STATE OF HAWAII, Plaintiff-Appellee
vs.
MAIIKA K. KALAMA, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
We hold that a conviction under Hawaii Revised Statutes (HRS) § 707-734 (1993) for indecent exposure must be supported by proof that the defendant "intentionally," as defined in HRS § 702-206(1) (1993), exposed his or her genitals to another person under circumstances in which the other person was likely to be affronted. Under the stipulated facts of this case, the exposure by Defendant-Appellant Maiika K. Kalama (Defendant) of his genitals to a fellow nude sunbather was not "likely to cause affront," as required by HRS § 707-734. The district court of the first circuit (the court), however, convicted Defendant of violating HRS § 707-734 on the ground that other persons who could have been in the area would have been affronted by Defendant's conduct. We reverse Defendant's conviction because the court applied the wrong legal standard and because the evidence was insufficient to establish guilt under the legal standard that should have been applied.
I.
A.
On October 18, 1998, members of the Honolulu Police Department (1)
arrested Defendant and Frances E. Milford, John P. Hartshorn, and
Joseph E. Davis (collectively "codefendants") for sunbathing in
the nude at Makaleha Beach Park on the North Shore of the Island
of Oahu. The following pertinent facts were stipulated to at
the combined hearing for arraignment, plea, and trial held on
January 14, 1999. (2)
Defendant had traveled from his home in Waikk to the North
Shore in order to sunbathe nude at the Makaleha Beach Park.
Although the park is unimproved with none of the attributes of a
beach park, it is public property under the jurisdiction and
control of the City and County of Honolulu. There are numerous
"entrances" into the beach park. The area where Defendant was sunbathing is isolated and desolate.
There were no complaining witnesses, and the record does not
indicate how the police came to be on the beach (3)
at the time of
the incident. In the past, however, people had made complaints
to the police and had asked the police to watch the area. The
stipulated facts do not indicate the nature of the complaints
made to police. At the time of the arrest, "there was nobody there but six
nude sunbathers and the police." Defendant was lying down on a
beach towel, facing and conversing with Gordon Barry, who was
also nude. The police officer had to approach within several
feet of Defendant in order to observe Defendant's genitals.
Defendant was charged, along with codefendants, with violating
HRS § 707-734, which prohibits "indecent exposure." At the hearing on January 14, 1999, it was agreed that the case
would proceed by way of stipulated facts and thereafter be
continued to allow the parties to submit legal memoranda. On
February 4, 1999, Defendant filed a motion to dismiss or, in the
alternative, for judgment of acquittal, arguing that, in contrast
to the proscription of HRS § 707-734, Defendant did not intend to
cause affront and his "actions [were] taken . . . to avoid the
non-nude sunbathing general public entirely." (4) On February 26,
1999, Plaintiff-Appellee State of Hawaii (the prosecution) filed a memorandum in opposition to Defendant's motion. Relying on
State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970), a case in
which nude sunbathers were convicted of the offense of common
nuisance, the prosecution maintained that only a general intent
to "indecently expose oneself" was necessary to prove indecent
exposure. Id. at 339, 475 P.2d at 687. Defendant's motion was heard on March 25, 1999. After Defendant,
codefendants, and the prosecution presented their arguments, the
court ruled that the prosecution had met its burden of
establishing Defendant criminally liable under HRS § 707-734. It
first found that Defendant "going out to a public beach with the
knowledge . . . that [Defendant] would sunbathe in the nude"
satisfied the element of intentional exposure of a person's
genitals to a person to whom Defendant was not married as
required under HRS § 707-734. The court further determined that
if persons other than the police had been present, they would
have been affronted. The question then is whether these circumstances in which their conduct was
likely to cause affront. That's a generalization, basically, in terms of what
would be a reasonable and logical response to sunbathing in the nude on a
public beach. In this instance, the persons who observed them at that time, the alleged
violations[,] were the police. The [c]ourt's finding is that their
observations are such that the [c]ourt can then take the necessary notice
that's required. That anyone from an elderly person to a young infant child
could be in that area and see and observe what the police did. I don't have to have testimony before me from the policemen that they were
affronted. All I have to do is have the facts before me that would indicate
that a reasonable person under the same circumstances could and would be
affronted by it. That's the [c]ourt's finding, that if a young child or an elderly person, or
another member of the public in some category or branch was in the same
situation as the police, it could very likely cause them to be affronted, and
that's my finding. The court adjudged Defendant guilty and imposed a fine of one
hundred and fifty dollars ($150), but suspended one hundred
dollars ($100) of it for a period of six months. On April 7,
1999, Defendant filed a notice of appeal. On appeal, Defendant contends the prosecution failed to prove
that Defendant acted: (1) "under circumstances likely to cause
affront"; and (2) with the requisite state of mind. In response,
the prosecution maintains that Defendant was "likely to cause
affront since anyone could have observed" him (emphasis added)
and that Defendant acted intentionally. We conclude that the court applied the wrong legal standard in
convicting Defendant under HRS § 707-734 and, further, as
measured against the correct legal standard, there was
insufficient evidence to establish his guilt. III. The language of the original indecent exposure statute, HRS §
707-738 (1972), was adopted from that of Section 213.5 of the
Model Penal Code (MPC). Rocker, 52 Haw. at 338 n.1, 475 P.2d at
687 n.1. Except for the words "he knows," shown in brackets
below, HRS § 707-738 was the same as that MPC section and
provided as follows: Indecent exposure. (1) A person commits the offense of indecent exposure if,
with intent to arouse or gratify sexual desire of himself [or herself] or of
any person, he [or she] exposes his [or her] genitals to a person to whom he
[or she] is not married under circumstances in which [he or she knows] his [or
her] conduct is likely to cause affront or alarm. (2) Indecent exposure is a petty misdemeanor. In 1986, the legislature "incorporated all of the sexual offenses
into five degrees of sexual assault." State v. Cardus, 86
Hawaii 426, 435, 949 P.2d 1047, 1056 (App. 1997) (internal
quotation marks and citation omitted) (citing State v. Buch, 83
Hawaii 308, 315, 926 P.2d 599, 606 (1996); 1986 Haw. Sess. L.
