State Of Haw.‘i v. Xiao

123 Hawai'i 251

231 P.3d 968

STATE of Hawai‘i, Respondent/Plaintiff-Appellee,v.JING HUA XIAO, Petitioner/Defendant-Appellant.

No. 28370.

Supreme Court of Hawai‘i.

May 25, 2010.

William A. Harrison (of Harrison & Matsuoka), Honolulu, for petitioner/defendant-appellant.

Anne K. Clarkin, Deputy Prosecuting Attorney, for respondent/plaintiff-appellee.

MOON, C.J., NAKAYAMA, DUFFY, and RECKTENWALD, JJ.; ACOBA, J., concurring separately.

Opinion of the Court by MOON, C.J.

On March 29, 2010, this court accepted petitioner/ defendant-appellant Jing Hua Xiao's application for a writ of certiorari to review the Intermediate Court of Appeals' (ICA) December 3, 2009 judgment on appeal, entered pursuant to its November 13, 2009 summary disposition order. Therein, the ICA affirmed the District Court of the First Circuit's¹ December 12, 2006 judgment, convicting Xiao of prostitution in violation of Hawai‘i Revised Statutes (HRS) § 712-1200(1) (1993 and Supp.2008).²

Briefly stated, pursuant to a police undercover investigation for possible prostitution activities at Club Sara Lee in Honolulu, Xiao was charged with prostitution based upon “slow dancing” with an undercover police officer, who had bought her several drinks, during which she engaged in sexual conduct i.e., rubbing her body and breasts up against the officer's body and groin area. Following a bench trial, Xiao was convicted, and she appealed. On direct appeal before the ICA, Xiao argued that there was insufficient evidence to support her conviction. The ICA disagreed and affirmed her conviction.

On application, Xiao argues that the ICA erred in concluding that there was sufficient evidence that she engaged in sexual conduct for a fee. More specifically, she argues inter alia, that “there [wa]s absolutely no evidence adduced that the drink[s] she received constituted a fee” and any sexual conduct that went on between herself and Officer Wagner was “merely gratuitous.” ³

Based on the discussion below, we hold that there was insufficient evidence to convict Xiao under HRS § 712-1200(1). We, therefore, vacate the ICA's judgment on appeal and reverse Xiao's conviction.

I. BACKGROUND

On October 8, 2006, Xiao was arrested for prostitution based on an encounter between Xiao and Honolulu Police Department (HPD) undercover officer Joel Wagner (Officer Wagner) at Club Sara Lee on July 24, 2006.⁴ On December 12, 2006, Xiao was orally charged as follows:

You are charged that on or about July 24th, 2006, in the City and County of Honolulu, State of Hawai‘i, you did engage in or agree to offer to engage in sexual conduct with another person for a fee, thereby committing the offense of [p]rostitution in violation of [HRS § ] 712-1200 (1)[.]

Xiao pleaded not guilty to the charge.

A. Non-Jury Trial

Xiao's bench trial commenced on December 12, 2006 and lasted one day. The sole evidence presented by respondent/ plaintiff-appellee State of Hawai‘i (the prosecution) was the testimony of Officer Wagner.

On direct examination, Officer Wagner testified that, on the evening of July 24, 2006, he was working undercover with the morals detail of the narcotics-vice division of the HPD, investigating possible prostitution activity at Club Sara Lee, a bar in Honolulu. According to Officer Wagner, Xiao entered a karaoke room at the bar that Officer Wagner shared with another HPD officer and another female. He testified that he knew Xiao from other nights that he had visited Club Sara Lee. As to the events that took place in the karaoke room, Officer Wagner testified as follows:

Q. [By the prosecution] [T]ell us what happened[.]

A. [By Officer Wagner] [Xiao] came to me[,] and we greeted each other. We sat down, she asked if she could have a drink. I asked if there were any other types of drinks than [the] twenty-dollar type that I had bought her on previous occasions, and she said yes, there are other types.

Q. Okay. So, you asked her if there are any other types of drinks. Okay, so then what happened.

A. She said ... there's a forty-dollar type of drink as well.

Q. So then what did you say?

A. I said go ... and get yourself a forty-dollar drink. I then gave her some of the pre-recorded money that we had, that I had been issued.

Q. Did you give her a full forty dollars?

A. Yes.

Q. Okay. And did she actually go get you the drink herself?

A. She went and got her ----

Q. I'm sorry, that drink for herself?

A. Yeah, the drinks that she bought, yes, she did go and get that drink for herself.

Officer Wagner explained that, when Xiao returned, she put the drink down and asked him to dance. Officer Wagner then testified:

[W]e began to dance, [and] I placed my hands on her hips, on her waist area [. I]t was a slow dance type of movement. She then pulled herself closer to me and put my hand around her back, and I could, and ... she then began to rub her pelvis against me. I then began to get an erection, she then began to rub her pelvis on my erection. She then said oh, what's this, and then began to grind harder on my [clothed] penis.

