State v. Abel. , 134 Haw. 333 ( 2014 )

***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-13-0000087
24-SEP-2014
09:33 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
JAMES E. ABEL,
Petitioner/Defendant-Appellant.
SCWC-13-0000087
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000087; CASE NO. 1P1120008541)
September 24, 2014
RECKTENWALD, C.J., NAKAYAMA, MCKENNA, POLLACK AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
James Abel seeks review of his conviction for the
offense of Solicitation With Animals in Waikiki Special
District. We conclude that an element of this offense is the
use of a live animal to request or demand money or gifts. As
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
insufficient evidence was adduced at trial to prove this element
of the offense, we reverse the Intermediate Court of Appeals’
(ICA) Judgment on Appeal and the District Court of the First
Circuit’s (district court) judgment of conviction.
I. Background
On August 8, 2012, James Abel (Abel) was charged via
complaint in district court with Solicitation With Animals in
Waikiki Special District, “in violation of Section 29-13.2(b) of
the Hawaii Revised Statutes.”1 The complaint stated in relevant
part as follows:
1
Although the State charged Abel with violating the Hawaiʻi Revised
Statutes (HRS), the number of the provision indicates that the prosecutor
intended to charge Abel under the Revised Ordinances of Honolulu (ROH) § 29-
13.2 (1999), which reads:
Sec. 29-13.2 Prohibition.
In the Waikiki special district, no person shall use any
live animal in furtherance of any solicitation on any
public property, except in compliance with all of the
following conditions of this section or, if applicable,
Section 29-13.2A:
(a) The animal shall be held or carried by the person
conducting the solicitation at all times. No animal
too large to be held or carried shall be used in any
solicitation. This subsection shall not apply to a
service animal as defined in 49 CFR Section 37.3 when
such service animal is being used by an individual
with a disability requiring such service animal.
(b) The person conducting the solicitation shall not
place the animal on or otherwise transfer the animal
to any other person.
(c) The person shall not place any cage, table, stand, or
other object on public property.
(d) The person shall not use any city-owned or maintained
street furniture or structure, including any bench,
planter, utility cabinet, or other street furniture
or structure permanently installed on public
property, for the display of anything whatsoever in
connection with the solicitation, or otherwise put
such bench, planter, utility cabinet, street
(continued. . .)
2
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
On or about the 31st day of July, 2012, in the City
and County of Honolulu, State of Hawaii, JAMES E. ABEL did
intentionally, knowingly, or recklessly use any live animal
in furtherance of any solicitation on any public property
in the Waikiki Special District . . . and did
intentionally, knowingly or recklessly place said animal on
or otherwise transfer said animal to any other person,
thereby committing the offense of Solication [sic] With
Animals in Waikiki Special District, in violation of
Section 29-13.2(b) of the Hawaii Revised Statutes.
Pursuant to Section 29-13.1 of the Revised Ordinances of
Honolulu, ‘public property’ includes any . . . sidewalk . .
. under the jurisdiction of any governmental entity or
otherwise open to the public. Pursuant to Section 29-13.12
(continued. . .)
(e) furniture or structure to use in furtherance of such
solicitation.
(f) The person conducting the solicitation shall wear at
all times on that person’s chest so that it is
clearly visible to persons being solicited a sign of
at least 8 1/2 x 11 inches in size, upon which the
following words are legibly printed in letters or
characters at least 2 inch in height in both English
and Japanese:
(1) Solicitor: (Name and address of the person or
organization conducting the solicitation).
(2) Purpose: (The reason the solicitation is being
made.)
(3) YOU NEED NOT PAY OR CONTRIBUTE ANY MONEY TO
THIS PERSON, ANY PAYMENT OR CONTRIBUTION IS
COMPLETELY VOLUNTARY.
(4) The Japanese translation for the disclaimer set
forth in (3).
The statements required in (3) and (4) shall be in
capital letters and bold type.
ROH § 29-13.2 (1999) (emphasis added), available at http://www.honolulu.gov/
rep/site/ocs/roh/ROH_Chapter_29__.pdf.pdf.
2
ROH § 29-13.1 (1999) states:
For the purposes of this article:
“Public property” includes any street, highway, boulevard,
road, sidewalk, alley, island, lane, bridge, parking lot,
park, square, space, grounds, mall, building, or other
property owned by or under the jurisdiction of any
governmental entity or otherwise open to the public.
