State v. Ansari

• Decision Date: 23 September 2004
• Docket Number: Case No. 20030655-CA.
• Citation: 100 P.3d 231,2004 UT App 326
• Parties: State of Utah, Plaintiff and Appellee, v. Jalal Ansari and Shawn Patrick Lagana, Defendants and Appellants.
• Court: Utah Court of Appeals

2004 UT App 326

100 P.3d 231

State of Utah, Plaintiff and Appellee, v. Jalal Ansari and Shawn Patrick Lagana, Defendants and Appellants.

Case No. 20030655-CA.

Utah Court of Appeals.

Filed September 23, 2004.

Peter Goodall and Ronald J. Yengich, Salt Lake City, for Appellants.

Mark L. Shurtleff and J. Frederic Voros Jr., Salt Lake City, for Appellee.

Before Judges Billings, Bench, and Jackson.

OPINION

JACKSON, Judge:

¶1 Appellants, Jalal Ansari and Shawn Lagana, challenge their convictions of enticing a minor over the Internet in violation of the prior version of Utah Code section 76-4-401 (2003) (amended 2003). We affirm.

BACKGROUND

¶2 On September 30, 2002, police charged Ansari, a Utah resident, with enticing a minor over the Internet after he had allegedly used an Internet chat room to contact an undercover police officer posing as a thirteen-year-old girl. The sexually suggestive conversation concluded with an agreement to meet that night at a park in Utah. Ansari was arrested when he arrived at the agreed location.

¶3 Lagana, also a Utah resident, was charged separately on April 14, 2003 for the same offense stemming from essentially identical circumstances. All of his relevant conduct also occurred in Utah.

¶4 Ansari and Lagana both moved to dismiss the charges on grounds that the Utah Internet enticement statute, Utah Code section 76-4-401, is unconstitutional. The trial court denied their motions, and both Ansari and Lagana entered conditional guilty pleas pending the outcome of this appeal.

ISSUES AND STANDARD OF REVIEW

¶5 On appeal, Ansari and Lagana challenge the prior enactment of the Utah Internet enticement statute on grounds that it includes fatally inconsistent terms, imposes an undue burden on interstate commerce in violation of the Commerce Clause, and is void for vagueness. "Constitutional challenges to statutes present questions of law, which we review for correctness." Provo City Corp. v. Thompson, 2004 UT 14, ¶5, 86 P.3d 735 (citation omitted).

ANALYSIS

¶6 At the time in question, the Internet enticement statute, Utah Code section 76-4-401 read as follows:

(1) A person commits enticement of a minor over the Internet when not amounting to an attempt, conspiracy, or solicitation under Section 76-4-101, 76-4-201, or 76-4-203, the person knowingly uses a computer to solicit, seduce, lure, or entice, or attempts to solicit, seduce, lure, or entice a minor or a person the defendant believes to be a minor to engage in any sexual activity which is a violation of state criminal law.

(2) It is not a defense to the crime of enticing a minor under Subsection (1), or an attempt to commit this offense, that a law enforcement officer or an undercover operative who is working with a law enforcement agency was involved in the detection or investigation of the offense.

(3) An enticement of a minor under Subsection (1) with the intent to commit:

(a) a first degree felony is a second degree felony;

(b) a second degree felony is a third degree felony;

(c) a third degree felony is a class A misdemeanor;

(d) a class A misdemeanor is a class B misdemeanor; and

(e) a class B misdemeanor is a class C misdemeanor.

Utah Code Ann. § 76-4-401 (2003). After Ansari and Lagana were charged, section 76-4-401 was amended in 2003 to remove the phrase "not amounting to an attempt, conspiracy, or solicitation under Section 76-4-101, 76-4-201, or 76-4-203." See Utah Code Ann. § 76-4-401(1) (Supp. 2003) (amendment effective May 5, 2003).

I. Inconsistent Terms

¶7 Ansari and Lagana first challenge the Utah Internet enticement statute on grounds that its terms are fatally inconsistent and thereby unconstitutional.¹ They take issue with the clause from subsection (1), which provides that the statute applies to conduct "not amounting to an attempt, conspiracy, or solicitation under Section 76-4-101, 76-4-201, or 76-4-203." Utah Code Ann. § 76-4-401(1).

¶8 Their argument proceeds in two steps. They argue first that the only natural reading of "not amounting to" requires the State to affirmatively prove absence of attempt, conspiracy, or solicitation. Second, when "not amounting to" is read to require the State to disprove attempt, conspiracy, and solicitation, this requirement is fatally inconsistent with the statute's requirement that the State also prove the defendant "use[d] a computer to solicit, seduce, lure, or entice a minor." Id. In other words, they argue that the only natural reading of the statute requires the State to both prove and disprove the same elements.

