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IN THE SUPREME COURT OF THE STATE OF HAWAfI
--- 000 ---
STATE OF HAWATI, Respondent/Plaintiff-Appellee,
vs.
JING HUA XIAO; Petitioner/Defendant-Appellant.
NO. 28370
(HPD CRIM NO. O6295746)
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MOON, C.J., NAKAYAMA, DUFFY, and RECKTENWALD§§§@.;
CONCURRING SEPARATELY §§
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MAY 25, 2010 .
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ACOBA,.J.,
OPINION OF THE COURT BY MOON, C.J.
On March 29, 20l0, this court accepted petitioner/
defendant-appellant Jing Hua Xiao’s application for a writ of
(ICA)
certiorari to review the Intermediate Court of Appeals’
December 3, 2009 judgment on appeal, entered pursuant to its
November l3, 2009 summary disposition order. Therein, the ICA
affirmed the District Court of the First Circuit'sl December l2,
2006 judgment, convicting Xiao of prostitution in violation of
HawaiH Revised Statutes (HRS) § 712-l200(l) (l993 and Supp.
20O8).2
1 »The'Hon0rable Edwin C. Nacino presided.
2 HRS § 712-1200 provides;
Prostitution.
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(l) A person commits the offense of
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Briefly stated, pursuant to a police undercover
investigation for possible prostitution activities at Club Sara
Lee in Honolulu, Xiao was charged with prostitution based upon
“slow dancing” with an undercover police officer, who had bought
her several drinks, during which she engaged in sexual conduct,
ig§g, rubbing her body and breasts up against the officer’s body
and groin area. Following a bench trial, Xiao was convicted, and
she appealed. On direct appeal before the ICA, Xiao argued that
there was insufficient evidence to support her conviction. The
ICA disagreed and affirmed her conviction.
On application, Xiao argues that the ICA erred in
concluding that there was sufficient evidence that she engaged in
sexual conduct for a fee. More specifically, she argues, inter
glia, that “there [wa]s absolutely no evidence adduced that the
drink[s] she received constituted a fee” and any sexual conduct
Athat went on between herself and Officer Wagner was “merely
gratuitous.”3
2(...continued)
prostitution if the person engages in, or agrees or offers
to engage in, sexual conduct with another person for a fee.
(2) As used in subsection (l), “sexual conduct” means
“sexual penetration,” “deviate sexual intercourse,” or
“sexual contact,” as those terms are defined in [HRS §] 707-
700 [(Supp. 2006)].
(Bold emphasis in original.) (Underscored emphasis added.)
3 Xiao also contends that “there [wa]s absolutely no evidence that
would confirm that . . . Xiao received monetary compensation from anyone for
the purchase of the drink” and that the ICA's decision in this case is
inconsistent with its decision in State v. Schneider, 120 HawaiH_418, 209
P.3d 195 (App. June 26, 2009) (SDO). Inasmuch as we vacate the judgment of
(continued...)
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Based on the discussion below, we hold that there was
insufficient evidence to convict Xiao under HRS § 712-l200(1).
We, therefore} vacate the ICA's judgment on appeal and reverse
Xiao's conviction.
I. BA£IU3RCHDHD
On October 8, 2006, Xiao was arrested for prostitution
based on an encounter between Xiao and Honolulu Police Department
(HPD) undercover officer Joel wagner (Officer Wagner) at Club
Sara Lee on July 24, 20O6.4 On December l2, 2006, Xiao was
orally charged as follows:
You are charged that on or about July 24th, 2006, in the
City and County of Honolulu, State of HawaFi, you did
engage in or agree to offer to engage in sexual conduct with
another person for a fee, thereby committing the offense of
[p]rostitution in violation of [HRS §] 712-l200(1)[.]
Xiao pleaded not guilty to the charge.
A. Non-Jury Trial
Xiao’s bench trial commenced on December l2, 2006 and
lasted one day. The sole evidence presented by respondent/
plaintiff-appellee State of HawaiH_(the prosecution) was the
testimony of Officer Wagnerf
3(...continued)
the ICA and reverse Xiao’s conviction based on her first point of error, we do
not address her remaining contentions.
