Moore v. State

298 P.3d 209, 2013 Alas. App. LEXIS 39, 2013 WL 1384938
CourtCourt of Appeals of Alaska
DecidedApril 5, 2013
DocketNo. A-10661
StatusPublished
Cited by7 cases

This text of 298 P.3d 209 (Moore v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. State, 298 P.3d 209, 2013 Alas. App. LEXIS 39, 2013 WL 1384938 (Ala. Ct. App. 2013).

Opinion

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 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 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.

[212]*212Moore was indicted on one count of distribution of indecent material1 for the August 3 interaction with Groupie. He was indicted on two counts of online enticement of a minor,2 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)(l)-(7) and
(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 (l)-(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 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

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Related

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State v. Alangcas.
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Bluebook (online)
298 P.3d 209, 2013 Alas. App. LEXIS 39, 2013 WL 1384938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-alaskactapp-2013.