State v. Calaycay

449 P.3d 1184

STATE of Hawai‘i, Petitioner/Plaintiff-Appellee,

v.Burt CALAYCAY, aka Burt F. Calaycay, Respondent/Defendant-Appellant.

SCWC-17-0000386

Supreme Court of Hawai‘i.

AUGUST 26, 2019

Sonja P. McCullen, Honolulu, for petitioner

Dwight C.H. Lum, Honolulu, for respondent

Kimberly Tsumoto Guidry, Honolulu, for amicus curiae

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.

This case requires us to consider the circumstances under which sexually explicit comments can constitute harassment, pursuant to Hawai‘i Revised Statutes (HRS) § 711-1106(1)(f) (2014). Defendant Burt Calaycay was charged with harassment as a result of statements that he allegedly made to Complaining Witness (CW). At the time of the incidents in question, Calaycay was serving in a supervisory role at a residential program for at-risk youth. CW was a 17-year-old participant in the program.

At trial, CW testified that on two separate occasions, Calaycay made sexually explicit comments to her that caused her to feel uncomfortable, unsafe, and scared. She did not, however, explicitly state that she believed Calaycay intended to cause her bodily injury. The District Court of the First Circuit (district court) found CW’s testimony to be credible, determined that Calaycay’s statements caused CW to believe that Calaycay intended to have non-consensual sexual contact with her, and convicted Calaycay of harassment.¹ The Intermediate Court of Appeals (ICA) concluded that there was no evidence that CW reasonably believed Calaycay intended to cause her bodily injury - an essential element of the offense charged - and accordingly, reversed Calaycay’s conviction.

For the reasons set forth herein, we reverse the ICA’s Judgment on Appeal and affirm the district court’s Final Judgment convicting Calaycay of harassment.

I. BACKGROUND

The Youth Challenge Academy (Academy) is a five-month residential program designed to help at-risk youth earn a General Education Development credential (GED). These youth, referred to as cadets, are supervised by members of the National Guard, referred to as cadres. Cadres may discipline cadets for breaking the Academy’s rules or failing to obey orders by subjecting them to screaming and requiring them to perform physical exercises, including push-ups, sit-ups, jumping jacks, and flutter kicks. In the fall of 2013, Calaycay was a cadre at the Academy and CW was a cadet. Calaycay was 28 years old at the time. CW was 17 years old.

As set forth below, due to allegations arising out of Calaycay’s interactions with CW "[o]n or about the 25th day of October, 2013, to and including the 1st day of November, 2013," Calaycay was charged by way of complaint with one count of harassment in violation of HRS § 711-1106(1)(b) and/or HRS § 711-1106(1)(f).²

A. Pre-trial Motion to Compel Election or to Dismiss Complaint

Calaycay filed a Motion to Compel Election or to Dismiss Complaint, arguing that the Complaint improperly charged him for two separate offenses, under two respective subsections of HRS § 711-1106(1), in a single count, in violation of Hawai‘i Rules of Penal Procedure (HRPP) Rule 8(a).³ Calaycay requested that the district court order the State of Hawai‘i to elect which subsection of HRS § 711-1106(1) it wished to proceed under, or in the alternative, dismiss the Complaint.

The district court determined that the State was pursuing a single charge, rendering HRPP Rule 8 inapplicable. Accordingly, it denied Calaycay’s Motion to Compel Election or to Dismiss Complaint and allowed the case to proceed to trial.

B. Bench Trial

The district court held a bench trial at which CW and Calaycay testified. No other witnesses were called and no other evidence was offered.

1. CW’s Testimony

CW testified that in Fall 2013, she was a 17-year-old cadet at the Academy. At around 6:00 p.m. on October 25, 2013, CW was in an open exercise field enjoying free time with her peers when Calaycay asked her to talk to him away from the other cadets and cadres. CW stated:

He [told] me he wanted to have sex with me and he wanted to get me wet and hit me from the back and have me ride him and that his - it will be okay and he’ll take me to the - the third floor and we could have sex in the - in the - where the cadres stay and that his team had his back and that I wouldn’t get in trouble.

CW explained that she thought Calaycay was referring to all the other cadres when he said "his team had his back." CW further testified that Calaycay’s statements made her feel uncomfortable because she "didn’t know what to do, and it was just weird." Calaycay’s statements made her feel unsafe because she "didn’t have [her] mom there," and scared because she "didn’t have anyone." She also felt sad and depressed.

CW testified that at around 9:30 p.m. on November 1, 2013, she was awoken by Calaycay "calling [her] from the side of [her] window." She stated, "he called me out of my bunkers,⁴ and he was telling me how beautiful I was and how he wanted to hook up with me and how he wanted to see me naked." CW testified that this made her feel uncomfortable and unsafe.

