               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38806

STATE OF IDAHO,                                  )
                                                 )     2012 Opinion No. 67
       Plaintiff-Respondent,                     )
                                                 )     Filed: December 17, 2012
v.                                               )
                                                 )     Stephen W. Kenyon, Clerk
BRUCE E. REED,                                   )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael R. McLaughlin, District Judge.

       Judgment of conviction and unified eleven-year sentence with two-year
       determinate term for enticing a child over the Internet, affirmed.

       Brady Law, Chartered; Eric D. Fredericksen, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Bruce E. Reed appeals from his judgment of conviction for enticing a child over the
Internet. He contends that the trial evidence was insufficient to prove his guilt and that his
sentence is excessive. We affirm.
                                                I.
                                        BACKGROUND
       Over the course of about five months, Reed participated in sexually explicit online chats
with “borahjenny,” a person he believed to be a fifteen-year-old girl. In reality, “borahjenny”
was a middle-aged male police detective who was investigating Internet crimes against children.
Reed was eventually charged with enticing a child over the Internet in violation of Idaho Code
§ 18-1509A, and was found guilty by a jury. The district court imposed a unified sentence of
eleven years, with two years determinate. Reed appeals, challenging the sufficiency of the
evidence to support the verdict and contending that his sentence is excessive.

                                                1
                                                 II.
                                            ANALYSIS
A.     Sufficiency of the Evidence
       Reed first argues that although there was abundant evidence of sexually explicit “instant
messaging” communication between him and “borahjenny,” the evidence was insufficient to
support his conviction for the charged offense because he “did not attempt to personally meet
borahjenny or provide the detective with any of his contact information to facilitate a meeting.”
Reed posits that the crime defined in I.C. § 18-1509A, as it existed at the time he was charged,
required something more than online communications in which sexual acts were invited. Rather,
he contends, a violation required some additional acts such as scheduling a specific meeting at a
specific time and place. Thus, the initial issue presented is one of statutory construction.
       This Court exercises free review over the application and construction of statutes. State
v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219
(1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The words must be
given their plain, usual, and ordinary meaning, and the statute must be construed as a whole.
State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001). If the language is clear and
unambiguous, there is no occasion for the court to resort to legislative history or rules of
statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage
in statutory construction because an ambiguity exists, it has the duty to ascertain the legislative
intent and give effect to that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct.
App. 2001).
       At the time of Reed’s communications with “borahjenny” in late 2009 and early 2010,
the crime of enticing a child over the Internet was defined in I.C. § 18-1509A(1) (2009) as
follows:
               A person aged eighteen (18) years or older shall be guilty of a felony if he
       or she knowingly uses the internet to solicit, seduce, lure, persuade or entice by
       words or actions, or both, a minor child under the age of sixteen (16) years or a
       person the defendant believes to be a minor child under the age of sixteen (16)
       years to engage in any sexual act with or against the child where such act is a
       violation of chapter 15, 61 or 66, title 18, Idaho Code.



                                                 2
The referenced chapters 15, 61, and 66 of Title 18 of the Idaho Code all define types of sex
offenses.
       Reed predicates his interpretation of the statute--as requiring “something more than just
chatting online with [a] person in a sexual manner”--upon an amendment to Section 18-1509A
adopted in 2012. The 2012 amendment, which was enacted long after Reed committed his
offense and, indeed, after his trial, added a new subsection, I.C. § 18-1509A(4), which states:
“In a prosecution under this section, it is not necessary for the prosecution to show that an act
described in chapter 15, 61 or 66, title 18, Idaho Code, actually occurred.” 1 See 2012 Idaho
Session Laws, ch. 270, § 1, p. 764. According to Reed, this establishes that, prior to the
amendment, Section 18-1509A did require proof of an act described in the specified chapters of
the Idaho Code. Reed cites Woodvine v. Triangle Dairy, Inc., 106 Idaho 716, 721, 682 P.2d
1263, 1268 (1984) for the proposition that “[w]hen the legislature changes the language of a
statute, it is presumed that they intended to change the application or meaning of that statute.”
From that premise, he reasons that the statute before amendment must necessarily have required
the prosecution to prove that an act described in chapter 15, 61 or 66, title 18, Idaho Code
actually occurred. He then contends that the evidence at trial was insufficient because the
prosecution did not produce any evidence that he committed any of the statutorily referenced
sexual acts.
       Reed’s argument is not supported by the plain language of Section 19-1509A(1), which
specified the elements needed for a conviction. The plain terms of that subsection did not
include, as an element, any acts other than use of Internet communications to “solicit, seduce,
lure, persuade or entice” one who is, or is believed to be, a minor under age sixteen for a sexual
act. Contrary to Reed’s argument, a change to the application or substantive meaning of a statute



1
        The 2012 amendment also modified the language of Section 18-1509A(1), but Reed does
not base his argument on the alterations to subsection (1). After the amendment, that subsection
states:
                A person aged eighteen (18) years or older shall be guilty of a felony if
        such person knowingly uses the internet or any device that provides transmission
        of messages, signals, facsimiles, video images or other communication to solicit,
        seduce, lure, persuade or entice by words or actions, or both, a person under the
        age of sixteen (16) years or a person the defendant believes to be under the age of
        sixteen (16) years to engage in any sexual act with or against the person where
        such act would be a violation of chapter 15, 61 or 66, title 18, Idaho Code.

