State v. Rocker

475 P.2d 684, 52 Haw. 336, 1970 Haw. LEXIS 135

• Court: Hawaii Supreme Court
• Decided: October 21, 1970
• Docket: 4898
• Status: Published

Opinions

OPINION OP THE COURT BY

RICHARDSON, C.J.

Defendants-appellants, having waived a jury trial, were tried in the circuit court of the second circuit and found guilty as charged for violation of HRS § 727-1 for creating a common nuisance. The complaint read: “That Richard Barry Rocker and Joseph Cava [defendants] at Puu Olai, Makena, District of Makawao, County of Maui, State of Hawaii, on the 26th day of February, 1969, did openly sunbathe in the nude, which was offensive and against common decency or common morality, thereby committing the offense of common nuisance, contrary to the provisions of Section 727-1 of the Hawaii Revised Statutes.”

It is undisputed that on February 26, 1969, police officers of the Maui Police Department received a phone call from an anonymous person and, thereafter, on the day of the call, proceeded to the Puu Olai beach at Makena to look for nude sunbathers. On reaching their destination, the police surveyed the beach from a ridge using both their naked eyes and binoculars and saw the defendants lying on the beach completely nude, one on his stomach and the other on his back. The officers then approached the defendants and arrested them for indecent exposure. It was admitted by the police officers that defendants were not at any time engaged in any activity other than sunbathing. At the time of the arrest there were several other people on the beach where the defendants were nude. Defendant Rocker was nude at the Puu Olai beach on other days before and after he was arrested on February 26, 1969. Defendant Cava likewise frequently sunbathed in the nude at the same beach prior to his arrest on February 26,1969.

I. Indecent Exposure: Elements

The first issue we are asked to decide on this appeal is whether defendants created a common nuisance by sunbathing in the nude on a public beach.

The statute (HRS § 727-1) reads as follows:

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; •

* * '

HRS § 727-1, unlike statutes of most states, incorporates indecent exposure as an example of what the legislature has defined to constitute common nuisances. The statute does not specifically delineate the elements of the crime of indecent exposure, and although reference to the common law or to cases decided in other jurisdictions based upon statutes different from ours may be helpful, neither is controlling.¹ The question of whether sunbathing in the nude oh a public beach is punishable as a common nuisance is one of construction of our statute.

In Territory v. Martin, 14 Haw. 304 (1902), the first Hawaii case to interpret the indecent exposure provisión of the common nuisance statute, the defendant indecently exposed himself to a girl twelve years old behind a pile of lumber, but near a public road and in view of anyone who might pass along the road. In answering the question of whether the exposure to be punishable as a common nuisance must be to or in the view of more than one person, the court stated:

The legislature has itself cited indecent exposure as an example of what it sought to define as common nuisances in the first paragraph of section 324 [now ■ 727-1]. In our opinion when the indecent exposure is in a public place where it may be seen by others if they pass'by, it is such as is contemplated by the statute even though it is actually seen by one person only. Territory v. Martin, supra at 305.

We are in accord with this construction of the statute. To create a common nuisance there must be an indecent exposure of the person in a public place where it may be seen by others if they pass by¿ and it need actually be seen by one person only. ‘

However, to answer the specific questions presented to us on this appeal and to clarify and examine our construction of the statute in light of recent decisions in this and other jurisdictions, a further discussion of the elements of the crime of indecent exposure is needed.

A. Intent

' Sunbathing in the nude is not per se illegal. It must be coupled with the intent to indecently expose oneself. Intent is an element of the crime of common nuisance defined by HRS § 727-1. The King v. Grieve, 6 Haw. 740 (1883). The intent necessary is a general intent, not a specific intent; i.e., it is not necessary that the exposure be made with the intent that some particular person see it, but only that the exposure was made where it was likely to be observed by others. Thus, the intent may be inferred from the conduct of the accused and the circumstances and environment of the occurrence. Messina v. State, 212 Md. 602, 606, 130 A.2d 578, 580 (1957); Peyton v. District Of Columbia, 100 A.2d 36, 37 (D.C. Mun. App. 1953); State v. Martin, 125 Iowa 715, 101 N.W. 637 (1904). The criminal intent necessary for a conviction of indecent exposure is usually established by some action by which the defendant either (1) draws attention to his exposed condition or (2) by a display in a place so public that it must be presumed it was intended to be seen by others. Hearn v. District of Columbia, 178 A.2d 434, 437 (D.C. Mun. App. 1962); Peyton v. District of Columbia, supra at 37; Messina v. State, supra. See also Comment, 33 Mich. L. Rev. 936, 937 (1935).

