NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 08-1-1701).
Harrison L. Kiehm for Defendant-Appellant.
Albert Cook Deputy Attorney General State of Hawai'i for Plaintiff-Appellee.
Foley, Presiding Judge, Fujise and Leonard, JJ.
Defendant-Appellant Matthew S. Lewis (Lewis) appeals from an April 26, 2010 Circuit Court of the First Circuit (Circuit Court) Judgment of Conviction and Sentence for one count of Electronic Enticement of a Child in the First Degree (Electronic Enticement), in violation of Hawaii Revised Statutes (HRS) § 707-756 (Supp. 2012), and three counts of Indecent Electronic Display to a Child (Indecent Electronic Display), in violation of HRS § 707-759 (Supp. 2012) .
On appeal, Lewis contends that: (1) the Electronic Enticement and Indecent Electronic Display charges violate the "dormant" Commerce Clause of the United States Constitution, as well as the free speech rights provided in the Constitutions of the State of Hawai'i and the United States; (2) Lewis's October 22, 2008 statement given to two Honolulu Police Department (HPD) detectives, while Lewis was in custody, was involuntarily obtained and without proper warning under Miranda v. Arizona, 384 U.S. 436 (1966); (3) Lewis should have been allowed to present expert opinion evidence regarding his polygraph results; (4) the Circuit Court erred in concluding that there was sufficient evidence to sustain Lewis's October 28, 2008 Indictment; (5) the Circuit Court abused its discretion in allowing the State of Hawai'i (State) to present evidence regarding certain videos, screen captures, and chats; and (6) there was insufficient evidence to support Lewis's Electronic Enticement conviction. We affirm.
A. The Alleged Actions Leading to Lewis's Arrest
On September 5, 2008, Lewis, a 33-year-old man who used the screen name "ml808, " was on his computer in an internet chat room where he purportedly met Shanna Lee, who used the screen name "shoyubunnie" (Shanna Lee or "shoyubunnie"). Shanna Lee, however, was a persona created by HPD detective Sandi Fujitani (Fujitani), who was assigned to investigate internet crimes against children. During the September 5, 2008 internet conversation, "shoyubunnie" represented herself as a 14-year-old girl who lived in Pearl City and attended Sacred Hearts Academy.
On October 13, 2008, Lewis again chatted online with "shoyubunnie, " and they primarily discussed their respective sexual experience levels and the physical characteristics of Shanna (again including the fact that she was only 14). Lewis then invited "shoyubunnie" to view his web camera, and he proceeded to expose his genitals and masturbated live over the internet. During this time, the two engaged in a brief, sexually-explicit conversation. Lewis did not reveal his face in this session.
Lewis also exposed himself and masturbated to "shoyubunnie" on October 15, 2008, while having a sexually-explicit conversation in the online chat room. Again, Lewis did not expose his face. Afterwards, Lewis suggested that they meet "now, " although they eventually agreed to meet later that night at Zippy's. In order to arrange the meeting at a Zippy's restaurant, Detective Gary Sunada (Sunada) called Lewis while posing as "shoyubunnie." The two confirmed that they would meet at Zippy's "around nine-thirty, nine-forty five, " and that Lewis would be wearing a "t-shirt and black pants" and would be "probably [driving] a white Toyota." Around 9:53 p.m., Lewis told "shoyubunnie" that he was "leaving now" and that it would take approximately 20 minutes to get to the Zippy's.
During this time, HPD detectives Paul Lucas (Lucas) and Randall Piatt (Piatt) were assigned to observe Lewis's residence. Around 10:05 p.m., Lucas observed someone enter a black Mazda, which was registered to Lewis, parked in front of the residence and leave the premises. The two officers followed the vehicle until it turned into the Zippy's parking lot around 10:30 p.m. Lewis slowly drove around the restaurant, looking inside, but never exited his vehicle or went in; after circling the entire lot, Lewis left. Later that night, he sent a message to "shoyubunnie" about waiting and not seeing her at the Zippy's restaurant. Fujitani, as "shoyubunnie, " responded, saying that she was inside the restaurant.
On October 20, 2008, Lewis again exposed himself and masturbated through his web camera while chatting with "shoyubunnie". This time, however, Lewis briefly revealed his face, and Fujitani was then able to match his face from the web camera with his driver's license picture (thereby obtaining a positive identification).