4 There is no indication in the record as to why Xiao's arrest occurred
two and a half months after the encounter between Xiao and Wagner at Club Sara
Lee. As previously indicated, Wagner's presence at the club was part of an
undercover investigation into possible prostitution activities in the club.
Thus, Xiao’s arrest was presumably delayed because of the ongoing undercover
investigation. t ` '
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On direct examination, Officer wagner testified that,
on the evening of July 24, 2006, he was working undercover with
the morals detail of the narcotics-vice division of the HPD,
investigating possible prostitution activity at Club Sara Lee, a
bar in Honolulu. According to Officer wagner, Xiao entered a
karaoke room at the bar that Officer wagner shared with another
HPD officer and another female. He testified that he knew Xiao
from other nights that he had visited Club Sara Lee. As to the
events that took place in the karaoke room, Officer wagner
testified as follows:
Q. [By the prosecution] [T]ell us what happened[.]
A. [By Officer wagner] [Xiao] came to me[,] and we
greeted each other. we sat down, she asked if she could
have a drink. I asked if there were any other types of
drinks than [the] twenty-dollar type that I had bought her
on previous occasions, and she said yes, there are other
types.
Q. Okay. So, you asked her if there are any other
types of drinks. Okay, so then what happened.
A. She said . . . there’s a forty-dollar type of
drink as well. .
Q. So then what did you say?
A. 1 said go . . . and get yourself a forty-dollar
drink. 1 then gave her some of the pre-recorded money that
we had, that I had been issued. l
Q. Did you give her a full forty dollars?
A. Yes. 2
Q. Okay, And did she actually go get you the drink
herself?
A. She went and got her ----
Q. I'm sorry, that drink for herself?
A. Yeah, the drinks that she bought, yes, she did go
and get that drink for herself.
Officer wagner explained that, when Xiao returned, she put the
drink down and asked him to dance. Officer wagner then
testified:
[w]e began to dance, [and] I placed my hands on her hips, on
her waist area[. I]t was a slow dance type of movement.
She then pulled herself closer to me and put my hand around
her back, and I_could, and . . . she then began to rub her
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pelvis against me. I then began to get an erection, she
then began to rub her pelvis on my erection, She then said
oh, what’s this, and then began to grind harder on my
[clothed] penis,
Officer wagner explained that, after dancing, Xiao sat “very
close to me, right next to me touching me, and . . . she was
rubbing my thigh with her hand” as they made “small talk.”
According to Officer wagner, he later offered to
purchase Xiao another forty-dollar drink, and, “[w]hen she
returned again,,she put the drink down and asked me to dance
again, . . . and we began to dance in the same manner as before.”
He testified that Xiao “began again to grind her pelvis against
my clothe[d] penis and that lasted for a lot of the dance.
Toward the end of that dance, she actually squatted and rubbed
her breasts against my [clothed] penis as well.” when asked
specifically “how many times approximately that evening did you
offer to buy her forty-dollar drinks?” on direct examination,
Officer wagner responded, “I’m sure probably three. I really
don't know.”
On cross examination, Officer wagner provided the
following details regarding his encounter with Xiao:
Q. [By defense counsel] At the time that [Xiao]
asked you to purchase a drink, did she offer to engage in
any sexual contact with your conduct [sic]?
[By Officer wagner] No, she didn’t.
Did she offer you a blow job?
No, she didn’t.
Did she offer to rub your penis?
No, she didn’t.
Okay, Did she offer to have intercourse with you?
No, she did not.
. So, there’s no discussion at all of any quid pro
quo for that forty-dollar drink, is that correct?
A. Correct.
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Q. [A]nd during the course of [Xiao rubbing her
pelvis against you], did she say anything to you, such as,
thank you for the drink, this is in return for what I
purchased, what you purchased for me?
A. She did say thank you for the drink. She didn't
say that this is in return for what you purchased for me.
Q. Okay. In fact, she just whispered to you thank ,
you, is that correct?
A. Correct.
Q. So, at no time during the course of this evening
did she ever tell you I will do anything to you for that
forty-dollar drink, is that correct?
A. Correct.
Q. [A]nd during the course of the time where she
rubbed her breasts on you, she never said to you that this
is for the drink that you purchased for me, is that correct?
