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Moore v. State (4/5/2013) ap-2390

Moore v. State (4/5/2013) ap-2390

                                               NOTICE 



        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.   Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts. 



                               303 K Street, Anchorage, Alaska  99501
 

                                        Fax:   (907) 264-0878
 

                         E-mail:   corrections @ appellate.courts.state.ak.us
 



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



JAMES C. MOORE,                                 ) 

                                                )          Court of Appeals No. A-10661 

                           Appellant,           )          Trial Court No. 3AN-07-38 CR 

                                                ) 

             v.                                 ) 

                                                )                  O P I N I O N 

STATE OF ALASKA,                                ) 

                                                ) 

                           Appellee.            ) 

                                                )              No. 2390 — April 5, 2013 



                Appeal from the Superior Court, Third Judicial District, 

                Anchorage, Michael L. Wolverton, Judge. 



                Appearances: Renee McFarland, Assistant Public Defender, and 

                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 

                Diane    L.  Wendlandt,   Assistant   Attorney   General,   Office     of 

                Special Prosecutions and Appeals, Anchorage, and Michael C. 

                Geraghty, Attorney General, Juneau, for the Appellee. 



                Before: Coats, Chief Judge, and Mannheimer and Bolger, 

                Judges. 



                BOLGER, Judge. 



                James C. Moore was convicted of two counts of online enticement of a 



minor and one count of distribution of indecent material to a minor. The charges arose 



out of Moore’s online chat room interactions with Anchorage police officers posing as 


----------------------- Page 2-----------------------

fourteen-year-old girls. Moore told two chat room characters to masturbate for him (the 



online enticement charges), and he allowed another of the characters to watch a web 



camera video of him masturbating (the distribution charge). 



                While Moore’s appeal was pending, the federal district court struck down 



the distribution of indecent material statute, and Moore’s conviction on the distribution 



charge was vacated. 



                Moore now appeals his online enticement convictions. He argues that (1) 



the online enticement statute is unconstitutional on its face as a restriction on free speech, 



(2) there was insufficient evidence to convict him of online enticement, and (3) the 



evidence   to    prove   the   distribution  charge    was   not   admissible   to   prove   the   online 



enticement charges. 



                We conclude that the statute can be reasonably interpreted in such a way 



that it is not facially unconstitutional. We conclude there was sufficient evidence to show 



that Moore believed he was chatting with minors under sixteen years of age. And we 



conclude that the admission of evidence to prove the charge of  distribution of indecent 



material was not plain error. 



        Background 



                In   early   2006,   the   Anchorage   Police   Department   established   a   unit   to 



investigate Internet crimes against children. Police officers in the unit posed as three 



fictitious online characters. We will refer to the characters as “Allie,” “Emma,” and 



“Groupie” and collectively as the “chat room characters.” 



                On February 24, 2006, Moore interacted with Allie in an online chat room. 



During that exchange, Moore asked for a picture of Allie and asked her age. Allie replied 



that she was fourteen years old. Moore responded that, from her picture, she looked like 



                                                   2                                              2390
 


----------------------- Page 3-----------------------

she was in her twenties, and stated that he was twenty-nine years old. (He was actually 



thirty-nine   years   old   at   the   time.)   Moore   asked   Allie   if   she   would   have   a   problem 



sleeping     with   someone     his  age.   Later  in  the  conversation,     Moore     asked   Allie   to 



masturbate for him. 



                Moore’s next interaction with the chat room characters was with Groupie 



on April 5, 2006. Groupie told Moore that she was a fourteen-year-old female in Eagle 



River. Moore wrote that he was a twenty-nine-year-old male in Anchorage. 



                Moore contacted Groupie again on April 20, 2006. He asked about her age 



again, asking specifically, “[A]re you under eighteen?” Groupie replied that she was 



thirteen, but would turn fourteen in June. Moore asked if she was a virgin, and suggested 



that he could be her first sexual partner. 



                Moore’s next contact with the chat room characters was on April 26, 2006, 



when he initiated a conversation with Emma. He asked her age, and Emma answered that 



she was fourteen. After the conversation turned more sexual, Moore asked Emma to 



masturbate for him. 



