State v. Ibarra. ( 2023 )

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-MAR-2023
11:44 AM
Dkt. 24 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
PAOLA IBARRA,
Petitioner/Defendant-Appellant,
and
GUSTAVO FERREIRA,
Respondent/Co-Defendant-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-19-000697; 1CPC-XX-XXXXXXX)
MARCH 15, 2023
McKENNA, WILSON, AND EDDINS, JJ., AND
RECKTENWALD, C.J., DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY WILSON, J.
I. INTRODUCTION
This case arises from Petitioner/Defendant-Appellant
Paola Ibarra’s (“Ibarra”) jury conviction for promoting
prostitution in violation of Hawaiʻi Revised Statutes (“HRS”) §
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
712-1203(1) (2016).1,2 After the jury returned its verdict of
guilty, Ibarra filed a motion for judgment of acquittal, or in
the alternative, for a new trial, that was denied. At issue is
whether a reasonable juror could have concluded that Ibarra
“profit[ed] from prostitution” within the meaning of HRS § 712-
1201 (2016).3
Because there was insufficient evidence that the
defendant gained some benefit or value from another’s
prostitution activity, we reverse the circuit court’s judgment
of conviction and the ICA’s judgment on appeal affirming the
conviction.
1 The versions of the statutes applicable to this case are those
that went into effect in October 2017 (incorporating amendments from 2016).
2 HRS § 712-1203(1) (2016) provides: “A person commits the offense
of promoting prostitution if the person knowingly advances or profits from
prostitution.”
3 HRS § 712-1201 (2016) provides:
(1) A person “advances prostitution” if, acting other than as a
prostitute or a patron of a prostitute, the person knowingly
causes or aids a person to commit or engage in prostitution,
procures or solicits patrons for prostitution, provides persons
for prostitution purposes, permits premises to be regularly used
for prostitution purposes, operates or assists in the operation
of a house of prostitution or a prostitution enterprise, or
engages in any other conduct designed to institute, aid, or
facilitate an act or enterprise of prostitution.
(2) A person “profits from prostitution” if, acting other than as
a prostitute receiving compensation for personally-rendered
prostitution services, the person accepts or receives money or
other property pursuant to an agreement or understanding with any
person whereby the person participates or is to participate in
the proceeds of prostitution activity.
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
II. BACKGROUND
A. Circuit Court Proceedings
1. Charges
On November 15, 2017, the State charged Ibarra and co-
defendant Gustavo Ferreira (“Ferreira”) with sex trafficking in
violation of HRS § 712-1202(1)(a) and kidnapping in violation of
HRS § 707-720(1)(e).
2. Jury Trial
At trial, both Ibarra and the complaining witness
(“CW”) testified that they flew from Oakland, California to
Honolulu, Hawaiʻi together on October 31, 2017.4 Ibarra paid for
her own and CW’s airfare. Once in Hawaiʻi, Ibarra and CW stayed
in hotel rooms in Waikiki together, which Ibarra also paid for.
CW testified that it was her understanding that she
and Ibarra were going to Hawaiʻi to “strip and dance” and that CW
was going to repay Ibarra for her share of the airfare and hotel
rooms as CW made money while in Hawaiʻi. Ibarra testified that
CW characterized the trip as a “paycation[,]” meaning that they
were on vacation but still getting paid. Samantha King
4 CW testified that the reason her and Ibarra planned the trip to
Hawaiʻi was because CW reached out to Ibarra after seeing Instagram posts of
Ibarra in Hawaiʻi. CW explained that she asked Ibarra to take her along next
time Ibarra went to Hawaiʻi. CW further testified that she “had an idea” that
Ibarra was involved in prostitution when she reached out to Ibarra.
The dissent states that “CW and Ibarra arranged over Instagram to
travel together to Hawaiʻi[,]” but omits the detail that it was CW who reached
out to Ibarra on Instagram in order to initiate the trip to Hawaiʻi.
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
(“King”), a long-time friend of CW’s, testified that CW was
“fully” aware that she was going to Hawaiʻi to engage in
prostitution, and not just to strip and dance.
