State v. Reed, 38806.

• Court: Court of Appeals of Idaho
• Writing for the Court: LANSING, Judge.
• Citation: 294 P.3d 1132,154 Idaho 120
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Bruce E. REED, Defendant–Appellant.
• Decision Date: 17 December 2012
• Docket Number: No. 38806.,38806.

154 Idaho 120
294 P.3d 1132

STATE of Idaho, Plaintiff–Respondent,
v.
Bruce E. REED, Defendant–Appellant.

No. 38806.

Court of Appeals of Idaho.

Dec. 17, 2012.
Review Denied Feb. 28, 2013.

294 P.3d 1133

Brady Law, Chartered; Eric D. Fredericksen, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

LANSING, Judge.

154 Idaho 121

Bruce E. Reed appeals from his judgment of conviction for enticing a child over the Internet. He contends that the trial evidence was insufficient to prove his guilt and that his sentence is excessive. We affirm.

I.

BACKGROUND

Over the course of about five months, Reed participated in sexually explicit online chats with "borahjenny," a person he believed to be a fifteen-year-old girl. In reality, "borahjenny" was a middle-aged male police detective who was investigating Internet crimes

154 Idaho 122

294 P.3d 1134

against children. Reed was eventually charged with enticing a child over the Internet in violation of Idaho Code § 18–1509A, and was found guilty by a jury. The district court imposed a unified sentence of eleven years, with two years determinate. Reed appeals, challenging the sufficiency of the evidence to support the verdict and contending that his sentence is excessive.

II.

ANALYSIS

A. Sufficiency of the Evidence

Reed first argues that although there was abundant evidence of sexually explicit "instant messaging" communication between him and "borahjenny," the evidence was insufficient to support his conviction for the charged offense because he "did not attempt to personally meet borahjenny or provide the detective with any of his contact information to facilitate a meeting." Reed posits that the crime defined in I.C. § 18–1509A, as it existed at the time he was charged, required something more than online communications in which sexual acts were invited. Rather, he contends, a violation required some additional acts such as scheduling a specific meeting at a specific time and place. Thus, the initial issue presented is one of statutory construction.

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. 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 words must be given their plain, usual, and ordinary meaning, and the statute must be construed as a whole. State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001). 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 because an ambiguity exists, it has the duty to ascertain the legislative intent and give effect to that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct.App.2001).

At the time of Reed's communications with "borahjenny" in late 2009 and early 2010, the crime of enticing a child over the Internet was defined in I.C. § 18–1509A(1) (2009) as follows:

A person aged eighteen (18) years or older shall be guilty of a felony if he or she knowingly uses the internet to solicit, seduce, lure, persuade or entice by words or actions, or both, a minor child under the age of sixteen (16) years or a person the defendant believes to be a minor child under the age of sixteen (16) years to engage in any sexual act with or against the child where such act is a violation of chapter 15, 61 or 66, title 18, Idaho Code.

The referenced chapters 15, 61, and 66 of Title 18 of the Idaho Code all define types of sex offenses.

Reed predicates his interpretation of the statute—as requiring "something more than just chatting online with [a] person in a sexual manner"—upon an amendment to Section 18–1509A adopted in 2012. The 2012 amendment, which was enacted long after Reed committed his offense and, indeed, after his trial, added a new subsection, I.C. § 18–1509A(4), which states: "In a prosecution under this section, it is not necessary for the prosecution to show that an act described in chapter 15, 61 or 66, title 18, Idaho Code, actually occurred."¹ See 2012 Idaho Session

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294 P.3d 1135

Laws, ch. 270, § 1, p. 764. According to Reed, this establishes that, prior to the amendment, Section 18–1509A did require proof of an act described in the specified chapters of the Idaho Code. Reed cites Woodvine v. Triangle Dairy, Inc., 106 Idaho 716, 721, 682 P.2d 1263, 1268 (1984) for the proposition that "[w]hen the legislature changes the language of a statute, it is presumed that they intended to change the application or meaning of that statute." From that premise, he reasons that the statute before amendment must necessarily have required the prosecution to prove that an act described in chapter...