A. That's correct.
Officer wagner additionally testified that Xiao never:
(l) removed any clothing; (2) exposed herself in any way to him;
(3) put her hand down his pants; or (4) put her mouth on him.
Officer wagner stated that there were other people in the karaoke
room; in other words, it was not “a private place where no one
could see [them] dancing.”
with respect to Officer wagner's perception of Xiao's~
conduct on the night in question, he testified as follows:
Q. [By defense counsel] So . . . your whole mindset
initially going into this establishment is you were looking
for possible, as you said, prostitution activity, is that
correct? v
A. [By Officer wagner] Correct.
Q. [So e]verytime she touched you, correct, you put
in your report that she rubbed herself against you while you
were dancing, you considered that prostitution activity
based on your mindset going in, is that correct?
A. Based on my training and experience, I believe
that to be prostitution activity, yes.
Q. And you indicated while dancing she again rubbed
her pelvis on [your] erect penis, and that to you is
considered prostitution activity?
A. That in conjunction with the payment, yes.
Q. Payment for the drink?
A. Yes.
Q. She did get a drink, correct?
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A. Yes, she did.
Q. And she drank it during the course of your sitting
down with her and talking to you?
A. Yes, she did. '
Q. So it's not like . . . you gave her forty bucks
and she got up and danced such as the situation we have a
lap dance, is that correct?
A. That’s correct.
Officer wagner described their dancing as the type of dancing
that he sees at dance clubs, i.e., “dirty dancing.” The defense
described “dirty dancing” as involving people rubbing their
bodies against the bodies of their dance partners.
During a brief redirect examination, Officer wagner
stated that he had, on previous occasions, purchased twenty-
dollar drinks for Xiao at Club Sara Lee, and she had never asked
him to dance. Following a brief recross and before Officer
wagner was excused, the trial court sought to clarify Officer
wagner's testimony and the following colloquy ensued:
THE COURT: A point of clarificati0n. On direct, you
said three times on [sic] this dancing occurred for forty-
dollars and you said you don't remember. Then [defense
counsel] says in your report it says two times. So, it
would be two times, not three times?
_ THE wITNESS [By Officer wagner]: The two times is
for the prostitution violation, There were more purchases
during the evening.
THE COURT: At forty dollars?
THE wITNESS: At forty dollars..
THE COURT: And no dancing takes place?
THE w1TNESS: 1 can't remember, your Honor.
THE COURT: Okay, so you can't remember that, but you
remember specifically two times there's dances at forty-
dollars and you remember purchasing her forty-dollar drinks
later on but no dancing, is that the testimonV? I'm trying
to clarify that[.] ~
THE wITNEss: g§§.
(Emphases added.) At that point, both counsel indicated they had
no further questions based upon the court's clarifying questions.
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Thus, Officer wagner was excused, and, thereafter, the
prosecution rested.
The defense then moved for a judgment of acquittal,
pursuant to Hawafi Rules of Penal Procedure (HRPP) Rule 29(a)
(200O),5 stating:
[1]f the [trial c]ourt takes the facts in this case in the
light most favorable to the [prosecution]; it's clear from
the testimony of [Officer wagner] that there is no
prostitution case in this matter. [I]f the [trial c]ourt
takes the facts in the light most favorable to the
[prosecution then] they have to prove that there’s an offer
and agreement to engage in sexual conduct for a fee.
‘ Sexual conduct is the touching of the intimate parts
of an actor who the person is not married to, nor living
with. 1 think the evidence produced at this point in time
is that the officer was not married, had never been married
to [Xiao6] and the actual definition of sexual conduct
includes not living with as well. So, that has not been
proven. t
But additionally, . . . the uncontroverted evidence is
that [Xiao] sat with this individual through the night, had
a number of drinks. On . . . two occasions, [he] purchased
a forty-dollar drink which she, in fact, drank [and] got up
and danced with him, and basically, that's the extent of the
testimony of [Officer wagner].
[Officer Wagner] indicated he got excited. [Xiao]
said thank you after he [became] erect, and that was it.
There was no discussion of any sexual conduct, intercourse,
blow job or anything of any significance with reference to
any sexual conduct,
So we believe at this juncture, even given the light
most favorable to the [prosecution], the[ prosecution] ha[s]
not prove[n] the onus of the offense beyond a reasonable
doubt.
