State v. Romano

• Decision Date: 27 February 2007
• Docket Number: No. 26110.,26110.
• Citation: 155 P.3d 1102
• Parties: STATE of Hawai`i, Plaintiff-Appellee v. Pame Ann Mary Leilani ROMANO, Defendant-Appellant.
• Court: Hawaii Supreme Court

155 P.3d 1102

STATE of Hawai`i, Plaintiff-Appellee v. Pame Ann Mary Leilani ROMANO, Defendant-Appellant.

No. 26110.

Supreme Court of Hawai`i.

February 27, 2007.

As Amended March 30, 2007.

William A. Harrison (Harrison & Matsuoka), on the briefs, Honolulu, for defendant-appellant.

Daniel H. Shimizu, Deputy Prosecuting Attorney, City & County of Honolulu, on the briefs, for plaintiff-appellee.

MOON, C.J., NAKAYAMA, ACOBA, and DUFFY, JJ.; and LEVINSON, J., Dissenting.

Opinion of the Court by ACOBA, J.

We hold that Defendant-Appellant Pame Ann Mary Leilani Romano (Defendant) has not established, as she argues on appeal, that (1) "[Plaintiff-Appellee State of Hawai`i (the prosecution)] failed to support a prima face [sic] case of prostitution because the [prosecution] failed to prove . . . that Defendant was not a law enforcement officer," (2) "the [prosecution] failed to present sufficient evidence to support a prima face [sic] case of prostitution," (3) "there was insufficient evidence adduced to support a finding of guilt," and (4) "Lawrence v. Texas[, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003),] renders Hawaii Revised Statutes [(HRS)] § 712-1200 et seq. unconstitutional as applied in this case." (Capitalization omitted.) Therefore, Defendant's August 26, 2003 judgment of conviction and sentence by the district court of the first circuit (the court)¹ for the offense of prostitution, HRS § 712-1200(1) (Supp.2006),² is affirmed.

I.

A.

Trial began on August 13, 2003, and the evidence following was adduced. On January 18, 2003, Officer Jeffrey Tallion was on duty with the Narcotics/Vice Division of the Honolulu Police Department Morals Detail. He testified he was on assignment investigating prostitution in the Waikīkī area. Tallion related that the investigations involved "checking into hotel rooms and then . . . either go[ing] on to the street or . . . set[ting] up appointments either in the telephone book or `Pennysaver,' `Midweek,' or internet cases."

In preparation for his undercover operation, Tallion obtained a hotel room at the Aston Waikiki Beach Hotel and dressed in civilian clothes. He browsed through the "Pennysaver" newspaper and called the phone number on a massage advertisement. When Defendant answered the phone call, Tallion asked if she did "out calls." At this time, there was no discussion of any illicit conduct or sexual acts.

Tallion set up an appointment with Defendant and they met on the street in front of the Aston Waikiki Beach Hotel, but then moved to Tallion's hotel room. In court, Tallion positively identified Defendant as the individual he met outside on January 18, 2003.

Upon arriving in the room, Tallion confirmed that the price of an out call was $100 and then asked Defendant whether "she did anything else." Defendant responded, "Like what? Dance?" Tallion responded, "No," so Defendant asked, "Well, what do you have in mind?"

Tallion then answered, "Well, I was referring to a blowjob."³ Defendant replied, "No, hands only." Tallion clarified, "So no blowjob, so handjob." Defendant responded, "Yeah, I can do that." Tallion asked the cost and Defendant responded, "Add 20." Tallion reconfirmed with, "Oh, $20 for a handjob?" and Defendant replied, "Yes." Tallion testified that a handjob is street vernacular commonly used in prostitution for "assisted masturbation."

Following Defendant's reply, Tallion "gave a pre-determined signal" and the arrest team entered the hotel room. Tallion apprised Honolulu police officer William Lurbe of the facts and Lurbe placed Defendant under arrest.

Tallion testified that he had been with the Morals Detail for three years; he was involved in 400 prostitution cases in 2002 as either the undercover or arresting officer; maybe five of the prostitution cases were initiated from "Pennysaver" ads; and after the talk about "handjob," Defendant added $20.00 to her quoted $100.00 charge for the out-call service. On cross-examination, Tallion recounted that he found Defendant's advertisement in "Pennysaver's" Massage/Acupuncture Section and not the Adult Section. He also related that "hands only" could have meant what a masseuse actually does.

In his testimony, Lurbe testified that he arrested Defendant for prostitution on January 18, 2003, after being "informed by [Tallion] that he [had] obtained a prostitution violation from [Defendant], which was assisted masturbation for $20." On cross-examination, Lurbe indicated that Tallion notified him of the violation via cellular phone.

