State v. ChunState v. Chun
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Lead Opinion
Opinion of the Court by
LEVINSON, J.The defendant-appellant Llewelyn Chun appeals from the judgment of the district court of the first circuit, the Honorable Leslie
For the reasons discussed infra in section III, we hold that indecent exposure, in violation of
I. BACKGROUND
On August 27, 1998, Chun pled no contest to the charge of indecent exposure in violation of
After hearing arguments from counsel, the district court denied Chun’s motion for DANCP. In addition, the district court sentenced Chun to a six-month term of probation and ordered him to: (1) submit to a mental health assessment and undergo any treatment that might be prescribed; (2) write a note of apology to the complainant; and (3) register under the sex offender registration and notification statute, HRS ch. 846E. The record does not reveal the underlying
The DPD objected to the sex offender registration requirement, arguing that indecent exposure towards a minor did not qualify as a registrable sex offense for purposes of HRS ch. 846E. In addition, she argued that there was no showing that Chun posed any risk to the community and, accordingly, that the statute was “overbroad and unconstitutional because it ... impose[d] a lifetime requirement. And we would also submit that it would infringe on his right to privacy.” The district court “sympathized” but believed that “the statute is clear that in the event of this offense, given the fact that it was to a minor, the Court has no alternative but to inform the defendant that he ... must register.”
Chun filed a timely notice of appeal.
II. STANDARDS OF REVIEW
A. Statutory Interpretation
We review the [district] court’s interpretation of a statute de novo. State v. Pacheco, 96 Hawai‘i 83, 94, 26 P.3d 572, 583 (2001). Our statutory construction is guided by established rules:
When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists....
In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be сompared, in order to ascertain them true meaning.”HRS § 1-15(1) [ (1993) ]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.
... This court may also consider “[t]he reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning.”HRS § 1-15(2) (1993).
Id. at 94-95, 26 P.3d at 583-84 (some citations and internal quotation marks added and some in original) (brackets in original).
Coon v. City and County of Honolulu, 98 Hawai‘i 233, 245, 47 P.3d 348, 360 (2002) (some brackets added and some in original) (ellipsis points in original).
B. Constitutional Law
“We answer questions of constitutional law by exercising our own independent judgment based оn the facts of the case.... Thus, we review questions of constitutional law under the ‘right/wrong’ standard.” State v. Jenkins, 93 Hawai‘i 87, 100, 997 P.2d 13, 26 (2000) (citations and some internal quotation signals omitted).
III. DISCUSSION
HRS ch. 846E imposes certain registration and public notification requirements on “sex offenders.”
any criminal offense that consists of:
(1) Kidnapping of a minor, except by a parent;
(2) Unlawful imprisonment in the first degree of a minor, except by a parent;
(3) Criminal sexual conduct toward a minor;
(4) Solicitation of a minor who is less than fourteen years old to engage in sexual conduct;
(5) Use of a minor in a sexual performance;
(6) Solicitation of a minor to practice prostitution;
(7) Any conduct that by its nature is a sexual offense agаinst a minor, but excludes conduct that is criminalonly because of the age of the victim, as provided in section 707-730(l)(b) or section 707-732(l)(b), if the perpetrator is eighteen years of age or younger;
(8) An act, as described in chapter 705, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the offenses designated in paragraphs (1) through (7); or
(9) Any state, federal, or military law similar to paragraphs (1) through (8).
Id. (emphasis added).
In light of the foregoing statutory definitions, Chun argues that the question presented on appeal is “whether ... indecent exposure qualifies as ‘criminal sexual cоnduct’ under
Chun contends that
HRS § 846E-1 is ambiguous in that the term “criminal sexual conduct” can be interpreted as applying to only the various degrees of sexual assault, or it can be interpreted as applying to both sexual assault and indecent exposure. Therefore, the term carries “doubleness of meaning,” and statutory construction is warranted, including the examination of extrinsic sources such as legislative history.
We concur. It is not immediately apparent that the intentional exposure of a person’s genitals to a person to whom the actor is not married, notwithstanding “circumstances in which the actor’s conduct is likely to cause affront,” constitutes “sexual conduct.”4 Thus, an examination of the legislative history underlying
Prior to 1972, indecent exposure was defined as an “example” of the offense of common nuisance, in violation of
In 1991, however, the legislature renamed the offense in violation of
[c]reat[e] a new dichotomy between behavior that is likely to cause fear of bodily injury or alarm and that which is likely to cause affront. The former, a more serious offense, will constitute fourth-degree sexual assault. The latter has been renamed from sexual assault in the fifth degree to indecent exposure. The newly titled section is intended to deal with behavior such as nude sunbathing or streaking, that does not cause alarm or fear of bodily hann, in circumstances where it is likely to be an affront to a substantial part of the community.