1n response, the prosecution asserted that it had made a prima
facie case, specifically stating that:
5 HRPP Rule 29(a) states in relevant part that:
The court on motion of a defendant or of its own motion
shall order the entry of judgment of acquittal of one or
more offenses alleged in the charge after the evidence on
either side is closed if the evidence is insufficient to
sustain a conviction of such offense or offenses.
5 During direct examination, Officer wagner testified that he and Xiao
have never been married.
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Sexual conduct under [HRS § ]707-700 means any touching
whether directly or through the clothing or other material
intended to cover the sexual or other intimate parts. There
was sexual conduct as defined by [HRS § ]707-700 in this
case.
[Officer wagner] specifically testified that [Xiao]
was rubbing her pelvis and her breasts against his penis,
[a] sexual . . . intimate part[] that w[as] intended to be
covered by clothing or other material.
The trial court orally denied Xiao's motion for judgment of
aquittal, stating “[the trial c]ourt[,] taking the evidence in
the light most favorable to the [prosecution,] believes that a
p;im§ fagie case had been made by the prosecution.” Xiao did not
testify, invoking her right to remain silent, and the defense
rested without calling any witnesses.
Thereafter, the following occurred:
THE COURT: So, Madam Prosecutor, you can argue first,
or you just wanna argue and save for rebuttal? whatever
WaY-
[THE PROSECUTOR]: Yeah, 1’ll just -- 1'll incorporate
my --- -
THE COURT: So, just rebut.
[DEFENSE COUNSEL]: Your Honor, we'd incorporate our
previous argument. we’d only note at this juncture, your
Honor, the [c]ourt must not take the evidence in the light
most favorable to the [prosecution] but must find by proof
beyond a reasonable doubt that there was an offer and
agreement to engage in sexual conduct for a fee.
v Clearly, the testimony of [Officer wagner] indicates
there was no verbal offer and agreement to engage in any
sexual conduct for a fee. In fact, he testified as
(indiscernible) did [Xiao] say . . . if you buy me a drink
that 1 will do X minus Z, at no time did that happen¢ 1n
fact, during the course of the evening, apparently, [Officer
wagner] indicated that drinks were purchased other times and
no contact was made between [Xiao] and the officer.
1n fact, in this case, all that happened was that
there was dirty dancing on the floor to the extent of what
happened in this matter. 1f there was some other indicia
that she had agreed to engage any [sic] sexual conduct such
as when she was sitting down with him rubbing his penis or
trying to take down his zipper or things of that nature,
even offering and whispering in his ear, anything with
regard to any sexual contact, it'd be a different situation.
we believe that the burden here is proof beyond a
reasonable doubt, which is a high burden, and the facts in
this case is just not, does not warrant what the legislature
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has determined to be prostitution in this case, So, we'd
ask the [c]ourt to acquit [Xiao].
THE coURT& okay.
{THE PROSECUTOR]: . . . [0fficer wagner] testified
that he had met with [Xiao] on several occasions previously.
He had bought her twenty-dollar drinks several times prior
to this, Never at that time did she ever offer to dance
with him. 1t was only upon offering to buy her a forty-
dollar drink that she asked him to dance and then
subsequently engaged in the sexual contact.
And so, although not explicit in this case, your
Honor, the [prosecution] would contend [that then
prostitution statute] doesn't [require] an explicit will you
touch my penis for forty-dollars. That is not necessary,
but the implicit argument here is that [Officer wagner] buys
[Xiao] this forty-dollar drink, she dances with him. She
then proceeds to touch his penis through the clothing. She
did this twice in exchange for a forty-dollar drink. '
So, therefore, your Honor, [the prosecution] would
contend that there was an engagement and agreement and offer
to engage in sexual conduct with another person not the
spouse of the defendant for a fee. '
Following closing arguments, the trial court found Xiao
guilty as charged, stating:
[B]ased on the evidence presented, [the c]ourt does find
that [the prosecution presented] credible testimony
{establishing that Officer wagner] entered the establishment
on previous occasions, did not dance when purchasing twenty-
dollar drinks. `On the night of the offense, [he] purchased
forty-dollar drinks twice and did, in fact, receive dances
where sexual contact occurred between the parties.
