State v. Ewell

• Decision Date: 13 January 2009
• Docket Number: No. 35093.,35093.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Eric Harold EWELL, Defendant-Appellant.
• Court: Idaho Court of Appeals

205 P.3d 680

147 Idaho 31

STATE of Idaho, Plaintiff-Respondent, v. Eric Harold EWELL, Defendant-Appellant.

No. 35093.

Court of Appeals of Idaho.

January 13, 2009.

Review Denied April 16, 2009.

Van G. Bishop, Nampa, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.

PERRY, Judge.

Eric Harold Ewell appeals from his judgment of conviction for possession of sexually exploitative material with a sentence enhancement for being a repeat sexual offender. Specifically, Ewell challenges the denial of his two motions to dismiss the enhancement. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

Police found numerous sexually-explicit pictures of minors on a computer to which Ewell had access. One of the pictures was used by Ewell in a profile for an internet chat room. Ewell was arrested and charged with six counts of possession of sexually exploitative material, I.C. § 18-1507A, with a sentence enhancement for being a repeat sexual offender, I.C. § 19-2520G. The sentence enhancement statute mandates a fifteen-year minimum term of confinement for a crime requiring registration as a sex offender under I.C. § 18-8304 if the individual was previously convicted of such an offense in Idaho or of a substantially equivalent offense in another state. The information alleged that Ewell had been convicted of luring with a sexual motivation in the state of Washington. WASH. REV.CODE § 9A.40.090. Ewell filed a motion to dismiss the enhancement for being a repeat sexual offender because the previous Washington offense of luring with a sexual motivation, used to justify the enhancement, had no substantially equivalent Idaho counterpart that was included in the listed offenses of I.C. § 18-8304 requiring sex offender registration in Idaho.

After Ewell filed the motion to dismiss the sentence enhancement, the state amended the information to include other previous sexual offenses committed in Washington. These offenses included luring, luring with a sexual motivation, and communicating with a minor for immoral purposes. Ewell then filed another motion to dismiss the enhancement for being a repeat sexual offender, arguing that I.C. § 19-2520G was unconstitutionally vague and inapplicable to the charge against him. The district court denied both of Ewell's motions, holding that I.C. § 19-2520G applied to Ewell because luring with a sexual motivation was substantially similar to the Idaho offenses of second degree kidnapping of an unrelated minor child and first degree kidnapping, both of which require sex offender registration in Idaho. Furthermore, the district court held that the statute was not unconstitutionally vague.

Ewell entered a conditional guilty plea to one count of possession of sexually exploitative material and admitted the enhancement for being a repeat sexual offender, specifically that he had previously been convicted in Washington of luring, luring with a sexual motivation, and communication with a minor for immoral purposes. The state dismissed the remaining counts of possession of sexually exploitative material. The district court sentenced Ewell to a unified term of twenty-five years, with a minimum period of confinement of fifteen years. Ewell appeals, challenging the district court's denial of his two motions to dismiss the enhancement for being a repeat sexual offender.

II. ANALYSIS

A. Washington Convictions Used as to Justify Enhancement under I.C. § 19-2520G

Ewell argues that the district court erred in denying his motion to dismiss the sentence enhancement for being a repeat sexual offender because his prior Washington conviction of luring with a sexual motivation had no substantially equivalent counterpart in the listed offenses of I.C. § 18-8304 requiring sex offender registration. The district court analogized luring with a sexual motivation to the Idaho offense of second degree kidnapping of an unrelated minor child, I.C. § 18-4501(2), and held that such offense, if committed in Idaho, would have required sex offender registration. The district court thus concluded that the enhancement for being a repeat sexual offender under I.C. § 19-2520G was justified.

