88 Hawai'i 19, State v. Richie

Decision Date25 June 1998
Docket NumberNo. 19934,19934
Citation960 P.2d 1227,88 Hawaii 19
Parties88 Hawai'i 19 STATE of Hawai'i, Plaintiff-Appellee, v. Carl Irvin RICHIE, Defendant-Appellant
CourtHawaii Supreme Court

Daphne E. Barbee, on the briefs, for defendant-appellant.

Erick T.S. Moon, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.

Ricky R. Damerville, Deputy Attorney General, on the briefs, for Amicus Curiae State of Hawai'i.

David A. Johnson, on the briefs, for Amicus Curiae American Civil Liberties Union.

Before KLEIN, Acting C.J., LEVINSON, NAKAYAMA and RAMIL, JJ., and BLONDIN, Circuit Judge , in place of MOON, C.J., Recused.

RAMIL, Justice.

Defendant-Appellant Carl Irvin Richie appeals from the judgment convicting him of promoting prostitution in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 712-1203 (1993), and unlawful ownership or operation of business, in violation of HRS § 842-2(2) (1993). 1 For the following reasons, we affirm Richie's conviction of promoting prostitution in the second degree, but we reverse his conviction of unlawful ownership or operation of business.

I. BACKGROUND

Testimony at trial revealed the following. Officer Alfredo Villanueva, an undercover officer with the Vice Division, Morals Detail, of the Honolulu Police Department (HPD) testified that he came to the island of Kauai on September 15, 1996 to assist the Kauai Police Department (KPD) in a prostitution investigation. Officer Villanueva and his partner, Officer Jensen Okagawa, were to pose as construction contractors who had just finished a job and were having a bachelor party.

On the night of September 16, 1995, the two officers set up their operation in a condominium. In addition to the two officers, four construction workers were present. At approximately 8:05 p.m., Richie arrived at the condominium and handed Officer Villanueva a written contract. The contract provided for three women to perform for one hour in return for $750. The officer paid Richie the $750. Richie then brought up his stereo equipment and three women: Monica Alves (introduced as "Monique"), Riaana Hernandez (introduced as "Celeste"), and Fania Hicks (introduced as "Baby Bear"). A fourth female, Tina Silva, assisted Richie.

Richie started the music and the women came out of the bedroom where they had been changing. The women were dressed in negligees, and as they danced around the room, they began taking their clothes off. The first person to approach Officer Villanueva was Alves. The officer testified:

[OFFICER VILLANUEVA:] A. She was on her hands and knees and she was crawling towards me like a cat, licking her lips. Then when she got up to me--I was seated on a chair and I had my legs spread, and she came up between my legs and she cupped her breasts and she squeezed them together and had my crotch--right around my crotch area.

[PROSECUTOR:] Q. Okay. So at first--okay. At that time when she rubbed her breasts on your crotch area, what do you mean? What area is this?

A. My penis area.

Q. And you had your shorts on?

A. Yes.

Q. And what about her breasts? Were they bare or did she have a bra on?

A. They were bare.

Q. And her bare breasts came in contact with your crotch area, your penis?

A. Yes.

Q. Okay. This would be through the clothing?

A. Yes.

....

Q.... What happened next?

A. I gave her a tip which she took between her breasts.

Q. Now before you gave her the tip, was there any eye contact?

A. Yes. She looked at me and then I had a lot of currency in my hand and she looked at my--my hand where I had the currency. She looked at it and I--I took that as to indicate to give her a tip so I gave her a tip.

Q. And where did you place the five dollars?

A. Between her breasts.

Q. And when you did this, what did she do?

A. She crawled up and then sat on my lap.

Q. And what was she wearing as far as her bottom when she sat on your lap at this point in time?

A. She had a garter belt and stocking and also panties.

Q. So she sat on your lap wearing those clothing, and what--what did she do?

A. Then she pulled her panties to the side, exposed her vagina and then she started to gyrate on my lap, rubbing her vagina on my crotch area.

Q. Okay. So now she's rubbing her vagina on your crotch area. Did it simulate any type of activity?

A. It simulated some type of intercourse.

Q. Would this be sexual intercourse?

A. Yes.

Q. Okay. So--and after she did that, rubbing her vagina on your crotch area, what--what happened?

A. I gave her another tip and then she went around to another guy.

....

Q. Okay. Did--when the contact was occurring between Monica and yourself, did the defendant stop Monica from doing what she was doing to you?