                                                3
    is not the only reason for legislative amendment; the legislature also makes amendments to
    clarify or strengthen the existing provisions of a statute. Pearl v. Bd. of Prof'l Discipline of
    Idaho State Bd. of Med., 137 Idaho 107, 113-14, 44 P.3d 1162, 1168-69 (2002); State v. Barnes,
    133 Idaho 378, 384, 987 P.2d 290, 296 (1999); Stonecipher v. Stonecipher, 131 Idaho 731, 735,
    963 P.2d 1168, 1172 (1998); State ex rel. Wright v. Headrick, 65 Idaho 148, 156, 139 P.2d 761,
    763 (1943). Here, it is apparent that a legislative clarification is what was intended by the 2012
    amendment. It clarifies the statute so that there can be no mistake that the prosecution is not
    required to prove that a sexual act actually occurred.
           Reed also argues that this Court previously held in State v. Glass, 146 Idaho 77, 85, 190
    P.3d 896, 904 (Ct. App. 2008) that a violation of I.C. § 18-1509A requires that the individual
    take a “substantial step” toward committing a sexual act. A “substantial step,” he asserts, means
    something beyond an invitation, via the Internet, to engage in sexual activity.
           Reed is not correct in his interpretation of Glass. The defendant in that case, in an
    Internet chat, expressed his desire to masturbate in the presence of the person he believed to be a
    fifteen-year-old girl. On appeal from his conviction, he argued that the evidence was insufficient
    to convict because, at that time, the act of masturbating in front of a child would not have
    violated any of the provisions of “chapter 15, 61 or 66, title 18, Idaho Code.” 2 We agreed with
    the defendant’s statutory argument, Glass, 146 Idaho at 83-84, 190 P.3d at 902-03, but disagreed
    that the remaining evidence was insufficient to convict. We noted that other statements in his
    Internet communications with “lisa200215ncal” indicated that masturbation while she watched
    would be only a lead-up to other sexual activity. We summarized:
           While “letsgetkinky831” only explicitly referred to plans of masturbation, the
           context of the discussion makes it evident that the proposed masturbation was but
           a stem in the process of luring or seducing “lisa200215ncal” to direct sexual
           contact and by showing up at the apartment [he] had taken a substantial step
           toward this end.

    Glass, 146 Idaho at 85, 190 P.3d at 904 (footnote omitted, emphasis added). This reference in
    Glass to the defendant’s “substantial step,” did not, as Reed argues, insert an additional element
    into the crime that is not expressed in Section 18-1509A(1). Rather, we simply noted that


2
           In 2008 the Idaho Legislature amended I.C. § 18-1506 to criminalize this conduct. See
    I.C. § 18-1506(1)(d) & (4).


                                                     4
Glass’s act of appearing at the apartment where he had arranged a rendezvous with the supposed
minor was indicative of his intent to have direct sexual contact.
       Because there is no merit in Reed’s argument that I.C. § 18-1509A required, as an
element of the crime, conduct beyond Internet communications inviting or luring a supposed
minor to engage in sexual acts, his argument that the trial evidence was insufficient due to lack
of proof of such an element also fails.
       Reed also argues that the evidence was insufficient to show that he believed that
“borahjenny” was a minor.       He points out several of his Internet messages in which he
questioned whether “borahjenny” might be law enforcement. We are unpersuaded. Evidence is
sufficient to sustain a criminal conviction if there is substantial evidence upon which a
reasonable trier of fact could have found the prosecution sustained its burden of proving the
essential elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383,
385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998,
1001 (Ct. App. 1991). Over a period of about five months, Reed exchanged hundreds of
messages with “borahjenny.” The evidence that he expressed reservations about her identity on
a handful of occasions was relevant, but it does not render the remaining evidence insufficient to
support the jury’s finding that he solicited sexual acts from a person he believed to be a minor.
B.     Sentence
       The district court imposed a unified term of incarceration of eleven years, with two years
fixed. Reed argues that the unified term of eleven years is excessive and that an aggregate eight-
year term, which he requested at sentencing, would be sufficient to meet the goals of sentencing.
       Appellate review of a sentence is based on an abuse of discretion standard. State v.
Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007); State v. Burdett, 134 Idaho 271, 276,
1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the appellant has the burden to
show that it is unreasonable, and thus a clear abuse of discretion. State v. Stevens, 146 Idaho
139, 148, 191 P.3d 217, 226 (2008); State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490
(1992). A sentence may represent such an abuse of discretion if it is shown to be unreasonable
upon the facts of the case. State v. Dalrymple, 144 Idaho 628, 636, 167 P.3d 765, 773 (2007);
State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is
reasonable if it appears at the time of sentencing that confinement is necessary “to accomplish
the primary objective of protecting society and to achieve any or all of the related goals of


                                                 5
deterrence, rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho
565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing
court imposed an excessively harsh sentence, we conduct an independent review of the record,
having regard for the nature of the offense, the character of the offender, and the protection of
the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1884 (Ct. App. 1982).
       Reed was on probation when he committed the present offense. He had prior convictions
for disturbing the peace, kidnapping, and numerous motor vehicle violations. While in jail for
the present offense, he was verbally abusive to jail staff, attempted to make an alcoholic
beverage concocted from juice and food items, and was found in possession of a sharpened
spoon. A psychosexual evaluation placed him in a medium to high range for risk of recidivism.
Having thoroughly reviewed the record in this case, we cannot say that the district court imposed
an excessive sentence.
                                               IV.
                                        CONCLUSION
       Substantial evidence supports the jury’s finding of Reed’s guilt, and his sentence is not
excessive. Therefore, the judgment of conviction and sentence are affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




                                                6
