State Of Iowa Vs. Eric Richard Hansen ( 2008 )

IN THE SUPREME COURT OF IOWA
No. 27 / 06–1735
Filed June 6, 2008
STATE OF IOWA,
Appellee,
vs.
ERIC RICHARD HANSEN,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County, Bruce
B. Zager, Judge.
State seeks further review of court of appeals’ decision finding
insufficient evidence to convict defendant of enticing away a minor.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT
JUDGMENT REVERSED; AND CASE REMANDED.
Mark C. Smith, State Appellate Defender, and David A. Adams,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and Charity
McDonnell, Assistant County Attorney, for appellee.
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STREIT, Justice.
Eric Richard Hansen met online an undercover police officer who
was posing as a fifteen-year-old girl. The topic of their conversation was
sexual at times. They agreed to meet at a Wal-Mart in Cedar Falls.
When Hansen arrived at the store, he was arrested for enticement of a
minor. He was found guilty as charged. Because the crime of
enticement requires the victim to be “entice[d] away,” Hansen is guilty of
attempted enticement. We affirm the decision of the court of appeals.
I. Facts and Prior Proceedings.
On May 22, 2006, a Cedar Falls police officer was in an internet
chat room under the assumed identity of a fifteen-year-old girl, “Suzi.”
Hansen, using the screen name “Rick H.,” approached the undercover
officer online. The officer told Hansen he was a fifteen-year-old girl from
Cedar Falls. Hansen, who was twenty-three years old at the time,
claimed he was nineteen and indicated he was interested in meeting
Suzi. He said he was available to meet the next day but twice asked
“what was in it for him” to drive from Des Moines to Cedar Falls. When
Suzi said she had a friend on the other line, Hansen wrote “she can join
in lol [laugh out loud].” The officer asked Hansen if they could speak on
the telephone. The officer gave Hansen a telephone number. Shortly
thereafter, Hansen called and reached an investigator posing as Suzi.
During their conversation, Hansen discussed “messing around” with Suzi
and also spoke extensively about being careful and ensuring the girl
would not get in trouble. When their conversation continued online, he
confirmed they would be safe: “Trust me. I’ll bring a full pack.”
The next morning, Hansen contacted Suzi just after 7:30 a.m.
They arranged to meet at the Wal-Mart in Cedar Falls around 9:45 or
10:00 that morning. Hansen said he would be driving a red Chevy S-10
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pick-up. At 10:20 a.m., Hansen pulled into the parking lot in a truck
matching the description he provided. Hansen walked into the store and
called Suzi from a pay phone. No one answered. Hansen returned to his
truck, and two Cedar Falls police officers approached him. Initially,
Hansen claimed he did not know Suzi’s age. Later he admitted he
believed she was fifteen or sixteen years old. Although he conceded “the
pack” referred to condoms, he said he only intended to “h[a]ng out at
Wal-Mart or [go] to lunch” with Suzi. He did not have any condoms with
him.
Hansen was charged with enticing away a minor, in violation of
Iowa Code section 710.10(2) (2005). The case was tried to the court on
the minutes of testimony. Hansen argued he could at most be guilty of
attempted enticement. The district court found Hansen guilty as
charged, and he appealed. The court of appeals found there was not
substantial evidence to support an enticement conviction. It reversed
Hansen’s conviction with instructions to enter a finding of guilt for
attempted enticement. We granted further review and affirm the decision
of the court of appeals.
II. Scope of Review.
Challenges to the sufficiency of the evidence are reviewed for
correction of errors at law. State v. Quinn, 691 N.W.2d 403, 407 (Iowa
2005). The district court’s findings of guilt are binding on appeal if
supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374,
377 (Iowa 1998). Evidence is substantial if it would convince a rational
trier of fact the defendant is guilty beyond a reasonable doubt. Id.
III. Merits.
We must decide whether there is sufficient evidence to find Hansen
guilty of enticement of a minor. He apparently concedes there is
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sufficient evidence to find him guilty of attempted enticement. Iowa Code
section 710.10 makes it illegal for adults to solicit sexual contact with a
minor or a person reasonably believed to be a minor. It states:
2. A person commits a class "D" felony when, without
authority and with the intent to commit an illegal act upon a
minor under the age of sixteen, the person entices away a
minor under the age of sixteen, or entices away a person
reasonably believed to be under the age of sixteen.
3. A person commits an aggravated misdemeanor when,
without authority and with the intent to commit an illegal
act upon a minor under the age of sixteen, the person
attempts to entice away a minor under the age of sixteen, or
attempts to entice away a person reasonably believed to be
under the age of sixteen.
(Emphasis added.) A sexual act between a twenty-three-year old man
and a fifteen-year-old girl would constitute third-degree sexual abuse.
Iowa Code § 709.4(2)(c).
Hansen claims he cannot be guilty of enticement because he did
not successfully “entice away” either a minor or a person reasonably
believed to be a minor. Without someone being enticed away, Hansen
argues the offense was not completed, only attempted. We agree.