“Solicitation” means to request or demand money or gifts.
“Waikiki special district” means the Waikiki special
district as defined in Section 21-9.80-2.
ROH 29-13.1 (1999), available at http://www.honolulu.gov/rep/site/ocs/roh/
ROH_Chapter_29__.pdf.pdf.
3
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
of the Revised Ordinances of Honolulu, “solicitation” means
to request or demand money or gifts.
(First and last emphasis added; footnote added).3
At Abel’s December 17, 2012 bench trial,4 the State
called a single witness, Honolulu Police Department (HPD)
Sergeant Stacey Christensen (Sgt. Christensen), who testified
concerning the events resulting in the charge against Abel.
Sgt. Christensen indicated that she had been a Honolulu police
officer for 25 years and, on July 31, 2012, she had been
assigned to the Waikiki district “enforcing parking violations.”
At the time of the incident, “there were a lot of cars going
through Kalakaua” and there were people in the area. Sgt.
Christensen was standing on the sidewalk, near the street, when
her attention was drawn to Abel who was about 15 feet away. She
observed Abel “with birds fronting the Outrigger standing on the
sidewalk.”
[Prosecutor]: Uh, what did defendant do at that point?
[Sgt. Christensen]: He was placing birds on different
individuals taking pictures with the individuals [sic]
cameras and I would see money transfer between the
individual and Mr. Abel.
[Prosecutor]: Uh, if we can just briefly talk about
transferring, um, the birds. Could you -- could you
describe as specifically as possible how he transferred?
3
The oral charge read at Abel’s trial on December 12, 2012,
contained nearly identical language, including the improper reference to the
HRS with the numerical citation matching ROH § 29-13.2.
4
The Honorable Linda K.C. Luke presided.
4
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
[Sgt. Christensen]: So he would have the birds in his
hands. He would place them on the individuals, take the
individuals’ camera or phone –
[Prosecutor]: Um-hmm.
[Sgt. Christensen]: -- take a photo, take the pho -- uh,
the birds back, and they would give him money.
[Prosecutor]: Okay. So defendant reached out to, uh, other
people –
[Sgt. Christensen]: Yes, sir.
[Prosecutor]: -- with the birds? Okay.
Sgt. Christensen testified that she was not able to
hear anything that was said between Abel and any of the persons
who gave him money or discern how much money was given to Abel.
After Sgt. Christensen’s testimony, Abel made a motion
for judgment of acquittal. Abel argued that, viewed in the
light most favorable to the prosecution, Sgt. Christensen’s
testimony did not prove that solicitation occurred. The State
argued that even though Sgt. Christensen did not hear any of the
conversations, she saw Abel placing animals on individuals, he
was taking their photos with the birds on them, and he was
receiving money as a result. These observations, argued the
State, were sufficient to prove its case beyond a reasonable
doubt. Abel responded that the circumstantial evidence was
insufficient because it was not “established that he requested
money or demanded money or gifts in exchange,” there was “no tip
jar that was referred to, no sign requesting any payment,” and
5
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
thus no solicitation had been proved. The district court denied
the motion.
Abel did not testify, and the defense rested without
presenting any evidence. In closing argument, the State
acknowledged that it was not able “to subpoena witnesses to
address specifically the solicitation aspect,” but maintained
that Abel “was placing [birds] on individuals, taking pictures
with them of the birds, and that he was receiving money as a
result after these two actions took place.” Thus, the State
concluded that there was circumstantial evidence sufficient for
a conviction.
The defense countered that a significant doubt
remained as to whether solicitation, i.e., a demand for gifts or
money occurred. “There’s been no clear evidence from any
witness who may have allegedly been solicited that [Abel] did
indeed request or demand money or gifts.” “Merely extending the
gesture by placing birds on someone and taking a photo is just
an extension of his aloha spirit. It’s not meant to . . . be a
solicitation.”
The court orally found Abel guilty of the charge based
on “an exchange of cash immediately following the activity of
picture taking” within the Waikiki Special District. The
court’s oral ruling was follows:
6
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Based on the court [sic] and following the hearing and
after full consideration of the evidence, the court will
find beyond a reasonable doubt that Mr. Abel is in
violation of Revised Ordinances as noted 29-13.2B based on
the credible evidence of Sergeant Christensen. The aloha
spirit is one thing, but in terms of the evidence adduced,
there was an exchange of cash immediately following the
activity of picture taking. This occurred within the
prohibited Waikiki district, and I believe the court -- the
State has proven its case beyond a reasonable doubt albeit
circumstantially.