A. No.

Q. What was he doing if he wasn't stopping her?

A. He was just encouraging, just to get wild and, you know, just to--keep dancing.

Q. Okay. Now let's talk about the other dancer that was dancing in the room, [Riaana] Hernandez?

A. Yes.

Q. Do you recall an incident or incidences with her that--

A. She was next--she was the second female that came to me after Monica left and she started dancing in front of me first and then she turned around and squat--squatted down on my crotch area and she started to simulate intercourse.

Q. She started to simulate sexual intercourse with you?

A. Yes, as she sat on my lap facing her back to me.

Q. Then what happened next?

A. Then she got up and she pulled her panties to the side and I gave her a tip.

Q. How much money did you give her?

A. Five dollars.

Q. Now after you gave her the five dollars, gave her the tip, what happened, what was her response?

A. Well, she turned around, faced me. The she started rubbing her vagina and--through her panties and then she grabbed my crotch area with her left hand.

Q. So she grabbed herself--she grabbed her vagina and she grabbed your penis?

A. Yes.

....

Q. Now what about--do you recall Fania, what Fania was doing?

A. Yeah. When Hernandez left, Hicks came up and she started dancing in front of me. Then she pulled her, you know, she was licking her lips, she was rubbing her breasts. Then she pulled her panties to the side and exposed her vagina to me and I gave her a tip. After I gave her a tip on her garter belt, she grabbed my crotch area and rubbed my crotch.

Q. And this is after your gave her the five dollars?

A. Yes.

Q. Now when she grabbed your crotch, she rubbed it, and did you do anything with your money?

A. I--after I gave her that one tip, I put my money away.

Q. And then what happened?

A. She left.

Q. Now you just described what [Riaana] and Fania, how they danced on you and what they did. And during this time when this was occurring, was the defendant playing music--music in the same location?

A. Yes, he was.

Q. And was he facing towards you during that time?

A. Yes.

Q. Okay. Now did the--did the defendant--did he stop [Riaana] from simulating sexual intercourse on top of you and grabbing your penis?

A. No, at no time did he stop the--stop the dancing.

Q. And when Fania grabbed your crotch with her hand after you gave her the five dollars, did this defendant stop her from doing that?

A. No, he didn't.

Q. If he wasn't stopping [Riaana] and Fania from doing this to you, what was he doing?

A. He just kept playing the music and he was just, you know, encouraging the girls to get wild.

Q. Now was a lot of tipping going on?

A. Yes.

Q. And then who was--who was collecting the tips?

A. Well, the girls were collecting at first and then like if their garter belts got full of currency, they'd take it off and they threw it on the couch next to Silva or they would hand it directly to Silva.

Q. Okay. And then what did you observe Tina Silva doing with the money that she was receiving from the dancers?

A. She was counting them and putting them together and then she'd, like, take some of it, roll it up and place it in her dress, on her left breast area, and then she gave the rest to Richie, which he took and then placed into his briefcase that he had at his feet.

Q. So then the defendant was keeping some of the tips that were given to the dancers?

A. Yes.

During a break between dancing sessions, Officer Villanueva approached Richie and conversed with him:

[PROSECUTOR:] Q. Okay. So you approached the defendant and what happened?

[OFFICER VILLANUEVA:] A. I told him that my partner was interested in one of the girls, and he asked me which one and I told him that--described her and I said I think that she was introduced as Monique.

Q. Okay. And you said that he was interested in one of the girls?

A. Yes.

Q. And what else?

A. I told him that--well, he asked me what they wanted to do and I asked him if they could disappear for a little while, that he wanted to have sex with her in the bedroom.

Q. And did you use any other terms to show your intention as far as what sex meant?

A. Yes. I told him that he wanted to fuck 'em in the bedroom the first chance he gets.

Q. And what was the defendant's response to you saying that your partner wanted sex and you wanted to fuck?

A. I turned around and looked at my partner and smiled at him. Then he turned his back to me and he told me that it's going to cost me extra 225 and I asked him, is this two hundred twenty-five; he said yeah.

Q. When this conversation was going on between yourself and the defendant, where was your partner Okagawa?

A. At first he was still seated on the loveseat and then he approached our location.

Q. And then when you confirmed that it was going to be $225 for the sex later on, what happened?

A. Officer Okagawa also told him, yeah, that he was interested in Monique and he wanted to have sex with her.

Q. And what was the defendant's response?

A. That's when he told us that it'd have to be after the performance and it had to be a private showing.

Q. Then--then what happened next after he told you it would have to be private showing?

A. Then he said that he was going to set...

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