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conviction from another jurisdiction that would be a “crime
against [a] minor” or a “sexual offense” under Hawaiʻi law is
also included in the definition for each covered offense. Thus,
both types of covered offenses appear to be broadened by the
Catch-all Clauses and the Conviction Clauses.
Alangcas argues that HRS § 707-756 is
unconstitutionally vague due to its incorporation of the
definition of “covered offenses” from HRS § 846E-1. Alangcas
contends the Conviction Clauses and the Catch-all Clauses
introduce unconstitutional vagueness into HRS § 707-756 because
“[p]ersons of ordinary intelligence are left to guess and no
doubt differ in opinion as to what offenses are ‘comparable to’
or ‘exceed’ the offenses mentioned in the statute.” “Such
guesswork,” Alangcas concludes, “not only among citizens, but
among police officers, creates a danger of discriminatory
enforcement on an ad hoc and subjective basis.” Additionally,
as a separate vagueness challenge, Alangcas contends that
because the word “communicate” is undefined, HRS § 707-756 is
constitutionally flawed.
a. Catch-all Clauses
To reiterate, under Beltran, a penal statute is void
for vagueness unless the criminal offense is defined “with
sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage
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arbitrary and discriminatory enforcement.” Beltran, 116 Hawaiʻi
at 151, 172 P.3d at 463. Thus, a challenged statute is examined
as to whether it is internally inconsistent and incomprehensible
to a person of ordinary intelligence or invites delegation of
basic policy matters to police for resolution on an ad hoc and
subjective basis. Id. at 153, 172 P.3d at 465.
A statute that is internally inconsistent may prevent
a person of ordinary intelligence from knowing what conduct is
prohibited.28 Id. at 151, 172 P.3d at 463. However, HRS § 707-
756(1) is not internally inconsistent. There is nothing about
the reference in HRS § 707-756(1)(b)(iii) to the covered
offenses in HRS § 846E-1 that contradicts any other part of the
prohibition of electronic enticement in HRS § 707-756.
A statute is not incomprehensible if “a person of
ordinary intelligence would be able to ascertain the nature of
conduct prohibited.” Bui, 104 Hawaiʻi at 465, 92 P.3d at 474.
The ICA in this case held that the “exceeds” language in the
Catch-all Clauses introduced unconstitutional vagueness into HRS
§ 707-756, Alangcas, 131 Hawaiʻi at 325, 318 P.3d at 615, but
28
One standard for an internally inconsistent statute was
highlighted in Beltran: a law is inconsistent if it instructs that a
violation occurs where “it reasonably appears, in light of the circumstances,
that the participants in conducting these activities, are in fact using the
area as a living accommodation regardless of the intent of the participants
or the nature of any activities in which they may also be engaging,’” because
of the conflict between “reasonably appears” and “in fact.” Beltran, 116
Hawaiʻi at 153, 172 P.3d at 465.
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that the “comparable” language in the Catch-all Clauses did not
suffer the same deficiency. Id. at 321-22, 325, 318 P.3d at
611-612, 615.
HRS § 707-756(1)(b) requires that the actor intend to
promote or facilitate a “felony.” Thus, the qualifying “covered
offense” set forth in HRS § 846E-1 must be a felony. HRS § 707-
756(1)(b). That is, whatever covered offense may be alleged as
part of the mens rea to the agreement element of an electronic
enticement prosecution, including an offense that is “comparable
to” or that “exceeds” a crime against a Minor or a sexual
offense, the intended conduct must be classified as a felony by
the Hawaiʻi legislature.29
A person of ordinary intelligence would know that
intending to promote or facilitate a felony, as defined by
29
HRS § 701-107 provides the following regarding grades and classes
of offenses:
(1) An offense defined by this Code or by any other
statute of this State for which a sentence of
imprisonment is authorized constitutes a crime.
Crimes are of three grades: felonies, misdemeanors,
and petty misdemeanors. Felonies include murder in
first and second degrees, attempted murder in the
first and second degrees, and the following three
classes: class A, class B, and class C.