(Emphasis added). The court did not make a finding that a
solicitation had occurred or that a request or demand for money
or gifts had occurred.
On January 14, 2013, the district court issued written
findings of fact and conclusions of law that also made no
finding of solicitation or that there had been a request or
demand by Abel for money or gifts. The relevant findings of
fact stated as follows:
1. The Defendant is charged with Solicitation with Animals
in Waikiki Special District under [ROH] § 29-13.2(b)[.]
. . . .
3. On July 31, 2012, Officer Stacey Christensen was on duty
enforcing parking violations in Waikiki on Kalakaua Avenue.
4. Officer Christensen observed Defendant placing birds on
an individual while on Kalakaua Avenue. Defendant then took
pictures of the individual with the birds. The individual
then handed Defendant an unknown amount of money.
6. Officer Christensen made these observations from
approximately fifteen feet away. However, she was unable to
hear what Defendant and the unknown individual were saying.
(Emphasis added).5 The district court’s relevant conclusions of
law stated as follows:
5
The district court did not include a finding of fact #5.
7
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
2. The court finds and concludes that on or about the 31st
day of July, 2012, when Defendant, while in the Waikiki
Special District in the City and County of Honolulu, State
of Hawaiʻi, placed birds on another individual, took
pictures of said individual with the birds, then accepted
an unknown amount of money, Defendant intentionally,
knowingly or recklessly solicited with animals in the
Waikiki Special District.
3. The court, therefore, finds that the State has proven
beyond a reasonable doubt that on or about the 31st day of
July, 2012, in the Waikiki Special District in the City and
County of Honolulu, State of Hawaiʻi, Defendant did
intentionally, knowingly or recklessly use a live animal in
furtherance of any solicitation on public property in the
Waikiki Special District and intentionally, knowingly or
recklessly placed or otherwise transferred said animal to
another person, thereby committing the offense of
Solicitation With Animals In Waikiki Special District, in
violation of [ROH §] 29-13.2(b)[.]
(Emphases added). Accordingly, the district court concluded
Abel had “intentionally, knowingly or recklessly solicited with
animals” and therefore committed the charged offense. Abel was
sentenced to pay a $300 fine plus a $30 crime victim fee,6 and
the judgment of conviction was issued by the district court.
II. Appellate Proceedings
On February 12, 2013, Abel filed a Notice of Appeal.
In his Opening Brief (OB), Abel contended that the district
court wrongly denied his motion for judgment of acquittal and
wrongly adjudged him guilty as charged because the State failed
to provide sufficient evidence regarding the element of
solicitation.
6
At a January 15, 2013 hearing, the court stated that Abel was
subject to a $55 crime victim compensation fee, however the judgment of
conviction states that the fee was $30.
8
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Abel challenged the district court’s conclusions of
law ¶¶ 2 & 3. Abel contended that the “use of animals during
solicitations in the Waikiki Special District is authorized with
the exception of specific prohibitions.” Abel argued that ROH §
29-13.2 contains four essential elements: (1) a request or
demand for money or gifts; (2) the use of live animals in
furtherance of this solicitation; (3) a transferring of the
animal onto another person; and (4) the solicitation occurred on
public property in the Waikiki Special District. Abel
maintained that the State failed to present substantial evidence
“that [he] actually requested or demanded money or gifts to take
pictures with his birds.”
Citing to State v. Xiao, 123 Hawaiʻi 251, 258, 231 P.3d
968, 975 (2010), Abel compared ROH § 29-13.2(b) to the offense
of prostitution under HRS § 712-1200 in that to affirm a
conviction under either law, evidence of an offer to engage in
specific conduct in return for a fee was required. Abel
maintained that because the dispositive issue was whether he
transferred his animals to an individual for a fee and there was
no evidence of such an exchange, Abel’s conduct failed to meet
the minimum threshold for a conviction. Thus, Abel concluded
that the entry of the conviction based on the evidentiary record
violated Abel’s due process right not to be convicted except on
9
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
proof beyond a reasonable doubt of every element of the offense
charged.
