CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. (CAAP-13-0000087; CASE NO. 1P1120008541).
James S. Tabe for petitioner.
Keith M. Kaneshiro and Brandon H. Ito for respondent.
RECKTENWALD, C.J., NAKAYAMA, MCKENNA, POLLACK AND WILSON, JJ.
[134 Hawai'i 334]
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 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.
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."  The complaint stated in relevant part as follows:
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 29-13.1 of the Revised Ordinances
[134 Hawai'i 335] of Honolulu, " solicitation" means to request or demand money or gifts.
(First and last emphasis added; footnote added).
At Abel's December 17, 2012 bench trial, 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?
[Sgt. Christensen]: So he would have the birds in his hands. He would place them on the individuals, take the individuals' camera or phone -
[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 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."
[134 Hawai'i 336] 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 ...