State v. Backlund, 20030044.

• Court: United States State Supreme Court of North Dakota
• Citation: 2003 ND 184,672 N.W.2d 431
• Docket Number: No. 20030044.,20030044.
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Craig Randall BACKLUND, Defendant and Appellant.
• Decision Date: 02 December 2003

672 N.W.2d 431
2003 ND 184

STATE of North Dakota, Plaintiff and Appellee,
v.
Craig Randall BACKLUND, Defendant and Appellant

No. 20030044.

Supreme Court of North Dakota.

December 2, 2003.

672 N.W.2d 433

Jonathan R. Byers, Assistant Attorney General, Attorney General's Office, Bismarck, N.D., for amicus curiae

Mark Rainer Boening (on brief), Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

Robert G. Hoy, Ohnstad Twichell, West Fargo, N.D., for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Craig Backlund appealed from a conviction entered upon a conditional guilty plea to the charge of luring a minor by computer in violation of N.D.C.C. § 12.1-20-05.1. We hold North Dakota had jurisdiction to prosecute Backlund, N.D.C.C. § 12.1-20-05.1 does not violate the Commerce Clause or the First Amendment, and the registration and notification provisions of N.D.C.C. § 12.1-32-15 do not violate procedural due process or double jeopardy. We affirm.

I

[¶ 2] In March 2002, Backlund, using the screen name "backdaddyO", participated in an Internet chatroom from his computer in Moorhead, Minnesota. He exchanged computer messages containing sexual references with an individual using the screen name "Fargobabe22." "Fargobabe22" identified herself as a 14-year-old girl, but was actually West Fargo police officer Al Schmidt. Backlund solicited "Fargobabe22" to engage in a sexual act and offered to pick her up and bring her home when they were done. Backlund arranged to meet "Fargobabe22" at a convenience store in West Fargo. The police observed Backlund at the designated convenience store. He was arrested in West Fargo and admitted he was the person who had been communicating with "Fargobabe22."

[¶ 3] Backlund was charged with luring a minor by computer in violation of N.D.C.C. § 12.1-20-05.1. The trial court rejected Backlund's pretrial jurisdictional and constitutional challenges to the prosecution, and he entered a conditional guilty plea under N.D.R.Crim.P. 11(a)(2). Backlund appealed from the resulting conviction.

II

[¶ 4] Our analysis of the issues raised by Backlund requires a brief description of the Internet, which:

is a decentralized, global, and interactive communications medium that connects individuals and commercial, as well as, nonprofit and public interest groups. Users disseminate and maintain dialogues about a wide range of information, in the form of text, images, sound, and video through cyberspace. The content of the disseminated information is wide-ranging and includes academic essays, art, music, humor, literature, medical

672 N.W.2d 434

information, and sexually explicit material. The Internet connects millions of residents from over 150 countries through individual computers as well as massive networks. Chat rooms, online discussion groups, newsgroups, and the World Wide Web are just some of the Internet methods by which information is exchanged. Users are frequently anonymous, which allows for free exchange of information and ideas. Messages are sent to an electronic address, rather than a geographic address and users frequently have no idea in what country or state a message originates or terminates. Similarly, it is not always technologically possible for a user to determine the age of a user who is accessing the communications.

Annot., Validity of State Statutes and Administrative Regulations Regulating Internet Communications Under Commerce Clause and First Amendment of Federal Constitution, 98 A.L.R. 5th 167, 175, § 2[a] (2002).

[¶ 5] In 2001 N.D. Sess. Laws ch. 134, § 4, the North Dakota Legislature enacted N.D.C.C. § 12.1-20-05.1, which provides:

An adult is guilty of luring minors by computer when:

1. The adult knows the character and content of a communication that, in whole or in part, implicitly or explicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances and uses any computer communication system that allows the input, output, examination, or transfer of computer data or computer programs from one computer to another to initiate or engage in such communication with a person the adult believes to be a minor; and

2. By means of that communication the adult importunes, invites, or induces a person the adult believes to be a minor to engage in sexual acts or to have sexual contact with the adult, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for the adult's benefit, satisfaction, lust, passions, or sexual desires.

3. A violation of this section is a class A misdemeanor, but if the adult is twenty-two years of age or older or the adult reasonably believes the minor is under the age of fifteen, violation of this section is a class C felony.