                Moore’s last contact with these chat room characters was on August 3, 



2006, when he masturbated in front of a web camera. Groupie asked Moore’s permission 



to watch online, and Moore approved. Later, Groupie asked if Moore knew who she was 



when he allowed her to watch, and Moore responded that he did. Moore invited Groupie 



to view his web camera again, and focused the camera on his penis. 



                                                                                                    1 

                Moore was indicted on one count of distribution of indecent material  for 



the   August   3   interaction   with   Groupie.   He   was   indicted   on    two   counts   of   online 



    1    AS 11.61.128 (2006). 



                                                    3                                                2390 


----------------------- Page 4-----------------------

                            2 

enticement of a minor,  one for the February 24 interaction with Allie, and one for the 



April 26 interaction with Emma. 



                 At trial, Moore testified that when Allie gave him her picture, he thought 



she was at least eighteen years old, but that she was trying to play the online role of a 



fourteen-year-old. He testified that he always assumed that the people in the online chat 



rooms   were   role-playing.   He   testified   that   he   thought   Groupie   looked   like   she   was 



sixteen or seventeen years old. 



                 A jury convicted Moore on all three counts. However, on June 30, 2011, 



the federal district court held that the Alaska distribution of indecent material statute was 

unconstitutional,3 and Moore’s conviction under that statute was vacated. Moore now 



appeals his convictions for online enticement of a minor. 



        Discussion 



                 The online enticement statute can be read narrowly to avoid 

                 the danger of unconstitutionality. 



                 Alaska   Statute   11.41.452   forbids   the   online   enticement   of   a   minor   as 



follows: 



                 (a) A person commits the crime of online enticement of a 

                 minor     if  the  person,    being    18   years   of   age   or   older, 

                 knowingly   uses   a   computer   to   communicate   with   another 

                person to entice, solicit, or encourage the person to engage in 

                 an act described in AS 11.41.455(a)(1)-(7) and 



    2    AS 11.41.452.
 



    3    Am. Booksellers Found. for Free Expression v. Sullivan , 799 F. Supp. 2d 1078, 1083
 



(D. Alaska 2011). 



                                                     4                                                 2390 


----------------------- Page 5-----------------------

                 (1) the other person is a child under 16 years of age;  or 

                 (2) the person believes that the other person is a child under 

                 16 years of age. 



This   statute   incorporates   by   reference   a   list   of   sexual   activities   prohibited   by   AS 



11.41.455, the statute that forbids the unlawful exploitation of a minor: 



                 (a) A person commits the crime of unlawful exploitation of 

                 a minor if, in the state and with the intent of producing a live 

                performance,           film,    audio,      video,      electronic,      or 

                 electromagnetic recording, photograph, negative, slide, book, 

                 newspaper,      magazine,     or   other   material   that   visually   or 

                 aurally depicts the conduct listed in (1)-(7) of this subsection, 

                 the person knowingly induces or employs a child under 18 

                 years of age to engage in, or photographs, films, records, or 

                 televises    a  child  under    18  years    of  age  engaged     in,  the 

                 following actual or simulated conduct: 



                 (1) sexual penetration; 

                 (2) the lewd touching of another person’s genitals, anus, or 

                breast; 

                 (3)   the  lewd    touching    by   another    person    of  the  child’s 

                 genitals, anus, or breast; 

                 (4) masturbation; 

                 (5) bestiality; 

                 (6) the lewd exhibition of the child’s genitals;  or 

                 (7) sexual masochism or sadism. 



Alaska Statute 11.41.436(a)(4), the statute that forbids sexual abuse of a minor in the 



second degree, applies to an offender who “aids, induces, causes, or encourages a person 



who is under 16 years of age to engage in [the] conduct described in AS 11.41.455(a)(2)­ 



(6).” 



                 To summarize, the sexual abuse statute generally forbids a person from 



causing or encouraging a child to engage in the listed sexual activities; the unlawful 



                                                     5                                                2390
 


----------------------- Page 6-----------------------

exploitation statute forbids a person from inducing a child to engage in the listed sexual 



activities in order to produce a film or other material; and the online enticement statute 



forbids a person from using a computer   to   “entice, solicit, or encourage” a child to 



engage in the listed sexual activities. 