Lewis was arrested on October 22, 2008. Following his arrest, at approximately 6:03 p.m., he was questioned by Fujitani and Sunada at the HPD's Central Receiving Division. Before questioning, Fujitani and Sunada apprised Lewis of his Miranda rights. As discussed further herein, Lewis indicated that he understood English, was not on any medication, understood his right to an attorney, and confirmed that he was not forced/coerced in any way to give a statement. Lewis then agreed to talk to the officers, confirming various facts including: (1) he chatted with "shoyubunnie" as "ml808" and exposed himself (and masturbated) over his web camera; (2) he had arranged a meeting with "shoyubunnie" and drove around the Zippy's parking lot at the time they were supposed to meet; and (3) he "might" have had sex with Shanna if she showed up (it was supposedly a "twenty-five percent possibility, " according to Lewis).
At no point during the interrogation did Lewis ask to stop the questioning; nor did he ask for an attorney's presence. When Fujitani was through with the questioning, she asked Lewis if "everything you told us tonight was voluntar[y], no one coerced you, forced you or threatened you in any way to make a statement to [the officers]?" Lewis answered "No, ma'am."
B. The Indictment
On October 28, 2008, a Grand Jury Indictment was presented and filed, charging Lewis with one count of Electronic Enticement (Count I) and three counts of Indecent Electronic Display (Counts II, III, and IV). Detective Fujitani was the sole witness at the grand jury hearing. She testified that she began chatting with "ml808, " who identified himself as "Mark Louis" but was later identified as Lewis, on September 5, 2008 under her "Shanna Lee" or "shoyubunnie" persona. The Grand Jury was also informed of the instances in which Lewis exposed himself to "shoyubunnie" through his web camera, as well as the attempted October 15, 2008 meeting. Fujitani described that Lewis's vehicle
entered through the Ewa-most driveway, . . . slowly drove past the front of the Zippy's, that would be like the drive-in area, and then . . . proceeded Kokohead through the parking lot, turned around, made a right turn, turned back driving towards the restaurant again, and then proceeded to circle the whole restaurant before driving in front of the restaurant near the drive-in area a second time, again slowly driving past, and then it exited the middle driveway onto South King Street.
Finally, Fujitani recounted Lewis's interrogation following his arrest on October 22, 2008.
C. The Circuit Court Proceedings
On February 26, 2009, Lewis filed Defendant's Motion to Suppress Statement. In the motion, Lewis argued that, although he was afforded his Miranda warnings, his statement was involuntarily given because he was "made to believe that if he did give a statement to law enforcement personnel he would not be prosecuted and would be released from custody." Lewis testified that he was "scared" and "tired" when he was in the interrogation room. He also stated that he was hesitant to participate at first, but that he believed that his cooperation would allow him to go home.
On May 18, 2009, the Circuit Court issued its Findings of Fact, Conclusions of Law and Order Denying Defendant's Motion to Suppress Statement. Its rationale for the decision was based on the fact that Fujitani and Sunada read Lewis his rights and that neither of them promised him that giving a statement would allow him to go home or that he would not be charged. The court did find that Lewis was "frightened" and "tired from work and possibly not getting his maximum hours of sleep earlier that week." Lewis conceded that he read and understood his rights at the time and that he understood that he could stop answering questions at any point in the interview. In light of these facts, the Circuit Court concluded that Lewis was properly warned of his constitutional rights and that, based on the totality of the circumstances, Lewis's statements were voluntary.
On July 6, 2009, Lewis filed Defendant's Motion to Dismiss Count I of the Indictment Filed October 28, 2008, Based on Insufficient Evidence. Lewis argued that "no evidence was adduced before the grand jury that [he] 'intentionally or knowingly travel[ed] to the agreed upon meeting place at the agreed upon meeting time ....'" A hearing on the motion was held on July 28, 2009, and the Circuit Court concluded that there was sufficient evidence to support the October 28, 2008 Indictment, based on Fujitani's grand jury testimony.
On September 2, 2009, the Circuit Court filed its Findings of Fact, Conclusions of Law and Order Denying Defendant's Motion to Dismiss Count I of the Indictment Filed October 28, 2008, Based on Insufficient Evidence. In its order, the Circuit Court determined that the facts presented to the Grand Jury "could lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused, " citing State v. Ontai, 84 Hawai'i 56, 63, 929 P.2d 69, 76 (1996). Therefore, the Circuit Court concluded that there was sufficient evidence to sustain the Indictment.