The concern the [c]ourt had was that forty-
dollar drinks were purchased after where no dancing took
place, but had this been just a one-time forty-dollar drink
and dance and then forty-dollars occurring after that and no
dancing, 1 think the argument would be a strong argument for
[Xiao], but based upon it occurring twice the same type of
pattern, [the c]ourt does find that the {prosecution] has
proven beyond a reasonable ddubt that prostitution occurred.
So, 1'm gonna find [Xiao] guilty at this time.
Xiao was then sentenced, pursuant to the guidelines set forth in
HRS § 712-l200(4), to six months probation, a S500 fine, a $75
probation fee, and $35 in court costs. iOn January l0, 2007, Xiao
filed a timely notice of appeal. Her sentence was stayed pending
appeal.
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B. Appeal Before the 1CA
On direct appeal, Xiao argued that the trial court
erred in denying her motion for judgment of acquittal and finding
her guilty of prostitution, specifically contending that the
prosecution failed to present sufficient evidence to support a
prima facie case of prostitution, let alone a finding of guilt.
Xiao asserted that, pursuant to HRS § 712-l200, the prosecution
was required to prove -- as an essential element of the offense
-- that Xiao had engaged in, agreed to, or offered to engage in
some form of sexual conduct with Officer wagner for a fee and
that the prosecution failed to do so. She argued that she, in
fact, never offered any sexual favors and that no specific sexual
conduct was ever offered as a “quid pro quo” for a fee, drink, or
otherwise.
1n its answering brief, the prosecution maintained that
there was sufficient evidence to support Xiao’s conviction; The
prosecution argued that:
HRS § 712-1200 specifies that a violation occurs “if the
person engages in, or agrees or offers to engage in, sexual
conduct with another person for a fee.” while [Xiao]
neither explicitly agreed nor offered to engage in sexual
conduct, the conjunction “or” also allows for the violation
of the statute by engaging in the activity without an
explicit offer or acceptance. A person may violate the
statute by engaging in the prohibited activity pp by
agreeing or offering to do so. 2
(Bold emphasis added.) (Underscored emphasis in original.) The
prosecution pointed to the following evidence in support of the
trial court's verdicts (l) the categorization of drinks not as
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beer or wine, but instead as twenty- or forty-dollar drinks; and
(2) Xiao's initiation of sexual contact -- ig§g, rubbing her
pelvis and breasts against Officer wagner's penis -- subsequent
to Officer wagner giving her forty dollars cash (“ostensibly to
buy the more expensive drink”) on two instances during the night
in question. The prosecution further argued that a verbal
agreement was not necessary; rather, there was an implicit
understanding that Officer wagner would obtain “something more”
for giving Xiao forty dollars to purchase a drink (as opposed to
the twenty-dollar drinks he had purchased in the past).
On November 13, 2009, the 1CA issued its two-page,
five-paragraph summary disposition order, affirming the trial
court's December l2, 2006 judgment of conviction. State v. Xiao,
No, 28370 {App. Nov. 19, 2009) (SDO). Specifically, the 1CA
held, without elaboration, that,
[u]pon careful review of the record and the briefs
submitted by the parties and having given due consideration
to the arguments advanced and the issues raised by the
parties, we resolve Xiao's point of error as follows:
There was substantial evidence to convict Xiao of
[p]rostitution. State v. Eastman, 81 Hawafi 131, 135, 913
P.2d 57, 61 (1996).
SDO at 1. On December 3, 2009, the 1CA filed its judgment on
appeal. Xiao's timely application for a writ of certiorari,
filed March 1, 2010, was accepted by this court on March 29,
2010,
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II. STANDARD OF REVIEW
This court has long held that
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[.] 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. 1ndeed, 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.
Eastman, 81 Hawafi at 135, 913 P.2d at 61 (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 HawaiH.
503, 512, 168 P.3d 955, 964 (2007) (brackets omitted); see also
Eastman, 81 Hawafi at 135, 913 P.2d at 61.