(2) A crime is a felony if it is so designated in this
Code or if persons convicted thereof may be sentenced
to imprisonment for a term which is in excess of one
year.
HRS § 701-107 (1993) (emphases added). Consequently, a crime is a “felony”
if it is so designated by the Hawaiʻi penal code or if another statute of this
State authorizes a sentence of “imprisonment for a term which is in excess of
one year.” HRS § 701-107(2).
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Hawaiʻi law, against a Minor is prohibited. Future cases may
reveal a dispute as to whether a given felony is actually
“comparable to” or actually “exceeds” the listed offenses
included within the covered offenses, such that a question is
present as to whether the intent to promote or facilitate the
felony was properly included as a mens rea in a prosecution
under HRS § 707-756. However, such a hypothetical dispute is
irrelevant to a vagueness challenge to HRS § 707-756 because
there is no question that a person of ordinary intelligence
would have a reasonable opportunity to know that, as a felony,
the intended conduct upon a Minor was indeed prohibited. To put
it another way, when the intended conduct in question is
indisputably proscribed by Hawaiʻi law as a felony, a person
cannot complain in a vagueness challenge that the person is
rendered unsure as to whether the intent to promote or
facilitate that conduct upon a Minor is against the law. Thus,
the reference to HRS § 846E-1 does not render HRS § 707-756
incomprehensible to a person of ordinary intelligence. Bui, 104
Hawaiʻi at 465, 92 P.3d at 474 (“Consequently, we conclude a
person of ordinary intelligence would be able to ascertain the
nature of conduct prohibited.”).
The same analysis eliminates the concern of “a
delegation of basic policy matters to police resolution on an ad
hoc and subjective basis,” Beltran, 116 Hawaiʻi at 153, 172 P.3d
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at 465, because if the intended conduct is already prohibited as
a felony, there is no concern of arbitrary or subjective police
enforcement. That is, so long as the intended conduct
designated as a felony in Hawaii’s statutory code is not defined
so vaguely as to permit “arbitrary and discriminatory
enforcement,” Gaylord, 78 Hawaiʻi at 138, 890 P.2d at 1178,
prosecuting the intent to promote or facilitate such conduct
under the electronic enticement prohibition does not jeopardize
consistent nondiscriminatory enforcement.
Thus, as the Catch-all Clauses are narrowed in
application to HRS § 707-756 by the requirement that the
intended conduct be a felony, they are neither incomprehensible
to a person of ordinary intelligence, nor do they risk
subjective or arbitrary enforcement by police. Therefore, HRS
§ 707-756 is not unconstitutionally vague.30 As the statute is
not vague, the question of whether the statute is vague as
applied to Alangcas’ conduct is inapplicable.
30
Had this court determined that the term “exceeds” introduced
unconstitutional vagueness, as set forth supra in section II.C.1, into either
HRS §§ 707-756 or 846E-1, it is noted that an offending portion of a statute
may be severable such that the remaining portion of the law is
constitutional. “A part of a statute may be unconstitutional and at the same
time the remainder may be upheld as constitutional.” Hawaiian Trust Co. v.
Smith, 31 Haw. 196, 202 (Haw. Terr. 1929); see also Nelson v. Miwa, 56 Haw.
601, 611, 546 P.2d 1005, 1013 (1976) (“Where part of a statute is
unconstitutional [but] is inseparable from the remainder, the whole statute
is invalid.”).
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b. Conviction Clauses
The effect of the Conviction Clauses is to require
registration by sex offenders and other covered offenders under
HRS Chapter 846E for particular convictions from other
jurisdictions; that is, completed conduct in another
jurisdiction. HRS §§ 846E-1, 846E-2. In contrast, HRS § 707-
756 prohibits conduct committed with the intent to facilitate or
promote a felony; i.e. relating to uncompleted or future
conduct. The scope of HRS § 707-756 is not broadened by the
reference in HRS § 846E-1 to convictions in other jurisdictions
because it is of no meaning to say that a person has the “intent
to promote or facilitate” completed conduct; one cannot have the
legal intent to do what one has already done. Thus, with regard
to the Conviction Clauses, the ICA correctly determined that HRS
§ 707-756 does not incorporate convictions from other
jurisdictions, and therefore the statute is not
unconstitutionally vague on that basis.31 Alangcas, 131 Hawaiʻi
at 321, 318 P.3d at 611.