                 The online enticement statute is written to allow police sting operations like 



the one in this case. The statute applies if the defendant entices either a child under 

sixteen years of age or a person that the offender believes is under sixteen.4 The statute 



goes on to clarify that “it is not a defense that the person enticed, solicited, or encouraged 

was not actually a child under 16 years of age.”5 



                 Moore argues that this statute is so overbroad that it chills the exercise of 



valid First Amendment rights and is unconstitutionally void for vagueness. We review 

these constitutional questions de novo.6 



                 The major part of the dispute in this case concerns the construction of the 



phrase “entice, solicit, or encourage” as used in this statute. Moore contends that the use 



of this phrase renders the statute unconstitutionally overbroad and void for vagueness. 



In   response,   the   State   concedes   that   this   language   should   be   narrowly   construed   to 



require the State to prove that the offender deliberately intended to persuade a child to 



engage in the listed sexual activities. We believe that the State’s concession involves a 



narrow construction of the term “encourage” so that the use of that term is consistent 



with the meaning of the terms “entice” and “solicit.” 



    4   AS 11.41.452(a). 



    5   AS 11.41.452(b). 



    6   See Doe v. State, Dep’t of Pub. Transp ., 92 P.3d 398, 402 (Alaska 2004). 



                                                     6                                                 2390 


----------------------- Page 7-----------------------

                 We are required to employ a reasonable narrowing construction of this 

statute if necessary to avoid the danger of unconstitutionality.7 As we discuss below, 



there   is   a   danger   that   without   a   narrowing   construction,   this   statute   could   pose   an 



unconstitutional infringement on some protected speech. The State’s proposal appears 



to be reasonably consistent with the language of the statute. The next step is to review 



the   legislative   history   to   determine   if   this   construction   is   likewise   consistent   with 



legislative intent. 



                 When the online enticement statute was first introduced, the bill’s sponsor 



stated that the purpose of the statute was to protect children from sexual predators and 

to prevent online victimization.8  He asserted            that one out of five children had received 



solicitations over the Internet in the preceding year.9 He noted that current statutes could 



be stretched to allow prosecution of online solicitation, but he argued that a new statute 

was a better approach to remedy the problem.10 



                 The     sponsor     noted    that   the   bill  prohibited     the   online    enticement, 



solicitation, or encouragement of the sexual activities listed in AS 11.41.455, and he 



    7    Alaskans for a Common Language, Inc. v. Kritz , 170 P.3d 183, 192 (Alaska 2007); 



Holton v. State , 602 P.2d 1228, 1233 (Alaska 1979) (stating that “a statute will not be 

struck down as overbroad when a limiting construction could end the statute’s chilling 

effect on protected expression”). 



    8    Minutes of Senate Judiciary Committee, Senate Bill 118, testimony of Sen. French, 



8:41 a.m. (Mar. 10, 2005). 



    9    Id. 



    10   Id. at 8:42 a.m. 



                                                      7                                                 2390
 


----------------------- Page 8-----------------------

suggested that enticing a person who the defendant believes is under sixteen is essentially 

an attempt to commit this crime.11 



                 A representative from the Department of Law also made comments to the 



Judiciary Committee. She noted that most of the conduct prohibited by the bill was 



already prohibited by other sections of the criminal code, specifically the sexual abuse 



of a minor statute, which criminalized enticing or encouraging sexual activities with a 

minor.12 She noted that solicitation of sexual abuse of a minor was basically the same 



behavior covered in this bill. 13 She noted that the sponsor’s intent was to address the 



“grooming” that occurs online.14 



                 The Senate Judiciary Committee’s discussion suggests that it believed that 



minors are harmed by the mere exposure to adults soliciting them to engage in sexual 



activities.   The discussion also suggests that it intended the online enticement bill to 



prohibit solicitation of sexual activities that were already illegal under existing law. 



Based on this discussion, it seems likely that the legislature intended this bill to forbid 



the   online   solicitation   of   sexual   activities   —   solicitation   that   was   already   illegal   if 



conducted in person. 



