Walking, By Henry David Thoreau, Published In Atlantic Monthly, June 1862

... most of my townsmen would fain walk sometimes, as I do, but they cannot. No wealth can buy the requisite leisure, freedom, and independence which are the capital in this profession. ... I know very well that they have confined themselves to the highway ever since ... the walking of which I speak has nothing in it akin to taking exercise, ... but is itself the enterprise and adventure of the day. ...

Moreover, you must walk like a camel, which is said to be the only beast which ruminates when walking. When a traveler asked Wordsworth's servant to show him her master's study, she answered, "Here is his library, but his study is out of doors." ...

When we walk, we naturally go to the fields and woods: what would become of us, if we walked only in a garden or a mall? ...

There are square miles in my vicinity which have no inhabitant. From many a hill I can see civilization and the abodes of man afar. The farmers and their works are scarcely more obvious than woodchucks and their burrows. Man and his affairs, church and state and school, trade and commerce, and manufactures and agriculture even politics, the most alarming of them all--I am pleased to see how little space they occupy in the landscape...

At present, in this vicinity, the best part of the land is not private property; the landscape is not owned, and the walker enjoys comparative freedom. But possibly the day will come when it will be partitioned off into so-called pleasure-grounds, in which a few will take a narrow and exclusive pleasure only--when fences shall be multiplied, and man-traps and other engines invented to confine men to the public road, and walking over the surface of God's earth shall be construed to mean trespassing on some gentleman's grounds. To enjoy a thing exclusively is commonly to exclude yourself from the true enjoyment of it. Let us improve our opportunities, then, before the evil days come.

Whose Shoreline Is It, Anyway?

(Photo above: fisherfolk camping in state Conservation District at Lepeuli Beach Sept. 16, 2011. Vehicles access beach via permission of landowner Waioli Corporation and/or their lessee Bruce Laymon through Waioli property.)


Obtaining enforcement from the Kauai County Planning Commission and the state Department of Land and Natural Resources Office of Conservation & Coastal Lands to order the illegal fencing at Lepeuli removed would be made much easier if the Kauai County Planning Director at the time that granted Paradise Ranch the SMA Permit, Ian Costa, had required a current Shoreline Certification survey done for Lepeuli as a condition of the SMA permit. The most recent one is from 1978.


State and county planning regulators understandably wish to know with precision where one area of responsibility begins and ends. The Kauai County Planning Department, in Lepeuli, has responsibilty for the SMA Area, which for purposes of this explanation, runs from 300 feet mauka of the shoreline inland to a certain point. The state enforces its Conservation District regulations from that 300 foot line seaward (makai). So, obviously, all involved need to know where 300 feet from the shoreline is in Lepeuli.

In February 2011 the local chapter of the Sierra Club requested the state Land Use Commission, LUC, to create a Boundary Interpretation document for Lepeuli so we could know exactly where this boundary line is. To do this the LUC could have made a site visit or relied on a survey map and mark the boundary on it. Only the state can do that with certainty, not a private surveyor. They took the survey created by Alan Hirnaka and placed their boundary upon it. The only shoreline data available was from the 1978 survey. The LUC issued the Boundary Interpretation June 25, 2011. 


They determined the boundary seperating the Conservation District area from the SMA Area was significantly more mauka than where surveyor Hiranaka placed it. The practical result is that the lateral, coastal trail is, according to the Land Use Commission, entirely within state, not county, jurisdiction, as is a significant amount, but not all, of the fencing installed May 21, 2011. Since there has been erosion at this location since 1978, any boundary line based on current shoreline data would be even more mauka.

This conflicts directly with the statement of Les Milnes, a Kauai County Planner, who stated in a Field Investigation Report dated May 25, 2011 "The installed ag field fencing is mauka (inland) of Cons./Ag district line as sighted by surveyor on 1/20/11." The county position is that ALL fencing installed May 21, 2011 is county responsibility and is in the SMA Area in the Agricultural District.

After the Boundary Interpretation was issued and distributed to those who requested it, it was rescinded on the grounds that a current (within one year) Certified Shoreline survey did not accompany the request. The Boundary Interpretation was stamped with the endorsement

       "APPROXIMATE STATE LAND USE AGRICULTURAL/CONSERVATION DISTRICT BOUNDARY (FOLLOWS 300 FT. SETBACK AND SHALL BE SUBJECT TO A VALID CERTIFIED SHORELINE SURVEY)"


We have a situation in Hawaii where only the landowner can request a Certified Shoreline survey. And a Certified Shoreline is needed for a valid Boundary Interpretation. So, what if an island planning department waives the requirement for such a survey? What if the landowner refuses to get such a survey, as is the case here in Lepeuli? The mess we have today is the result. In 2012 the legislature is going to be asked to correct this loophole. The shoreline belongs to the PEOPLE, not private landowners. It only seems logical the People should be able to have it surveyed if need requires. And here in Lepeuli is an obvious need.

