§707-756 Electronic enticement of a child in the first degree. (1) Any person who, using a computer or any other electronic device:

(a) Intentionally or knowingly communicates:

(i) With a minor known by the person to be under the age of eighteen years;

(ii) With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

(iii) With another person who represents that person to be under the age of eighteen years;

(b) With the intent to promote or facilitate the commission of a felony:

(i) That is a murder in the first or second degree;

(ii) That is a class A felony; or

(iii) That is another covered offense as defined in section 846E-1,

agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and

(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time,

is guilty of electronic enticement of a child in the first degree.

(2) Electronic enticement of a child in the first degree is a class B felony. Notwithstanding any law to the contrary, a person convicted of electronic enticement of a child in the first degree shall be sentenced to an indeterminate term of imprisonment as provided by law. [L 2002, c 200, pt of §1; am L 2006, c 80, §2; am L 2008, c 80, §3]

Case Notes

Requiring the use of a computer or other electronic device to travel to the agreed-upon meeting place at the agreed-upon time would render the statute absurd in meaning; and requiring the use of a computer or other electronic device to agree to meet with the minor would render the statute structurally incoherent as a whole. With respect to the computer-use requirement, the State was required to prove that defendant used a computer or electronic device only to communicate with "Chyla". 131 H. 379, 319 P.3d 298 (2013).

Challenge to the validity of this section under the doctrine of the dormant commerce clause was without merit, as the electronic enticement statutory prohibition does not interfere with, or does not involve, interstate commerce. 134 H. 515, 345 P.3d 181 (2015).

In light of the plain language of this section, its legislative history, and the doctrine of in pari materia, the "intent to promote or facilitate the commission of a felony" set forth in the agreement element applies to that element only. 134 H. 515, 345 P.3d 181 (2015).

This section is not overbroad because it: (1) does not implicate the freedoms of expression guaranteed under the First Amendment of the United States Constitution or article I, §4 of the Hawaii constitution; and (2) does not reach a substantial amount of constitutionally protected conduct. 134 H. 515, 345 P.3d 181 (2015).

This section is not rendered unconstitutionally vague by its use of the word "communicates", which is undefined, or by its reference to covered offenses under §846E-1, which includes catch-all clauses and conviction clauses; the catch-all clauses, conviction clauses, and term "communicates" provide citizens of ordinary intelligence a reasonable opportunity to know what conduct is prohibited and provides explicit standards for those who apply the statute to do so in a consistent and nondiscriminatory manner. 134 H. 515, 345 P.3d 181 (2015).

This section does not concern interstate commerce, and therefore, scrutiny under the commerce clause was not appropriate. Assuming, arguendo, that this section warranted commerce clause scrutiny, this section does not violate the dormant commerce clause. 131 H. 312 (App.), 318 P.3d 602 (2013).

This section was not unconstitutionally overbroad and/or vague as applied to defendant, and the circuit court did not err in denying defendant's motion to dismiss the indictment on that basis where, among other things, when the statute was read as a whole, it was clear that only criminal conduct was proscribed and the statute plainly criminalized conduct that is coupled with the intent to promote or facilitate the commission of a felony. 131 H. 312 (App.), 318 P.3d 602 (2013).

Trial court did not err in rejecting defendant's proffered reason for requesting the withdrawal of defendant's second guilty plea on the ground that defendant had not been aware of a potentially meritorious defense that the State was unable to prove that defendant had traveled to the agreed upon meeting place as required under subsection (1)(c), where transcripts of the internet chat room conversations defendant had with minor provided compelling evidence that the meeting place was the Burger King, not a particular area within the Burger King. 120 H. 480 (App.), 210 P.3d 3 (2009).

Where it was not necessary for defendant to actually commit one of the felony offenses defined in §846E-1 in order to violate the prohibition against the electronic enticement of a child under subsection (1) but only necessary under subsection (1)(b)(iii) that defendant act with the intent to promote or facilitate the commission of a felony offense defined in §846E-1, the State was not required to specify in the indictment which §846E-1 felony offense defendant intended to promote or facilitate. 120 H. 480 (App.), 210 P.3d 3 (2009).

Where State presented evidence to the grand jury that the person communicating with defendant represented to defendant that the person was a 14-year old girl, the State was not required to prove under subsection (1)(a)(iii) that defendant engaged in communication with an actual child, and the record showed that the agreed upon meeting place was the Burger King and not a specific table within the Burger King, evidence before the grand jury that defendant arrived at the Burger King and was arrested was sufficient to establish probable cause regarding the meeting place element. 120 H. 480 (App.), 210 P.3d 3 (2009).

Circuit court did not abuse its discretion under HRE rule 403 in admitting video showing defendant masturbating for "child" where video: (1) was extremely probative of defendant's intent to promote or facilitate the commission of one of the predicate felonies necessary to prove first degree electronic enticement of a child under this section; (2) provided clear evidence of defendant's motives and desires regarding the "child" and the extreme actions defendant was willing to undertake in order to entice the "child"; and (3) was the strongest evidence of defendant's intention to engage in sexual activity with the "child". 128 H. 328 (App.), 289 P.3d 964 (2012).

This section does not require proof that a defendant used a computer or other electronic device to travel to the agreed upon meeting place and the legislature did not intend the statute to require that the agreement to meet be accomplished through the use of a computer or other electronic device; requiring proof that the defendant used a computer to travel to the agreed upon meeting place at the agreed upon meeting time would lead to absurd results; thus, the circuit court did not erroneously instruct the jury on the elements for the charged offense of first degree electronic enticement of a child. 128 H. 328 (App.), 289 P.3d 964 (2012).