State v. Kalama

• Decision Date: 29 September 2000
• Docket Number: No. 22457.,22457.
• Citation: 94 Haw. 60,8 P.3d 1224
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Maiika K. KALAMA, Defendant-Appellant.
• Court: Hawaii Supreme Court

8 P.3d 1224

94 Haw. 60

STATE of Hawai`i, Plaintiff-Appellee, v. Maiika K. KALAMA, Defendant-Appellant.

No. 22457.

Supreme Court of Hawaii.

September 29, 2000.

Shirley M. Kawamura, Deputy Public Defender, on the briefs, for defendant-appellant.

Alexa D.M. Fujise, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that a conviction under Hawai`i Revised Statutes (HRS) § 707-734 (1993) for indecent exposure must be supported by proof that the defendant "intentionally," as defined in HRS § 702-206(1) (1993), exposed his or her genitals to another person under circumstances in which the other person was likely to be affronted. Under the stipulated facts of this case, the exposure by Defendant-Appellant Maiika K. Kalama (Defendant) of his genitals to a fellow nude sunbather was not "likely to cause affront," as required by HRS § 707-734. The district court of the first circuit (the court), however, convicted Defendant of violating HRS § 707-734 on the ground that other persons who could have been in the area would have been affronted by Defendant's conduct. We reverse Defendant's conviction because the court applied the wrong legal standard and because the evidence was insufficient to establish guilt under the legal standard that should have been applied.

I.

A.

On October 18, 1998, members of the Honolulu Police Department¹ arrested Defendant and Frances E. Milford, John P. Hartshorn, and Joseph E. Davis (collectively "codefendants") for sunbathing in the nude at Makaleha Beach Park on the North Shore of the Island of O`ahu. The following pertinent facts were stipulated to at the combined hearing for arraignment, plea, and trial held on January 14, 1999.²

Defendant had traveled from his home in Waikīkī to the North Shore in order to sunbathe nude at the Makaleha Beach Park. Although the park is unimproved with none of the attributes of a beach park, it is public property under the jurisdiction and control of the City and County of Honolulu. There are numerous "entrances" into the beach park.

The area where Defendant was sunbathing is isolated and desolate. There were no complaining witnesses, and the record does not indicate how the police came to be on the beach³ at the time of the incident. In the past, however, people had made complaints to the police and had asked the police to watch the area. The stipulated facts do not indicate the nature of the complaints made to police.

At the time of the arrest, "there was nobody there but six nude sunbathers and the police." Defendant was lying down on a beach towel, facing and conversing with Gordon Barry, who was also nude. The police officer had to approach within several feet of Defendant in order to observe Defendant's genitals. Defendant was charged, along with codefendants, with violating HRS § 707-734, which prohibits "indecent exposure."

B.

At the hearing on January 14, 1999, it was agreed that the case would proceed by way of stipulated facts and thereafter be continued to allow the parties to submit legal memoranda. On February 4, 1999, Defendant filed a motion to dismiss or, in the alternative, for judgment of acquittal, arguing that, in contrast to the proscription of HRS § 707-734, Defendant did not intend to cause affront and his "actions [were] taken . . . to avoid the non-nude sunbathing general public entirely."⁴ On February 26, 1999, Plaintiff-Appellee State of Hawai`i (the prosecution) filed a memorandum in opposition to Defendant's motion. Relying on State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970), a case in which nude sunbathers were convicted of the offense of common nuisance, the prosecution maintained that only a general intent to "indecently expose oneself" was necessary to prove indecent exposure. Id. at 339, 475 P.2d at 687.

Defendant's motion was heard on March 25, 1999. After Defendant, codefendants, and the prosecution presented their arguments, the court ruled that the prosecution had met its burden of establishing Defendant criminally liable under HRS § 707-734. It first found that Defendant "going out to a public beach with the knowledge . . . that [Defendant] would sunbathe in the nude" satisfied the element of intentional exposure of a person's genitals to a person to whom Defendant was not married as required under HRS § 707-734. The court further determined that if persons other than the police had been present, they would have been affronted.

The question then is whether these circumstances in which their conduct was likely to cause affront. That's a generalization, basically, in terms of what would be a reasonable and logical response to sunbathing in the nude on a public beach.

In this instance, the persons who observed them at that time, the alleged violations[,] were the police. The [c]ourt's finding is that their observations are such that the [c]ourt can then take the necessary notice that's required. That anyone from an elderly person to a young infant child could be in that area and see and observe what the police did.