                 Based on this history and the language of the statute, we accept the State’s 



concession. The requirement that the offender “solicit, entice, or encourage” a child 



    11   Id. 



    12     Minutes    of  Senate    Judiciary   Committee,     Senate    Bill  118,   testimony    of  Anne 



Carpeneti, 9:04-9:05 a.m. (Mar. 10, 2005). 



    13   Id . at 9:05 a.m. 



    14   Id. at 9:06-9:07 a.m. 



                                                      8                                                2390
 


----------------------- Page 9-----------------------

means   that   the   State   must   prove   that   the   offender   deliberately   intended   to   cause   or 



persuade the child to engage in the sexual activities listed in AS 11.41.455. 



                 With this construction, the online enticement statute is not 

                unconstitutionally overbroad. 



                Moore argues that the online enticement statute violates the right to free 



speech protected by the First Amendment to the United States Constitution and Article 



1, section 5 of the Alaska Constitution. To address this argument, we assume that this 



statute is aimed at speech that is defined by its content — it criminalizes speech that is 

intended to persuade a child to engage in the listed sexual activities.15 Content-based 



restrictions    of  protected    speech    must   be   narrowly    tailored   to  serve   a  compelling 

government interest.16 The State undoubtedly has a compelling interest in protecting 



children from sexual exploitation: the United States Supreme Court has recognized the 



compelling interests in “safeguarding the physical and psychological well-being of a 

minor” 17 and    “protecting children from harmful materials.”18 



                Ordinarily, a litigant must show a personal interest in order to have standing 



to raise a constitutional question; a litigant generally cannot assert the constitutional 

rights of others.19 In the First Amendment context, however, a litigant may contend that 



    15   See New York v. Ferber, 458 U.S. 747, 763-64 (1982) (holding that a statute singling 



out child pornography for regulation was a content-based restriction). 



    16   Trask v. Ketchikan Gateway Borough , 253 P.3d 616, 621 (Alaska 2011). 



    17   Ferber , 458 U.S. at 756-57 (quotation omitted). 



    18   Reno v. ACLU , 521 U.S. 844, 849 (1997). 



    19   See Griswold v. City of Homer, 252 P.3d 1020, 1030 (Alaska 2011); Keller v. French , 



205 P.3d 299, 304 (Alaska 2009). 



                                                    9                                               2390
 


----------------------- Page 10-----------------------

a   statute   is  unconstitutionally      overbroad,     even    when    their   own    conduct     is  not 

constitutionally protected.20 This accommodation is necessary to avoid chilling the rights 



of those who may refrain from protected speech in order to avoid prosecution.21 



                In an overbreadth challenge, a statute will not be judged unconstitutional 



unless “a substantial number of its applications are unconstitutional, judged in relation 

to   the   statute’s   plainly   legitimate   sweep.”22  The   potential   overbreadth   also   must   be 



realistic, not merely hypothetical or speculative.23 



                An overbreadth analysis is a two-step process. First, a court must construe 



the statute to determine what is and is not covered; second, the court must determine 



whether      the  statute,  as  construed,     criminalizes    a  substantial    amount     of  protected 

expressive activities.24 



                The State argues that most of the speech covered by the online enticement 

statute is unprotected speech because this speech is integral to criminal conduct.25 As 



noted above, when the Alaska legislature enacted the online enticement statute, it was 



already illegal for a person over sixteen years of age to aid, induce, cause, or encourage 



    20   See Smith v. State, Dep’t of Corrections , 872 P.2d 1218, 1223 n.9 (Alaska 1994); 



Holton v. State , 602 P.2d 1228, 1233 (Alaska 1979). 



    21   Holton , 602 P.2d at 1233. 



    22   United States v. Stevens , 130 S. Ct. 1577, 1587 (2010) (quotation omitted); see also 



Bachlet v. State , 941 P.2d 200, 204 (Alaska App. 1997) (a court will find a statute overbroad 

“only when it reaches a substantial amount of constitutionally protected conduct”) (internal 

quotation omitted). 