The defendants argue that there is no circumstantial evidence in the record from which a trier of fact could conclude that the element of intent had been proved beyond a reasonable doubt. The issue, therefore, is whether defendants’ nude sunbathing at Puu Olai beach at Makena, Maui, was at a place so public that a trier of fact could infer it was intended to be seen by others. The prosecution offered testimony of one of the arresting police officers that the beach was a popular location for fishermen and was in fact one of his favorite fishing spots. Defendants testified that the public in general used the beach, that it was used by fishermen and local residents, and that they observed between 20 and 25 people on the beach over a two-month period. Although the Puu Olai beach is isolated by a hill and a ledge, away from the view of the public road and adjoining beaches, it is accessible by a well-worn path and known to be a favorite location of fishermen to cast and throw fish nets. In view of this and other evidence in the record, we cannot agree with defendants’ argument that the trier of fact could not find the beach so public as to justify an inference of intent on the part of defendants to be seen by others.

B. Public Place

The place is a public one if the exposure is such that it is likely to be seen by a number of casual observers. Van Houten v. State, 46 N.J.L. 16, 17 (1884) Messina v. State, supra, 212 Md. 602, 605, 130 A.2d 578, 579 (1957). What constitutes a public place depends upon the circumstances of the case. Messina v. State, supra at 579.

Whether or not the place is owned by the State or whether or not the accused believes he is sunbathing in the nude in a remote area does not determine whether the place is “public” or “private”. Each case must be decided upon its own facts, and the trier of fact is justified in finding the place public if the exposure is such that it is likely to be seen by a number of casual observers. There is substantial evidence in the record before us to support such a finding.

C. Number of Witnesses

The cases are not in absolute agreement as to the number of witnesses that must be present to see the act. The old English cases generally held that since the offense is in the nature of a nuisance, the rule is that a nuisance must be public; that is, to the injury or offense of several. The Queen v. Watson, [1847] 2 Cox Crim. Cas. (Eng.) 376. See also Reg. v. Farrell, [1862] 9 Cox Crim. Cas. (Ire.) 446; State v. Wolf, 211 Mo. App. 429, 244 S.W. 962 (1922).

On the other band, early American common law cases hold that the likelihood that the act may be.seen by a number of casual observers is sufficient. State v. Goldstein, 72 N.J.L. 336, 62 A. 1006 (1906) (affirmed without opinion in 74 N.J.L. 598, 65 A. 1119 (1907)); Van Houten v. State, 46 N.J.L. 16 (1884).

The determining factor in recent American cases appears to be the individual wording of' the applicable statute.. These cases indicate that the most common requirement in... the proof of the offense is a showing that one person saw the exposure' and that at least one other person .either saw it or might have seen it if he. had looked. Green v. State, 106 Ga. App. 485, 127 S.E.2d 383 (1962); Austin v. State, 104 Ga. App. 795, 122 S.E.2d 926 (1961). “It has been held, that the offense does not depend upon the number of people present and, that an intentional act of lewd and indecent ■ exposure to one or more persons is sufficient to make„,out.a case.” Davison v. State, 281 P.2d 196, 197 (Okla. Crim. App. 1955), See Messina v. State, supra, 212 Md. 602, 130 A.2d 578 (1957).

Territory v. Martin, 14 Haw. 304 (1902), (discussed supra) is consistent with the recent decisions with regard to the number of witnesses required tó see the act. To reiterate, the court stated that the “. . . indecent exposure ... in a public place where it may. be seen by others if they pass by ... is such as is contemplated by the statute even though it is actually seen by one person only!” As discussed earlier, we are in agreement' with this construction of the statute.