CW stated that during the aforementioned incidents, Calaycay never physically touched her. He spoke softly, did not appear angry, and did not threaten her. The following exchange transpired on cross-examination:

Defense Counsel: When he said he wanted to lick you, okay, what did you understand that to mean, that he wanted to give you dirty lickins and beat you up?

CW: No.

Defense Counsel: What did you believe -

CW: In a sexual way.

Defense Counsel: And what would that be in a sexual way?

CW: With his - licking me with his tongue.

Defense Counsel: I see. And when you indicated that - testified that he wanted to hit you from the back, what did you believe that - what he meant by that?

CW: Fuck me from the back.

Defense Counsel: What’s that?

CW: Fuck me from the back. That’s what he was -

Defense Counsel: Have sex with you from the back?

CW: Yes.

Defense Counsel: Okay. Did he threaten to hurt you physically? Like beat you up?

CW: No.

Defense Counsel: Did you feel like he - when he said he wanted to lick you, did you believe that it was your impression that he was trying to tell you that he was gonna hurt you or have you experience sexual pleasure?

CW: Sexual pleasure.

(Emphases added).

CW admitted that she had been disciplined for sniffing pills prior to these encounters with Calaycay. CW also testified that on a previous occasion, another cadre, Cadre Jarvis, had her take off her clothes so that he could search her with only her panties on. She reported this incident to her supervising cadre.

Although CW told her friends about Calaycay’s statements, she did not tell her supervising cadre or otherwise report Calaycay’s behavior. The Deputy Prosecuting Attorney (DPA) questioned CW as follows:

DPA: Why did you only tell your friends and not anyone else when it first happened?

CW: I was scared.

DPA: Why were you scared?

CW: Because I didn’t know what would happen to me if I wouldn’t be able to graduate or -

DPA: What happens if you don’t graduate?

CW: I don’t get a GED, and I would be in there for nothing.

DPA: Do the cadres have any input as to whether you graduate or not?

CW: Yes.

DPA: You mentioned when [Defense Counsel] was asking you questions that you thought the defendant intended to, and correct me if I’m misstating, subject you to sexual pleasure?

CW: Yes.

DPA: And that made you uncomfortable?

CW: Yes.

DPA: And that made you scared?

CW: Yes.

DPA: And that made you feel unsafe?

CW: Yes.

DPA: And he did so on two occasions between October 25th and November 1st?

CW: Yes.

(Emphases added).

2. Motion for Judgment of Acquittal

Following the conclusion of CW’s testimony, Calaycay made an oral Motion for Judgment of Acquittal on the grounds that CW’s testimony did not "support the elements that [Calaycay] insulted, taunted, or challenged [CW] in a manner that ... would cause her to reasonably believe [Calaycay] intended to cause her bodily injury," and further, that "the allegedly coarse language that was allegedly used did not cause [CW] to reasonably believe that [Calaycay’s] acts were intended to cause her bodily injury."

The district court denied Calaycay’s motion, as the language Calaycay allegedly used "could be construed to be insulting or offensively coarse" and CW "could certainly believe from that language that [Calaycay] intended to cause bodily injury to her." The district court further determined that "nonconsensual sex can be construed to be causing bodily injury to the other person."

3. Calaycay’s Testimony

Calaycay testified that in 2013, he was a 28-year-old cadre at the Academy, assigned to supervise the first platoon of male cadets. Calaycay did not reside on Academy property, but rather, returned home when he was not working. Prior to serving as a cadre at the Academy, Calaycay deployed to Iraq for two tours as a member of the National Guard. Calaycay testified that he had disciplined CW on at least one occasion.

Calaycay stated that, prior to the interactions at issue, he heard that CW had accused Cadre Jarvis of "touching her in the [wrong] place." He also knew CW was one of several cadets who were caught sniffing pills. Calaycay testified that, prior to his conversation with CW on the exercise field, he saw Cadre Jarvis discipline CW and the other cadets by requiring them to do push-ups, sit-ups, flutter kicks, and jumping jacks. He admitted that he did not actually see CW sniffing pills and was not present when Cadre Jarvis searched her, so he did not know for sure what happened during either incident.

Calaycay stated that he spoke with CW on October 25, 2013, because she looked sad and depressed. He explained:

I ... took her on the side right where the kids were, I spoke to her asking her what was wrong with her, so she told me about she was sad, that, you know, all that sniffing pills, that she might get kicked out and all that stuff. And then I told her that you know the consequences of sniffing the

...