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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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