Trail To Nowhere: Na Ala Hele Trail Moloaa-Kaakaaniu

A pedestrian trail held as a perpetual public easement makai of Moloaa Bay Ranch runs from Moloaa Beach north to Kaakaaniu. It is administered by the Na Ala Hele program, a part of the Hawaii Department of Land and Natural Resouces. One is able to walk along the trail from Moloaa to Kaakaaniu, which offers stunning views of Moloaa Bay and occasionally sea turtles below, until you reach an abrupt end at a fence at the boundary of Kaakaaniu, owned by Patricia Hanwright. The easement trail is part of a state trail and access program, but it is not yet on the Na Ala Hele website or correctly identified with official state trail signage. The first sign pictured above at the beginning of this entry, installed by a private party, doesn't even have anything written on it. This is just behind Moloaa Beach as you start on the trail north.

This sign fell down, or was pushed down.

Above: Dead bird. Probably killed by an unleashed dog. Below images show fencing blocking end of trail. Fences erected under authority of Patricia Hanwright, owner of three parcels of land in Kaakaaniu ahupua'a.

Fence post and fencing cuts off Moloaa-Kaakaaniu trail here at Kaakaaniu boundary. Fencing runs mauka uphill and right, parallel to sea. In this photo immediately above, boulders lead down to sea. I am not going to walk there, that is unsafe and will result in injury. Yet, Patricia Hanwright says if people want to access the coast this is how they have to go. This is illegal. State law allows for lateral transit in which you do not endanger your safety. Chapter 115 of the Hawaii Revised Statutes, Section 9 states:

§115-9  Obstructing access to public property; penalty.  [Repeal and reenactment on June 30, 2013.  L 2010, c 160, §7.]  (a)  A person commits the offense of obstructing access to public property if the person, by action or by having installed a physical impediment, intentionally prevents a member of the public from traversing:

     (1)  A public right-of-way;

     (2)  A transit area;

     (3)  A public transit corridor; or

     (4)  A beach transit corridor;

and thereby obstructs access to and along the sea, the shoreline, or any inland public recreational area.

     (b)  Physical impediments that may prevent traversing include but are not limited to the following:

     (1)  Gates;

     (2)  Fences;

     (3)  Walls;

     (4)  Constructed barriers;

     (5)  Rubbish;

     (6)  Security guards;

     (7)  Guard dogs or animals; and

     (8)  A landowner's human-induced, enhanced, or unmaintained vegetation that interferes or encroaches within beach transit corridors.

     (c)  Obstructing access to public property is a misdemeanor.

     (d)  Minimum fines for violation under this section shall be as follows:

     (1)  $1,000 for a second conviction; and

     (2)  $2,000 for any conviction after a second conviction.

     (e)  As used in this section:

     "Landowner" means the record owner of the property or the record owner's agent, including a lessee, tenant, property manager, or trustee.

     "Person" means a natural person or a legal entity.

     "Public recreational area" means public lands or bodies of water opened to the public for recreational use. [L 2004, c 169, §2; am L 2010, c 160, §4]

In Hawaii, people have the right to access the beach and ocean. Hawaiian Kingdom laws, Territorial Laws, and State Laws today (as above) all guarantee this right. Private landowners, from the mainland mostly, especially those holding choice coastal parcels, value their privacy and many have a sense of entitlement that by virtue of their birth, status, wealth, who they know, or geneology, they seek to push upon the community. Who was it that said laws are for the "little people"?

Patricia Hanwright has erected two visible sets of fencing in Kaakaaniu. One is depicted in the photos you have just seen at the Moloaa end of her property. The State of Hawaii Na Ala Hele program claims a trail right through that fencing as it feels that trail is part of an ancient ala loa trail. The second set of fencing done on Patricia Hanwright's property is visible from the Lepeuli public trail by looking southeast. These are the three images above. The bottom image (immediately above) is a close-up of the fencing.

The fencing in these photos is illegal as Patricia Hanwright never obtained a state Conservation District Use Permit (CDUP) to install the fencing. The fencing depicted above at the Moloaa-Kaakaaniu boundary, also needed a Conservation District Use Permit for construction. However, that violation is more serious as it actually cuts off pedestrian access according to Hawaii Revised Statutes (HRS). Patricia Hanwright is well aware of where the state Conservation District Boundary line is on her properties in Kaakaaniu, as a Shoreline Certification was performed by surveyor Dennis Hashimoto and signed by the Chairperson of the state Department of Land and Natural Resources May 7, 1992. This document (above, click to enlarge) shows the Conservation boundary line at 300 feet mauka of the shoreline. My photographic evidence depicts both sets of Kaakaaniu fencing within 300 feet of the shoreline. Patricia Hanwright is clearly in violation.

In 2011 Patricia Hanwright apparently engaged the services of a surveyor again. Survey stakes were observed marking her property line at the Lepeuli end of Kaakaaniu. A vandal subsequently removed many of her stakes, and she contacted the Kauai Police Department and filed a complaint. Kauai Naturists opposes the use of illegal behavior to protest the illegal acts of others. We encourage legal means such as letter writing, petitions, hearings, lawsuits etc. to achieve these ends. We certainly do urge all members of the community to speak up for what is right, but not to break the law.

The link above describes the legal procedure for how the State of Hawaii obtains historic trails. This is from the website of the Na Ala Hele Trails Program, a part of the state Department of Land and Natural Resources, Division of Forestry and Wildlife.

The link below is a list of the members of the newly-reactivated Kauai Na Ala Hele Trail Advisory Council.

Contributed by Richard Spacer.

Intimidation & Lying Rule Of The Day On Kauai

Naturists at Lepeuli (Larsen's) Beach are fighting cattle rancher Bruce Laymon and his landlord Waioli Corporation for keeping safe, lateral beach access open for all, naturists and non-naturists, the public, to this beautiful place. Bruce Laymon and his Paradise Ranch intentionally violated their county-issued Special Management Area Permit by violating Condition 6 and blocking the lateral coastal trail. In the pursuit of our goal to maintain safe, gentle, access for all beachgoers, we have learned things about a beachfront neighbor named Patricia Hanwright, who owns three shoreline properties in the adjoining ahupua'a of Kaakaaniu. This is the land directly southeast of Larsen's you can see from the trail up high between the parking lot and the start of the steep trail. As you face the ocean this is on your right with the Larsen's parking lot behind you. Kaakaaniu owner Patricia Hanwright has created a few signs advising where trails are and where protected plants are, and posted such signs on fencing between the County of Kauai public right-of-way to the beach and a remnant portion of Waioli Corporation property, located between the public trail and Kaakaaniu, on Waioli Corporation fencing, and on an ironwood tree on county property. We are perplexed as to why this person is placing signs on trees and fences that are NOT on her property. Who exactly is authorizing this? The white sign immediately above, with "beach access" and a left arrow, points to the steepest of the three trails to Lepeuli Beach. This steep trail, which was obtained as an easement by Kauai County from Waioli Corporation in 2010, is not able to be used by a significant percentage of the community due to its steepness. Please click on the link below and read page 3 of the actual Grant of Pedestrian Access Easement document at point 3. "Improvements Within Easement Areas". The right is reserved to construct and install the following improvements: walls and fences are among those listed. Why would the Kauai community want a beach public access easement the landowner reserves the right to wall or fence?! What Patricia Hanwright does NOT tell you by signage, is that just to the RIGHT of the ironwood tree her sign is on, lies another trail to Lepeuli. This trail, owned by Kauai County in fee-simple, obtained from Waioli Corporation in 1979 for $6,900., has been allowed to fall into neglect. Trees overgrow the trail, as does thick brush. It was even fenced off for years. How can a public trail be fenced off!? In 2010 the fencing blocking this PUBLIC trail was finally cut. However, the County of Kauai, in its nonfeasance, has not restored this 1979 trail to safe, walking condition, complying with its duty of care to the public. The county cannot legally allow its roads, highways or trails to be neglected. Obtaining the 2010 easement trail does NOT absolve the county of maintaining the 1979 trail. Neither of these two trails is maintained by the county. Why is that? When a public works employee was asked when the steep 2010 trail was going to be weed-cleared, he said 'We have been told to do no more work on this trail." Since that time Hanwright confidante and neighbor Steve Frailey has stated it is he who maintains the trail! How can that possibly be? This is county responsibility.  Besides creating artsy signs, Patricia Hanwright, from Ketchum, Idaho, has been busy with her mainland attorney Laura Barzilai in denying that any ancient, lateral ala loa trail ever existed in her three coastal parcels. This foolish position is in union with the opinion of Waioli Corporation, landowner of the land mauka (inland) of Larsen's Beach at the ahupua'a of Lepeuli. Ms. Barzilai lacks the knowledge and cultural sensitivity to work in land law here. Any Hawaii real estate attorney that lacks understanding of the Highways Act of 1892 and its derivative statutory law today should not be in business. Any real estate attorney practicing law in Hawaii must understand that coastal trails encircled each island for tax collection purposes for centuries, and that such trails were also used as lookouts for residents to scan the ocean for invading warriers on canoes from neighbor islands. These trails existed in 1892 at the time of the passage of the Highways Act, which guaranteed that public and even private ways in existence at that time would remain public, and accordingly, they are public trails today. These trails were the highways of the day when residents did not use canoes to travel from one part of the island to the other. Before there was Koolau Road, which was the Government Road until Kuhio Highway was built, there was the ala loa trail. The following two emails from attorney Laura Barzilai reveal her attitude, and the attitude of her client Patricia Hanwright, to public access to lateral, coastal trails. "Further, I would like to add that there is no Kaakaniu Public Lateral Trial and there never has been.  All communication on this issue will be between Mrs. Hanwright and Ron Agor, Kauai representative of the State Land Board."  (Email, Laura Barzilai to Richard Spacer June 28, 2010 6:55 AM) ***************************************** "Aloha Jerry, Thank you for taking my call regarding the issue involving Hope and Richard Spacer.  As I said, I wanted to advise KKCR that it was reported to me by my client and her neighbors that on or about July 14, 2010, Hope and Richard Spacer were guests on the Blue Grass Radio Show, during which time they instructed listeners to commit the crime of trespass upon my client’s private property on non-existent trails southeast of Larsen’s Beach.  Any and all trespassers found on my client’s property will be immediately reported to the Kauai Police Department and prosecution will be pursued.   We now intend to report Mr. and Mrs. Spacer’s instructions to the police. Thank you for following up with your on-air programmers regarding this issue, and thank you again for your attention.  Laura Barzilai." (Email, Laura Barzilai to Jerry Brocklehurst July 22, 2010 2:54 PM) Jerry is the general manager of public radio station KKCR.  ****************************************************************************************** Neither Hope Kallai, Tim Kallai, or myself have been arrested over this matter. We cannot be. We said nothing illegal. It has been 13 months since we were on air. The police chief knows how to find us. He has my email and the contact details of the Kallai's. We did not instruct anyone to tresspass. A complete review of the audio of the two KKCR shows on July 6, 2011 and July 13, 2011 by those interested will confirm this. Hope Kallai and myself were on the July 6, 2011 show. Hope and Tim were on July 13. I was not on air July 13th. There is no Mrs. Spacer as Laura Barzilai alleges. Please ask KKCR for copies of the audio for you to review yourself and make your own decision. You may be charged for them. Below is a link to the complaint letter I sent to the entity that regulates attorneys in Hawaii. It is a complaint form against Hanwright attorney Laura Barzilai. If you read it it is self-explanatory. The reply from the state Bar Association to the above complaint form is pathetic. A friend of mine once said lawyers belong to a white collar union called the bar association in their state. They all cover each other like the police do, right or wrong. The non-akamai Laura Barzilai is engaged in bullying and intimidation by trying to silence First Amendment free speech protected public discussion by myself and others of the fact that the State of Hawaii claims a lateral trail through Kaakaaniu. Patricia Hanwright apparently thought she would own free and clear without drama and complications her three Kaakaaniu parcels when she bought them. She is wrong. The Kaakaaniu Hanwright properties are not even land-courted, unlike the Lepeuli property owned by Waioli Corporation, something I learned researching at the Bureau of Conveyances in January 2011 during a trip to Honolulu. Patricia Hanwright confidante and neighbor Steve Frailey, also a friend and supporter of Bruce Laymon, told activists in the autumn of 2009 that "all these properties are land-courted." Meaning Patricia Hanwright's coastal properties and Steve Frailey's. I checked in January 2011 and they are not. And we learned June 27, 2011 at a meeting of the Kauai County Planning Commission that being a land court property does not make you immune from a state claim for a public trail, per DLNR Chairperson William Aila's memo to Kauai County Interim Planning Director Michael Dahilig. This memo was countersigned by two Deputy State Attorneys General named William J. Wynhoff and Donna H. Kalama. Contributed by Richard Spacer.

Hawaii Supreme Court Ruling

IN THE SUPREME COURT OF THE STATE OF HAWAII

---o0o---

STATE OF HAWAII, Plaintiff-Appellee

vs.

MAIIKA K. KALAMA, Defendant-Appellant

NO. 22457

 

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

(D.C. NO. 98-383)

SEPTEMBER 29, 2000

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

 

OPINION OF THE COURT BY ACOBA, J.

 

We hold that a conviction under Hawaii 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. (1) 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 Oahu. The following pertinent facts were stipulated to at the combined hearing for arraignment, plea, and trial held on January 14, 1999. (2) (3) 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. (4) On February 26, 1999, Plaintiff-Appellee State of Hawaii (the prosecution) filed

I.

A.

On October 18, 1998, members of the Honolulu Police Department

Defendant had traveled from his home in Waikk 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 beach

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."

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. (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.
(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.

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

1991 Haw. Sess. L. Act 214 § 1, at 498-99 (emphasis added). 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 married[(5)] under circumstances in which the actor's conduct is likely to cause affront.[(6)]
The offense described in HRS § 707-734 was again renamed "indecent exposure." Id. HRS § 707-734 (1993) presently states as follows:

          
           (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 cause alarm or fear of bodily harm, in circumstances where it is likely to be an affront to a substantial part of the community.

Sen. Com. Rep. No. 1000, in 1991 Senate Journal, at 1103 (emphases added). (7) See State v. Dudoit, 90 Hawaii 262, 271, 978 P.2d 700, 709 (1999) (citing Buch, 83 Hawaii at 325-26, 926 P.2d at 616-17 (Levinson, J., concurring and dissenting) ("Even where the Court is convinced in its own mind that the Legislature really meant and intended something not expressed by the phraseology of the Act, it has no authority to depart from the plain meaning of the language used.") (internal quotation marks and citations omitted)).
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.

IV.

"[T]he interpretation of a statute . . . is a question of law reviewable de novo." State v. Cabrera, 90 Hawaii 359, 365, 978 P.2d 797, 803 (1999) (internal quotation marks and citations omitted). In interpreting statutes, "the fundamental starting point is the language of the statute itself," In re Doe, 90 Hawaii 246, 252, 978 P.2d 684, 690 (1999) (internal quotation marks and citations omitted), and "where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning." Citizens for Protection of North Kohala Coastline v. County of Hawaii, 91 Hawaii 94, 107, 979 P.2d 1120, 1133 (1999) (internal quotation marks and citations omitted).
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.

Hence, "we do not resort to legislative history to cloud a statutory text that is clear." Ratzlaf v. United States , 510 U.S. 135, 147-48 (1994) (citations omitted). See also Dines v. Pacific Ins. Co., 78 Hawaii 325, 332, 893 P.2d 176, 183 (1995) (indicating that "'[s]tatements by legislators or even committee reports need not reflect the purpose which a majority of the legislators believed is carried out by [a] statute,'" (quoting Yoshizaki v. Hilo Hosp., 50 Haw. 150, 153 n.5, 433 P.2d 220, 223 n.5 (1967)), and that "'our duty in interpreting statutes is to give effect to the legislature's intent[,] which is obtained primarily from the language of the statute'" (quoting Allstate Ins. Co. v. Hirose, 77 Hawaii 362, 364, 884 P.2d 1138, 1140 (1994))). Moreover, 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.

Additionally, due process of law under the fourteenth amendment to the United States Constitution and article 1, section 5 of the Hawaii Constitution requires that a penal statute state with reasonable clarity the act it proscribes and provide fixed standards for adjudicating guilt; otherwise, the statute must be held void for vagueness. State v. Richie, 88 Hawaii 19, 31, 960 P.2d 1227, 1239 (1998). This is because, to comport with due process, penal statutes must inform a person of ordinary intelligence of what conduct is prohibited so that he or she may choose between lawful and unlawful conduct. State v. Crouser , 81 Hawaii 5, 14, 911 P.2d 725, 734 (1996); State v. Riveira, 92 Hawaii 521, 993 P.2d 555 (2000) (adopting the dissenting opinion of Acoba, J. in State v. Riveira, 92 Hawaii 546, 993 P.2d 580 (App. 1999)).

[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.

V.

A.

Applying the statute as written to the stipulated facts, it is evident and not disputed that, by sunbathing in the nude, Defendant exposed his genitals to persons to whom he was not married. However, whether Defendant possessed the requisite state of mind to incur criminal liability is disputed.
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.

State v. Hoang, 86 Hawaii 48, 58, 947 P.2d 360, 370 (1997) (internal quotation marks and citations omitted; some ellipsis points added and some in original; brackets in original) (emphases added). On its face, HRS § 707-734 "specifies the state of mind sufficient for the commission of the offense, without distinguishing among the elements thereof." Id. As a result, "the specified state of mind [in HRS § 707-734, that a defendant act intentionally,] applies to all elements of [that] offense." Id.

B.

HRS § 702-206(1) defines the "intentional" state of mind as follows:

(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.

Accordingly, as to the "conduct" element of indecent exposure, i.e., the exposure of Defendant's genitals to another person, the prosecution was required to prove, pursuant to HRS § 702-206(1)(a), that it was Defendant's conscious object to engage in the exposure. As to the "attendant circumstance" elements of the offense, i.e., that the other person was not married to Defendant and that, under the circumstances, the exposure was likely to affront the other person, the prosecution was required to prove, pursuant to HRS § 702-206(1)(b), that Defendant was aware, believed, or hoped that the other person was not married to him and was likely to be affronted. (8) The prosecution, agreeing with the latter position, argues that Defendant's nude sunbathing on a public beach was likely to cause affront to someone because anyone, if present, could have observed his conduct.

VI.

A subsidiary issue raised by the defense's formulation of the intent issue is whether HRS § 707-734 protects the person or persons at whom a defendant directs his or her conduct or, as the court found, protects those who "could" happen on such conduct.

As worded, the harm sought to be avoided in HRS § 707-734 -- an affront -- follows from the prohibited preceding and precipitating exposure to "a person" to whom the defendant is not married. Since the exposure that precedes the affront is to "a person," it is logical to conclude that the affront suffered is that incurred by the same "person" (or persons) to whom a defendant bares his or her genitals. Thus, the objective of HRS § 707-734, as textually manifested, is the prevention of the affront that would be experienced by one who is so confronted by a defendant.
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[.]

(Emphases added.) Hence, HRS § 707-733 makes express what is implied in HRS § 707-734, that is, that these statutes seek to protect the person or persons to whom the defendant directs his conduct, the only distinction between HRS §§ 707-733 and -734 in this regard being the circumstantial effect on the person so assailed.
 

VII.

This court has held that "when the appellate court passes on the legal sufficiency of [trial] evidence to support a conviction . . . [t]he test . . . is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact." State v. Eastman, 81 Hawaii 131, 135, 913 P.2d 57, 61 (1996) (internal quotation marks and citations omitted). "'Substantial evidence' as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable [a person] of reasonable caution to support a conclusion[.]" Id. (brackets in original).
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)).
 

VIII. (9) (10) (11) Consequently, Rocker was not concerned with the offense of indecent exposure as described in HRS § 707-738, see supra, but, rather, the interpretation of the common nuisance statute then in effect.

The prosecution argues that Defendant's nude sunbathing on a public beach was likely to cause affront to someone. Emphasizing the word "likely" within the phrase "the actor's conduct is likely to cause affront," as it appears in HRS § 707-734, the prosecution maintains the "indecent exposure [statute] does not require that anyone actually be exposed to the activity." As we determined supra, the text of HRS § 707-734, its legislative history and that of HRS § 707-733, and an in pari materia construction of both statutes compels the conclusion that HRS § 707-734 seeks to protect the particular person or persons at whom a defendant directs his or her conduct. Hence, the requirement that a defendant, by his or her act, "intentionally" seeks to cause an affront assumes that a particular person was or identifiable persons were, in fact, "actually . . . exposed to the activity." Thus, in this context, the phrase "likely to cause affront" has nothing to do with whether another person is actually affronted, but, rather, modifies and establishes, from an objective point of view, the relevant "attendant circumstances" that result in criminal liability. See Sen. Com. Rep. No. 1000, in 1991 Senate Journal, at 1103 (quoted supra at page 7) (stating that circumstances are those in which "it is likely" that "a substantial part of the community" would be affronted).

IX.

As previously indicated, the prosecution contends that Rocker supports Defendant's conviction because, in Rocker, this court held that the defendants' nude sunbathing at a public beach supported their convictions of indecent exposure under HRS § 727-1 (1968). Rocker is not applicable. In Rocker, "indecent exposure" was not defined as it is in HRS § 707-734, but was an enumerated example of the HRS § 727-1 "offense of common nuisance."

It was said that indecent exposure by a person in a public place where it may be seen by others was a common nuisance. Rocker, 52 Haw. at 339, 475 P.2d at 687. But the Rocker court was careful to point out that the offense of indecent exposure, described in the proposed draft of HRS § 707-738 (1972), the predecessor of HRS § 707-734,

was distinct from the common nuisance offense involved in Rocker.

X.

For the reasons stated above, the court's March 25, 1999 judgment of conviction and sentence is reversed.
On the briefs:
Shirley M. Kawamura,
Deputy Public Defender,
for defendant-appellant.
Alexa D. M. Fujise, Deputy
Prosecuting Attorney,
City and County of
Honolulu, for plaintiff-
appellee.

1.

2. ⁰ At the hearing, the parties indicated that they were going to submit the police report into evidence and use what was in it as part of the stipulated facts. However, the court never formally received the police report into evidence, and the police report is not a part of the record. While there is a declaration of Defendant's attorney in the record, the record does not state that the parties agreed to use the declaration as part of the stipulated facts. Thus, the facts stated in the police report and in the declaration are not considered in this appeal. This court's decision is based solely on the stipulations in the transcripts.

3. The record does not indicate whether the area was part of the beach or the park.

4. Although there was no evidence that the police were affronted, codefendants also argued, citing State v. Ferreira, 68 Haw. 238, 709 P.2d 607 (1985), that Defendant and codefendants could not be arrested for activity that only annoyed the police.

5. The legislature employed the words "to a person to whom the person is not married" in order "to prevent spouses from bringing false charges as a means of settling domestic disputes." Conf. Com. Rep. No. 44, in 1991 Senate Journal, at 761.

6. HRS § 707-734 and the pertinent definition section (HRS § 707-700) (1993) do not define the term "affront." We may "[r]esort to legal or other well accepted dictionaries as one way to determine the ordinary meaning of certain terms [not statutorily defined]." State v. Chen, 77 Hawaii 329, 337, 884 P.2d 392, 400 (App. 1994) (internal quotation marks and citations omitted). The term "affront" is defined as "[a]n insult or indignity; assault, insolence." Black's Law Dictionary 60 (6th ed. 1990). See also State v. Whitney, 81 Hawaii 99, 104 n. 4, 912 P.2d 596, 601 n. 4 (App. 1996).

7. The statute of course does not expressly refer to nude sunbathing.

8. In this respect, the commentary to HRS § 701-103 (1993) states that a purpose of the MPC is to "[codify] specific offenses which constitute harms to social interests which the law in general and this Code in particular seek to protect: i.e., offenses against the person, property rights, the family and incompetents, public administration, public order, and public health and morals."

9. HRS § 727-1 provided in pertinent part 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[.]

(Emphasis added).

10. ⁰ See supra text at part III. for the provisions of HRS § 707-738.

11.

[T]he Hawaii Penal Code (Proposed Draft) 1970 adopts the American Law Institute Model Penal Code classification and definition of indecent exposure. It is classified as a sexual offense and is defined as follows: (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) Sexual assault in the fifth degree is a petty misdemeanor. This classification and definition of the crime of indecent exposure takes it out of the realm of common nuisances and makes it a specific sexual offense.
 

Rocker, 52 Haw. at 338 n.1, 475 P.2d at 687 n.1. (citation omitted) (emphasis added).
 

HAWAII v. KALANA

CONCURRING OPINION BY RAMIL, J.

The majority's analysis does not yield a result apparently inconsistent with the legislative purpose and design of Hawaii Revised Statute (HRS) § 707-734 (1993). Accordingly, I concur with the majority that a conviction under the statute requires proof beyond a reasonable doubt that "it was Defendant's conscious object to engage in the exposure[,]" and "that Defendant was aware, believed, or hoped that the other person was not married to him and was likely to be affronted." Majority at 13, 14.
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.

Hawaii Supreme Court Disposition Order

NO. 22489

IN THE SUPREME COURT OF THE STATE OF HAWAII

STATE OF HAWAII, Plaintiff-Appellee

vs.

FRANCES E. MILFORD, Defendant-Appellant

(D.C. NO. 98-382)

----------------------------------------------------------------------------------------------------------------------

STATE OF HAWAII, Plaintiff-Appellee

vs.

JOHN P. HARTSHORN, Defendant-Appellant

(D.C. NO. 98-380)

----------------------------------------------------------------------------------------------------------------------

STATE OF HAWAII, Plaintiff-Appellee

vs.

JOSEPH E. DAVIS, Defendant-Appellant

(D.C. NO. 98-381)

 

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

(D.C. NOS. 98-382, 98-380, and 98-381)

 

SUMMARY DISPOSITION ORDER (1) At the time of their arrests, all defendants were nude. Kalama was lying on a beach towel, facing and conversing with another nude male. Milford was leaning over eating a sandwich. Hartshorn was sitting and reading a newspaper. Davis was sitting in a beach chair reading a book. All defendants joined in argument to the same district court judge who convicted them on the same grounds and subjected all to the same sentence. All defendants appealed. (2) The transcripts of the relevant proceedings having been filed in this court, and the appeal having been reassigned to this court, the ICA's May 5, 2000 SDO in this appeal, S.Ct. No. 22489, is vacated.

(By: Moon, C.J., Levinson, Nakayama,

Ramil, and Acoba, JJ.)

The cases of Defendants-Appellants Frances E. Milford (Milford), John P. Hartshorn (Hartshorn), and Joseph E. Davis (Davis) (collectively, Defendants) (S.Ct. No. 22489) were tried together with the case of Maiika Kalama (Kalama) (S. Ct. No. 22457) on the same stipulated facts, by the same judge of the district court of the first circuit. Kalama had been arrested with Defendants at the same time and place and Kalama and Defendants were all charged with indecent exposure, HRS § 707-734 (1993).

On September 21, 1999, Defendants' appeal in S.Ct. No. 22489 was assigned to the Intermediate Court of Appeals (ICA). On May 5, 2000, the ICA affirmed Defendants' convictions by summary disposition order (SDO) because transcripts of the relevant proceedings were not in the record. On July 21, 2000, Defendants' appeal was reassigned from the ICA to this court.

State v. Kalama, No. 22457, (Haw. Sept. 29, 2000), sets forth the relevant facts, law, and arguments common to the parties' appeals. Considering the law, we reversed Kalama's conviction. Kalama is precedent for Defendants' appeal and its holding applies to Defendants Milford, Hartshorn, and Davis. Therefore,
IT IS HEREBY ORDERED that Defendants' convictions are reversed for the same reasons set forth in Kalama.
DATED: Honolulu, Hawaii, September 29, 2000.
On the briefs:
Gretchen A. Marshall and
Mary A. Wilkowski for
defendants-appellants.
Alexa D. M. Fujise, Deputy
Prosecuting Attorney,
City and County of
Honolulu, for plaintiff-
appellee

1. Hawaii Revised Statutes (HRS) § 707-734 (1993) states:

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 married under circumstances in which the actor's conduct is likely to cause affront.

(2) Indecent exposure is a petty misdemeanor.

2. Defendants' cases were not consolidated for trial pursuant to Hawaii Rules of Penal Procedure Rule 13, but were heard at the same time. Their appeal was assigned to the ICA on September 21, 1999. On May 5, 2000, the ICA issued a summary disposition order affirming their convictions because of lack of transcripts of the proceedings. On May 9, 2000, Defendants filed a motion for reconsideration of the SDO and on May 15, 2000, the ICA ordered its SDO vacated on the condition that Defendants file a motion for consolidation of their appeal with No. 22457, State v. Kalama, pending before this court and that this court grant the motion. On May 18, 2000, Defendants filed a motion to consolidate their appeal with No. 22457, State v. Kalama. On May 24, 2000, this court denied the motion. On July 21, 2000, Milford was ordered reassigned to this court.

Richard Spacer Appointed NAC Area Representative For Hawaii

Richard Spacer, President of Kauai Naturists, was recently appointed an Area Representative of the Naturist Action Committee with responsibility for Hawaii. Presently, Richard is the only NAC rep. in the Aloha State. Please see the below link to the Naturist Action Committee site for a list of Area Representatives and their contact details. Richard is available to answer any of your questions and concerns about naturist locations and issues in Hawaii. Please contact him, or email Kauai Naturists at kauai.naturists@gmail.com, especially if you encounter or witness harassment or intimidation at traditional naturist locales.

Young Man Alleges Beating By Bruce Laymon

The man pictured is Jesse Reynolds. He alleges between 9:30 PM and 10:00 PM on the evening of Saturday, May 21, 2011 that Bruce Laymon beat him at the top of the steep easement trail to Larsen's Beach. This is several hours after Bruce Laymon installed the illegal fencing blocking off the lateral trail to Larsen's Beach. The alleged incident reportedly took place at the top of the bluff near the corner of the newly erected fence.

Attached is a photo of Jesse Reynolds demonstrating  the headlock he was held in while being punched.

He also reports being punched while being held by the hair. Also attached is a photo of back injuries he reportedly sustained being pushed down the cliff onto rocks.

Kauai Police Department Officer Korowski (Badge K505) took his statement May 23, 2011 at about 3:45 P.M. Police Report #  2011-12692 should be available in 5 days



Fencing Blocking Lateral Trail At Lepeuli (Larsen's) Beach

On Saturday May 21, 2011 Bruce Laymon of Paradise Ranch, lessee of Waioli Corporation, erected this fencing across the entrance to the lateral trail to Larsen's Beach in violation of Condition 6 of its Kauai County issued  SMA permit. Click the link below "SMA Permit Paradise Ranch..." to read the permit. The Chairperson of the State Department of Land and Natural Resources, DLNR, William Aila, along with two Deputy Attorneys General, issued a memo June 27, 2011 clarifying the State position on claiming roads and trails through Registered Lands (Land Court). Waioli Corporation's Lepeuli property is "land-courted". They also commented on the lack of approval by DLNR and its Na Ala Hele Trails Program for the location of this fencing, also a requirement of Condition 6 of the permit that was violated.

