State v. Kalani

118 P.3d 1222, 108 Haw. 279, 2005 Haw. LEXIS 469
CourtHawaii Supreme Court
DecidedSeptember 7, 2005
Docket26767
StatusPublished
Cited by23 cases

This text of 118 P.3d 1222 (State v. Kalani) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kalani, 118 P.3d 1222, 108 Haw. 279, 2005 Haw. LEXIS 469 (haw 2005).

Opinion

Opinion of the Court by

MOON, C.J.

Defendant-appellant Ronald Kalani appeals from the July 23, 2004 judgment of conviction and sentence of the Circuit Court of the Second Circuit, the Honorable Joel E. August presiding, adjudicating Kalani guilty of and sentencing him for two counts of *281 sexual assault in the third degree, in violation of Hawai'i Revised Statutes (HRS) § 707-732(l)(b) (Supp.2003). 1 On appeal, Kalani claims that the trial court erred in: (1) denying his motion to dismiss the indictment; (2) denying his motion for a judgment of acquittal; and (3) finding him guilty of two counts of sexual assault in the third degree after a bench trial. Kalani argues that the trial court erred in concluding that, “in the context of this case, the mouth and tongue of a nine-year-old child’s body must be considered ‘intimate parts’ within the meaning of HRS § 707-700 ... and the acts committed by [Kalani] must be considered sexual in nature.” For the following reasons, we affirm Kalani’s conviction and sentence.

I. BACKGROUND

On February 9, 2004, Kalani was charged by indictment with two counts of sexual assault in the third degree. The prosecution alleged that, on January 5, 2004, Kalani kissed the nine-year-old complaining witness twice and that, on both occasions, Kalani inserted his tongue into her mouth.

A. Motion to Dismiss

On April 22, 2004, Kalani moved to dismiss the indictment, alleging that the prosecution failed to adduce sufficient evidence to support the charges against him. Kalani argued that the alleged conduct supporting the two counts—kissing the complaining witness on the lips and placing his tongue into her mouth—did not constitute “sexual contact” as defined in HRS § 707-700 (1993). 2

A hearing was held on May 12, 2004, and the trial court denied Kalani’s motion in an order filed on June 21, 2004, concluding, inter alia:

7. HRS § 707-700, which defines “sexual contact,” currently does not indicate what body parts are to be considered “sexual or other intimate parts” for the purpose of that section. In addition, no other section of the Hawai'i Penal Code attempts to identify what parts of the body are “sexual or other intimate parts.” It is clear, however, that based on their general or popular use or meaning, the definition of “intimate parts” would be much broader than the definition of “sexual parts.”
It is also clear that intimacy, with respect to parts of the body, must be viewed within the context in which the contact takes place. In other words, a body part that might be intimate in one context might not be intimate in another. People v. Rivera, 138 Misc.2d 570, 525 N.Y.S.2d 118 (N.Y.Sup.Ct.1988). Very few things can be more personal or private than the tongue or the interior of one’s mouth in situations where they may be in contact with the bodily parts of another person. See, e.g., People v. Rivera, supra; Anonymous G. v. Anonymous G., 132 A.D.2d 459, 517 N.Y.S.2d 985 (N.Y.App.Div.1987).
8. In the context of this case, wherein an adult male allegedly twice, and without consent, puts his mouth on the mouth of a nine-year-old female and then forced his tongue into her mouth, the mouth and tongue must be considered intimate parts of the child’s body and the act itself must be considered sexual in nature. In the Court’s view, such conclusions are consis *282 tent with the intent of our legislature to protect children from sexually oriented physical conduct of adults. Such an intent is clearly evident in the legislative history of HRS § 707-732. See Conf. Comm. Rep. No. 66, in 201 Senate Journal, at 881-82; Sen. Stand. Comm. Rep. No. 1189, in 2001 Senate Journal, at 1392; Sen. Stand. Comm. Rep. No. 1394, in 2001 Senate Journal, at 1486; and Hse. Sand. Comm. Rep. No. 704, in 2001 House Journal, at 1388.
9. The Court is not concluding that the mouth and tongue in all circumstances or contexts are “intimate parts.”
10. Relative to the issue of notice as to what conduct might subject an actor to penal liability for due process purposes, it would be absurd to conclude that a reasonable person of sound mind would consider the conduct alleged herein to be merely offensive touching, rather than conduct that rises to the level of sexual contact as proscribed by HRS § 707-700.
11. For the reasons given above, the Court concludes that in this case there was legal and competent evidence which established probable cause for the Grand Jury to conclude that the Defendant violated HRS § 707-732(b)(b). Probable cause is established when it can be said that a reasonable and prudent person viewing the evidence would have a strong suspicion that a particular crime has been committed. State v. Kuba, 68 Haw. 184, 191, 706 P.2d 1305, 1310 (1985). Therefore, the Defendant’s motion to dismiss the indictment based on insufficient evidence must be denied.

B. Bench Trial

Trial took place on June 1 and 3, 2004. The complaining witness, her grandmother [hereinafter, Grandmother], and Maui Police Detective Richard Martinez testified for the prosecution. The complaining witness testified that, on January 5, 2004, Kalani approached her, told her that she was a “pretty girl,” and asked her for a kiss. According to the complaining witness, Kalani then put his tongue in her mouth twice, touching her tongue with his own.

Grandmother testified that, just before she went to the restroom, she had observed the complaining witness talking with Kalani outside of her home. When Grandmother exited from the restroom, she found the complaining witness crying hysterically. Grandmother testified that the complaining witness related to her that Kalani had told her “what a beautiful girl she was and was running his hands through her hair and kissed her, stuck his tongue in her mouth,” and that “[w]hen [the complaining witness] tried to pull away, he held the back of her head and kissed her again putting his tongue in her mouth.”

Detective Martinez testified that on January 9, 2004, he questioned Kalani regarding the complaining witness’s allegations and that Kalani made an audiotaped statement. The audiotape was admitted into evidence without objection and played at trial.

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Bluebook (online)
118 P.3d 1222, 108 Haw. 279, 2005 Haw. LEXIS 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kalani-haw-2005.