I don't have to have testimony before me from the policemen that they were affronted. All I have to do is have the facts before me that would indicate that a reasonable person under the same circumstances could and would be affronted by it.

That's the [c]ourt's finding, that if a young child or an elderly person, or another member of the public in some category or branch was in the same situation as the police, it could very likely cause them to be affronted, and that's my finding.

The court adjudged Defendant guilty and imposed a fine of one hundred and fifty dollars ($150), but suspended one hundred dollars ($100) of it for a period of six months. On April 7, 1999, Defendant filed a notice of appeal.

II.

On appeal, Defendant contends the prosecution failed to prove that Defendant acted: (1) "under circumstances likely to cause affront"; and (2) with the requisite state of mind. In response, the prosecution maintains that Defendant was "likely to cause affront since anyone could have observed" him (emphasis added) and that Defendant acted intentionally.

We conclude that the court applied the wrong legal standard in convicting Defendant under HRS § 707-734 and, further, as measured against the correct legal standard, there was insufficient evidence to establish his guilt.

III.

The language of the original indecent exposure statute, HRS § 707-738 (1972), was adopted from that of Section 213.5 of the Model Penal Code (MPC). Rocker, 52 Haw. at 338 n. 1, 475 P.2d at 687 n. 1. Except for the words "he knows," shown in brackets below, HRS § 707-738 was the same as that MPC section and provided as follows:

Indecent exposure. (1) A person commits the offense of indecent exposure if, with intent to arouse or gratify sexual desire of himself [or herself] or of any person, he [or she] exposes his [or her] genitals to a person to whom he [or she] is not married under circumstances in which [he or she knows] his [or her] conduct is likely to cause affront or alarm.

(2) Indecent exposure is a petty misdemeanor.

In 1986, the legislature "incorporated all of the sexual offenses into five degrees of sexual assault." State v. Cardus, 86 Hawai`i 426, 435, 949 P.2d 1047, 1056 (App.1997) (internal quotation marks and citation omitted) (citing State v. Buch, 83 Hawai`i 308, 315, 926 P.2d 599, 606 (1996); 1986 Haw. Sess. L. Act 314 § 57, at 617-18; Conf. Comm. Rep. No. 51-86, in 1986 House Journal, at 937, 938). As a result, HRS § 707-738 was retitled "Sexual assault in the fifth degree," the phrase "with intent to arouse or gratify sexual desire of himself [or herself] or of any person" was deleted, the word "intentionally" was added, and HRS § 707-738 was renumbered as HRS § 707-734. 1986 Haw. Sess. L. Act 314 § 57, at 618. HRS § 707-734 (1986) then provided as follows:

Sexual assault in the fifth degree. (1) A person commits the offense of sexual assault in the fifth degree if, the person intentionally exposes the person's genitals to a person to whom the person is not married under circumstances in which the conduct is likely to cause affront or alarm.

(2) Sexual assault in the fifth degree is a petty misdemeanor.

In 1991, the phrase "or alarm" was deleted from HRS § 707-734, and the word "alarm" was incorporated into existing section (1)(b) of HRS § 707-733. Sen. Com. Rep. No. 1000, in 1991 Senate Journal, at 1103. As amended, HRS § 707-733(1)(b) (1991) stated:

Sexual assault in the fourth degree. (1) A person commits the offense of sexual assault in the fourth degree if:

. . .

(b) The person knowingly exposes the person's genitals to another person under circumstances in which the actor's conduct is likely to alarm the other person or put the other person in fear of bodily injury[.]

(2) Sexual assault in the fourth degree is a misdemeanor.

1991 Haw. Sess. L. Act 214 § 1, at 498-99 (emphasis added).

The offense described in HRS § 707-734 was again renamed "indecent exposure." Id. HRS § 707-734 (1993) presently states as follows:

Indecent exposure. (1) A person commits the offense of indecent exposure if, the person intentionally exposes the person's genitals to a person to whom the person is not married⁵ under circumstances in which the actor's conduct is likely to cause affront.⁶

(2) Indecent exposure is a petty misdemeanor.

According to a Senate Committee report, the amendment established

a new dichotomy between behavior that is likely to cause fear of bodily injury or alarm and that which is likely to cause affront. The former[, (HRS § 707-733)], a more serious offense, will constitute fourth-degree sexual assault. The latter[, (HRS § 707-734),] has been renamed from sexual assault in the fifth degree to indecent exposure. The newly titled section [, (HRS § 707-734),] is intended to deal with behavior such as nude sunbathing or streaking, that does not

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