Furthermore, it is important to remember that' the gravamen of the offense charged is the creation óf a common nuisance!' In establishing the misdemeanor of a conimon nuisance, it is not necessary that annoyance to or injury of any one person be shown, for it is interference with the rights of the general public and not.individuals which is the criterion of a public nuisance. 2 Wharton, Criminal Law and Procedure § 821. The fact that no one testified to being shocked or offended by defendants’ nude sunbathing does not necessarily mean the exposure was not indecent or did not constitute a common' nuisance. The common sense of the community, as well as the sense of decency, propriety and morality, which most people entertain, must be the guide in each case in determining whether a common nuisance exists and HRS § 727-1 has been violated. .

It is common knowledge and this court Avill take judicial notice that the great majority of the people using the beaches on Maui are always clothed in bathing suits. It is indeed rare to find anyone completely nude on any of the public beaches on Maui. The fact that the defendants sunbathed nude on a public beach without respecting the rights and beliefs of others and realizing that other people besides themselves visited the beach from time to time demonstrates the defendants’ unreasonable belief that their acts under the. circumstances of this case were not likely to offend members of the general public.

IT. Right of Privacy

The second issue raised on this appeal is whether a person has a.right of .privacy to the extent of sunbathing nude on a public beach. Defendants claim, their rights guaranteed by Article I, sections 2, .4 and 5 of the Constitution of the State of Hawaii, as amended in 1968, have been violated. Section 5 of Article I of the Hawaii Constitution, like the Fourth Amendment of the United States Constitution, guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Unlike the United States Constitution, • the Hawaii Constitution also specifically guarantees its citizens tlie right of privacy.

Defendants rely heavily upon Katz v. United States, 389 U.S. 347 (1967) and State v. Matias, 51 Haw. 62, 451 P.2d 257 (1969) in contending that their right of privacy had been violated. The Court in Katz stated that the protection of one’s, privacy is no .longer dependent upon whether an area is public or private but rather upon whether or not the. area is one which a person could reasonably expect to be free from governmental intrusion. Katz is distinguishable. In Katz the Court protected the defendant’s justifiable reliance to expect privacy .while using a telephone booth, and a telephone booth is easily distinguishable from a public beach which rightfully belongs tó and is subject to the use of the general public.

Similarly, this court in Matías stated that the defendant’s right to reasonably expect freedom from governmental intrusion is not dependent upon his ownership of property but a ' “protectable right . . . wherever he may legitimately be and reasonably expect freedom from governmental intrusion.” State v. Matias, 51 Haw. 62, 66, 451 P.2d 257, 259 (1969). Likewise, Mafias is distinguishable from the case at bar in that it involved the search of the balcony of an apartment used by the guest of a tenant. The court ruled that a guest of a tenant is entitled to a right of privacy. The balcony of an apartment is not a public beach. A public beach is not protected from freedom of intrusions or visits by the general public.

This court recognizes each individual’s constitutional right of privacy and right to be let alone. Griswold v. Connecticut, 381 U.S. 479 (1965); Stanley v. Georgia, 394 U.S. 557 (1969). This right protects a person from any unreasonable governmental search, seizure or invasion of privacy, but this right does not entitle an individual to do as he pleases in violation of the rights of others.

We therefore cannot agree with defendants’ claim to the right of exclusive privacy on a public beach which belongs to the citizens of this State. The defendants were not justified in believing that because the beach was located on a far end of the island and because they had used it for some time without interference or complaint, that police officers or other persons would not see them on the beach, or would not be offended, or that they were therefore absolutely protected against such “intrusion”. The beach was frequented by members of the public, and the police officers, in seeing defendants sunbathing nude on a public beach and arresting them for violation of HRS § 727-1, did not violate defendants’ constitutional right of privacy.