After arriving in Hawaiʻi, Ibarra paid for and posted
prostitution advertisements for her and CW on a website called
Backpage. Ibarra took photographs of CW, and CW took
photographs of Ibarra for the advertisements. Each of the
advertisements indicated that it was for a “two-girl special.”
Calls from potential customers would go to Ibarra and CW’s cell
phones individually. CW came to Hawaiʻi with two cell phones and
had control over both at all times. CW testified that she set
the prices for her own prostitution dates. Ibarra testified
that she and CW would go on prostitution dates together for
safety, but that she and CW would not engage in sexual acts with
a customer together. CW testified that she and Ibarra
participated in sexual acts together on “maybe two or three”
prostitution dates.
Ibarra testified that she and co-defendant Ferreira
had an intermittent romantic relationship. Ibarra explained
that they broke up in mid-September of 2017 when Ferreira
discovered that Ibarra engages in prostitution, and that they
were not “boyfriend, girlfriend” at the time of the trip to
Hawaiʻi.
4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Ferreira joined Ibarra and CW in Hawaiʻi on November 3,
2017. CW testified that between October 31 and November 2, it
was her choice to answer her phone, to make dates, set prices,
and engage in sexual acts for money. CW further testified that
she was not scared of Ibarra and that she had a good time in
Hawaiʻi when it was just her and Ibarra. However, CW stated that
“the vibe chang[ed]” when Ferreira arrived.5
CW testified that before Ferreira arrived, she gave
Ibarra all of the money that she made from engaging in
prostitution activities because “[n]ot only did [Ibarra] ask,
but it only felt right because [Ibarra] had paid [CW’s] way to
come to Hawaiʻi.”6 After Ferreira arrived, CW testified that she
gave all of the money that she made from prostitution activities
directly to Ferreira. According to Ibarra, Ibarra told CW that
Ibarra would front the costs of the trip, and that CW “would
just pay [Ibarra] back once [CW] made the money.” Ibarra
further testified that CW did not give Ibarra money that CW made
5 CW testified that she witnessed Ferreira “slapping [Ibarra]
around” a few times and “slamming her on the ground” while in Hawaiʻi. Ibarra
testified that Ferreira never hit her.
CW also stated that there was “more pressure” to go on prostitution
dates after Ferreira arrived, but “[n]ot necessarily force.”
6 The dissent states that “CW attested that though there was no
agreement, she paid Ibarra because she felt obligated.” It is important to
note that it was not Ibarra’s behavior that made CW feel obligated to repay
her. Rather, CW testified that if she chose not to repay Ibarra, she would
have “[b]een greedy” and that she “gave [Ibarra] the money because [she]
thought that was right[.]”
5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
from prostitution activities “[o]ther than what...our
arrangement was[.]”
3. Verdict
On October 22, 2018, the jury returned a verdict of
guilty against Ibarra for the lesser included offense of
promoting prostitution in violation of HRS § 712-1203(1). The
jury found Ferreira not guilty on all charges.
4. Ibarra’s Motion for Judgment of Acquittal, or in
the alternative, Motion for New Trial Is Denied
On October 30, 2018, Ibarra filed a motion for
judgment of acquittal, or in the alternative, a motion for new
trial. As noted, in order to be convicted of promoting
prostitution under HRS § 712-1203(1), a person must “knowingly
advance[] or profit[] from prostitution.” Ibarra argued that
she cannot be convicted of promoting prostitution under HRS §
712-1203 because she neither advanced nor profited from CW’s
prostitution.
Ibarra noted that the definition of “advances
prostitution” in HRS § 712-1201(1) excludes a person that is
“acting as a prostitute” themself from being found guilty.
Ibarra argued that she was acting as a prostitute herself at all
times, and thus cannot be convicted of advancing the
prostitution of CW. That is, “[t]he taking of the photographs,
the preparation of advertisements [], the posting of the
6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
advertisements [], the accompaniment on the prostitution dates,
[and] the prostitution dates all involved [] Ibarra, as well as
CW [], acting as prostitutes.”