We need not decide whether the district court's comparison of the Washington offense of luring with a sexual motivation with the Idaho offense of second degree kidnapping of an unrelated minor child is convincing. Even were we to assume error, the ruling could be affirmed on alternative grounds. Where a ruling in a criminal case is correct, though based upon an incorrect reason, it still may be sustained upon the proper legal theory. State v. Pierce, 107 Idaho 96, 102, 685 P.2d 837, 843 (Ct.App. 1984).

Prior to the district court's ruling on Ewell's motion to dismiss the sentence enhancement, the state amended the information to include other prior Washington offenses, including communication with a minor for immoral purposes. WASH. REV.CODE § 9.68A.090. Ewell's motion makes no mention of the equivalency of this offense with any Idaho offense which would require sex offender registration and, thereby, invoke the penalty provisions of I.C. § 19-2520G. Ewell later admitted to his previous Washington convictions for luring, luring with a sexual motivation, and communication with a minor for immoral purposes when he pled guilty to the enhancement for being a repeat sexual offender, which was based on those three prior convictions. Ewell challenges the use of the conviction for luring with a sexual motivation to justify the enhancement under I.C. § 19-2520G, but does not challenge the relevance of the conviction for communication with a minor for immoral purposes in justifying the enhancement. In State v. Goodwin, 131 Idaho 364, 956 P.2d 1311 (Ct.App.1998), this Court refused to consider a challenge to an order denying a motion to suppress when the district court also pronounced an independent, alternative ground for its holding which was uncontested on appeal. Accordingly, the district court's denial of Goodwin's motion to suppress was affirmed on this alternative, uncontested ground. Id., 131 Idaho at 367, 956 P.2d at 1314.

Ewell contends that using the other Washington offenses listed in the amended information to affirm the district court is improper because his motion to dismiss was based on allegations contained in the information before it was amended. However, it remains that the information was amended and, therefore, any deficiency in the original information is irrelevant. Therefore, Ewell has not shown that the district court erred in denying his motion to dismiss the enhancement for being a repeat sexual offender even if we assume that luring with a sexual motivation has no substantially equivalent Idaho counterpart.

B. Applicability and Constitutionality of I.C. § 19-2520G

Ewell next argues that the enhancement for being a repeat sexual offender under I.C. § 19-2520G does not apply to his case because it requires a mandatory minimum sentence of fifteen years and, in this case, the underlying charge carries a maximum sentence of only ten years. Ewell further argues that this also makes I.C. § 19-2520G unconstitutionally vague. The state counters that Ewell has failed to provide any authority for his argument and, therefore, it should not be considered. Alternatively, the state contends that the legislative intent was to provide a longer penalty for repeat sexual offenders; therefore, the section applies to Ewell even if the underlying offense carried a maximum penalty for first-time offenders less than that of the enhanced penalty for repeat offenders. Additionally, the state argues that the statute is not vague, but clearly requires the district court to impose a minimum sentence of fifteen years for repeat offenders with discretion to impose a longer sentence only "as permitted by law." Accordingly, the state contends that the minimum sentence of fifteen years would also be the maximum sentence allowed by the statute for crimes which ordinarily carry a maximum penalty of less than fifteen years.

This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct.App.2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Rhode, 133 Idaho 459 462, 988 P.2d 685, 688 (1999); State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct.App.2000). The language of the statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to resort to legislative history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage in statutory construction, it has the duty to ascertain the legislative intent and give effect to that intent. Rhode, 133 Idaho at 462, 988 P.2d at 688. To ascertain the intent of the legislature, not only must the literal words of the statute be examined, but also the context of those words, the public policy behind the statute and its legislative history. Id. It is incumbent upon a court to give a statute an interpretation, which will not render it a nullity. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct.App.2001). Constructions of a statute that would lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 (2004); State v. Yager, 139 Idaho 680, 690, 85 P.3d 656, 666 (2004).

First, we address Ewell's argument that I.C. § 19-2520G does not apply to him because the maximum sentence for possession of sexually exploitative material is only ten years. Ewell contends that other sentence enhancement statutes provide for extended sentences; whereas, the minimum...