¶9 We determine as an initial matter that Ansari and Lagana have standing to make this challenge because, if accepted, their reading of the statute would "establish that no set of circumstances exists under which the [statute] would be valid." State v. Herrera, 1999 UT 64, ¶4 n.2, 993 P.2d 854 (alterations in original) (quotations and citation omitted). Nonetheless, we conclude that the challenge fails for two reasons: (1) the plain language of the statute does not require the State to affirmatively prove the absence of attempt, conspiracy, and solicitation, and (2) even if it did require such proof, we would still conclude that the statute does not require the State to prove and disprove the same elements.

¶10 First, we hold that the "not amounting to" clause does not require the State to affirmatively prove absence of attempt, conspiracy, and solicitation. "It is a basic principle that legislative enactments are endowed with a strong presumption of validity." State v. Mohi, 901 P.2d 991, 1009 (Utah 1995) (quotations and citations omitted). We should not strike a statute "unless there is no reasonable basis upon which [it] can be construed as conforming to constitutional requirements." Id. When one interpretation results in constitutional conflict, we may adopt another construction, if possible, "so long as the resulting construction does not conflict with the reasonable or actual legislative purposes of the statute." Id. Hence, we need not determine whether there is a single correct interpretation; we need only determine whether there exists a reasonable interpretation that avoids inconsistency.

¶11 Ansari and Lagana prevail only if they prove that their reading of the "not amounting clause" is the only reasonable reading. We determine it is not and rely on an alternative construction. The "not amounting to" clause can reasonably be understood to indicate the role of section 76-4-401 as an alternative to attempt, conspiracy, and solicitation, and not to require the State to first prove the absence of these crimes.

¶12 This reading not only avoids any unconstitutional inconsistency, but it accords with the likely purposes of the statute. In drafting section 76-4-401, the legislature was likely aware that the "not amounting to" clause has been used in other rape and attempted rape crimes and that Utah courts have consistently interpreted the clause to not require the State to affirmatively disprove other crimes. See State v. Reed, 2000 UT 68, ¶¶ 32-33, 8 P.3d 1025 (refusing to construe "not amounting to rape of a child, object rape of a child, sodomy upon a child, or an attempt to commit any of these crimes" clause to require the State to disprove sodomy); State v. Peters, 550 P.2d 199, 199-200 (Utah 1976) (refusing to construe "not amounting to rape of a child . . . or attempted rape" clause to require the State to disprove rape); see also State v. Montoya, 910 P.2d 441, 444-46 (Utah Ct. App. 1996) ("The primary purpose of the `under circumstances not amounting to [rape]' language was likely to encourage criminal punishment under those greater crimes when the evidence of a particular case warrants it.") (reviewing Utah Code Ann. § 76-7-102 prohibiting incest). Given this judicial consistency, it is only natural for the legislature to expect the same interpretation to apply to the "not amounting to" language of section 76-4-401.²

¶13 In addition, the legislature was probably aware that the "not amounting to" clause would assist in preventing a challenge under State v. Shondel, 453 P.2d 146 (Utah 1969). In Shondel, the supreme court held that when two different statutory provisions define the same offense, a defendant must be sentenced under the provision carrying the lesser penalty. See id. at 148. Because crimes of attempt, conspiracy, and solicitation can stem from conduct providing a basis for Internet enticement, the legislature may have been legitimately concerned that the Shondel doctrine would allow all such crimes to be punished only as the lesser Internet enticement crime. By clarifying that Internet enticement involves conduct "not amounting to" other inchoate crimes, the legislature could distinguish Internet enticement from such crimes and thereby preserve the State's ability to seek a higher penalty when the facts permitted.³

¶14 Second, even if we were to determine that the only reasonable reading of the statute required the State to affirmatively disprove attempt, conspiracy, and solicitation, we would still conclude that section 76-4-401 does not require the State to prove and disprove the same elements. Ansari and Lagana claim that the crimes of attempt, conspiracy, and solicitation are essentially the same as Internet enticement. We disagree and conclude that there are in fact substantial differences.

¶15 As a prefatory matter, we note that it is rare that a statute's terms are found to be fatally inconsistent. Ansari and Lagana refer us to one case, Nelson v. Salt Lake County, in which the supreme court held the terms of a statute invalid because it was "patently inconsistent" and "so flawed that it is entirely inoperable." 905 P.2d 872, 876 (Utah 1995). The statute there was held invalid because it imposed contradictory requirements on the board of county commissioners in holding incorporation elections. See id. The statute granted the board the discretion to refuse to hold an election under certain conditions. See i...