31
However, the incorporation of the Conviction Clauses into HRS
§ 707-756 through HRS § 846E-1 is not “redundant,” Alangcas, 131 Hawaiʻi at
321, 318 P.3d at 611, but instead, it is of no substantive legal effect.
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c. “Communicates”
Alangcas suggests that the word “communicates” in HRS
§ 707-756(1)(a) is vague because it is undefined;32 he argues
that this vagueness invites arbitrary enforcement by police.
However, the “likelihood that anyone would not
understand any of those common words seems quite remote” when a
statute includes a scienter element requiring a felonious
intent. See Hill v. Colorado, 530 U.S. 703, 732 (2000). Thus,
when read with the rest of the statute, it is unlikely that the
public will misunderstand “communicates” because of the clear
requirements of the statute defining the prohibited
communication. First, the communication must be made
intentionally or knowingly. Second, the communication must be
with a Minor; thus, at a minimum the person must consciously
disregard a substantial risk that the other person is less than
eighteen years of age. Third, the communication itself is not
sufficient; it must be made in conjunction with an agreement to
meet the Minor, with the intent to promote or facilitate a
felony. Delimited by these three requirements, the general
public is clearly informed of the nature of the “communication”
32
The subsection defines the prohibited conduct, in part as, “[a]ny
person who, using a computer or any other electronic device[] [i]ntentionally
or knowingly communicates . . . with a minor.” HRS § 707-756(1).
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that is prohibited. Consequently, there is nothing internally
inconsistent about the reference to “communicates.”
Further, as the communication and agreement elements
must then be consummated with an intentional or knowing travel
to the agreed upon place at the agreed upon time, there is
little risk that police will enforce HRS § 707-756 in an
arbitrary, ad hoc, or subjective manner. The term
“communicates” is accordingly not vague.
Thus, as the Catch-all Clauses, the Conviction
Clauses, and the term “communicates” provide citizens of
ordinary intelligence a reasonable opportunity to know what
conduct is prohibited and provides explicit standards for those
who apply the statute to do so in a consistent and
nondiscriminatory manner, HRS § 707-756 is not
unconstitutionally vague on these bases.33 Accordingly, we do
not consider whether the statute is vague as applied to the
specific conduct charged to Alangcas.
D. Dormant Commerce Clause
The doctrine of the dormant commerce clause is a
result implied from the federal government’s exclusive authority
33
As the overbreadth analysis, supra, has already determined that
HRS § 707-756 does not infringe on protected speech, we do not again address
such contentions under a vagueness analysis of HRS § 707-756.
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to control interstate commerce34 and may require a court to
invalidate a state law that interferes with that authority.
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
Where the statute regulates even-handedly to effectuate a
legitimate local public interest, and its effects on
interstate commerce are only incidental, it will be upheld
unless the burden imposed on such commerce is clearly
excessive in relation to the putative local benefits. . . .
If a legitimate local purpose is found, then the question
becomes one of degree. And the extent of the burden that
will be tolerated will of course depend on the nature of
the local interest involved, and on whether it could be
promoted as well with a lesser impact on interstate
activities.
Id. (emphases added). Thus, when a law does not express any
purpose to discriminate against commerce to or from another
state, the doctrine of the dormant commerce clause is implicated
only when the state law has more than an incidental effect on
interstate commerce.35
Commerce is economic activity. United States v.