Ibarra also contended that she did not “profit from
prostitution” as defined in HRS § 712-1201(2) because the money
she received from CW was for reimbursement only.
Finally, Ibarra pointed to the legislative history of
HRS §§ 712-1201 and 712-1203 reflecting that the legislature was
intending to target those who benefit the most from
prostitution, such as sex traffickers and pimps, not prostitutes
themselves. Ibarra noted that CW “confirmed that she
voluntarily and willingly engaged in prostitution, . . . that
Ibarra did not use force, threats, fraud or intimidation” and
that CW “never told Ibarra that she did not want to engage in
prostitution[.]”
The circuit court denied Ibarra’s motion for judgment
of acquittal, or in the alternative, motion for new trial. The
circuit court agreed that Ibarra was barred from conviction for
promoting prostitution under the “advancement” alternative
pursuant to HRS § 712-1201(1). The circuit court concluded that
“the definition of advances prostitution” exempts from
conviction “those acting as prostitutes[.]” In light of the
evidence adduced at trial, the circuit court found that “no
reasonable juror could have found that [Ibarra] did not fall
7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
within the statutory exception” because Ibarra herself was
acting as a prostitute at all times that she was advancing CW’s
prostitution.
However, the circuit court found that a reasonable
juror could find Ibarra guilty of promoting prostitution under
the “profit” alternative pursuant to HRS § 712-1201(2).
Specifically, the circuit court held that a reasonable juror
“could have found that [Ibarra] and [CW] had an agreement or
understanding that [CW] would pay [Ibarra] back for any airfare
and/or half of the hotel room costs.” The circuit court also
found that a reasonable juror could have concluded that Ibarra
knew the money paid to her by CW was from CW’s prostitution
activities, personally rendered by CW and not by Ibarra. Under
this analysis, the circuit court concluded that the jury found
Ibarra guilty of promoting prostitution under the “profit”
alternative and denied Ibarra’s motion for judgment of acquittal
or in the alternative, motion for new trial.
5. Judgment of Conviction
On September 11, 2019, the circuit court entered its
judgment of conviction. Ibarra was sentenced to a five-year
term of probation and required to register as a sex offender
pursuant to HRS § 846E-1.
8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
B. ICA Proceedings
On appeal, the ICA affirmed Ibarra’s conviction in a
Summary Disposition Order (“SDO”) filed May 27, 2022. The ICA
found that substantial evidence supported the finding that
Ibarra profited from prostitution because Ibarra testified that
she and CW had an agreement that CW would pay money to Ibarra
that CW earned by rendering services as a prostitute. The ICA
explained that “profits from prostitution” in HRS § 712-1201(2)
is not defined in the financial accounting sense of profit, but
rather, a defendant “profits from prostitution” if they
“accept[] or receive[] money” other than for prostitution
services the defendant personally renders.
C. Supreme Court Proceedings
Ibarra filed a timely application for writ of
certiorari, contending that she could not have profited from
prostitution where CW simply paid Ibarra back for CW’s airfare
and CW’s share of the hotel rooms.
III. STANDARDS OF REVIEW
A. Sufficiency of the Evidence
The test on appeal regarding sufficiency of the
evidence is whether there is substantial evidence to support the
conclusion of the trier of fact. See State v. Mattiello, 90
Hawaiʻi 255, 259, 978 P.2d 693, 697 (1999) (internal citations
omitted). “Substantial evidence” is “credible evidence which is
9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
of sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion.” Id. (brackets and
citations omitted). Additionally, “evidence 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.” Id.(citations and internal quotation marks omitted).
B. Statutory Interpretation
“The interpretation of a statute is a question of law
which this court reviews de novo.” Labrador v. Liberty Mut.
Group, 103 Hawaiʻi 206, 211, 81 P.3d 386, 391 (2003) (citations,
internal quotation marks, and brackets omitted).
