CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-17-0000386; CASE NO. 1DCW-15-0001327)
P. McCullen for petitioner
C.H. Lum for respondent
Kimberly Tsumoto Guidry for amicus curiae
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
case requires us to consider the circumstances under which
sexually explicit comments can constitute harassment,
pursuant to Hawai'i Revised Statutes (HRS) §
711-1106(1)(f) (2014). Defendant Burt Calaycay was charged
with harassment as a result of statements that he allegedly
made to Complaining Witness (CW). At the time of the
incidents in question, Calaycay was serving in a supervisory
role at a residential program for at-risk youth. CW was a
17-year-old participant in the program.
trial, CW testified that on two separate occasions, Calaycay
made sexually explicit comments to her that caused her to
feel uncomfortable, unsafe, and scared. She did not, however,
explicitly state that she believed Calaycay intended to cause
her bodily injury. The District Court of the First Circuit
(district court) found CW's testimony to be credible,
determined that Calaycay's statements caused CW to
believe that Calaycay intended to have non-consensual sexual
contact with her, and convicted Calaycay of
harassment. The Intermediate Court of Appeals (ICA)
concluded that there was no evidence that CW reasonably
believed Calaycay intended to cause her bodily injury - an
essential element of the offense charged - and accordingly,
reversed Calaycay's conviction.
reasons set forth herein, we reverse the ICA's Judgment
on Appeal and affirm the district court's Final Judgment
convicting Calaycay of harassment.
Youth Challenge Academy (Academy) is a five-month residential
program designed to help at-risk youth earn a General
Education Development credential (GED). These youth, referred
to as cadets, are supervised by members of the National
Guard, referred to as cadres. Cadres may discipline cadets
for breaking the Academy's rules or failing to obey
orders by subjecting them to screaming and requiring them to
perform physical exercises, including push-ups, sit-ups,
jumping jacks, and flutter kicks. In the fall of 2013,
Calaycay was a cadre at the Academy and CW was a cadet.
Calaycay was 28 years old at the time. CW was 17 years old.
forth below, due to allegations arising out of Calaycay's
interactions with CW "[o]n or about the 25th day of
October, 2013, to and including the 1st day of November,
2013," Calaycay was charged by way of complaint with one
count of harassment in violation of HRS § 711-1106(1)(b)
and/or HRS § 711-1106 (1) (f) .
Pre-trial Motion to Compel Election or to Dismiss
filed a Motion to Compel Election or to Dismiss Complaint,
arguing that the Complaint improperly charged him for two
separate offenses, under two respective subsections of HRS
§ 711-1106(1), in a single count, in violation of
Hawai'i Rules of Penal Procedure (HRPP) Rule 8(a)
Calaycay requested that the district court order the State of
Hawai'i to elect which subsection of HRS §
711-1106(1) it wished to proceed under, or in the
alternative, dismiss the Complaint.
district court determined that the State was pursuing a
single charge, rendering HRPP Rule 8 inapplicable.
Accordingly, it denied Calaycay's Motion to Compel
Election or to Dismiss Complaint and allowed the case to
proceed to trial.
district court held a bench trial at which CW and Calaycay
testified. No other witnesses were called and no other
evidence was offered.
testified that in Fall 2013, she was a 17-year-old cadet at
the Academy. At around 6:00 p.m. on October 25, 2013, CW was
in an open exercise field enjoying free time with her peers
when Calaycay asked her to talk to him away from the other
cadets and cadres. CW stated:
He [told] me he wanted to have sex with me and he wanted to
get me wet and hit me from the back and have me ride him and
that his - it will be okay and he'll take me to the - the
third floor and we could have sex in the - in the - where the
cadres stay and that his team had his back and that I
wouldn't get in trouble.
explained that she thought Calaycay was referring to all the
other cadres when he said "his team had his back."
CW further testified that Calaycay's statements made her
feel uncomfortable because she "didn't know what to
do, and it was just weird." Calaycay's statements
made her feel unsafe because she "didn't have [her]
mom there," and scared because she "didn't have
anyone." She also felt sad and depressed.
testified that at around 9:30 p.m. on November 1, 2013, she
was awoken by Calaycay "calling [her] from the side of
[her] window." She stated, "he called me out of my
bunkers,  and he was telling me how beautiful I was
and how he wanted to hook up with me and how he wanted to see
me naked." CW testified that this made her feel
uncomfortable and unsafe.
stated that during the aforementioned incidents, Calaycay
never physically touched her. He spoke softly, did not appear
angry, and did not threaten her. The following exchange
transpired on cross-examination:
Defense Counsel: When he said he wanted to lick you, okay,
what did you understand that to mean, that he wanted to give
you dirty lickins and beat you up?
Defense Counsel: What did you believe-
CW: In a sexual way.
Defense Counsel: And what would that be in a sexual way?
CW: With his-licking me with his tongue.
Defense Counsel: I see. And when you indicated that -
testified that he wanted to hit you from the back, what did
you believe that - what he meant by that?
CW: Fuck me from the back.
Defense Counsel: What's that?
CW: Fuck me from the back. That's what he was -
Defense Counsel: Have sex with you from the back?
Defense Counsel: Okay. Did he threaten to hurt you
physically? Like beat you up?
Defense Counsel: Did you feel like he - when he said he
wanted to lick you, did you believe that it was your
impression that he was trying to tell you that he was
gonna hurt you or have you experience sexual pleasure?
CW: Sexual pleasure.
admitted that she had been disciplined for sniffing pills
prior to these encounters with Calaycay. CW also testified
that on a previous occasion, another cadre, Cadre Jarvis, had
her take off her clothes so that he could search her with
only her panties on. She reported this incident to her
CW told her friends about Calaycay's statements, she did
not tell her supervising cadre or otherwise report
Calaycay's behavior. The Deputy Prosecuting Attorney
(DPA) questioned CW as follows:
DPA: Why did you only tell your friends and not anyone else
when it first happened?
CW: I was scared.
DPA: Why were you scared?
CW: Because I didn't know what would happen to me if I
wouldn't be able to graduate or -
DPA: What happens if you don't graduate?
CW: I don't get a GED, and I would be in there for
DPA: Do the cadres have any input as to whether you graduate
DPA: You mentioned when [Defense Counsel] was asking you
questions that you thought the defendant intended to, and
correct me if I'm misstating, subject you to sexual
DPA: And that made you uncomfortable?
DPA: And that made you scared?
DPA: And that made you feel unsafe?
DPA: And he did so on two occasions between October 25th and
Motion for ...