State v. Rocker, 4898
| Citation | 52 Haw. 336,475 P.2d 684 |
| Decision Date | 21 October 1970 |
| Docket Number | No. 4898,4898 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Richard Barry ROCKER and Joseph Cava, Defendants-Appellants. |
| Court | Supreme Court of Hawai'i |
Syllabus by the Court
1. The elements of the crime of indecent exposure are that (1) the defendant expose himself, (2) in a public place where it may be seen by others, and (3) under circumstances that a trier of fact could infer a general intent of the defendant to offend the community's common sense of decency, propriety, and morality.
2. The intent necessary for indecent exposure is a general intent, not a specific intent; i. e., it is not necessary that the exposure be made with the intent that some particular person see it, but only that the exposure was made where it was likely to be observed by others.
3. For indecent exposure, the place is a public one if the exposure is such that it is likely to be seen by a number of casual observers.
4. The protection of one's privacy depends upon whether or not the area is one which a person could reasonably expect to be free from governmental intrusion.
5. The rule is that a trial judge, in passing upon a motion for a directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.
6. The test on appeal is whether there is substantial evidence to support the verdict, and this court will not disturb the ruling of the lower court if there is such substantial evidence.
Sanford J. Langa, Wailuku, Maui, Jay W. Nelson, Honolulu, for appellant.
Ernest K. C. Ching, Deputy County Atty., County of Maui, Wailuku, Maui (Kase Higa, County Atty., Wailuku, Maui, with him on the brief), for appellee.
Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and OGATA, Circuit Judge, for KOBAYASHI, J., disqualified.
Defendants-appellants, having waived a jury trial, were tried in the circuit court of the second circuit and found guilty as charged for violation of HRS § 727-1 for creating a common nuisance. The complaint read: 'That Richard Barry Rocker and Joseph Cava (defendants) at Puu Olai, Makena, District of Makawao, County of Maui, State of Hawaii, on the 26th day of February, 1969, did openly sun bathe in the nude, which was offensive and against common decency or common morality, thereby committing the offense of common nuisance, contrary to the provisions of Section 727-1 of the Hawaii Revised Statutes.'
It is undisputed that on February 26, 1969, police officers of the Maui Police Department received a phone call from an anonymous person and, thereafter, on the day of the call, proceeded to the Puu Olai beach at Makena to look for nude sunbathers. On reaching their destination, the police surveyed the beach from a ridge using both their naked eyes and binoculars and saw the defendants lying on the beach completely nude, one on his stomach and the other on his back. The officers then approached the defendants and arrested them for indecent exposure. It was admitted by the police officers that defendants were not at any time engaged in any activity other than sunbathing. At the time of the arrest there were several other people on the beach where the defendants were nude. Defendant Rocker was nude at the Puu Olai beach on other days before and after he was arrested on February 26, 1969. Defendant Cava likewise frequently sunbathed in the nude at the same beach prior to his arrest on February 26, 1969.
The first issue we are asked to decide on this appeal is whether defendants created a common nuisance by sunbathing in the nude on a public beach. The statute (HRS § 727-1) reads as follows:
The offense of common nuisance is the endangering of the public personal safety or health, or doing, causing or promoting, maintaining or continuing what is offensive, or annoying and vexatious, or plainly hurtful to the public; or is a public outrage against common decency or common morality; or tends plainly and directly to the corruption of the morals, honesty, and good habits of the people; the same being without authority or justification by law:
As for example: * * *
Open lewdness or lascivious behavior, or indecent exposure;
HRS § 727-1, unlike statutes of most states, incorporates indecent exposure as an example of what the legislature has defined to constitute common nuisances. The statute does not specifically delineate the elements of the crime of indecent exposure, and although reference to the common law or to cases decided in other jurisdictions based upon statutes different from ours may be helpful, neither is controlling. 1 The question of whether sunbathing in the nude on a public beach is punishable as a common nuisance is one of construction of our statute.