IV. DISCUSSION
A. To profit from prostitution within the meaning of HRS §
712-1201(2), a defendant must obtain value, or benefit
from, another’s prostitution activity
Ibarra was convicted of promoting prostitution in
violation of HRS § 712-1203(1), which provides that “[a] person
commits the offense of promoting prostitution if the person
knowingly advances or profits from prostitution.” (emphasis
added). HRS § 712-1201(1) defines what constitutes “advanc[ing]
prostitution”:
[a] person “advances prostitution” if, acting other than as a
prostitute or a patron of a prostitute, the person knowingly
causes or aids a person to commit or engage in prostitution,
procures or solicits patrons for prostitution, provides persons
for prostitution purposes, permits premises to be regularly used
for prostitution purposes, operates or assists in the operation
of a house of prostitution or a prostitution enterprise, or
10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
engages in any other conduct designed to institute, aid, or
facilitate an act or enterprise of prostitution.
(emphasis added). In the order denying Ibarra’s motion for
judgment of acquittal, or in the alternative, for a new trial,
the circuit court’s unchallenged finding of fact (“FOF”) No. 12
states “that in all instances where [Ibarra] took action to
advance prostitution[,] she herself was also acting as a
prostitute” and thus, a reasonable jury could not find Ibarra
guilty of promoting prostitution under the “advancement”
alternative.
However, the circuit court concluded that a reasonable
juror could find Ibarra guilty of promoting prostitution under
the “profit” alternative. A person “profits from prostitution”
if “acting other than as a prostitute receiving compensation for
personally-rendered prostitution services, the person accepts or
receives money or other property pursuant to an agreement or
understanding with any person whereby the person participates or
is to participate in the proceeds of prostitution activity.”
HRS § 712-1201(2). Despite the circuit court’s finding that
Ibarra was merely paid back for expenses that she fronted, the
circuit court held that reimbursement constitutes “profit[ing]”
within the meaning of the statute, because Ibarra knew that she
was reimbursed from the proceeds of CW’s prostitution activity.
The circuit court’s interpretation of “profits from
prostitution” is overbroad because it does not account for the
11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
ordinary definition of the term “profit.” The ordinary meaning
of the term “profit” in HRS § 712-1201(2) is “a valuable
return,” “gain” or “the excess of returns over expenditure in a
transaction or series of transactions[.]” Profit, Merriam-
Webster, https://www.merriam-webster.com/dictionary/profit (last
visited Dec. 8, 2022). Put another way, a person “accept[ing]
or receiv[ing] money or other property” must be benefitting or
obtaining something of value, in order to come within the scope
of the statute. HRS § 712-1201(2). Otherwise, the term
“profit” itself would be meaningless. Indeed, there is no
ordinary definition of “profit” which includes mere
reimbursement.
The legislative intent of HRS §§ 712-1203 and 712-1201
supports interpreting the language “accepts or receives money or
other property” in light of the plain meaning of “profit.” HRS
§ 712-1201(2). When interpreting a statute, “[a] court may
examine [] sources [other than the language itself], including a
statute’s legislative history, in order to discern the
underlying policy [that] the legislature sought to promulgate in
the enactment of the statute.” O’Grady v. State, 141 Hawaiʻi 26,
28, 404 P.3d 292, 294 (2017) (citations and quotations omitted).
As Ibarra points out, in the 2011 amendments to the statute, the
legislature stated that the purpose was to target “those who
benefit most from [] prostitution[,]”:
12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Your Committee finds that prostitution remains a concern within
Hawaii communities, not only for the prostitution activity
itself, but also for the criminal conduct that it can bring to
the area within which it occurs. However, there are also concerns
that some of those engaged in prostitution are victims of human
traffickers or others and are thus coerced into prostitution.
Accordingly, it is incumbent on the State to craft legislation
that combats those who benefit most from the prostitution, the
traffickers and pimps, while providing protection to victims of
traffickers who step forward seeking safety, and addresses the
demand for prostitution by assuring that habitual patrons are
penalized when they engage in this conduct. Your Committee
believes that thoughtful legislation in those areas will act to
protect those victimized by prostitution, including those coerced
into prostitution and residents of sensitive communities that
must grapple with the effects of prostitution and related
criminal activities.