In its Answering Brief (AB), the State contended that
“it does not need to prove that an ‘actual’ request or demand
for money or gifts took place between Abel and the people he
took photographs of with his birds” because ROH § 29-13.2(b) and
HRS § 702-204 (1993)7 required “only that the State prove that
Abel intentionally, knowingly, or recklessly used any live
animal in furtherance of any solicitation within the restricted
area.” (Brackets omitted).
The State maintained “the criminal offense in this
case was completed when Abel used his birds within the
restricted area and with the requisite mens rea – intentionally,
knowingly, or recklessly using any live animal in furtherance of
any solicitation.” Hence, the pertinent issue was “Abel’s state
of mind when he used his birds; or, in other words, determining
Abel’s motivation for using his birds in the manner he did in
this case.”
7
HRS § 702-204 (1993) states:
Except as provided in section 702-212, 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.
When the state of mind required to establish an element of
an offense is not specified by the law, that element is
established if, with respect thereto, a person acts
intentionally, knowingly, or recklessly.
10
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Consequently, the State argued that it did “not need
to prove that a ‘solicitation’ actually took place, as defined
in ROH § 29-13.1.” Instead, the offense requires proof “only
that Abel intentionally, knowingly, or recklessly used his birds
‘in furtherance of any solicitation’ within the restricted
area.” Because “in furtherance” was not statutorily defined,
the State defined it by its plain meaning: “furtherance” means
“promotion,” which in turn means to “encourage to exist.” The
State contended that with regard to mens rea, “the mind of an
alleged offender may be read from his acts, conduct and
inferences fairly drawn from all the circumstances.” Thus, a
defendant could be found guilty of solicitation even if the
“urging” was not actually communicated, “as long as it was
designed to be communicated.”
Based on this interpretation of the statute, the State
concluded that “by reaching out to people with his birds,
placing his birds onto other people, taking a photograph of the
person with his birds in Waikiki, taking his birds back, and
thereafter accepting money from that person, Abel clearly
intentionally, knowingly, or recklessly used his birds in
promotion of a request for money or gifts.”
On January 8, 2014, the ICA issued its Summary
Disposition Order (SDO). After recounting the evidence at
trial, the ICA’s analysis was as follows:
11
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Sergeant Christensen’s testimony constituted sufficient
evidence proving that Abel intentionally, knowingly, or
recklessly used his birds in furtherance of solicitation by
reaching out to people with his birds, placing his birds
onto other people, taking a photograph of the person with
his birds in Waikiki, taking his birds back, and accepting
money from that person. There is substantial evidence that
Abel intentionally, knowingly, or recklessly used his birds
in furtherance of a request for money.
The ICA therefore affirmed the conviction.
III. Application for Writ of Certiorari
On April 6, 2014, Abel filed his Application for Writ
of Certiorari (Application) and presented the following
question:
1. Whether the ICA gravely erred in [not] holding that
the district court wrongly denied Abel’s motion for
judgment of acquittal and wrongly adjudged him guilty
as charged because the State failed to provide
sufficient evidence regarding the element of
solicitation.
Abel again sets forth the four essential elements of
ROH § 29-13.2(b) that are required to establish the offense.
Abel maintains that the State “failed to present substantial
evidence . . . that Abel actually requested or demanded money or
gifts to take pictures with his birds.”
Abel argues that Sgt. Christensen admitted to not
being able to hear if any request for money was made, did not
testify as to any hand or head gestures Abel may have made
indicating a request for money, and did not testify that Abel
had a sign or tip jar suggesting Abel was requesting money in
exchange for taking pictures with his birds.
12
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Abel reiterates the comparison between the offenses of
prostitution and Solicitation with Animals in Waikiki Special
District on the grounds that both require proof that the
defendant engaged in specific conduct for a fee. Abel admits
that he did engage in the conduct of transferring his bird to
another person and that this person gave him money. “However,
like Xiao, there was no evidence that Abel transferred his birds
in exchange for a fee.” Thus, “Abel’s conduct did not meet the
minimum threshold that was required” for a conviction. Abel
concludes that his conviction violated his due process right not
to be convicted except upon proof beyond a reasonable doubt as
to every element of a crime and requests that the ICA’s Judgment
of Conviction and the district court’s judgment of conviction be
reversed.
