State v. Miller

501 P.2d 363, 54 Haw. 1, 1972 Haw. LEXIS 86

• Court: Hawaii Supreme Court
• Decided: September 26, 1972
• Docket: 5186
• Status: Published

Opinions

OPINION OF THE COURT BY

RICHARDSON, C.J.

Defendant-appellant Miller was tried in the circuit court of the second circuit and found guilty as charged for violating HRS § 727-1, the “common nuisance” statute. The complaint read: “That John Roy Miller, at Puu Olai, Makena, District of Makawao, County of Maui, State of Hawaii, on the 17th day of August, 1969, did openly appear in the nude, which was offensive or plainly hurtful to the public, thereby committing the offense of common nuisance, in violation of section 727-1 of the Hawaii Revised Statutes.”

The facts at trial reveal that five vice officers dressed as fishermen, on report from a local citizen, proceeded to Puu Olai beach on August 17, 1969 looking for nude sunbathers. The officers arrested appellant and six others among a group of nude bathers.

Appellant challenges the constitutionality of section 727-1, Hawaii Revised Statutes, which provides:

The offense of common nuisance is the endangering of the public personal safety or health, or doing, causing or promoting, maintaining or continuing what is offensive, or annoying and vexatious, or plainly hurtful to the public; or is a public outrage against common decency or common morality; or tends plainly and directly to the corruption of the morals, honesty and good habits of the people; the same being without authority or justification by law:

As, for example: . . . ;

Open lewdness or lascivious behavior, or indecent exposure;

We hold that by its terms and its application to this defendant, the statute is constitutional.

This court reasoned in State v. Grahovac, 52 Haw. 527, 534-35, 480 P.2d 148, 153 (1971) that “[i]t is fundamental that a penal statute clearly define proscribed behavior, for failing this, definitional uncertainty denies an accused ‘due process of law’ guaranteed by the 14th Amendment to the Federal Constitution and Art. I, § 2 of the Constitution of Hawaii (citations omitted).”

A statute is unconstitutionally vague if it is not “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Connally v. General Const. Co., 269 U.S. 385, 391 (1926).

This court has recently decided that sunbathing in the nude on a public beach is punishable under the indecent exposure provision of the common nuisance statute if (1) the defendant exposes himself (2) in a public place where it may be seen by others, and (3) under circumstances that a trier of fact could infer a general intent of the defendant to offend the community’s sense of common decency, propriety, and morality. State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970).

We find that Hawaii Revised Statutes § 727-1 as narrowed by Rocker, supra, supplies sufficient warning to a conscientious citizen that nude sunbathing in plain view of anyone choosing to use the public beaches of this state is unlawful conduct reasonably proscribed by the “common nuisance” statute.

The statute in question requires a person to conform his conduct to a comprehensible standard measured by common understanding. It is not any exposure of the human body which is proscribed by HRS § 727-1, but only that exposure which is “indecent.” Defendant’s display of nudity is patently a form of indecent conduct against which he was fairly forewarned.

We reject defendant’s contention that the meaning of this statute is unascertainable, thereby rendering it unconstitutionally vague in violation of the Fourteenth Amendment of the United States Constitution.

Defendant-appellant urges that HRS § 727-1 is over-broad in its reach, thus unconstitutional, because it tends to suppress the exercise of constitutionally protected freedoms.

This court finds that given the facts in the present case a summary invalidation of HRS § 727-1 for over-breadth would be inappropriate.

The applicable parts of the ordinance relate to conduct and not to the communication of ideas. The United States Supreme Court has drawn the distinction between offensive conduct which the state may regulate, and speech, which is accorded a higher degree of immunity from regulation. See United States v. O’Brien, 391 U.S. 367 (1968).

A defendant may challenge a statute which purports to regulate or proscribe First Amendment freedoms, although the statute may be neither vague, overbroad or otherwise invalid as applied to him. If the statute is deficient in one of these respects, it may not be applied to anyone. Coates v. City of Cincinnati, 402 U.S. 611, 619-20 (1971) (dissenting opinion of White, J.) . Accord, Gooding v. Wilson, 405 U.S. 518 (1972).

The statute involved in this case differs from penal statutes directed primarily at regulating or proscribing First Amendment freedoms. Statutes aimed at restricting expression are sometimes stricken for overbreadth unless narrowed by the highest court in the state.¹ As we said before, HRS § 727-1 was intended to prevent offensive public conduct unrelated to constitutionally protected expression. Further, since no creative communication inheres in the conduct which appellant engaged in when he was arrested, we find that his nude sunbathing constituted an unprivileged public nuisance which the laws of this state may constitutionally regulate.²

Philip H. Lowenthal, Deputy Public Defender, for defendant-appellant. Ernest K. C. Ching, Deputy County Attorney, for plain tiff-appellee.

For the preceding reasons we reject defendant’s contentions that HRS § 727-1 is unconstitutional.

Judgment affirmed.

1 In Coates, supra, the U.S. Supreme Court struck down a Cincinnati, Ohio ordinance making it a criminal offense for “three or more persons to assemble ... on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by . . . (emphasis added) .” The Court said “[t]he ordinance before us makes a crime out of what under the Constitution cannot be a crime. It is aimed directly at activity protected by the Constitution. Coates, supra at 616.

Also, in Gooding, supra, the Court struck down a Georgia statute for vagueness and overbreadth. It provided that “[a]ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of misdemeanor (emphasis added) .”

2 The present case is distinguishable from Cohen v. California, 403 U.S. 15 (1971) in which appellants’ conviction for violating § 415 of the California Penal Code was reversed. That section prohibits “maliciously and wilfully disturb [ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct . . . .” Appellant’s conduct consisted of a harmless display of a common four-letter epithet. The Court said that “[t]he conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only ‘conduct’ which the State sought to punish is the fact of communication.” Cohen, supra at 18.