State v. Hunsaker

State v. Hunsaker

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

David Eric Hunsaker,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030593-CA
 

F I L E D
(September 30, 2004)
 

2004 UT App 339

 

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Third District, Salt Lake Department

The Honorable Anthony B. Quinn

Attorneys: Kent R. Hart and Michael A. Peterson, Salt Lake City, for Appellant

Mark L. Shurtleff and J. Frederic Voros Jr., Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Jackson.

JACKSON, Judge:

    David Hunsaker challenges his conviction of enticing a minor over the Internet in violation of the prior version of Utah Code section 76-4-401. We affirm.

    Hunsaker first argues that the Utah enticement statute is unconstitutional because it contains internal inconsistencies. Prior to its 2003 amendment, Utah Code section 76-4-401(1) read:

A person commits enticement of a minor over the Internet when, not amounting to an attempt, conspiracy, or solicitation under Section 76-4-101, 76-4-201, or 76-4-203, the person knowingly uses a computer to solicit, seduce, lure, or entice, or attempt to solicit, seduce, lure, or entice a minor or a person the defendant believes to be a minor to engage in any sexual activity which is a violation of state criminal law.

Utah Code Ann. § 76-4-401(1) (amended 2003). Hunsaker claims the statute imposes an inconsistent requirement on the State to both prove and disprove acts of attempt and solicitation. Specifically, he finds conflict by reading the "not amounting to an attempt, conspiracy, or solicitation" clause to require the State to affirmatively disprove such crimes. He claims that the clause, so construed, would conflict with the requirement that the State also prove he used a computer to "solicit, seduce, lure, or entice" a minor, or attempt to do so.

    We have rejected Hunsaker's interpretation in a related case, State v. Ansari, where we held that section 76-4-401(1) contains no fatal inconsistencies. See 2004 UT App 326,¶9. There, we noted that when a statute can be construed in a reasonable manner so as to avoid unconstitutional inconsistency, we adopt that construction. See id. at ¶10. We further noted that the supreme court has applied the same interpretation to the "not amounting to" clause found in other statutes. See id. at ¶12 (citing State v. Reed, 2000 UT 68,¶¶32-33, 8 P.3d 1025; State v. Peters, 550 P.2d 199, 199-200 (Utah 1976)). Accordingly, since the "not amounting to" clause of section 76-4-401 can be reasonably understood to not require the State to affirmatively disprove attempt, conspiracy, and solicitation, we adopted that construction to avoid possible inconsistency. See id. at ¶¶11-12.

    Next, Hunsaker argues that the conflicting language prevents a reasonable jury from finding guilt beyond a reasonable doubt. Because we have found no conflicting terms in the statute we conclude that a reasonable jury could find guilt beyond a reasonable doubt.

    Finally, Hunsaker argues that section 76-4-401 is unconstitutionally vague. We refused to consider the same argument in Ansari, holding that the defendants did not have standing to assert the challenge. See id. at ¶¶44-45. We relied on the long-standing rule that a defendant has the burden of proving the statute is "'impermissibly vague in all of its applications.'" Id. at ¶44 (quoting State v. MacGuire, 2004 UT 4,¶12, 84 P.3d 1171). Thus, a defendant "'who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.'" Id. (quoting Greenwood v. City of N. Salt Lake, 817 P.2d 816, 820 (Utah 1991)). Here, Hunsaker cannot claim the statute is vague in "in all of its applications" because his efforts to contact a thirteen-year-old girl over the Internet to engage in sexual activities are "clearly proscribed" as an act to "seduce, lure, or entice" a minor. Utah Code Ann. § 76-4-401(1). Consequently, he does not have standing because any claim of vagueness he asserts is based on "vagueness of the law as applied to others"
and not his own injury. Ansari, 2004 UT App 326 at ¶44 (quotations and citations omitted).

    We affirm.

______________________________

Norman H. Jackson, Judge

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WE CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge