STATE OF HAWAII, Plaintiff-Appellee


MAIIKA K. KALAMA, Defendant-Appellant

NO. 22457



(D.C. NO. 98-383)

SEPTEMBER 29, 2000





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.



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

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(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.

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."


At the hearing on January 14, 1999, it was agreed that the case would proceed by way of stipulated facts and thereafter be continued to allow the parties to submit legal memoranda. On February 4, 1999, Defendant filed a motion to dismiss or, in the alternative, for judgment of acquittal, arguing that, in contrast to the proscription of HRS 707-734, Defendant did not intend to cause affront and his "actions [were] taken . . . to avoid the non-nude sunbathing general public entirely."(4) On February 26, 1999, Plaintiff-Appellee State of Hawaii (the prosecution) filed

a memorandum in opposition to Defendant's motion. Relying on State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970), a case in which nude sunbathers were convicted of the offense of common nuisance, the prosecution maintained that only a general intent to "indecently expose oneself" was necessary to prove indecent exposure. Id . at 339, 475 P.2d at 687.

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


The 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.



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.



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:

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:

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:


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

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

According to a Senate Committee report, the amendment established

Sen. Com. Rep. No. 1000, in 1991 Senate Journal, at 1103 (emphases added).

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.


"[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.(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)).

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)).


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.



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.

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.


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

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.


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.(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.

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:

(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.



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)).



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).


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."(9)

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,(10)

was distinct from the common nuisance offense involved in Rocker.(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.


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-


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:

(Emphasis added).

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


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




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.