Stand. Comm. Rep. No. 1137, in 2011 Senate Journal, at 1284-85.
(emphases added). Thus, the apparent legislative intent was to
target those who benefit from prostitution without engaging in
prostitution themselves (e.g., pimps and sex traffickers).
Given the legislative intent to target those who
“benefit most” from prostitution, a defendant who is merely
reimbursed for expenses has not “profit[ed] from prostitution”
within the intended meaning of HRS § 712-1201(2). The ordinary
definition of the term “benefit” is “to be useful or profitable
to” or “to receive help or an advantage[.]” Benefit (verb),
Merriam-Webster, https://www.merriam-webster.com/dictionary/
benefit (last visited Dec. 22, 2022). The circuit court’s
unchallenged FOF No. 15 states that a reasonable juror could
have found that there was an agreement or understanding only
that CW would pay Ibarra “back for any airfare and/or half of
the hotel room costs.” That is, Ibarra did not derive any
13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
benefit from CW’s prostitution activity; reimbursement is not
“profitable” nor does it constitute an “advantage[.]” Id.
Rather, reimbursement is the simple act of paying someone back,
and “implies a return of money that has been spent for another’s
benefit.” Reimburse, Merriam-Webster, https://www.merriam-
webster.com/dictionary/reimburse (last visited Dec. 22, 2022).
Given that Ibarra was merely reimbursed, and derived no profit
or benefit (i.e., did not receive any value or an advantage)
from CW’s prostitution activities, the legislature did not
intend Ibarra’s conduct to come within the scope of HRS § 712-
1201(2).7
The phrase “agreement or understanding” in HRS § 712-
1201(2) must also be interpreted in light of the plain meaning
7 The dissent cites to a comment to HRS § 712-1204 (1972), which is
“functionally identical to the present HRS § 712-1203[,]” to argue that
Ibarra’s actions were like those of a taxicab driver, bartender, or hotel
clerk who engage in “small scale acts of trafficking that the provision was
intended to target.” But the record is clear that unlike those small scale
promoters, CW, not Ibarra, made the arrangements for CW's dates. The comment
provides:
This section strikes at the small scale promoter. The
taxicab driver who pimps for a prostitute, the bartender
who sets up customers for a prostitute, and the hotel clerk
who regularly furnishes the prostitute and his or her
customer with accommodations would all come within the
ambit of this provision.
Ibarra’s conduct in the instant case is distinct from the listed examples.
Ibarra did not “pimp” for CW, as did the taxicab driver. Ibarra did not set
CW up with customers as did the bartender; CW answered her own phone and set
her own dates. And Ibarra did not arrange accommodations for CW to engage in
prostitution like the hotel clerk; CW made the arrangements for her own
prostitution dates. CW answered “[y]es” when asked if it would “be fair to
say…that when [she] would get either a call or text on [her] phone, that
[she] would make the date arrangement [her]self.”
14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
of the term “profit” and the legislature’s intent to target
those who benefit most from prostitution without engaging in
prostitution themselves. Ibarra and CW had an “understanding”
that CW would reimburse Ibarra for the airfare and hotel rooms,
and Ibarra knew that she was reimbursed from the proceeds of
CW’s prostitution activities.8,9 However, there was no
8 The circuit court’s unchallenged FOF’s No. 15 and 16 state:
15. In this case, based on the evidence adduced at trial, a
reasonable juror could have found that the Defendant and
complaining witness had an agreement or understanding that the
complaining witness would pay the Defendant back for any airfare
and/or half of the hotel room costs.
16. In this case, based on the evidence adduced at trial, a
reasonable juror could have further found that Defendant knew
that the money paid to the Defendant by the complaining witness
arose from the complaining witness’s prostitution activities.
