86 Hawai'i 426, State v. Cardus, 19260

• Decision Date: 19 December 1997
• Docket Number: No. 19260,19260
• Citation: 949 P.2d 1047
• Parties: 86 Hawai'i 426 STATE of Hawai'i, Plaintiff-Appellee, v. Gilbert CARDUS, Jr., Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 1047

949 P.2d 1047

86 Hawai'i 426

STATE of Hawai'i, Plaintiff-Appellee, v. Gilbert CARDUS, Jr., Defendant-Appellant.

No. 19260.

Intermediate Court of Appeals of Hawai'i.

Dec. 19, 1997.

Certiorari Denied Jan. 26, 1998.

Reginald P. Minn, on the brief, Honolulu, for defendant-appellant.

Loren J. Thomas, Deputy Prosecuting Attorney, City & County of Honolulu, on the brief, for plaintiff-appellee.

Before BURNS, C.J., and WATANABE and ACOBA, JJ.

ACOBA, Judge.

We hold that the "consent" of an imprisoned person who, under the terms of Hawai'i Revised Statutes (HRS) § 707-731(1)(c) (1993) is subjected to sexual penetration by a person employed in a state correctional facility, is "ineffective consent" as defined in HRS § 702-235(3) (1993), and therefore not a defense to that charge of sexual assault in the second degree defined in HRS § 707-731(1)(c). We find support for our holding in the analogous section of the Model Penal Code and Commentaries (Official Draft and Revised Comments 1980) (MPC) and in construing HRS § 707-731(1)(c) in para materia with the other statutes relating to sexual assault.

We further hold that the words "subject to" in the phrase "subject to sexual penetration" in HRS § 707-731(1)(c) do not render that provision unconstitutionally vague. The first circuit court (the court) ruled in effect that consent is not a defense to a HRS § 707-731(1)(c) charge and that HRS § 707-731(1)(c) was not vague. Because we conclude the court was correct and we discern no reversible error in other points raised on appeal by Defendant-Appellant Gilbert Cardus, Jr. (Defendant), we affirm the August 29, 1995 judgment of his conviction and sentence for violating HRS § 707-731(1)(c).

I.

A.

The facts adduced at trial are not in dispute. Defendant was employed as an Adult Corrections Officer (ACO) at the O'ahu Community Correctional Center (OCCC), a state correctional facility, at the time of the incident. Melanie Arneson (Arneson) was a pretrial detainee imprisoned at OCCC Module 11. ¹ Defendant and Arneson became friends through their acquaintance with Anthony Bolos (Bolos). Bolos was Arneson's boyfriend. Bolos had also been an inmate at OCCC and knew Defendant as an ACO.

While Arneson was incarcerated, Bolos sent her a letter proposing marriage. Unbeknownst to Bolos, Arneson never received the letter. The OCCC administrative staff had retained the letter because it contained money, an apparent violation of prison rules. When no response was made to his proposal, Bolos sent a second letter to Arneson, terminating their relationship. Arneson received this letter.

Upset, Arneson spoke to Defendant about Bolos. Arneson testified Defendant asked "if there was any way he could help [her] contact [Bolos][.]" Arneson responded by requesting Defendant to "find how [sic] what's going on." Defendant called Bolos at a telephone number supplied by Arneson but was unsuccessful in persuading Bolos to speak to him.

Defendant subsequently went to Bolos's residence but received no response. Bolos indicated he heard someone knocking but did not answer. Defendant offered to return to Bolos's home the next day. As a result, Arneson prepared a letter for Bolos and asked Defendant to deliver it. Defendant delivered the letter by sliding it under Bolos's door.

On April 2, 1993, Defendant was assigned to work in Module 11. That day, Arneson was assigned to work in the Module 11 kitchen. Following lunch, and during "lockdown" of the prisoners, Arneson hid in a cubbyhole so she could remain in the kitchen and talk to Defendant.

With Defendant standing in front of her, Arneson proceeded to engage in fellatio with Defendant. At trial, Arneson testified that Defendant made a remark about her "giving him oral sex." She further testified as follows:

[Prosecutor]: In what context, in what way did this thing about you giving him oral sex come up?

[Arneson]: It was, like, for [Defendant] doing favors he did, like, what was he going to get in return, but then, in a way, I also began to look at [Defendant] in another way. I did begin to like him, but I also felt obligated to him because of the favors that he did for me, because I know what he did, he could have lost his job.

....

[Prosecutor]: How did you feel at that time when [Defendant] approached you knowing that you had talked about favors for favors in the past and you felt some attraction?

[Defense counsel]: I object. That's not really leading but suggests the answer that he wants.

The Court: Overruled.

