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NO. 2B993
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IN THE INTERMEDIATE COURT OF APPEALS
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OF THE STATE OF HAWAfI
STATE OF HAWAfI, Plaintiff»Appellee,
v. “
EARNEST LUTHER RGBERTS, also known as "er695,"
Defendant~Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. O7~l~l245}
SUMMARY DlSPOSITION ORDER
(By: Nakamura, C.J., Foley and Leonard, JJ.)
Defendant-Appellant Earnest Luther Roberts, also known
as "er695," (Roberts) appeals from the Judgment of ConViction and
Sentence filed on January l8, 2008 in the Circuit Court of the
First Circuit (circuit court).1 A jury found Roberts guilty of
Electronic Enticement of a Child in the First Degree (electronic
enticement), in violation of Hawaii Revised Statutes (HRS) § 707~
756 (Supp. 2007). The circuit court sentenced Roberts to ten
years of incarceration, with credit for time served.
On appeal, Roberts contends the circuit court
(1) erred in denying his second oral motion for
judgment of acquittal (JA Motion) because the State of HawaiU.
(State) failed to adduce sufficient evidence to sustain the
conviction;
(2) plainly erred by trying this case because the
court lacked subject matter jurisdiction over the indictment
since he did not use a computer or any other electronic device in
the City and County of Honolulu (Honolulu), within the meaning of
HRS § 707~756; and
(3) abused its discretion in sentencing him to an open
ten-year term of imprisonment, which was "lO times harsher" than
the defendants in two of three similar Hawafi cases.
The Honorable Jennifer Ching (Judge Ching) issued the Judgment of
Conviction and Sentence, and Judge Ching and the Honorable Michael A. Town
presided at trial.
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Roberts requests that we vacate and remand this case
for entry of judgment of acquittal. Alternativelv, he asks that
we remand the case for re~sentencing consistent with HRS § 706~
60e(4> §supp. 200s>_ y
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we resolve Roberts’s
points of error as follows:
(1) The circuit court did not err in denying Roberts’s
JA Motion because the State adduced sufficient evidence to
sustain the conviction. The record on appeal provides
substantial evidence that Roberts intended to meet with the
"minor" at the agreed upon location. He discussed meeting with
the "minor" numerous times via the computer chat room and
telephone conversations. A majority of the time, he clearly
intended and looked forward to meeting with the "minor." His
actions of parking kitty-corner to the Humane Society and,
according to Agent Kim's testimony, focusing his attention on the
Humane Society for forty~six minutes straight, strongly suggest
he had intended to or knew he had traveled to the agreed upon
meeting place. That he did not go to the benches fronting the
Humane Society building is of little consequence; the record
clearly shows that he had agreed to meet the "minor" at the
Humane Society in general. §ee HRS § 707-756 (Supp. 2007); §tate
v. Nicholson, l2O Hawafi 480, 482 & 484-85, 210 P.3d 3, 5 & 7-8
(2009>.
The State did not entrap Roberts. Roberts consistently
introduced the topic of engaging in sexual activity in his
conversations with the "minor"; broached the prospect of meeting
the "minor" in person; and asked the "minor" to engage in oral
sex and sexual intercourse with him on numerous occasions, after
the "minor" explicitly informed him that "she" was thirteen years
old and repeatedly invoked "her" age by reference to "her"
anatomy, school, and parents and grandparents. The "minor"
expressed hesitation about meeting with Roberts and gave him many
opportunities to back out of their plan. See HRS § 702-237
2
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{l993); §iQhQl§gn, 120 Hawaid.at 482~S3 a 4B6, 210 P.3d at 5~6 &
9; United States v. Mvers, 575 F.3d B0l, 805 (Bth Cir. 2009);
§nited states v. Chaudhry, 321 Fed. Appx. ll9, l2l~22, {3d Cir.
03
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(2) The circuit court had subject matter jurisdiction
over the indictment. §ee HRS § 7C8~S95 {Supp. 2008); State v.
Stan’s Contracting, Inc., ill Hawafi l7, 32, 137 P.3d 33l, 346
(2006); Hawajfi Rules of Penal Procedure Rule l8.
(3) The circuit court did not abuse its discretion in
sentencing Roberts to an open ten~year term of imprisonment. §ee
HRS § 707-756(2) (Supp. 2007).
Therefore,
IT IS HEREBY ORDERED that the Judgment of Conviction
and Sentence filed on January l8, 2008 in the Circuit Court of
the First Circuit is affirmed.
DATED: Honolulu, Hawafi, January ll, 20lO.
On the briefs:
Shawn A. Luiz
for Defendant~Appellant.
Albert Cook, é;:%Fé&f ;ZZ;éL2”4L”““"
Deputy Attorney General, Chief Judge
for Plaintiff-Appellee.
Associate Judge
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/associate J dge /