Sen. Stand. Comm. Rep. No. 1000, in 1991 Senate Journal, at 1103 (emphasis added) (discussing the Senate Judiciary Committee’s amendments to House Bill No. 73, which were incorporated into Act 214); see also Commentary on
Thus, in renaming and redefining
The legislature enacted the registration and public notification requirements of HRS ch. 846E in order to protect “the public from sex offenders and ... children from predatory sexual activity[.]” 1997 Hаw. Sess. L. Act 316, § 1 at 749. The legislature found that “sex offenders who use physical violence, sex offenders who prey on children, and repeat sex offenders present an extreme threat to the public safety.” Id. (emphasis added). “Indecent exposure” that is likely merely to cause affront — e.g., nude sunbathing and streaking — rather than fear of bodily injury or alarm, can hardly be said to “present an extreme threat to the public safety” and, consequently, does not appear to be the kind of offense that the legislature had in mind in drafting Act 316. Indeed, requiring nude sunbathers and streakers to register as sex offenders would be patently absurd. Cf. In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, 934 (1972) (“Clinical studies ‘suppоrt and confirm the traditional legal provisions which have treated [indecent exposure] as a social nuisance, [i.e.,] as disorderly conduct rather than an offense causing personal
Moreover, in promulgating HRS eh. 846E, the legislature expressly declared that one of its purposes was to comply with the registration requirements for certain sеx offenders established by the Jacob Wetterling Crimes against Children and Sexually Violent Offender Registration Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796, 2038 [hereinafter, the “Wetterling Act”], as amended by Megan’s Law, Pub.L. No. 104-145 (1996), and the Pam Lynehner Sexual Offender Tracking and Identification Act of 1996, Pub.L. No. 104-236 (codified as amended at
The Wettеrling Act directs the United States Attorney General to “establish guidelines for state programs that require ... a person who is convicted of a criminal offense against a victim who is a minor or who is convicted of a sexually violent offense to register a current address with a designated State law enforcement agency[.]”
The statutory definition of “criminal offense against a victim who is a minor” that is contained in
[s]tates can comply with [the] clause [regarding “criminal sexual conduct toward a minor”] by requiring registration for persons convicted of all statutory sex offenses under state law whose elements involve physical contact with a victim, where the victim was below the age of 18 at the time of the offense. Offenses that do not involve physical contact, such as exhibitionism, are not subject to the Act’s mandatory registration requirements pursuant to clause (Hi), but states are free to require registration for persons convicted of such offenses as well if they so choose.
61 Fed.Reg. at 15113 (emphases added). Thus, it is clear that the Wetterling Act does not require that persons convicted of exhibitionist offenses, such as indecent exposure, register as “sex offenders.” Inasmuch as (1) the Hawai‘i legislature (a) adopted the Wet-terling Act’s definition of “criminal offense against a victim who is a minor” and (b) expressly, articulated its intent to comply with the federal statute in order to avoid the loss of federal funds and (2) the legislative history underlying HRS ch. 846E is devoid of any suggestion that the legislature sought to exercise its discretion to require registration for “[o]ffenses that do not involve physical contact, such as exhibitionism,” we conclude that the legislature did not intend to include indecent exposure, in violation of
The prosecution contends that it is clear that Chun “was convicted of a criminal offense which consisted of ‘[e]riminal sexual conduct against a minor’ ” because, “[a]t the sentencing hearing, it was evident that the basis for the offense was that [Chun] ‘violated [the cоmplainant] while hugging her.... [Chun], an adult, was thus convicted of intentionally exposing his genitals to a fifteen-year-old girl while hugging her.” Thus, the prosecution appears to be suggesting that the question presented is not whether the material elements of indecent exposure, in violation of
First, the prosecution implies that Judge Hayashi expressly found and concluded that Chun’s conduct in the present matter constituted “sexual conduct,” irrespective of the actual elements of the charged offense, and that such “sexual conduct” warranted registration pursuant to HRS ch. 846E. On the contrary, however, Judge Hayashi’s comments noted supra in section I merely reflected her belief that she was required to inform Chun that he must register pursuant to HRS ch. 846E based solely on the offense to which he pled no contest and not on the particular circumstances giving rise to the chargе. Indeed, Judge Hayashi never entered any findings of fact regarding the circumstances of the charged offense, and the record is opaque with respect to them, notwithstanding the prosecution’s unsupported characterization.11
In sum, and to reiterate, we hold that indecent exposure, in violation of
IV. CONCLUSION
Based on the foregoing, we vacate the district court’s sentence and remand the ease for resentencing consistent with this opinion.