    23   See United States v. Williams, 553 U.S. 285, 301 (2008); Kritz , 170 P.3d at 214 n.194. 



    24   See Williams, 553 U.S. at 293, 297; Turney v. State, 936 P.2d 533, 539 (Alaska 1997). 



    25   Cf. Stevens , 130 S. Ct. at 1584; Williams, 553 U.S. at 297-98. 



                                                    10                                               2390
 


----------------------- Page 11-----------------------

a person under sixteen to engage in the listed sexual activities.26  The online enticement 



statute simply prohibits an adult from “enticing, soliciting, or encouraging” the same 



acts.   Online   enticement   will   usually,   if   not   always,   involve   speech   that   is   already 



prohibited — speech that is intended to persuade a minor to engage in the listed sexual 



activities. 



                 For example, in Holton v. State , a defendant was convicted of the felony 



charge of contributing to the delinquency of a minor because he tried to persuade a minor 

to engage in fellatio.27     The defendant agreed that fellatio between a child and an adult 



would be illegal, but he contended that the statute was overbroad because it applied to 

persuasion in the form of a mere conversation.28 The Alaska Supreme Court held that the 



defendant’s attempt to persuade the minor to engage in sexual activities was a solicitation 

for imminent  illegal conduct, and that this solicitation was not protected speech.29 



                 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.    We    conclude     that   this  statute   covers    a  “plainly    legitimate     sweep”     of 

unprotected speech.30 But Moore submits several hypotheticals to support his argument 



that the statute also prohibits a substantial amount of protected speech. 



                 Moore   argues   that   the   statute   “precludes   communications   intended   for 



advice.” Moore gives two examples. Moore argues that the statute would apply if a 



    26   See AS 11.41.436(a)(4).
 



    27   602 P.2d 1228, 1232 (Alaska 1979).
 



    28   Id . at 1233. 
 



    29   Id . at 1234.
 



    30   See Stevens, 130 S. Ct. at 1587 (quotation omitted).
 



                                                      11                                                2390
 


----------------------- Page 12-----------------------

fifteen-year-old   boy   asked       his   adult   brother   whether   he   should   have   sex   with   his 



girlfriend, and the older brother responded that he should. Moore also argues that the 



statute would apply if a health care professional tells a fifteen-year-old girl to use birth 



control. In response, the State argues that the statute does not apply to adults who merely 



render advice. 



                 We assume that these examples may involve protected speech. But, under 



our    narrowing     construction,     the   online   enticement   statute     will   not  apply    to  these 



examples. The older brother in Moore’s first hypothetical merely responded to a question 



and   was   not   the   instigator   of   the   proposed   sexual   activities;   he   did   not   attempt   to 



persuade   the   fifteen-year-old   to   engage   in   such   activities.   Likewise,   the   health   care 



professional in the second hypothetical did not even suggest that the fifteen-year-old 



should engage in sexual activities, but only offered advice in the event that the girl chose 



to do so. Under our construction of the online enticement statute, it would not penalize 

this type of advice or advocacy.31 



                 Moore also argues that the statute restricts speech between adults engaging 



in role-playing. Moore argues that the First Amendment protects the right of an adult to 



assume the role of a minor, and that the statute unlawfully precludes a role-playing adult 



from engaging in sexually explicit speech with another adult. 



                 However, the online enticement statute does not forbid sexual role-playing, 



unless the role-playing adult believes the other person is under sixteen years old. We do 



    31  See State v. Ebert, 263 P.3d 918, 922 (N.M. App. 2011) (construing a similar online 



solicitation statute to exclude this type of advice). 



                                                     12                                                  2390 


----------------------- Page 13-----------------------

not    recognize     this  example     as  identifying    a  situation    where    the   statute  forbids    a 

substantial amount of unprotected speech.32 



                 Moore also argues that the statute prohibits sexually suggestive speech even 



when the proposed sexual activities would not be illegal. He notes that an eighteen-year­ 



old and a fifteen-year old may legally engage in consensual sexual intercourse. But the 



statute forbids an eighteen-year-old from using a computer to ask a fifteen-year-old to 



engage in intercourse. 