III. Motion for Acquittal: Test on Appeal

The third issue raised on this appeal is whether the trial court erred in. denying the defendants’ motion for judgment of acquittal at the end of the prosecution’s case. Rule 29(a), Motion for Judgment of Acquittal, of the Hawaii Rules of Criminal Procedure states in relevant part:

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

This rule requires thé trial court judge either upon a motion of a defendant or. of its own motion to enter a judgment of acquittal if at the end of the prosecution’s case there is not sufficient evidence to support a prima facie case. The test that must be applied whenever a trial judge is compelled to determine whether the prosecution has presented.sufficient evidence to withstand a motion for aequittal is well stated in Curley v. United States, 160 F.2d 229, 232 (D.C. Cir. 1947), cert. denied, 331 U.S. 837 (-1947):

The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of. acquittal, must" determine whether; upon the evidence, giving full play to the. right of the- jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt_

This court will not disturb the'ruling of a lower court if the evidence of the prosecution is such that “a reasonable mind might fairly conclude guilt beyond a reasonable doubt.” As discussed under section I of this opinion, the elements of the: crime of indecent exposure that the prosecution must prove in order to establish a prima facie case against the defendants are that (1) the defendants expose themselves, (2) in a public place where it may be seen by others and (3) under circumstances that a trier of fact could infer á general intent of the defendants to offend the community’s common sense of decency, propriety, and morality.

AC the cióse' of the' prosecution’s case it had been established that the defendants were' seen by two police officers sunbathing in the nude at Puu Qlai beach, a befifth isolated by a hill and a ledge but accessible by a well worn'path. One of the officers testified that the beach was a popular location for fishermen and was in fact one' of- his' favorite fishing spots/ From these facts the trial judge ruled that a prima facie case had been established and- denied the defendants’- motion fór acquittal;. We affirm'- this ruling. There was sufficient evidence at the close of the: prosecution’s case to justify an inference beyond a reasonable doubt that thé Puu .Qlai beach was so public that the defendants, could be attributed with the necessary knowledge to know that their acts under the circumstances were likely to offend members of the general public.

Sanford J. Langa,, attornéy for appellant. Ernest K. C. Ching, Deputy County Attorney, County Attorney, County of Maui (Kase Riga, County Attorney with him on the brief), for appellee.

IV. Verdict: Test on Appeal in Criminal Cases.

The fourth issue raised by defendants déserves only brief treatment. They argue that the trial 'judge applied an erroneous legal test in reaching his decision at. the close of the case when he stated:' "

One. of the things that bothers me about, this case— and'this is a very close case either way — ..; Defendants believe that if the trial judge felt the case was “close” that his decision should have been for acquittal. In othér words, the State has not met its burden of proof in a criminal case of proving guilt beyond a reasonable doubt. State v. Hale, 45 Haw. 269, 367 P.2d 81 (1961).

' The test on appeal is whether there is substantial evidence to support the verdict. State v. Kekaualua, 50 Haw. 130, 132, 433 P.2d 131, 133 (1967). The evidence presented at the trial of the case at bar shows that there was substantial evidence to support the decision. The fact that the- court stated that this was a “close” case -does; not expunge or dispose of the substantiality, of evidence showing that the defendants had sunbathed in the nude on a public beach visited by members of the public. The State has met its biirdén and this court will not distürb the ruling of the lower court if there is substantial evidence to support the verdict. State v. Kekaualua, supra, 50 Haw. at 132, 433 P.2d at 133.

Affirmed.

1 It should be noted that the Hawaii Penal Code (Proposed Draft) 1970 adopts the American Law Institute Model Penal Code classification and definition of indecent exposure. It is classified as a sexual . offense and is defined as follows:

(1) A person commits the offense of indecent exposure if, with intent to arouse or gratify sexual desire of himself or of- any person, he exposes his genitals to a person to whom he is not married , under circumstances in which he knows his conduct is likely to cause affront or alarm.

(2) Indecent exposure is a petty misdemeanor.

See Hawaii Penal Code (Proposed Draft) 1970, Chapter 7, Part V, Section 738.

This classification and definition of the crime of indecent exposure takes it out. of the realm of common nuisances and makes it a specific sexual offense.