The statute does not define “entice.” In State v. Osmundson, 546
N.W.2d 907 (Iowa 1996), we rejected a vagueness challenge to section
710.10. There, we noted “a statute is not unconstitutionally vague if the
meaning of the words used can be fairly ascertained by reference to their
ordinary and usual meaning, the dictionary, similar statutes, the
common law, or previous judicial determinations.” Osmundson, 546
N.W.2d at 909. We then quoted from two dictionaries. Webster’s defined
“entice” as “ ‘to draw on by arousing hope or desire’ or ‘to draw into evil
ways.’ ” Id. (quoting Webster's Third New International Dictionary 757
(1986)). “Synonymous words include ‘allure,’ ‘attract,’ and ‘tempt.’ ” Id.
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(quoting Webster’s Third New International Dictionary 757). We also
quoted from Black's Law Dictionary, which defined “entice” as
“[t]o wrongfully solicit, persuade, procure, allure, attract,
draw by blandishment, coax or seduce. To lure, induce,
tempt, incite, or persuade a person to do a thing.
Enticement of a child is inviting, persuading or attempting to
persuade a child to enter any vehicle, building, room or
secluded place with intent to commit an unlawful sexual act
upon or with the person of said child.”
Id. (quoting Black's Law Dictionary 477 (5th ed. 1979) (emphasis added)).
We concluded “[t]hese definitions and the commonly understood meaning
of ‘entice’ are specific enough to provide guidance to ordinary citizens
and fair notice of what actions are proscribed” in section 710.10. Id. at
910.
According to the State, the definition found in Black’s focuses
entirely on the defendant’s conduct and supports its contention Hansen
is guilty of enticement. The State argues the victim or purported victim’s
response to the defendant’s actions is irrelevant because all that is
required is “inviting, persuading or attempting to persuade.” Black’s
Law Dictionary 477. The problem with the State’s contention is the
Black’s definition encompasses both enticement and attempted
enticement. That distinction did not matter in Osmundson because
Osmundson was convicted of attempted enticement. Osmundson, 546
N.W.2d at 908. We simply referenced definitions from the two
dictionaries in order to illustrate the meaning of “entice” was readily
ascertainable. Our intent was not to wholly incorporate these definitions
into section 710.10.
If we were to use the Black’s definition of “entice” to establish the
parameters of the crime of enticement, we would virtually eliminate any
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distinction between enticement and attempted enticement.1 Our
legislature clearly intended to establish separate crimes with separate
penalties. Thus, when defining “entice” for purposes of section 710.10,
we believe Webster’s definition is more succinct:
“Entice” is defined as “to draw on by arousing hope or
desire” or “to draw into evil ways.” Synonymous words
include “allure,” “attract,” and “tempt.”
Id. at 909 (quoting Webster’s Third New International Dictionary 757).
Moreover, the State’s interpretation of the statute renders the word
“away” meaningless. Section 710.10 refers to the defendant “entic[ing]
away” or “attempt[ing] to entice away” a minor or a person reasonably
believed to be a minor. Iowa Code § 710.10(2), (3). The State notes we
said in Osmundson the word “away” “does not add to or alter the
meaning of the word ‘entice.’ ” Osmundson, 546 N.W.2d at 910. The
State takes this quote out of context. We were simply stating the word
“away” does not make the word “entice” vague or confusing. In
Osmundson, we said the meaning of “away” is clear: “Applied to the facts
of this case, no person of ordinary intelligence would be left in doubt as
to the meaning of the word ‘away’; the defendant attempted to persuade
the boys to leave the area where they were talking and go to [the
defendant’s] apartment.” Id.
As we said in Osmundson, the word “ ‘entice’ focuses on the
actions of the defendant; it does not matter what the victim thought.” Id.
For example, if a defendant with the intent to molest a child asks that
1The State claims even under a broad definition of enticement, there would be at
least some circumstances where a defendant is only guilty of attempted enticement.
According to the State, a defendant would be guilty of attempted enticement if he tried
to make contact with a minor with the requisite intent to commit the illegal act but was
unsuccessful in reaching the minor. Presumably, the State is referring to
circumstances where a defendant called a minor and got a busy signal or a defendant’s
email to a minor was blocked by filters. We do not believe this is the type of conduct
the State meant to outlaw when it created the attempted enticement statute.
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child to help him find his puppy, it does not matter what the child
thought was going to happen if she went with the defendant. However,
the phrase “entices away” requires the fact finder to look not only to the
actions and conduct of the defendant but also to the impact of those
actions upon the victim. A perpetrator entices, but it is the victim who is
enticed away. Thus, under our example, the defendant is guilty of
enticement if the child goes with the defendant and guilty of attempted
enticement if the child runs away from the defendant.
We find substantial evidence lacking to support Hansen’s
conviction for enticement. While Hansen had the requisite intent, he
failed to lure or tempt away a minor or someone reasonably believed to
be a minor. We doubt any of the Cedar Falls police officers were “enticed
away” from their offices to the Wal-Mart store because of Hansen’s
blandishments. Thus, he is guilty of attempted enticement. We affirm
the court of appeals.
IV. Conclusion.
We agree with the court of appeals there is insufficient evidence to
support Hansen’s conviction for enticement. We agree the case should
be remanded with instructions to enter a verdict of guilty for attempted
enticement.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT
COURT JUDGMENT REVERSED; AND CASE REMANDED.