On July 6, 2009, Lewis also filed Defendant's Motion To Admit Expert Opinion Evidence Regarding Polygraph Results and for Evidentiary Hearing (Polygraph Motion). In the motion, Lewis sought to introduce evidence related to a polygraph test administered by Certified Polygraph Examiner William Gillespie (Gillespie). Gillespie was to testify that Lewis answered "no" to two questions during a polygraph examination: (1) "Have you ever had sexual contact with any minor you met on the internet?"; and (2) "Of the minors you communicated with on the internet[, ] have you ever had physical sexual contact with any of them?"
At a July 28, 2009 hearing on the Polygraph Motion, the Circuit Court denied the motion, citing State v. Okamura, 78 Hawai'i 383, 894 P.2d 80 (1995) and Doe v. Doe, 120 Hawai'i 149, 202 P.3d 610 (App. 2009). The court reasoned that those cases held that polygraph results are inadmissable at trial, whether offered by the State or a defendant. On August 31, 2009, the Circuit Court filed its Findings of Fact, Conclusions of Law and Order Denying Defendant's Motion to Admit Expert Opinion Evidence Regarding Polygraph Results and for Evidentiary Hearing, ruling based on the same grounds articulated at the July 28, 2009 hearing.
On October 30, 2009, Lewis filed a Motion to Dismiss for Violations of the Constitution of the State of Hawaii and the Constitution of the United States. Lewis argued that HRS §§ 707-756 and 707-759 are unconstitutional because they violate the First Amendment (free speech rights) and Article I, Section 8, Clause 3 (the Commerce Clause) of the United States Constitution, as well as Article I, Section 4 of the Hawai'i Constitution (free speech rights). Following arguments on the December 7, 2009 motion, the Circuit Court denied Lewis's motion on both Commerce Clause and free speech grounds. On May 24, 2010, the court entered its Findings of Fact, Conclusions of Law and Order Denying Defendant's Motion to Dismiss for Violations of the Constitution of the State of Hawaii and the Constitution of the United States.
Before trial, on February 17, 2010, Lewis pled guilty to all three counts of Indecent Electronic Display. After Lewis's plea, the State sought to introduce Camtasia videos of Lewis exposing himself and masturbating through his web camera. In support, the State argued that the videos were necessary to prove that Lewis had the intent to commit a sexual offense, as is required by HRS § 707-756. The State also posited that the Camtasia video from October 20, 2008 was particularly important because, at the conclusion of that recording, Lewis's face appears, and this was used to help positively identify him as "ml808." Lewis argued that the State had sufficient evidence without the Camtasia videos and that the videos were more prejudicial than probative.
The Circuit Court considered the arguments and ruled that the Camtasia videos were admissible under the Hawaii Rules of Evidence (HRE) because they were relevant to the Electronic Enticement charge, they went to the issue of Lewis's sexual intent with "Shanna, " they helped to positively identify Lewis, and they would corroborate what was occurring in the text of the chat. The court also noted that it would limit the prejudicial impact of the recordings by issuing cautionary instructions to prevent the jury from considering the Camtasia videos for improper purposes, directing the jury to only consider the videos for the purpose of determining Lewis's state of mind.
The jury ultimately found Lewis guilty of the Electronic Enticement charge. On April 26, 2010, the Circuit Court entered a Judgment of Conviction and Sentence, sentencing Lewis to ten years in prison. Lewis timely filed a notice of appeal.
II. POINTS OF ERROR
Lewis raises six points of error on appeal, arguing that the Circuit Court erred:
(1) in concluding that the charge of Electronic Enticement of a Child in the First Degree, pursuant to HRS § 707-756, and the three charges of Indecent Electronic Display to a Child, pursuant to HRS § 707-759, do not violate Article I, Section 8 of the United States Constitution, Article I, Section 4 of the Hawai'i Constitution, and the First Amendment of the United States Constitution;
(2) in concluding that Lewis's statement to two HPD detectives on October 22, 2008 was given pursuant to proper warning under Miranda v. Arizona, 384 ...