I1I. DISCUSSION
iAs previously indicated, Xiao, in advancing her
position regarding insufficiency of the evidence, argues that
“there [wa]s absolutely no evidence adduced that the drink[s] she
received constituted a fee” and that any sexual conduct that went
on between herself and Officer wagner was “merely gratuitous.”
As previously quoted, see supra note 2, HRS § 712-1200 provides
1that:
Prostitution. (l) A person commits the offense of
prostitution if the person engages in, or agrees or offers
to engage in, sexual conduct with another person for a fee.
(2) As used in subsection (1), “sexual conduct” means
“sexual penetration,” “deviate sexual intercourse,” or
“sexual contact,” as those terms are defined in [HRS §]*
707-700. 1
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(Bold emphasis in original.) (Underscored emphases added.) 1n
turn, HRS § 707-700 defines “sexual contact” as
any touching, other than acts of “sexual penetration,” of
the sexual or other intimate parts of a person not married
to the actor, or of the sexual or other intimate parts of
the actor by the person, whether directly or through the
clothing or other material intended to cover the sexual or
other intimate parts.[U
HRS § 707-700 (Supp. 2006). Based on the plain language, the
statute provides three alternative means of committing the
offense of prostitution, that is, the defendant must: (l) engage
in “sexual conduct” with another for a fee; (2) agree to engage
in “sexual conduct” with another for a fee; or (3) offer to
engage in “sexual conduct” with another for a fee. Based on:
these alternatives, a defendant need not actually engage in the
sexual conduct, but need only agree or offer to engage in such
conduct, which is confirmed by our case law.
For example, in State v. Connallv, 79 Hawafi 123, 899
P.2d 406 (App. 1995), HPD Officer Rick Orton was assigned to
plainclothes duty to “enforce morals violations” in waikiki. 1Qy
at 124, 899 P.2d at 407. He observed Connally “walking back and
forth on the [m]auka sidewalk of Kalakaua Avenue, approaching
Japanese tourists as they passed by and attempting to talk to
them or stop them.” 1gp (brackets omitted). Officer Orton began
to follow Conna1ly, who struck up a conversation with three
7 .HRS § 707-700 also provides definitions for “sexual penetration” and
“deviate sexual intercourse”; however, inasmuch as there was no allegation or
evidence at trial that Xiao engaged in, or agreed or offered to engage in
those prohibited acts, our discussion is limited to “sexual contact” as
statutorily defined.
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Japanese males, saying, “Asobi masho ka?” (“wou1d you like to
play?”) and “Hyaku dorn Aru?” (“Do you have a hundred dollars?”).
1dg Officer Orton arrested Connally shortly afterward. 1dg at
125, 899 P.2d 408. Based on Officer Orton's testimony at trial,
Connally was found guilty of prostitution, in violation of HRS
§ 712-1200(1), and she appealed. 1dp
On appeal, Connally argued, inter alia, that there was
insufficient evidence to support her prostitution conviction.
1d. at 127, 899 P.2d at 410. Reviewing the statements made by
Connally to the men on Kalakaua Avenue, the 1CA stated:
whether the men responded to [the d]efendant's offers and
the substance of their responses are irrelevant under the
prostitution statute. [The d]efendant merely had to offer
to engage in sex in exchange for a fee. Thus, based on
Officer Orton's testimony and all other evidence adduced at
trial, we conclude that there was sufficient evidence for
the trial judge to find that [the d]efendant offered to
engage in sexual conduct in exchange for money.
1Qy (emphasis added). »Accordingly, the 1CA affirmed Connally's
conviction. 1Qg
Both the 1CA and this court have subsequently applied
the Connally court's interpretation of the prostitution statute
-- ig§y, requiring, at minimum, evidence of an offer to engage in
sexual conduct for a fee -- in affirming convictions of
prostitution where the offer or agreement to engage in sexual
conduct for a fee was proven by statements made by the defendant.
