State Of Haw.‘i v. Xiao
| Decision Date | 25 May 2010 |
| Docket Number | No. 28370.,28370. |
| Citation | 231 P.3d 968,123 Hawai'i 251 |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff-Appellee,v.JING HUA XIAO, Petitioner/Defendant-Appellant. |
| Court | Hawaii Supreme Court |
William A. Harrison (of Harrison & Matsuoka), Honolulu, for petitioner/defendant-appellant.
Anne K. Clarkin, Deputy Prosecuting Attorney, for respondent/plaintiff-appellee.
On March 29, 2010, this court accepted petitioner/ defendant-appellant Jing Hua Xiao's application for a writ of certiorari to review the Intermediate Court of Appeals' (ICA) December 3, 2009 judgment on appeal, entered pursuant to its November 13, 2009 summary disposition order. Therein, the ICA affirmed the District Court of the First Circuit's1 December 12, 2006 judgment, convicting Xiao of prostitution in violation of Hawai‘i Revised Statutes (HRS) § 712-1200(1) (1993 and Supp.2008).2
Briefly stated, pursuant to a police undercover investigation for possible prostitution activities at Club Sara Lee in Honolulu, Xiao was charged with prostitution based upon “slow dancing” with an undercover police officer, who had bought her several drinks, during which she engaged in sexual conduct i.e., rubbing her body and breasts up against the officer's body and groin area. Following a bench trial, Xiao was convicted, and she appealed. On direct appeal before the ICA, Xiao argued that there was insufficient evidence to support her conviction. The ICA disagreed and affirmed her conviction.
On application, Xiao argues that the ICA erred in concluding that there was sufficient evidence that she engaged in sexual conduct for a fee. More specifically, she argues inter alia, that “there [wa]s absolutely no evidence adduced that the drink[s] she received constituted a fee” and any sexual conduct that went on between herself and Officer Wagner was “merely gratuitous.” 3
Based on the discussion below, we hold that there was insufficient evidence to convict Xiao under HRS § 712-1200(1). We, therefore, vacate the ICA's judgment on appeal and reverse Xiao's conviction.
On October 8, 2006, Xiao was arrested for prostitution based on an encounter between Xiao and Honolulu Police Department (HPD) undercover officer Joel Wagner (Officer Wagner) at Club Sara Lee on July 24, 2006.4 On December 12, 2006, Xiao was orally charged as follows:
Xiao's bench trial commenced on December 12, 2006 and lasted one day. The sole evidence presented by respondent/ plaintiff-appellee State of Hawai‘i (the prosecution) was the testimony of Officer Wagner.
On direct examination, Officer Wagner testified that, on the evening of July 24, 2006, he was working undercover with the morals detail of the narcotics-vice division of the HPD, investigating possible prostitution activity at Club Sara Lee, a bar in Honolulu. According to Officer Wagner, Xiao entered a karaoke room at the bar that Officer Wagner shared with another HPD officer and another female. He testified that he knew Xiao from other nights that he had visited Club Sara Lee. As to the events that took place in the karaoke room, Officer Wagner testified as follows:
Officer Wagner explained that, when Xiao returned, she put the drink down and asked him to dance. Officer Wagner then testified:
[W]e began to dance, [and] I placed my hands on her hips, on her waist area [. I]t was a slow dance type of movement. She then pulled herself closer to me and put my hand around her back, and I could, and ... she then began to rub her pelvis against me. I then began to get an erection, she then began to rub her pelvis on my erection. She then said oh, what's this, and then began to grind harder on my [clothed] penis.
Officer Wagner explained that, after dancing, Xiao sat “very close to me, right next to me touching me, and ... she was rubbing my thigh with her hand” as they made “small talk.”
According to Officer Wagner, he later offered to purchase Xiao another forty-dollar drink, and, “[w]hen she returned again, she put the drink down and asked me to dance again, ... and we began to dance in the same manner as before.” He testified that Xiao When asked specifically “how many times approximately that evening did you offer to buy her forty-dollar drinks?” on direct examination, Officer Wagner responded,
On cross examination, Officer Wagner provided the following details regarding his encounter with Xiao:
Officer Wagner additionally testified that Xiao never: (1) removed any clothing; (2) exposed herself in any way to him; (3) put her hand down his pants; or (4) put her mouth on him. Officer Wagner stated that there were other people in the karaoke room; in other words, it was not “a private place where no one could see [them] dancing.”
With respect to Officer Wagner's perception of Xiao's conduct on the night in question, he testified as follows:
Officer Wagner described their dancing as the type of dancing that he sees at dance clubs, i.e., “dirty dancing.” The defense described “dirty dancing” as involving people rubbing their bodies against the bodies of their dance partners.
During a brief redirect examination, Officer Wagner stated that he had, on previous occasions, purchased twenty-dollar drinks for Xiao at Club Sara Lee, and she had never asked him to dance. Following a brief recross and before Officer Wagner was excused, the trial court sought to clarify Officer Wagner's testimony and the following colloquy ensued:
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