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.
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.
- Indecent exposure.
(2) Indecent exposure is a petty misdemeanor. (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.
In 1986, the legislature "incorporated all of the sexual offenses into five degrees of sexual assault." State v. Cardus, 86 Hawaii 426, 435, 949 P.2d 1047, 1056 (App. 1997) (internal quotation marks and citation omitted) (citing State v. Buch, 83 Hawaii 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.
- (2) Sexual assault in the fifth degree is a petty misdemeanor.
- Sexual assault in the fourth degree.
- . . .
(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.
The offense described in HRS § 707-734 was again renamed "indecent exposure." Id. HRS § 707-734 (1993) presently states as follows:
- 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 cause alarm or fear of bodily harm, in circumstances where it is likely to be an affront to a substantial part of the community.
The prosecution contends that the 1991 legislative history indicates HRS § 707-734 encompassed nude sunbathing like that engaged in by Defendant. On the other hand, Defendant maintains that the express language of the statute focuses on conduct a defendant "direct[s] at a particular person," rather than the likely effect of such conduct on others who could have been present.
None of the parties contend and we do not discern that the language of HRS § 707-734 is ambiguous inasmuch as, on its face, there is no "doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression." Id. In interpreting this statute, then, no need to consult extrinsic aids such as legislative committee reports arises.
- [D]ue respect must be accorded the effect of words used by the legislature, even if their true significance is not imparted in legislative committee reports. . . . When faced with interpreting statutes, the courts must be vigilant of the consequences statutes work, whether declared by the legislature or not. It is how the statute would be read by the layperson which guides our construction in criminal cases.
Riveira, 92 Hawaii at 561, 993 P.2d at 595 (Acoba, J., dissenting). "Because construction of a criminal statute must be guided by the need for fair warning, it is rare that legislative history or statutory policies will support a construction of a statute broader than that clearly warranted by the text." Crandon v. United States , 494 U.S. 152, 160 (1990).
Consonant with this precept, this court has also said that, "[w]hen possible, we interpret enactments of the [l]egislature contained in the criminal code so as to uphold their constitutionality," and, therefore, "presume that such legislation purports to operate within the limitations of our state and federal constitutions." In re John Doe, 76 Hawaii 85, 93, 869 P.2d 1304, 1312 (1994) (internal quotation marks and citations omitted). Therefore, to avoid running afoul of these fundamental principles, we give HRS § 707-734 a construction that would not ensnare conduct beyond the plain import of the statute.
On appeal, Defendant maintains the prosecution was obligated to prove that he "possessed the specific intent to expose his genitals to a particular person." Relying on Rocker, the prosecution contends that a general intent "that exposure was made where it was likely to be observed by others" suffices. However, arguments concerning specific and general intent are no longer relevant. Hawaii has adopted the MPC's state of mind requirements, which have abandoned the common law concepts of "specific intent" and "general intent," in favor of four defined culpable states of mind. See HRS § 702-206; see also Stand. Comm. Rep. No. 227, in 1971 House Journal, at 785 (stating that "[in Chapter 702,] the [Hawaii Penal Code(HPC)] would eliminate the wide diversity of words and phrases used to denote or connote a state of mind sufficient to impose penal liability, limiting the provisions of the law to four states of mind: intentional, knowing, reckless and negligent"); commentary to MPC § 2.02 ("The purpose of articulating [four kinds of culpability] is . . . to dispel the obscurity with which the culpability requirement is often treated when such concepts as 'general criminal intent,' 'mens rea,' 'presumed intent,' 'malice,' 'wilfulness,' 'scienter' and the like have been employed.").
In that regard, this court, in applying the HPC, has indicated that a state of mind with which the defendant acts applies to all elements of the offense, unless otherwise specified in the statute defining the offense.
- HRS § 701-114(1)(a) and (b) (1993) requires proof beyond a reasonable doubt of each element of the offense, as well as the state of mind required to establish each element of the offense. Moreover, HRS § 702-204 (1993) provides in relevant part that "a person is not guilty of an offense unless the person acted intentionally, knowingly, recklessly, or negligently, as the law specifies with respect to each element of the offense." . . . HRS § 702-207 (1993) provides that "[when] the definition of an offense specifies the state of mind sufficient for the commission of that offense, without distinguishing among the elements thereof, the specified state of mind shall apply to all elements of the offense, unless a contrary purpose plainly appears." In addition, pursuant to HRS § 702-205 . . . , the requisite state of mind applies to such conduct, attendant circumstances, and results of conduct as are specified by the definition of the offense.