On April 21, 2014, the State filed its Response. The
State reasserts its arguments from its Answering Brief that “the
State does not need to prove that a ‘solicitation’ actually took
place, as defined by ROH § 29-13.1.” The State compares ROH §
29-13.2 to criminal solicitation under HRS § 705-510(2) (1993),8
8
HRS § 705-510 (1993) states:
(1) A person is guilty of criminal solicitation if, with
the intent to promote or facilitate the commission of a
crime, the person commands, encourages, or requests another
person to engage in conduct or cause the result specified
by the definition of an offense or to engage in conduct
which would be sufficient to establish complicity in the
specified conduct or result.
(continued. . .)
13
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
“inasmuch as the offense of criminal solicitation similarly does
not require a communication between the defendant and the person
solicited.” Thus, the State maintains that Abel can be
convicted based on evidence showing that Abel clearly used his
birds in promotion of a request for money or gifts.
In addition, the State maintains that ROH § 29-13.2(b)
“presupposes that a person did in fact ‘use any live animal in
furtherance of any solicitation’ within ‘public property’ of the
‘Waikiki special district.’” “In other words, ROH § 29-13.2(b)
describes one of the ‘conditions’ that must be followed if a
person does in fact ‘use any live animal in furtherance of any
solicitation[.]’” The State continues that, even if subsection
(b) is an additional element, the element added is not a
“solicitation” that is “separate and distinct from the words ‘in
furtherance of any solicitation,’” but rather it is satisfied by
“plac[ing] the animal on or otherwise transfer[ing] the animal
to any other person[.]”
IV. Discussion
A.
“The elements of an offense are such (1) conduct, (2)
attendant circumstances, and (3) results of conduct, as:
(continued. . .)
(2) It is immaterial under subsection (1) that the
defendant fails to communicate with the person the
defendant solicits if the defendant’s conduct was designed
to effect such communication.
14
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
(a) Are specified by the definition of the offense, and (b)
Negative a defense[.]” HRS § 702-205 (1993). “An essential or
material element of a crime is one whose specification with
precise accuracy is necessary to establish the very illegality
of the behavior[.]” State v. Cummings, 101 Hawaiʻi 139, 144, 63
P.3d 1109, 1114 (2003) (quotation marks and brackets omitted).
“[W]hen interpreting a municipal ordinance, we apply
the same rules of construction that we apply to statutes.”
Coon v. City & Cnty. of Honolulu, 98 Hawaiʻi 233, 245, 47 P.3d
348, 360 (2002). “When construing a[n] [ordinance], our
foremost obligation is to ascertain and give effect to the
intention of the [City Council], which is to be obtained
primarily from the language contained in the [ordinance]
itself.” Id. “[W]e must read [the ordinance’s] language in the
context of the entire [ordinance] and construe it in a manner
consistent with its purpose.” Id.
Defendant was charged with violating ROH § 29-13.2(b),
Solicitation With Animals in Waikiki Special District. ROH
§ 29-13.2(b) (1999) provides in relevant part:
Sec. 29-13.2 Prohibition.
In the Waikiki special district, no person shall use any
live animal in furtherance of any solicitation on any
public property, except in compliance with all of the
following conditions of this section . . .
. . . .
(b) The person conducting the solicitation shall not place
the animal on or otherwise transfer the animal to any other
person.
15
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Id. (emphases added). Accordingly, the elements of the offense
are: (1) a solicitation, (2) use of a live animal in furtherance
of the solicitation, (3) a transferring of the animal by the
person conducting the solicitation onto another person, and (4)
the occurrence of the solicitation on public property in the
Waikiki Special District. ROH § 29-13.2. Solicitation means
“to request or demand money or gifts.” ROH § 29-13.1 (1999).
Thus, based on the plain meaning of ROH § 29-13 as a
whole, a request or demand for money or gifts must occur for a
person to fall within the purview of ROH § 29-13.2. Proving
that an actual request or demand for money or gifts was made as
prescribed by ROH § 29-13.1 is a requisite element of ROH § 29-
13.2.
In addition, “the plain language rule of statutory
construction . . . does not preclude an examination of sources
other than the language of the [ordinance] itself even when the
language appears clear upon perfunctory review.” Keliipuleole
v. Wilson, 85 Hawaiʻi 217, 221, 941 P.2d 300, 304 (1997). One
such source is the legislative history, from which courts may
“discern the underlying policy [that] the legislature sought to
promulgate.” State v. McKnight, 131 Hawaiʻi 379, 388, 319 P.3d
298, 307 (2013). If a court could not examine other sources,
such as legislative history, a court may be “unable to determine
if a literal construction would produce an absurd or unjust
16
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
result, inconsistent with the policies of the [ordinance].”
Keliipuleole, 85 Hawaiʻi at 221, 941 P.2d at 304.
The purpose of ROH § 29-13.2 is emphasized in the bill
that created the ordinance. The primary concern of the Honolulu
City Council (Council) in passing Bill 108, FD1 (1996) was that
“a new form of solicitation has been occurring on the crowded
sidewalks and public places of Waikiki: Persons soliciting
monetary donations, purportedly for wildlife preservation or
environmental causes, have been carrying brightly colored exotic
birds -- usually parrots -- to attract and stop pedestrians.”
Bill 108, FD1 at 1 (1996) (passed as Ordinance 97-66) (emphases
added). The Bill notes that “[t]here are reports of
unscrupulous solicitors demanding a fixed amount of money from
these tourists, and refusing to give back the tourist’s camera
until payment is made.” Bill 108, FD1 at 1 (1996) (emphasis
added).
The Council found that the “regulation of solicitation
using animals” was necessary to prevent fraud, ensure the
orderly flow of pedestrian traffic, protect the public against
injuries and disease from the animals, and preserve and protect
the aesthetic ambiance of Waikiki. Id. at 2 (emphasis added).
However, the Council added, “[a]t the same time, the Council
desires to protect and preserve the rights to conduct expressive
activities under the First Amendment of the United States
17
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Constitution and Article I, Section 4 of the Constitution of the
State of Hawaii.” Id.
Thus, the Council enacted ROH § 29-13.2 to regulate
persons who made requests or demands of money from tourists or
others and used animals in furthering the solicitation. The
Council did not seek to prevent persons from displaying animals
in Waikiki or even from allowing other people to have their
pictures taken with animals in Waikiki. The Council sought
instead to prohibit a person from requesting or demanding money
or gifts from another person and using an animal to further the
solicitation unless specific guidelines were followed.9
Therefore, requiring the State to prove that an actual request
or demand for money or gifts occurred in order to convict a
person of violating ROH § 29-13.2 is in accordance with the
Council’s purpose in enacting the ordinance and with the
ordinance’s plain meaning.
The complaint in this case sets forth the elements of
the offense defined in ROH § 29-13.2, stating that “[Abel] did
intentionally, knowingly, or recklessly use any live animal in
furtherance of any solicitation . . . in violation of [ROH §]
29-13.2(b)[.]” The complaint included the definition of the
term “solicitation,” as meaning “to request or demand money or
9
Those guidelines are outlined in subsections (a)-(e) in ROH § 29-
13.2. See supra note 1.
18
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
gifts.” [ROA 4-5] Thus, the complaint correctly alleges that
proof of a request or demand for money or gifts must be proved
by the State in order to convict Abel of violating ROH § 29-
13.2.
B.
The district court appears not to have considered
solicitation to be an essential element of the case. The court
did not make a factual finding that a request or demand for
money or gifts was made, or that any of Abel’s gestures or words
indicated a request or demand for money. The court’s oral
findings stated only that “there was an exchange of cash
immediately following the activity of picture taking.” [Tr.
12/17/12 at 22]
Similarly, the district court’s written findings of
facts stated that “Officer Christensen observed Defendant
placing birds on an individual while on Kalakaua Avenue.
Defendant then took pictures of the individual with the birds.
The individual then handed Defendant an unknown amount of
money.” Thus, the court also did not make a written finding
that Abel made a request or demand for money or gifts.
The district court’s conclusion of law ¶ 2 stated
“when Defendant . . . placed birds on another individual, took
pictures of said individual with the birds, then accepted an
unknown amount of money, Defendant intentionally, knowingly or
19
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
recklessly solicited with animals in the Waikiki Special
District.” This conclusion of law indicates that in the court’s
view, “when Defendant placed birds on another individual, took
pictures . . . then accepted money,” the Defendant had
“solicited with animals.”
The State appears to have analyzed the statute in a
similar manner as the district court. The State asserts that it
“does not need to prove that a ‘solicitation’ actually took
place, as defined by ROH § 29-13.1.” The State focuses instead
on the words “in furtherance,” and argues that, absent proof of
an actual request for money or gifts, a person could be
convicted of violating ROH § 29-13.2 if the person’s conduct
sufficiently “promoted” solicitation and the person acted in a
way contrary to one of ROH § 29-13.2’s specific subsections.