Notes
. On August 25, 2003, an order was entered, Justice Acoba dissenting, temporarily remanding the present matter to the district court for the entry of a written judgment. The district court’s Written order denying defendant‘s motion for deferred acceptance of no contest plea, sentencing, and final judgment was filed on September 19, 2003.
.
(1) A pеrson commits the offense of indecent exposure if[ ] the person intentionally exposes the person‘s genitals to a person to whom the person is not married under circumstances in which the actor’s conduct is likely to cause affront.
(2) Indecent exposure is a petty misdemean- or.
.
. Indeed, although the legislature did not define “sexual conduct” within the four comers of HRS ch. 846E, it has defined “sexual conduct” elsewhere in the penal code, and indecent exposure, in violation of
.
The offense of common nuisance is die 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 direedy to the corruption of the morality; or tends plainly and dirеctly to die corruption of the morals, honesty, and good habits of the people; the same being without authority or justification by law:
As for example: ...
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Open lewdness or lascivious behavior, or indecent exposure^.]
(Emphasis added.)
. Unlike the current definition of indecent exposure contained in
. Of course,
.
. The Final Guidelines have subsequently been amended several times in respects not relevant to the present matter.
.
The term “criminal offense against a victim who is a minor” means any criminal offense in a range of offenses specified by State law which is comparable to or which exceeds the following range of offenses:
(i) kidnapping of a minor, except by a parent;
(ii) false imprisonment of a minor, except by a parent;
(iii) criminal sexual conduct toward a minor;
(iv) solicitation of a minor to engage in sexual conduct;
(v) use of a minor in a sexual performance;
(vi) solicitation of a minor to practice prostitution;
(vii) any conduct that by its nature is a sexual offense against a minor;
(viii) production or distribution of child pornography ...; or
(ix) an attempt to commit an offense described in any clauses (i) through (vii), if the State—
(I) makes such an attempt a criminal offense; and
(II) chooses lo include such an offense in those which are criminal offenses against a victim who is a minor for the purposes of this section.
. As noted supra in section I, the specific events giving rise to the charged offense are not at all evident from the record, and the portions of the transcript of the sentencing hearing that the prosecution cites in support of its characterization of what transpired do not clearly establish that Chun “violated” the complainant (whatever that might mean) or that he exposed his genitals “while hugging her,” as the prosecution suggests.
. Thus, whether a person must register as a “sex offender,” pursuant to HRS ch. 846E, is a question of law. Cf. State v. Merino, 81 Hawai‘i 198, 212, 915 P.2d 672, 686 (1996) (“‘Whether an indictment [or complaint] sets forth all the essential elements of [a charged] offense ... is a question of law,’ which we review under the de novo, or ‘right/wrong,’ standard.” (Citing State v. Wells, 78 Hawai‘i 373, 379, 894 P.2d 70, 76 (1995).)). Accordingly, it would be helpful if the legislature were to clearly enumerate the statutory offenses that trigger the registration requirement, particularly in light of the fact that HRS ch. 846E places the duty to register on the “sex offender” himself or herself, see supra note 2, and imposes criminal penalties on the sex offender for failure to comply with any of the provisions of the chapter, see
. We note that the elements of indecent exposure likewise do not entail “conduct that by its nature is a sexual offense against a minor.”
Dissenting Opinion
Dissenting Opinion by
NAKAYAMA, J.I respectfully dissent from the majority’s opinion. I believe that, based on the plain meaning of
This ease turns on the interpretation of
In construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Moreover, we must read statutory language in the context of the entire statute and construe it ina manner consistent with the statute’s purpose. We may also consider the spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning. Similarly, laws in pari materia, or upon the same subject matter, shall be construed with reference to each other, аnd, thus, what is clear in one statute may be called upon in aid to explain what is doubtful in another.
Id. (citations, bracket, and quotation marks omitted). “It is a cardinal rule of statutory interpretation that, where the terms of a statute are plain, unambiguous and explicit, we are not at liberty to look beyond that language for a different meaning. Instead, our sole duty is to give effect to the statute’s plain and obvious meaning.” State v. Richie, 88 Hawai‘i 19, 30, 960 P.2d 1227, 1238 (1998). Because the terms of
HRS chapter 846E fails to define “criminal sexual conduct.” Nonetheless, reading
However, not all criminal sexual conduct requires registration pursuant to HRS chapter 846E, only “criminal sexual conduct toward a minor.” Accordingly, nude sunbathers and streakers would not be required to register pursuant to HRS chapter 846E if convicted of indecent exposure for sunbathing or streaking in an area where minors happen to be present. A defendant must be convicted of indecent exposure, in violation of
In the instant сase, Chun pled no contest to the charge of indecent exposure, in violation of
. If the legislature did not intend those convicted of indecent exposure to be “sex offenders” under circumstances such as the instant case, it should remove