Thus, the circuit court did not find that Ibarra and CW had an “agreement or
understanding” that CW was to specifically reimburse Ibarra with the proceeds
of CW’s prostitution activity. Rather, the circuit court found that CW and
Ibarra had a general agreement or understanding that CW would pay Ibarra back
for the airfare and half of the hotel room costs, and that Ibarra knew, after
the fact, that the money CW used to reimburse Ibarra was from the proceeds of
CW’s prostitution activity.
9 The dissent states “that there was a pre-existing agreement that
CW would repay [Ibarra] from the proceeds of [CW’s] dates” and it was “within
the province of the jury to credit Ibarra’s testimony and find there was such
an understanding.” However, as noted above (supra n. 8), the circuit court’s
FOF’s No. 15 and 16 state only that (i) there was an agreement that CW was to
reimburse Ibarra for fronting the costs of the trip to Hawaiʻi and (ii) that
Ibarra knew, after the fact, that she was reimbursed from the proceeds of
CW’s prostitution activity. These findings were not challenged on appeal,
and thus “are binding on the appellate court.” Okada Trucking Co. v. Bd. of
Water Supply, 97 Hawaiʻi 450, 458, 40 P.3d 73, 81 (2002); see also Kawamata
Farms v. United Agri Prods., 86 Hawaiʻi 214, 252, 948 P.2d 1055, 1093 (1997)
(defendants “have waived any challenge regarding the findings of fact that
support the circuit court’s denial of their motion for a new trial[.]”).
Assuming arguendo that this court could disregard FOF’s No. 15 and 16, an
agreement requires “[a] mutual understanding between two or more persons
about their relative rights and duties[.]” Agreement, Black’s Law Dictionary
(11th ed. 2019). CW explicitly testified that there was no agreement that
she would repay Ibarra. Accordingly, there was no mutual understanding
continued...
15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
“agreement or understanding” that Ibarra was to benefit (i.e.,
gain value or an advantage) from CW’s prostitution activity.
Interpreting the language “agreement or understanding” in light
of the associated term “profits” requires that there must be an
“agreement or understanding” that the defendant will indeed
benefit or gain value from another’s prostitution activity. See
Advertiser Publishing Co. v. Fase, 43 Haw. 154, 161, (1959)
(“There is a rule of construction embodying the words noscitur a
sociis which may be freely translated as ‘words of a feather
flock together,’ that is, the meaning of a word is to be judged
by the company it keeps.”). The State did not prove that Ibarra
and CW had an agreement or understanding whereby Ibarra was to
gain value or benefit from CW’s prostitution activity.
The interpretation of “profits from prostitution”
relied upon by the circuit court and the ICA would broaden the
scope of the statute beyond the meaning intended by the
legislature.10 The legislature explicitly intended to craft
. . . continued
between Ibarra and CW that CW was going to reimburse Ibarra from “the
proceeds of [CW’s] prostitution activity[,]” as required by HRS § 712-
1201(2). Thus, even under the dissent’s interpretation, where HRS §§ 712-
1201(2) and 712-1203 penalize “any agreement or understanding to receive the
proceeds of another person’s prostitution activities[,]” Ibarra’s conduct
does not fall within the scope of the statute.
10 Ibarra notes that if her conduct falls within the scope of HRS §
712-1201(2), then if CW paid Ibarra back for a pack of gum, it would
constitute “profiting from prostitution” as well. The dissent dismisses this
argument, contending that it “ignores the language specifying that the
continued...
16
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
legislation targeting only “those who benefit most from the
prostitution” and not prostitutes themselves. Stand. Comm. Rep.
No. 1137, in 2011 Senate Journal, at 1284-85. (emphasis added).
Accordingly, the State failed to prove that Ibarra “profit[ed]
from prostitution,” within the meaning of HRS § 712-1201(2).11,12
. . . continued
receipt of money must be “pursuant to an agreement or understanding.”” The
fact that “there must be a preexisting agreement or understanding wherein
both parties agree that one party will engage in prostitution and that some
or all of the proceeds will go to the other party” does not refute the point.