As originally introduced, N.D.C.C. § 12.1-20-05.1 proscribed luring "a minor," but was amended during the legislative process to criminalize luring "a person the adult believes to be a minor" to deal with situations where minors misrepresent their age to adults engaged in Internet solicitation of sexual acts. Hearing on S.B.2035 Before Senate Judiciary Committee, 57th N.D. Legis. Sess. (Jan. 16, 2001) (oral testimony of Ladd Erickson, Assistant Morton County State's Attorney).

[¶ 6] Under N.D.C.C. § 12.1-20-05.1, an adult is guilty of luring a minor by computer when (1) the adult knows the character and content of a communication that explicitly or implicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances, 2) the adult uses any computer communication system to initiate or engage in such communication with a person the adult believes to be a minor, and (3) the adult's communication importunes, invites, or induces the person the adult believes to be a minor to engage in sexual acts or to have sexual contact with the adult, or to engage in a sexual performance or sexual conduct

672 N.W.2d 435

for the adult's benefit, satisfaction, lust, passions, or sexual desires. Section 12.1-20-05.1, N.D.C.C. requires the adult to "know" the character and content of the communication that explicitly or implicitly discusses or depicts actual or simulated nudity, sexual acts, or sexual contact, but does not explicitly describe the degree of culpability necessary for the adult's use of the computer system to engage in the communication, or for the adult's importuning, inviting, or inducing the person the adult believes to be a minor. Under N.D.C.C. § 12.1-02-02(2), if a statute defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the required culpability is "willfully," which is defined in N.D.C.C. § 12.1-02-02(1)(e) as engaging in conduct intentionally, knowingly, or recklessly. Section 12.1-20-05.1, N.D.C.C., does not explicitly specify it is a strict liability offense, and the requisite culpability for the conduct proscribed by that statute is "willfully." See State v. Knowels, 2002 ND 62, ¶¶ 12-13, 643 N.W.2d 20

[¶ 7] We therefore construe N.D.C.C. § 12.1-20-05.1 to provide that an adult is guilty of luring a minor by computer when (1) the adult knows the character and content of a communication that implicitly or explicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances, (2) the adult willfully uses any computer communication system to initiate or engage in such communication with a person the adult believes to be a minor, and (3) by means of that communication, the adult willfully importunes, invites, or induces the person the adult believes to be a minor to engage in sexual acts or have sexual contact with the adult, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for the adult's benefit, satisfaction, lust, passions, or sexual desires. We address the issues raised by Backlund under that interpretation of N.D.C.C. § 12.1-20-05.1.

III

[¶ 8] Backlund argues North Dakota lacks jurisdiction to prosecute him under N.D.C.C. § 12.1-20-05.1 because he committed the offense at his computer in Moorhead, Minnesota. Backlund argues North Dakota cannot criminalize lawful Minnesota speech simply because one of the innumerable people able to access the Internet happens to be a North Dakota police officer. He argues the language of N.D.C.C. § 12.1-20-05.1 indicates a crime is committed, if at all, at the keyboard and no further overt acts are required by the statute.

[¶ 9] In People v. Ruppenthal, 331 Ill.App.3d 916, 265 Ill.Dec. 43, 771 N.E.2d 1002, 1007-08 (2002), cert. denied, ___ U.S. ___, 124 S.Ct. 62, 157 L.Ed.2d 27 (2003), the Appellate Court of Illinois considered a comparable jurisdictional issue in a similar factual context under Illinois' luring statute. There, a defendant in California used a computer to solicit sexual contact with "Stacy," an adult police officer in Illinois posing as a 14-year-old female. Id. at 1003-04. The defendant was arrested when he traveled to Illinois to meet "Stacy." Id. at 1004. The defendant argued no part of the crime occurred in Illinois because he uttered the words of solicitation in California. Id. at 1007. The court disagreed:

Although the offense of solicitation is complete upon the utterance of words of solicitation, no solicitation can occur unless the offending words are heard by another person. Defendant attempted to solicit sexual activity with a girl under the age of 17 living in Illinois, and he

672 N.W.2d 436

traveled to Illinois with the admitted intent of engaging in the sexual acts. The result of defendant's solicitation brought him within Illinois' borders. As with the telephone harassment discussed in [People v.]Baker [205 Ill. Dec. 335, 643 N.E.2d 286 (1994)], Illinois has a valid public interest in protecting minor children in this state from individuals who seek underage sexual

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