                 The State does not argue that this hypothetical involves an example of 



unprotected speech. But “[t]he mere fact that one can conceive of some impermissible 



applications   of   a   statute   is   not   sufficient   to   render   it   susceptible   to   an   overbreadth 

challenge.”33 In a similar case, the defendant argued that an Illinois solicitation statute 



was overbroad because it would prevent a seventeen-year-old husband from asking his 

sixteen-year-old spouse to engage in sexual intercourse.34                 An Illinois appellate court 



concluded that such a prosecution was unlikely, and that the constitutionality of the 

statute   could   be   reconsidered   if   it   was   applied   to   a   married   couple.35  We   likewise 



conclude      that  the   legitimate    reach   of  the   online   enticement     statute   surpasses     any 



potentially unconstitutional applications, and that any challenges to the application of the 



statute can be considered on a case-by-case basis. 



    32   Id . at 922 (recognizing that a similar statute did not “restrict adults from soliciting sex 



from one another over the internet”). 



    33   See Williams, 553 U.S. at 303 (internal quotation omitted). 



    34   People v. Smith , 806 N.E.2d 1262, 1264 (Ill. App. Ct. 2004). The Illinois statute at 



issue   criminalized   a   person   seventeen   years   old   or   older   from   soliciting   a   person   under 

seventeen years old. 



    35   Id. at 1265 (citing Ferber , 458 U.S. at 773-74). 



                                                      13                                                2390
 


----------------------- Page 14-----------------------

                 Moore does not appear to argue that he was engaging in protected activities 



in   this   case,   or   that   the   online   enticement   statute   violated   his   personal   right   to   free 



speech. To the extent he is making such an argument, it is unpersuasive. The jury’s 



verdict established that Moore believed that he was interacting with two fourteen-year­ 



old girls. The evidence supporting this conclusion is discussed in more detail below. And 



Moore did not seriously contest the fact that he solicited these two chat room characters 



to masturbate for him. In other words, the evidence established that Moore believed that 



he was soliciting two minors to engage in sexual activities. This conduct does not fall 

within the boundaries of protected speech.36 



                 As noted above, we have concluded that the requirement that the offender 



“solicit, entice, or encourage” a child means that the State must prove that the offender 



intended to cause or persuade the child to engage in listed sexual activities. So construed, 



this is a “statute whose legitimate reach dwarfs its arguably impermissible applications,” 

and “whatever overbreadth may exist should be cured through case-by-case analysis.”37 



                 The online enticement statute is not void for vagueness. 



                 The vagueness doctrine applies when “statutory language is so indefinite 

that the perimeters of the prohibited zone of conduct are unclear.”38 A statute can be 



declared   void   if   it   “fails   to   give   adequate   notice   to   the   ordinary   citizen   of   what   is 



    36   See Holton , 602 P.2d at 1234. 



    37   Ferber, 458 U.S. at 773-74 (internal quotation omitted). 



    38   Marks v. Anchorage , 500 P.2d 644, 646 (Alaska 1972). 



                                                     14                                                  2390 


----------------------- Page 15-----------------------

prohibited,” or if it “confer[s] unbridled discretion on government officials and thereby 

raise[s] the possibility of uneven and discriminatory enforcement.”39 



                 Moore argues that the broad language of the online enticement statute fails 



to give adequate notice of what is prohibited during an online conversation. But even an 



imprecise statute “may still be sustained (1) if the offense charged falls squarely within 



its prohibitions and (2) if a construction may be placed upon the statute so that its reach 

may be reasonably understood in the future.”40 



                 In this case, Moore’s conduct falls squarely within the terms of the statute. 



There     is  no  question     that  he  intended     to  solicit   the  two  chat   room    characters     to 



masturbate       for  his  own    sexual    gratification.    And    we   have    adopted     a  reasonable 



narrowing construction of this statute that will require the State to prove that a future 



defendant intended to cause or persuade a minor to engage in the sexual activities listed 



in   AS    11.41.455(a).      Moore     does    not  argue    that   this  list  of  sexual    activities   is 



unconstitutionally vague. 



                 Moore also argues that this statute could be enforced arbitrarily. A person 



claiming   that   a   statute’s   language   allows   arbitrary   enforcement   “has   the   burden   to 

establish that [the] statute has a history of arbitrary or selective enforcement.”41 But 



Moore does not offer any instances of arbitrary enforcement. And, with the narrowing 



construction we have adopted, we expect that the potential for arbitrary enforcement will 



be remote. 