Fencing Blocking Lateral Trail At Lepeuli (Larsen's) Beach

Beachgoers on the way up from Larsen's Beach May 21, 2011 encounter newly installed fencing across the entrance to the lateral trail which blocks their exit. Apparently they went to the beach in the morning before the fencing was installed.

Fencing Blocking Lateral Trail At Lepeuli (Larsen's) Beach

Bruce Laymon (on right with jeans, dark shirt, and holding beer bottle) and his associates after having installed fencing blocking the lateral trail to Larsen's Beach May 21, 2011.

Fencing Blocking Lateral Trail At Lepeuli (Larsen's) Beach

A mainland visitor, Nyoc-Lan Pham (with the red shirt), was on a family pilgrimage to Kauai.

Her husband died at Larsen's Beach 11 years ago.

She wanted to see the beach "and touch the water" where her husband died.

Unfortunately a head injury a couple of years ago has left her weak.

Her family tried to lead her down the steep easement trail (one in front, one behind) but she couldn't make it. She would have been able to walk down the lateral trail as it is a safe, gentle trail. She could not since Bruce Laymon blocked it off the very same day.

Honolulu Weekly Magazine Polo Beach Article And Response

Below are links to two items, the top, an article titled Beach Bum Babylon by Mitchell Kuga which appeared in Honolulu Weekly magazine, and the second, my comments on the article. The discussion is about Polo Beach near Mokuleia, West Oahu, which is the clothing-optional beach for Hawaii's most populous island, Oahu, on which Honolulu is located.

Honolulu Weekly sadly is no more, and these two items are reproduced with kind permission of former publisher Laurie Carlson.
 

What Is Naturism?

"Naturism is a way of life in harmony with nature, characterized by the practice of communal nudity, with the intention of encouraging self-respect, respect for others, and for the environment."

International Naturist Federation
  http://inf-fni.org/

Selected Links

The Naturist Society
   http://www.naturistsociety.com/  

World Naked Gardening Day
   http://www.wngd.org/

International Naturist Federation
  http://inf-fni.org/

NetNude.com
  http://www.netnude.com   

Southern California Naturist Association
  http://socalnaturist.org/    

Federation of Canadian Naturists
  http://www.fcn.ca/

Wreck Beach (Vancouver, Canada)
   http://www.wreckbeach.org    

Free Beaches New Zealand
  http://www.freebeaches.org.nz/

Naturist Beach Etiquette

* Gawking and staring at others is rude. Don't.
* Please consider leaving glass containers at home. Broken glass on the sand causes injuries.
* Take out some trash others may have left behind when you leave, and always take out your own.
* No lingering in bushes or vegetation.
* Beaches are not ashtrays.
* Do not drive on beaches.
* Respect and keep away from monk seals, sea turtles, and other wildlife.
* Use earphones or keep radio/music volume low.
* Exercise common courtesy and ask permission before taking photos of those not with you.
* Sexual behavior belongs at home. Lewd  behavior is illegal. Simple nudity is not.
* Dress before leaving the traditional clothing-optional area.

Roman Catholic Church Position

"...the human body can remain nude and uncovered and preserve intact its splendor and its beauty...Nakedness as such is not to be equated with physical shamelessness...Immodesty is present only when nakedness plays a negative role with regard to the value of the person...The human body is not in itself shameful...."

Karol Cardinal Woytyla (Pope John II) Love & Responsibility, 1981, traslation of 1960 Polish publication.

January 19, 2011 Comments By Bruce Laymon

On January 19, 2011 Kauai cattle rancher Bruce Laymon, who leases land owned by Waioli Corporation, a non-profit public charity, in Lepeuli, Kauai, Hawaii, told beachgoers they could not use the gentle, lateral access trail to Larsen's Beach which has been used forever to get to the beach. Beachgoers were told to use a steep, unmaintained county easement trail located nearby. When one of the beachgoers asked Bruce Laymon WHY he was erecting fencing, he told her to keep campers, nudes and gays away from the beach. If campers are camping on Waioli Corporation land that is tresspassing. If they are camping on the sand, they are on public property, and it is none of Bruce Laymon's business. The state Department of Land and Natural Resources Department of Conservation Enforcement officers could ticket them, but neither Waioli Corporation or Bruce Laymon has jurisdiction in the matter. In fact, a homeless man camps on the sand near the main entrance to Larsen's Beach every day and has for years. To say he is erecting fencing to keep nudes and gays from using a public beach, Bruce Laymon is acting unlawfully. Gays and naturists ("nudes") have protections under statutory law and case law. Larsen's Beach is a public beach. No one can be excluded from a public place based on their sexual preference. This statement by Bruce Laymon reflects a bigoted, hateful, narrow-minded attitude. Kauai Naturists opposes this kind of ignorance.