Following Lurbe's testimony, the prosecution rested. Defendant moved for a continuance "to subpoena, investigate and talk to witnesses who were in the room adjoining this, this room." Over the prosecution's objection, the court continued the case to August 26, 2003.

B.

On August 21, 2003, Defendant filed a "Motion to Dismiss." In the memorandum attached to the motion, Defendant asserted that Lawrence "invalidate[d] Hawaii's prostitution statutes [and] thus[,] the [prosecution's] case [against Defendant] must necessarily fail."

At the start of the proceedings held on August 26, 2003, Defendant moved for a judgment of acquittal, arguing that the prosecution had failed to prove (1) that there was an offer and agreement to engage in sexual conduct for a fee; and (2) that Defendant was "not a police officer, a sheriff, works for the sheriff's department or law enforcement acting in the course or scope of her duties." After hearing from the prosecution, the court denied Defendant's motion.

Defendant's "Motion to Dismiss" was then heard. The court denied the motion, stating that it "[did] not agree with the applicability of [Lawrence] to the instant situation."

Defendant took the witness stand in her own defense and testified that she was a self-employed license massage therapist, she had been a licensed massage therapist for "19 years, going on 20" and her license was current and up-to-date on January 18, 2003. She testified that she placed her ad under the "Body, Mind and Spirit," "Massage," or "Health and Fitness" sections and not under the "Personal" or "Adult" sections.

Defendant also recounted that on January 18, 2003, Tallion immediately asked for a blow job when she entered the hotel room. She explained that she was "caught off guard" because she was "not the typical person that men want this from," as she was "overweight" and "old."

She reported that after Tallion asked for the "blow job," she put her hands up and stated, "Hey, I only do hands only." She also declared that she was shaking her head "no" at the same time. Defendant then indicated that Tallion repeated his question again and also asked how much it would cost. Defendant again said, "No, hands only." Defendant also maintained that Tallion was "loud," "demanding," and "boisterous."

After Defendant repeated "hands only" again, Tallion asked about handjobs. Defendant claims that she had no intent to commit any kind of sexual contact with Tallion. She explained that she only gave Tallion a figure of $20 because she felt threatened and because of Tallion's loud demands. She then testified about a 1983 incident where "[she] got beat up real bad by this person who [she] had gone to for a job for telephone soliciting."

On cross-examination, Defendant admitted that she "couldn't remember [the conversation between Tallion and herself] word for word." She also stated that Tallion did not block her way to the door leading to the hallway, Tallion did not tell her she could not leave the room, and she did not attempt to use the telephone or walk out of the room. Furthermore, Defendant indicated that she said "yes" when Tallion asked for a handjob, she knew that handjob could mean assisted masturbation, she told Tallion that the handjob would cost $20.00 extra, and she said "yes" when Tallion reiterated $20.00 for a handjob. On redirect examination, Defendant claimed that she felt trapped because it was not her room, the room "didn't have much room in it," and "she was within arm's reach of [Tallion]."

Following Defendant's testimony, the defense rested. The court found Defendant guilty of the charged offense. Defendant was sentenced to six months' probation and fined $500.00. Judgment was entered on August 26, 2003. Imposition of sentence was continued for thirty days for perfection of appeal.

The court instructed the prosecution to prepare written findings of facts and conclusions of law. The "Findings of Fact, Conclusions of Law, and Order Finding Defendant Guilty After Jury-Waived Trial" were filed on September 26, 2003. Notice of appeal was filed on September 19, 2003.

II.

As noted previously, Defendant raised four issues on appeal.⁴ In regard to issue (1), an exception to the offense of prostitution applies under HRS § 712-1200(5) for "any member of a police department, sheriff or other law enforcement officer acting in the course of and scope of duties." State v. Nobriga, 10 Haw.App. 353, 357-58, 873 P.2d 110, 112-13 (1994), overruled on other grounds by State v. Maelega, 80 Hawai`i 172, 178-79, 907 P.2d 758, 764-65 (1995), is instructive. According to that case, "[t]he general and well-settled common law rule is that where an exception is embodied in the language of the enacting clause of a criminal statute, and therefore appears to be an integral part of the verbal description of the offense, the burden is on the prosecution to negative that exception, prima facie, as part of its main case." Id. at 357, 873 P.2d at 112-13 (footnote and citation omitted). The Intermediate Court of Appeals (the ICA) further noted that "when the exception appears somewhere other than in the enacting clause, and is thus a distinct substantive exception or proviso, the burden is on the defendant to bring forward evidence of exceptive facts that constitute a defense" and, in such an instance, "[t]he prosecutor is not required to negative, by proof in advance, exceptions not found in the enacting clause." Id. at 358...