    39   Id . 



    40   Summers v. Anchorage, 589 P.2d 863, 867 (Alaska 1979) (quoting Larson v. State , 



564 P.2d 365, 372 (Alaska 1977)). 



    41   Bachlet , 941 P.2d at 206. 



                                                      15                                                2390
 


----------------------- Page 16-----------------------

                We conclude that, with the narrowing construction we have adopted, the 



online enticement statute is not unconstitutionally vague. 



                Moore is not entitled to a new trial on these charges . 



                In   the   future,  we   expect    that  trial  juries  will  be   instructed    on  our 



construction of the phrase “solicit, entice, or encourage.” But Moore’s jury was not. 



Nonetheless, we conclude that the trial judge’s failure to anticipate our construction of 



this statute was not plain error. 



                At trial, the jury was instructed that “encourage” means “to instigate, to 



incite action, to embolden, to assist or facilitate the commission of an act, or to promote 



its accomplishment.” “Solicit” was defined as “to urge, advise, command, or otherwise 



incite another to engage in a particular act.” “Entice” was defined as “to lure or induce.” 



In the context of this case, these instructions were sufficient to inform the jury that the 



State was required to prove that Moore intended to cause or persuade a minor to engage 



in the listed sexual activities. 



                Moreover, this issue was not seriously contested at trial. Moore’s defense 



was that he did not actually believe that he was communicating with children under the 



age of sixteen. There was no dispute that Moore believed that he was communicating 



with two females and that he intended to solicit them to masturbate for his own sexual 



gratification. Thus the strict boundaries of the phrase “solicit, entice, or encourage” were 



unimportant to the trial in this case. We conclude that the failure to instruct the jury with 



the construction we have here adopted was harmless beyond a reasonable doubt. 



                There was sufficient evidence that Moore believed that the 

                chatroom characters were under sixteen years of age. 



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                Moore claims that the State failed to prove that he believed the chat room 



characters were under sixteen years of age. This was also the primary contested issue at 



trial. When we review the sufficiency of the evidence to support these convictions, we 



view the evidence in the light most favorable to the verdict and ask whether a reasonable 

juror could have concluded that the defendant was guilty beyond a reasonable doubt. 42 



                One of Moore’s convictions referred to the online contact between Moore 



and Allie. During their first chat room contact, Moore asked for a picture a few minutes 



into the conversation. When he received the picture, he immediately asked how old Allie 



was,   and   she   replied   that   she   was   fourteen   years   old.   Moore   said   that   he   could   see 



himself “getting in trouble” with someone like her. Moore asked if she was a virgin, and 



she said she was not, but that she had limited sexual experience. Moore asked if Allie 



would have a problem sleeping with someone his age. Allie said that the oldest guy she 



had been with was “nineteen, but don’t tell my mom.” 



                The statements Allie made to Moore indicated that she was under sixteen 



years old. Taken in the light most favorable to upholding the jury’s verdict, Moore’s 



statements indicated that he believed she was under sixteen years old, particularly his 



statement that he could get in trouble with someone like her. 



                Moore’s other conviction related to his contact with Emma. During this chat 



room contact, Moore initially asked for Emma’s age, and she responded that she was 



fourteen years old. When Emma said that she had a 32C bra size, Moore responded that 



32C was a good size for a fourteen-year-old. He commented that he was too old for her, 



and gave his age as twenty-nine years old. Moore asked if she was a virgin and how 



much sexual experience she had. 



    42  Iyapana v. State , 284 P.3d 841, 848-49 (Alaska App. 2012). 



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                Again, the statements Emma made indicated that she was under sixteen 



years old. Moore’s comments indicated that he accepted that she was under sixteen years 



old, particularly his comment that he was too old for her. 



                In addition, when the police officers interviewed Moore, he admitted that 



he   had   masturbated   online,   that   he   could   have   been   viewed   by   minors   under   age 



eighteen, that he did talk about sexual matters and masturbate for minors under age 



eighteen, and that he knew that what he had done was illegal. 