Morrison, 529 U.S. 598, 610 (holding that Congress may not
regulate noneconomic, violent criminal conduct based solely on
that conduct’s aggregate effect on interstate commerce); see
also id. at 628-35 (Souter, J., dissenting) (opposing the
34
The U.S. Constitution grants Congress the power to regulate
commerce “with foreign Nations, and among the several States, and with the
Indian tribes.” U.S. Const. art. I, § 8, cl. 3.
35
When a law purports to discriminate between states in an economic
regulation, it is generally invalid. “Time and again [the Supreme] Court has
held that, in all but the narrowest circumstances, state laws violate the
Commerce Clause if they mandate differential treatment of in-state and out-
of-state economic interests that benefits the former and burdens the latter.”
Granholm v. Heald, 544 U.S. 460, 472 (2005).
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majority’s ruling, in part based on the “the mountain of data
assembled by Congress . . . showing the effects . . . on
interstate commerce”). HRS § 707-756 does not purport to
regulate any type of economic transaction. See Am. Libraries
Ass’n v. Pataki, 969 F. Supp. 160, 163 (S.D.N.Y. 1997) (holding
that a New York law that regulated commercial dissemination of
pornographic material violated dormant commerce clause
doctrine).
Where legitimate commerce is not burdened by a state
law, the doctrine of the dormant commerce clause is
inapplicable. See People v. Foley, 731 N.E.2d 123, 133 (N.Y.
2000) (upholding a luring statute and stating, “We are hard
pressed to ascertain any legitimate commerce that is derived
from the intentional transmission of sexually graphic images to
minors for the purpose of luring them into sexual activity.
Indeed, the conduct sought to be sanctioned by Penal Law §
235.22 is of the sort that deserves no ‘economic’ protection.”);
State v. Backlund, 672 N.W.2d 431, 438 (N.D. 2003) (concluding
that North Dakota’s electronic child luring statute did not
violate the dormant commerce clause because “it is difficult to
ascertain any legitimate commerce that is derived from the
willful transmission of explicit or implicit sexual
communications to a person believed to be a minor in order to
willfully lure that person into sexual activity”); Cashatt v.
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State, 873 So. 2d 430, 436 (Fla. Dist. Ct. App. 2004) (“The state
has a compelling interest in protecting minors from being
seduced to perform sexual acts, and no legitimate commerce is
burdened by penalizing the transmission of harmful sexual
material to known minors in order to seduce them.”).
Alangcas did not identify any legitimate commerce
directly burdened by HRS § 707–756. As the ICA noted, “it is
difficult to conceive of any legitimate commerce that would be
burdened by penalizing predatory communication.” Alangcas, 131
Hawaiʻi at 328, 318 P.3d at 618. To the extent that
communication between individuals of a personal and non-economic
nature, criminal or otherwise, is economic activity by virtue of
that communication being channeled through “a computer or any
other electronic device,” Algancas has not demonstrated that
there would be any effect—incidental or otherwise—upon
interstate commerce resulting from the effect of HRS § 707-756.
Thus, Alangcas’ challenge to the validity of HRS § 707-756 under
the doctrine of the dormant commerce clause is without merit as
the electronic enticement statutory prohibition does not
interfere with, or does not involve, interstate commerce.
IV. Conclusion
Based upon the plain language of the statute, its
legislative history, and principles of statutory construction,
we hold that the felonious intent of HRS § 707-756 applies only
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to the agreement element of that statute. Having duly
considered the scope of the statute, HRS § 707-756 is neither
unconstitutionally overbroad nor vague; further, its application
does not violate the dormant commerce clause.
For the reasons set forth in this opinion, the orders
of the circuit court filed September 17, 2009, and the judgment
on appeal of the ICA, filed January 14, 2014, are affirmed.
Victor J. Bakke, /s/ Mark E. Recktenwald
Paul J. Cunney,
Marcus B. Sierra, /s/ Paula A. Nakayama
Dean C.M. Hoe, and
Daniel J. Kawamoto /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
David M. Louie and
Marissa H.I. Luning /s/ Faʻauuga Toʻotoʻo
for respondent
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