As an example, person X and person Y are long-time friends that both engage
in prostitution. X does not have money for lunch, so Y agrees to pay for X’s
meal, pursuant to an understanding that X will reimburse Y from the proceeds
of the prostitution date that X independently scheduled for later that day.
Under the dissent’s interpretation of HRS § 712-1201(2), Y would be guilty of
promoting prostitution.
11 The dissent asserts that interpreting HRS § 712-1201(2) to
require the defendant obtain value from another’s prostitution activity risks
creating a safe harbor for traffickers. Specifically, the dissent states
that sex traffickers may provide funds or assistance, which the victim agrees
to repay, but if “the loan proves prohibitively difficult to repay, [] the
victim is trapped in a coercive dynamic.” However, because the criminal
conduct the dissent is concerned would receive safe harbor protection is
criminalized elsewhere in Hawaiʻi law, there is no such safe harbor created
for traffickers who provide coercive loans to victims. HRS § 712-1203, for
example, provides that a person is guilty of “promoting prostitution” if they
“advance[] prostitution” or “profit[] from prostitution.” Under the
advancement alternative, a person is guilty if the person “knowingly causes
or aids a person to commit or engage in prostitution, procures or solicits
patrons for prostitution, provides persons for prostitution purposes, permits
premises to be regularly used for prostitution purposes, operates or assists
in the operation of a house of prostitution, or a prostitution enterprise, or
engages in any conduct designed to institute, aid or facilitate an act or
enterprise of prostitution.” HRS § 712-1202(1) also provides that a person
is guilty of sex trafficking if they knowingly advance prostitution “by
compelling or inducing a person by force, threat, fraud, coercion, or
intimidation to engage in prostitution[.]” Thus, the dissent’s concern about
creating a safe harbor is not a reason to contradict legislative intent and
criminalize reimbursement between friends from funds gained from
prostitution.
Moreover, the dissent’s interpretation, which would seemingly result in
finding that a person is guilty of profiting from prostitution where they are
knowingly reimbursed from the proceeds of another’s prostitution activity,
risks criminalizing the conduct of those like Ibarra, in cases where “the
continued...
17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
V. CONCLUSION
For the foregoing reasons, the ICA’s June 20, 2022
judgment on appeal, the circuit court’s September 11, 2019
judgment of conviction, and the circuit court’s October 21, 2019
order denying Ibarra’s motion for judgment of acquittal, are
reversed.
Myron H. Takemoto /s/ Sabrina S. McKenna
for Petitioner
/s/ Michael D. Wilson
Brian R. Vincent
for Respondent /s/ Todd W. Eddins
. . . continued
equities” do not favor conviction, as the circuit court explicitly
acknowledged. Convicting Ibarra of promoting prostitution because she
received funds for reimbursement of a personal debt from a friend who earned
the money as a prostitute, and requiring her to register as a sex offender
serves no public safety purpose, but limits her professional opportunities
and makes it more likely that she will continue to engage in prostitution.
Adopting the dissent’s interpretation could lead to the criminalization of
landlords, personal friends, retail establishments, grocery stores and day
care centers who receive money from people – including single parents — if
they believe the money was earned through prostitution. The legislature did
not intend to so cripple the welfare of those seeking to survive through
prostitution.
12 Ibarra also contends that the circuit court erred in failing to
ensure that Ibarra’s waiver of her right not to testify was knowing,
intelligent and voluntary. The ICA was correct to conclude that the circuit
court was not required to engage Ibarra in a Tachibana colloquy prior to her
testimony. State v. Lewis, 94 Hawaiʻi 292, 296, 12 P.3d 1233, 1237 (2000)
held that an ultimate Tachibana colloquy is not required in cases where the
defendant testifies. Although State v. Torres, 144 Hawaiʻi 282, 285, 439 P.3d
234, 237 (2019) held that a Tachibana colloquy must be given in all trials,
including where a defendant testifies, this requirement was imposed
prospectively only. Because Torres was decided after Ibarra’s trial, Lewis
is controlling, and the circuit court was not required to engage Ibarra in a
Tachibana colloquy.
18