                Moore argues that there was other evidence suggesting that he   did not 



believe that the chat room characters were under sixteen. He argues that he expressed 



doubt about Allie’s age, that the chats took place in a regular Alaska regional chat room 



(not a chat room dedicated to young girls or sex), that a person has to assert that they are 



at least eighteen to enter a Yahoo! chat room, and that the pictures of Allie that he 



received made it appear that she was much older. 



                All of these arguments would require us to reweigh the evidence and to 



decide for ourselves whether Moore actually believed that these chat room characters 



were under sixteen. But when we review the sufficiency of the evidence, we do not 

weigh the evidence or assess credibility: these are questions for   the   trial jury.43 It is 



possible that a juror could have believed Moore’s testimony that he believed he was 



chatting with role-playing adults. On the other hand, a juror could also have rationally 



concluded Moore was hoping to find underage girls who had entered the chat room, girls 



who would be willing to interact with an older man. This latter conclusion establishes 

that the evidence was sufficient to support Moore’s convictions.44 



    43  Iyapana , 284 P.3d at 849. 



    44  See Maloney v. State, 294 S.W.3d 613, 620-21 (Tex. Ct. App. 2009). 



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                The trial judge did not commit plain error when he admitted 

                the evidence relating to the charge of distribution of indecent 

                material. 



                As noted above, Moore’s conviction for distribution of indecent material 



to   a  minor   was   vacated    after  the  federal  district  court   held  that  this  statute  was 



unconstitutional. Moore’s conviction for this vacated charge was based on his online 



interaction with Groupie, particularly the session where he allowed Groupie to watch 



him while he was masturbating. Moore now argues that this evidence would not have 



been admissible at a trial on his online enticement convictions, and that he should receive 



a new trial on those charges. 



                Moore did not object to this evidence in the trial court, so now he must 

show plain error.45 Plain error involves “such egregious conduct as to undermine the 



fundamental fairness of the trial and contribute to a miscarriage of justice.”46 



                Moore’s argument overlooks a fundamental aspect of our normal appellate 



review process. We generally review a trial court’s ruling based on the record as it 



existed at the time the court made its ruling. “The normal rule is that, absent plain error, 



a party challenging a trial court’s ruling may not rely on an argument or on evidence that 

was not brought to the trial court’s attention at the time the trial court made its ruling.”47 



                We find no plain error in this case. As Moore notes in his brief, “Moore’s 



statements   during   the   chats   with   [Groupie]   provided   stronger   evidence   that   Moore 



actually believed the people he was chatting with were under 16.” We also note that the 



evidence that Moore allowed Groupie to watch him masturbating suggested the motive 



    45   See Adams v. State, 261 P.3d 758, 764 (Alaska 2011). 



    46   Id. (internal quotation omitted). 



    47  Waters v. State, 64 P.3d 169, 171 (Alaska App. 2003). 



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for his interactions with Allie and Emma: he intended to cause or persuade them to 



engage     in  masturbation      for  his  own   gratification.    Thus   the  evidence     of  Moore’s 



interactions with Groupie was not merely character evidence. This evidence was relevant 

to prove Moore’s motive and intent during his interactions with Allie and Emma.48 



                We conclude that the trial judge did not commit plain error by allowing the 



introduction of the evidence relating to the charge of distribution of indecent material. 



        Conclusion 



                We conclude that language of the online enticement statute requiring the 



offender to “solicit, entice or encourage” a minor to engage in listed sexual activities 



must be interpreted to require the State to prove that the offender intended to cause or 



persuade the minor to engage in the listed sexual activities. This statute does not penalize 



advice   similar   to   the   examples   we   have   discussed,   including   advice   from   a   family 



member or a medical provider. Read in this light, the statute is not unconstitutionally 



overbroad or vague. The failure to so instruct the jury was harmless in Moore’s case. We 



conclude that there was sufficient evidence to support Moore’s convictions and that there 



was   no   plain   error   involved   with   the   introduction   of   the   evidence   relating   to   his 



conviction for distribution of indecent material to a minor. 



                We therefore AFFIRM the superior court’s judgment. 



    48  See Alaska Evidence Rule 404(b). 



                                                   20                                                2390 

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