In Territory v. Martin, 14 Haw. 304 (1902), the first Hawaii case to interpret the indecent exposure provision of the common nuisance statute, the defendant indecently exposed himself to a girl twelve years old behind a pile of lumber, but near a public road and in view of anyone who might pass along the road. In answering the question of whether the exposure to be punishable as a common nuisance must be to or in the view of more than one person, the court stated:
The legislature has itself cited indecent exposure as an example of what it sought to define as common nuisances in the first paragraph of section 324 (now 727-1). In our opinion when the indecent exposure is in a public place where it may be seen by others if they pass by, it is such as is contemplated by the statute even though it is actually seen by one person only. Territory v. Martin, supra at 305.
We are in accord with this construction of the statute. To create a common nuisance there must be an indecent exposure of the person in a public place where it may be seen by others if they pass by, and it need actually be seen by one person only.
However, to answer the specific questions presented to us on this appeal and to clarify and examine our construction of the statute in light of recent decisions in this and other jurisdictions, a further discussion of the elements of the crime of indecent exposure is needed.
Sunbathing in the nude is not per se illegal. It must be coupled with the intent to indecently expose oneself. Intent is an element of the crime of common nuisance defined by HRS § 727-1. The King v. Grieve, 6 Haw. 740 (1883). The intent necessary is a general intent, not a specific intent; i. e., it is not necessary that the exposure be made with the intent that some particular person see it, but only that the exposure was made where it was likely to be observed by others. Thus, the intent may be inferred from the conduct of the accused and the circumstances and environment of the occurrence. Messina v. State, 212 Md. 602, 606, 130 A.2d 578, 580 (1957); Peyton v. District of Columbia, 100 A.2d 36, 37 (D.C.Mun.App.1953); State v. Martin, 125 Iowa 715, 101 N.W. 637 (1904). The criminal intent necessary for a conviction of indecent exposure is usually established by some action by which the defendant either (1) draws attention to his exposed condition or (2) by a display in a place so public that it must be presumed it was intended to be seen by others. Hearn v. District of Columbia, 178 A.2d 434, 437 (D.C.Mun.App.1962); Peyton v. District of Columbia, supra, 100 A.2d at 37; Messina v. State, supra. See also Comment, 33 Mich.L.Rev. 936, 937 (1935).
The defendants argue that there is no circumstantial evidence in the record from which a trier of fact could conclude that the element of intent had been proved beyond a reasonable doubt. The issue, therefore, is whether defendants' nude sunbathing at Puu Olai beach at Makena, Maui, was at a place so public that a trier of fact could infer it was intended to be seen by others. The prosecution offered testimony of one of the arresting police officers that the beach was a popular location for fishermen and was in fact one of his favorite fishing spots. Defendants testified that the public in general used the beach, that it was used by fishermen and local residents, and that they observed between 20 and 25 people on the beach over a two-month period. Although the Puu Olai beach is isolated by a hill and a ledge, away from the view of the public road and adjoining beaches, it is accessible by a well-worn path and known to be a favorite location of fishermen to cast and throw fish nets. In view of this and other evidence in the record, we cannot agree with defendants' argument that the trier of fact could not find the beach so public as to justify an inference of intent on the part of defendants to be seen by others.
The place is a public one if the exposure is such that it is likely to be seen by a number of casual observers. Van Houten v. State, 46 N.J.L. 16, 17 (1884); Messina v. State, supra, 212 Md. 602, 605, 130 A.2d 578, 579 (1957). What constitutes a public place depends upon the circumstances of the case. Messina v. State, supra at 579.
Whether or not the place is owned by the State or whether or not the accused believes he is sunbathing in the nude in a remote area does not determine whether the place is 'public' or 'private'. Each case must be decided upon its own facts, and the trier of fact is justified in finding the place public if the exposure is such that it is likely to be seen by a number of casual observers. There is substantial evidence in the record before us to support such a finding.
The cases are not in absolute agreement as to the number of witnesses that must be present to see the act. The old English cases generally held that since the offense is in the nature of a nuisance, the rule is that a nuisance must be public; that is, to the injury or...
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