See State v. Romano, 114 HawaiT.1, 7, 155 P.3d 1102, 1108 (2007)
(concluding that the defendant masseuse’s responses to questions
by an undercover officer regarding sexual services for an
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additional fee, when taken in context, was sufficient to sustain
a prostitution conviction); State v. Pegouskie, 107 Hawafi 360,
365-66; 113 P.3d 811, 816-17 (App. 2005) (concluding that the
defendant’s statement quoting a price for sexual services was an
offer and, when taken in context, was sufficient to sustain a
prostitution conviction); State v. Stanford, 79 HawaiH.150, 151-
52, 900 P.2d 157, 158-59 (1995) (concluding that the defendant’s
one-word-statement in Korean street vernacular, when considered
with the defendant’s subsequent actions, was sufficient to
sustain a prostitution conviction); State v. Kun Ok Cho, 120
HawaiH 256, 203 P.3d 676 (App. Mar; l2, 2009) (SDO). As in
Connally, the defendants in these aforementioned cases did not
actually engage in any sexual conduct because they were arrested
immediately after making the offer or agreeing to engage in
sexual conduct for a fee. Nevertheless, whether a defendant
“engages in, or agrees or offers to engage in, sexual conduct
with another person,” each alternative requires that the “sexual
conduct” be “for a fee¢”
1n the instant case, Xiao clearly engaged in sexual
conduct, ig§g, rubbing her body and her breasts up against
Officer wagner's clothed groin area, which clearly qualifies as
“sexual contact.” See HRS § 707-700 (defining “sexual contact”
as “any touching . . . of the sexual or other intimate parts of a
person not married to the actor . . . whether directly or through
the clothing or other material intended to cover the sexual or
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other intimate parts”). Thus, given such conduct, the
dispositive question distills to whether Xiao’s engagement in the
sexual conduct was “for a fee,” thereby constituting the offense
of prostitution under the first alternative means prescribed in
HRS § 712-1200(1).
HRS chapters 712 andJ707 do not provide a definition of
“fee.”' Nevertheless, it is well-settled that, when a term is not
statutorily defined, this court may resort to legal or other well
accepted dictionaries as one way to determine its ordinary
meaning. _§e State v. Chen, 77 HawaiU.329, 337, 884 P.2d 392,
400 (App. 1994); see gl§g Gillan v. Gov’t Employees 1ns. Col, 119
HawaiH 109, 115, 194 P.3d 1071, 1077 (2008).
The word “fee,” as it is commonly understood, means
“[a] charge for labor or services, [especially] professional
services.” Black's Law Dictionarv 690 (9th ed. 2009); accord
Muse v. United States, 522 A.2d 888 (D.C. 1987) (concluding that,
in the context of a solicitation for prostitution statute, “the
term ‘fee". . . refers to ‘payment in return for professional
services rendered'”).
The Mgge court, in deciding whether a gold necklace
constituted a fee, stated:
The term “fee” as used in [District of Columbia Code (DC
Code)] § 22-2701.1(1) [(1986 Supp.) (defining “prostitution”
as “the engaging, agreeing to engage, or offering to engage
in sexual acts or contacts with another person in return for
a fee.”)] is not defined by statute, nor has it been
construed by this court. 1n light of the underlying
commercial nature of solicitation for prostitution, however,
we conclude, as have courts in other jurisdictions
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considering the question, that the term “fee” in this
context refers to “payment in return for professional
services rendered.”
Given this definition of the term “fee,” we perceive
no basis for adopting appellant’s suggestion that the term
be further limited to require “payment for professional
services” in the form of money. while our solicitation
cases have typically concerned proposed exchanges of money
for sexual acts, we see no reason why this commercial
transaction could not involve payment in a form other than
money. 1ndeed, in Harris v. United States, 293 A.2d 851,
854 (D.C. 1972), rev’d on other grounds, 315 A.2d 569 (1974)
(en banc), we recognized that “[a]n essential element of
prostitution is money or material gain in exchange for
illicit sexual activity.” (Emphasis added.)
Mg§e, 522 A.2d at 890-91 (underscored emphasis in original) (bold
emphasis added) (some citations and footnote omitted).
1nasmuch as HRS § 712-1200(1) is nearly identical to DC
Code § 22-2701.1i1), quoted §gp;a, we are persuaded by the
District of Columbia Court of Appeals' interpretation of the word
“fee.” we agree that a “fee” is not explicitly limited to
monetary compensation, but includes payment in the form other
than money and, therefore, conclude that a “fee,” under the
prostitution statute, is money or a “material gain” for sexual
conduct. Consequently, as applied to the facts of this case, we
also conclude that the forty-dollar drinks would constitute a fee
under HRS § 712-1200(1i.