However, neither the State’s nor the district court’s
analysis is correct. The purpose of ROH § 29-13.2, based upon
its plain meaning and its legislative history, is to prevent a
specific form of solicitation. A solicitation is an essential
element of ROH § 29-13.2, and a solicitation is defined as a
request for money or gifts. See HRS § 702-205; Cummings, 101
Hawaiʻi at 144, 63 P.3d at 1114; ROH § 29-13.1. Thus, the State
was required to prove that a request or demand for money or
gifts was made in order to prove the offense.
20
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
The district court made no finding that a request or
demand for money had occurred. By not requiring proof of this
element, the district court found Abel guilty of violating ROH §
29-13.2(b) without requiring proof of a solicitation.
C.
Based on our determination that a request or demand
for money or gifts is an element of ROH § 29-13.2, we consider
whether there was sufficient evidence to support the conviction.
The standard of review for sufficiency of the evidence is well
established:
[E]vidence adduced in the trial court must be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to
support a conviction[.] The test on appeal 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. Indeed, even if it could be said in a
bench trial that the conviction is against the weight of
the evidence, as long as there is substantial evidence to
support the requisite findings for conviction, the trial
court will be affirmed.
State v. Eastman, 81 Hawaiʻi 131, 135, 913 P.2d 57, 61 (1996)
(emphasis added). Substantial evidence is “credible evidence
which is of sufficient quality and probative value to enable a
person of reasonable caution to support a conclusion.” State v.
Fields, 115 Hawaiʻi 503, 512, 168 P.3d 955, 964 (2007) (brackets
omitted); see also Eastman, 81 Hawaiʻi at 135, 913 P.2d at 61.
As discussed, the offense of Solicitation With Animals
in Waikiki Special District requires that the State establish
that a request of money or gifts was in fact made. ROH §§ 29-
21
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
13.1 and 13.2. However, the evidence showed only that Abel
transferred an animal to another person, took a picture of that
person, and then that person gave Abel money. The State’s only
witness acknowledged that she could not hear anything said by or
to Abel. Consistent with the evidence presented, the district
court made no finding of a request or demand for money.
The ICA found that Abel “used his birds in furtherance
of solicitation by reaching out to people with his birds,
placing his birds onto other people,” and then taking pictures
of the people and receiving money from them. (Emphasis added).
However, in describing the conduct of “reaching out to people
with his birds,” Sgt. Christensen was answering a specific
question as to how Abel transferred the birds to other people,
not describing a request or demand for money or gifts.
Consequently, Abel’s reaching out to place the birds on the
individuals did not provide substantial evidence that Abel made
a request or demand for money or gifts.
Further, there were no other facts circumstantially
showing a request or demand for money. Sgt. Christensen did not
hear any conversations between Abel and other individuals, or
overhear any statement or comment regarding a fee. There was no
evidence that Abel had a sign requesting money or a tip jar on
the public sidewalk that would imply money was expected.
Likewise, there was no evidence that Abel made any hand or head
22
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
gestures indicating a request for money. Thus, there was
insufficient evidence to show solicitation, and consequently
insufficient evidence to sustain Abel’s conviction under ROH §
29-13.2(b).10
V. Conclusion
Accordingly, the ICA erred in affirming Abel’s
conviction, and the ICA’s Judgment on Appeal and the district
court’s judgment of conviction are reversed.
James S. Tabe /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Keith M. Kaneshiro and
Brandon H. Ito /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
10
In State v. Xiao, 123 Hawaiʻi 251, 231 P.3d 968 (2010), the
defendant was accused of prostitution for engaging in sexual conduct with an
undercover police officer after the officer purchased forty-dollar drinks for
her. Id. at 252-255, 231 P.3d at 969-972. The Xiao court held that there
had to be a causal link between the payment of the fee and the illegal
activity: “there must be evidence of an understanding on the part of [the
defendant] that the forty-dollar drink (i.e., the ‘fee’) paid for by [the
officer] was to buy sexual favors from her. Without such evidence, there can
be no prostitution.” Id. at 260, 231 P.3d at 977.
The offense of Solicitation With Animals in Waikiki Special
District likewise requires a link between the “use” of “any live animal” and
the “request or demand [for] money or gifts.” ROH §§ 29-13.1-13.2. Because
the State did not prove a solicitation had been made in this case, the
requirement of a link between the solicitation and the use of the animal is
not presented.
23