- (a) A person acts intentionally with respect to his conduct when it is his conscious object to engage in such conduct.
(b) A person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances or believes or hopes that they exist.
(c) A person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result.
This construction is confirmed by an in pari materia reading of HRS §§ 707-734 and -733(1)(b), both of which concern exposure of a person's genitals to another person. "[L]aws in pari materia, or upon the same subject matter, shall be construed with reference to each other [and w]hat is clear in one statute may be called in aid to explain what is doubtful in another." State v. Putnam, 93 Hawaii 362, 371 n.9, 3 P.3d 1239, 1248 n.9 (2000) (internal quotation marks, brackets, and citations omitted). As the legislative history of these two statutes indicates, supra, this prohibited act is treated as two separate offenses, one where the act is "likely to cause fear of bodily injury or alarm," enacted as HRS § 707-733(1)(b), and the other as a less serious offense where the act is merely "likely to cause affront," enacted as HRS § 707-734. In aid of construing HRS § 707-734, HRS § 707-733(1)(b) makes clear that the proscription arising from the prohibited act is aimed at the harm, in the case of HRS § 707-733(1)(b), the "alarm" and "fear of bodily injury" undergone by the person to whom the defendant exposed his or her genitals:
- (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[.]
There is nothing in the stipulated facts that directly or inferentially proves that Defendant possessed the requisite culpable state of mind with respect to a key attendant circumstance, i.e., that he was aware, believed, or hoped that his act of exposure "was likely to cause affront" to Barry.
At the time of his arrest, Defendant was conversing with Barry. There is no evidence Defendant was in the observable vicinity of any other person. Barry was in the same state of undress as Defendant and apparently not disturbed by Defendant's lack of attire, much less their mutual state of nudity. All other occupants of the area except for the police were, like Defendant, similarly unattired. Objectively viewing Defendant's intent in the context of these circumstances, no reasonable trier of fact could find that Defendant's act was likely to cause affront to Barry. Since Barry was in the same state of undress, there is no rational or logical basis for concluding that Defendant intended to cause affront to Barry. Therefore, we conclude that the evidence was not of "sufficient quality and probative value to enable [a person] of reasonable caution to support [the] conclusion" that Defendant acted intentionally under circumstances likely to cause affront. Id. (brackets in original). As a result, the court's conclusion of guilt was wrong. State v. Wilson, 92 Hawaii 45, 47, 987 P.2d 268, 270 (1999) ("The circuit court's conclusions of law are reviewed under the right/wrong standard.") (citation omitted)).
On the briefs:
Shirley M. Kawamura,
Deputy Public Defender,
Alexa D. M. Fujise, Deputy
City and County of
Honolulu, for plaintiff-
- 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[.]
As I have stated, I believe that this court's foremost obligation is to ascertain and give effect to the intent of the legislature. State v. Dudoit, 90 Hawaii 262, 978 P.2d 700 (1999) (Ramil, J., dissenting). And this court has long recognized the "intent of the legislature" to be the "paramount guide" in statutory interpretation. State v. Prevo, 44 Haw. 665, 668, 361 P.2d 1044, 1047 (1961). While rules of statutory construction may be utilized to ascertain and implement legislative intent, "they may not be used to deflect legislative purpose and design." State v. Murray, 63 Haw. 12, 19, 621 P.2d 334, 339 (1980) (citing State v. Smith, 59 Haw. 456, 461-62, 583 583 P.2d 337, 341-42 (1978); Prevo , 44 Haw. at 668-69, 361 P.2d at 1047)).
I agree that "despite the comments regarding nude sunbathing in the 1991 legislative committee report, it is not at all evident from the statutory language ultimately enacted that the legislature meant to include all nude sunbathing within the proscription of HRS § 707-734." Majority at 11. Accordingly, I concur with the result reached by the majority's interpretation of HRS § 707-734 and in the opinion.