The prosecution maintains that “[t]he circumstances
surrounding Officer wagner's investigation included the following
uncontroverted facts[:] (l) that [Xiao] engaged in sexual conduct
with Officer wagner, and (2) that [Xiao] received [forty dollars]
from Officer wagner prior to each episode of sexual contact.” 1n
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the prosecution’s view, connecting these two “uncontroverted
facts” equals prostitution, we cannot agree.
1n State v. Tookes, 67 Haw. 608, 699 P.2d 983 (1985),
this court stated that prostitution “is triggered by a sale of
sexual services[.]” 1dp at 614, 699 P.2d at 987. The dictionary
defines “sale” as “the act of selling[.]” webster's Encyclopedic
Unabridged Dictionary of the English Language (1989) at 1262.
“Sell” is defined as “to persuade or induce someone to buy
(something)[.]” ;Qy at 1296. Thus, in order to sustain Xiao's
conviction for prostitution, there must be evidence of an
understanding on the part of Xiao that the forty-dollar drink
(i.e., the,“fee”) paid for by Officer wagner was to buy sexual
favors from her. without such evidence, there can be no
prostitution.
q The prosecution argues that, “[c]lear1y[,] there was ap
implicit understanding that Officer wagner would obtain
“something more” for giving [Xiao forty dollars] to purchase a
drink; than he had when giving her [twenty dollars].” (Emphasis
added.) The record, however, does not support the prosecution’s
inference drawn from Xiao’s conduct that she “imp1icit[ly]
underst[ood]F that the purchase of a forty-dollar drink was for
sexual conduct.
The only witness to testify at trial was the officer
investigating possible prostitution activity at Club Sara Lee,'
i.e., Officer wagner. According to Officer wagner, after
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obtaining a drink for herself, which she had asked him to buy for
her, Xiao asked him to dance. while they danced, Xiao rubbed his
groin area with her pelvis. Subsequently, Officer wagner offered
to buy Xiao another drink, when she returned with her second
drink, Xiao again asked him to dance and, while dancing, again
rubbed his penis with her pelvis and her breasts. However, Xiao
did not ask Officer wagner to dance on the subsequent occasions
when he purchased her additional forty-dollar drinks, and Officer
wagner admitted that he purchased more than two forty-dollar
drinks. we, therefore, disagree with the trial court's
characterization that the two drink purchases that led to Xiao's
sexual conduct constituted a “pattern.”
Moreover, at trial, defense counsel specifically asked
Officer wagner: “At the time that [Xiao] asked you to purchase a
drink, did she offer to engage in any sexual contact with your
conduct [sic]?” Officer wagner replied “[n]o, she didn't.”
Defense counsel later inquired: “[D]uring the course of [Xiao
rubbing her pelvis against you], did she say anything to you,
such as, thank you for the drink, this is in return for what 1
purchased, what you purchased for me?” Officer wagner replied
that “is]he did say thank you for the drink[ but, s]he didn't say
that this is in return for what you purchased for me.” Based on
such testimony, we cannot conclude -- as the prosecution urges --
that Xiao had “an implicit understanding” that Officer wagner's
purchase of the forty-dollar drinks was for sexual contact.
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Given the totality of circumstances, we believe that the
prosecution failed to prove beyond a reasonable doubt that Xiao
“engage[d] in sexual conduct with [Officer wagner] for a fee.”
1V. CONCLUSION
Based on the foregoing, we hold that there was
insufficient evidence to convict Xiao under HRS § 712-1200(1).
we, therefore, vacate the 1CA's judgment on appeal and reverse
Xiao’s conviction.
william A. Harrison (of ' ‘ éZz%7”4”“*
Harrison & Matsuoka),
for petitioner/defendant- ; id
appellant Luu4anD§v\euMau4£Lrnea
Anne K. Clarkin, 1 %*~==» "- 'B"‘Ma" %"
Deputy Prosecuting Attorney,
for respondent/plaintiff- /ZZZom ¢9~/¢(¢¢;LZq,q:¢7/
appellee '
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