[Prosecutor]: Thank you.

The Court: Answer the question.

[Arneson]: Part of me felt obligated; yet part of me, I wanted to do it being incarcerated for about a month then, and prior to being incarcerated, I wasn't having sex with [Bolos]. So I guess you could say in a way I did want it.

....

[Prosecutor]: Did you also feel obligated?

[Arneson]: Yes, I did.

(Emphases added.)

During recross-examination, Arneson indicated she was a voluntary participant in the encounter:

[Defense counsel]: Like you told us a couple times already, this was like something that just kind of happened; the desire was there to do it, and all the little things just sort of fell into place?

[Arneson]: Yes.

[Defense counsel]: It wasn't [Defendant] saying this is a perfect place; you were the one who said this is a perfect place and he said, yes, referring to how everything just sort of fit together, correct?

[Arneson]: Basically, yes.

Subsequently, Arneson informed her cellmate and another inmate about the occurrence, but instructed them not to say anything about it. A few days later, a Sergeant Sanders asked Arneson about the incident. Because she and her cellmates had agreed not to reveal what had happened and she sought to protect Defendant, Arneson denied the incident had taken place.

Two days later, however, Arneson approached Sergeant Sanders and admitted she had engaged in sexual conduct with Defendant. Arneson reported the incident because her "conscience got to [her]" and, because of her concern "that something could [otherwise] happen to" her fellow inmates.

Consequently, an investigation was initiated by the Honolulu Police Department (HPD). Detective Dennis Kim (Detective Kim) interviewed Defendant on April 22, 1993. After waiving his constitutional rights, Defendant claimed that he knew Arneson just in "passing." Defendant further denied that he was alone with Arneson on April 2, 1993, and that anything had happened between them.

Defendant did disclose, however, that he delivered Arneson's letter to Bolos's residence. He further conceded that "acceptance of any sexual advances from an inmate to an [ACO was] against prison policy" and that his delivery of the letter was also against prison policy. Defendant further acknowledged that sexual contact with Arneson "would be a felony."

On May 6, 1993, Defendant was interviewed by Detective Allan Castro (Detective Castro). Following the waiver of his rights, Defendant admitted to the sexual encounter between himself and Arneson. Defendant went on to say, however, that when he realized what was happening, he stepped back and told Arneson that they "[couldn't] do this." Defendant explained that he had not earlier disclosed what had transpired because of his concern for Arneson's emotional problems, and because he did not want to get into "any sort of trouble."

B.

Following the return of the grand jury indictment in this case, ² Defendant filed a motion to dismiss the indictment on December 5, 1994. In this motion, Defendant contended that "(1) there was insufficient evidence presented to the grand jury to support the indictment, (2) the grand jury counsel provided inaccurate and misleading legal advice to the grand jury,[ ³] or (3) [HRS] § 707-731(1)(c) is unconstitutionally vague."

On March 2, 1995, the court filed its findings of fact (findings), conclusions of law (conclusions) and order denying Defendant's motion. The court found that the grand jury counsel read the "relevant and applicable sections and the Grand Jury properly determined that consensual sex was of no consequence to the charged offense," and concluded that there was "substantial and adequate evidence ... to support the charged offense" and the statute was not unconstitutionally vague. C.

Defendant's jury trial commenced on May 10, 1995. During voir dire, prospective juror Lawrence Nagashima (Nagashima) stated he had prior experience as an alternate juror in a civil case, "[t]he whole judicial process takes a long time[,]" and "discerning the credibility of each individual that's testifying on this case ... would be a real difficult portion [sic][.]" Nagashima indicated, however, that "I will try my best." Defense counsel then examined Nagashima extensively about the effect a lengthy trial might have on his ability to serve as a juror:

[Defense counsel]: There is nothing about that, though, that would cause you to take it out on [Defendant]?

[The Juror]: There would be no reason to, but if I could address the judge.

[Defense counsel]: You can't do that right now. I will blame Judge Nagata. How long was that trial you were in? Was it a lengthy trial? Did it go on for weeks?

[The Juror]: It was very lengthy, but it was--it wasn't very complicated either. Maybe about four, five days.

[Defense counsel]: You felt like it took up a lot of time for, I guess, relatively simple kinds of questions?

[The Juror]: There was some complexities in it, yes, but it did take quite a long time.

[Defense counsel]: It wasn't so much waiting around as the length of the in-court process or was it both?

[The Juror]: Not waiting around but the length of the in-court process.

[Defense counsel]: That won't be a distraction to you in this case if you felt the same thing happening, taking a long time to get this thing going or finished?

[The Juror]: Of course, like, I will try to put aside my feelings and do my best if I have to serve as a juror, but yes.

....

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