298 P.3d 209
Alaska Ct. App.2013Background
- Moore was convicted on two counts of online enticement of a minor and one count of distribution of indecent material to a minor based on online chats with officers posing as minors.
- The district court later struck down the distribution statute and vacated that conviction while Moore’s online enticement convictions remained.
- Moore appeals challenging: (i) facial validity of the online enticement statute, (ii) sufficiency of evidence that Moore believed he was chatting with minors under 16, (iii) admissibility of distribution-evidence to prove online enticement, and (iv) potential plain error from trial evidentiary rulings.
- The court adopts a narrowing construction of the statute to require proof that Moore intended to cause or persuade a minor to engage in listed sexual activities.
- Evidence showed Moore believed the chat-room participants were under sixteen, supporting sufficiency for the online enticement convictions.
- The court held the admission of the distribution-evidence was not plain error and relevant to Moore’s motive/intent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is online enticement unconstitutional on its face? | Moore argues overbroad/vague of First Amendment | State contends narrowing construction avoids unconstitutionality | Not void; narrowing construction avoids unconstitutionality |
| Was there sufficient evidence Moore believed minors under 16 existed? | Moore contends insufficiency to prove belief | State contends evidence supports belief under 16 | Yes, sufficient evidence Moore believed minors under 16 existed |
| Was admission of distribution-evidence plain error in trial of online enticement? | Distribution evidence shouldn't proof enticement | Evidence relevant to motive/intent; not plain error | No plain error; admissible to prove motive/intent |
| Should jury have been instructed with the narrowing construction? | Lack of instruction on construction harmed trial | Instructions given sufficed; any misinstruction harmless | Failure to give construction instruction was harmless beyond a reasonable doubt |
| Does the statutory reach risk arbitrary enforcement? | Overbreadth could cause arbitrary enforcement | Narrowing construction limits enforcement; no demonstrated arbitrariness | With narrowing construction, unlikely to be arbitrarily enforced |
Key Cases Cited
- Holton v. State, 602 P.2d 1228 (Alaska 1979) (solicitation for imminent illegal conduct not protected speech)
- Ferber v. New York, 458 U.S. 747 (U.S. 1982) (government interest in child protection supports regulation of material)
- United States v. Stevens, 559 U.S. 460 (U.S. 2010) (overbreadth analysis for statutes involving protected conduct)
- Doe v. State, Dep't of Pub. Safety, 92 P.3d 398 (Alaska 2004) (standing and overbreadth considerations in Alaska)
- Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183 (Alaska 2007) (limiting construction to curb chilling effects on expression)
- Trask v. Ketchikan Gateway Borough, 253 P.3d 616 (Alaska 2011) (contextual considerations in Alaska law)