Officer Wagner explained that, after dancing, Xiao sat “very close to me, right next to me touching me, and ... she was rubbing my thigh with her hand” as they made “small talk.”

According to Officer Wagner, he later offered to purchase Xiao another forty-dollar drink, and, “[w]hen she returned again, she put the drink down and asked me to dance again, ... and we began to dance in the same manner as before.” He testified that Xiao “began again to grind her pelvis against my clothe[d] penis and that lasted for a lot of the dance. Toward the end of that dance, she actually squatted and rubbed her breasts against my [clothed] penis as well.” When asked specifically “how many times approximately that evening did you offer to buy her forty-dollar drinks?” on direct examination, Officer Wagner responded, “I'm sure probably three. I really don't know.”

On cross examination, Officer Wagner provided the following details regarding his encounter with Xiao:

Q. [By defense counsel] At the time that [Xiao] asked you to purchase a drink, did she offer to engage in any sexual contact with your conduct [sic]?

A. [By Officer Wagner] No, she didn't.

Q. Did she offer you a blow job?

A. No, she didn't.

Q. Did she offer to rub your penis?

A. No, she didn't.

Q. Okay. Did she offer to have intercourse with you?

A. No, she did not.

Q. So, there's no discussion at all of any quid pro quo for that forty-dollar drink, is that correct?

A. Correct.

....

Q. [A]nd during the course of [Xiao rubbing her pelvis against you], did she say anything to you, such as, thank you for the drink, this is in return for what I purchased, what you purchased for me?

A. She did say thank you for the drink. She didn't say that this is in return for what you purchased for me.

Q. Okay. In fact, she just whispered to you thank you, is that correct?

A. Correct.

....

Q. So, at no time during the course of this evening did she ever tell you I will do anything to you for that forty-dollar drink, is that correct?

A. Correct.

....

Q. [A]nd during the course of the time where she rubbed her breasts on you, she never said to you that this is for the drink that you purchased for me, is that correct?

A. That's correct.

Officer Wagner additionally testified that Xiao never: (1) removed any clothing; (2) exposed herself in any way to him; (3) put her hand down his pants; or (4) put her mouth on him. Officer Wagner stated that there were other people in the karaoke room; in other words, it was not “a private place where no one could see [them] dancing.”

With respect to Officer Wagner's perception of Xiao's conduct on the night in question, he testified as follows:

Q. [By defense counsel] So ... your whole mindset initially going into this establishment is you were looking for possible, as you said, prostitution activity, is that correct?

A. [By Officer Wagner] Correct.

....

Q. [So e]verytime she touched you, correct, you put in your report that she rubbed herself against you while you were dancing, you considered that prostitution activity based on your mindset going in, is that correct?

A. Based on my training and experience, I believe that to be prostitution activity, yes.

Q. And you indicated while dancing she again rubbed her pelvis on [your] erect penis, and that to you is considered prostitution activity?

A. That in conjunction with the payment, yes.

Q. Payment for the drink?

A. Yes.

Q. She did get a drink, correct?

A. Yes, she did.

Q. And she drank it during the course of your sitting down with her and talking to you?

A. Yes, she did.

Q. So it's not like ... you gave her forty bucks and she got up and danced such as the situation we have a lap dance, is that correct?

A. That's correct.

Officer Wagner described their dancing as the type of dancing that he sees at dance clubs, i.e., “dirty dancing.” The defense described “dirty dancing” as involving people rubbing their bodies against the bodies of their dance partners.

During a brief redirect examination, Officer Wagner stated that he had, on previous occasions, purchased twenty-dollar drinks for Xiao at Club Sara Lee, and she had never asked him to dance. Following a brief recross and before Officer Wagner was excused, the trial court sought to clarify Officer Wagner's testimony and the following colloquy ensued:

THE COURT: A point of clarification. On direct, you said three times on [sic] this dancing occurred for forty-dollars and you said you don't remember. Then [defense counsel] says in your report it says two times. So, it would be two times, not three times?

THE WITNESS [By Officer Wagner]: The two times is for the prostitution violation. There were more purchases during the evening.

THE COURT: At forty dollars?

THE WITNESS At forty dollars.

THE COURT: And no dancing takes place?

THE WITNESS: I can't remember, your Honor.

THE COURT: Okay, so you can't remember that, but you remember specifically two times there's dances at forty-dollars and you remember purchasing her forty-dollar drinks later on but no dancing, is that the

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