Act 314 § 57, at 617-18; Conf. Comm. Rep. No. 51-86, in 1986
House Journal, at 937, 938). As a result, HRS § 707-738 was
retitled "Sexual assault in the fifth degree," the phrase "with
intent to arouse or gratify sexual desire of himself [or herself]
or of any person" was deleted, the word "intentionally" was
added, and HRS § 707-738 was renumbered as HRS § 707-734. 1986
Haw. Sess. L. Act 314 § 57, at 618. HRS § 707-734 (1986) then
provided as follows: Sexual assault in the fifth degree. (1) A person commits the offense of
sexual assault in the fifth degree if, the person intentionally exposes the
person's genitals to a person to whom the person is not married under
circumstances in which the conduct is likely to cause affront or alarm. (2) Sexual assault in the fifth degree is a petty misdemeanor. In 1991, the phrase "or alarm" was deleted from HRS § 707-734,
and the word "alarm" was incorporated into existing section
(1)(b) of HRS § 707-733. Sen. Com. Rep. No. 1000, in 1991 Senate
Journal, at 1103. As amended, HRS § 707-733(1)(b) (1991) stated:
Sexual assault in the fourth degree. (1) A person commits the offense of sexual assault in the fourth degree if: . . . (b) The person knowingly exposes the person's genitals to another person under
circumstances in which the actor's conduct is likely to alarm the other person
or put the other person in fear of bodily injury[.] (2) Sexual assault in the fourth degree is a misdemeanor. 1991 Haw. Sess. L. Act 214 § 1, at 498-99 (emphasis added). The offense described in HRS § 707-734 was again renamed
"indecent exposure." Id. HRS § 707-734 (1993) presently states
as follows: Indecent exposure. (1) A person 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[ (5)
] under circumstances in which the actor's conduct is
likely to cause affront.[ (6)] (2) Indecent exposure is a petty misdemeanor. According to a Senate Committee report, the amendment established 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[, (HRS § 707-733)], a more serious offense, will constitute fourth-degree sexual assault.
The latter[, (HRS § 707-734),] has been renamed from sexual assault in the
fifth degree to indecent exposure. The newly titled section[, (HRS § 707-734),] is intended to deal with behavior such as nude sunbathing or streaking, that does not cause alarm or fear of bodily harm, in circumstances where it is likely to be an affront to a substantial part of
the community. Sen. Com. Rep. No. 1000, in 1991 Senate Journal, at 1103
(emphases added). The prosecution contends that the 1991 legislative history
indicates HRS § 707-734 encompassed nude sunbathing like that
engaged in by Defendant. On the other hand, Defendant maintains
that the express language of the statute focuses on conduct a
defendant "direct[s] at a particular person," rather than the
likely effect of such conduct on others who could have been
present. IV. "[T]he interpretation of a statute . . . is a question of law
reviewable de novo." State v. Cabrera, 90 Hawaii 359, 365, 978
P.2d 797, 803 (1999) (internal quotation marks and citations
omitted). In interpreting statutes, "the fundamental starting
point is the language of the statute itself," In re Doe, 90
Hawaii 246, 252, 978 P.2d 684, 690 (1999) (internal quotation
marks and citations omitted), and "where the statutory language
is plain and unambiguous, our sole duty is to give effect to its
plain and obvious meaning." Citizens for Protection of North
Kohala Coastline v. County of Hawaii, 91 Hawaii 94, 107, 979
P.2d 1120, 1133 (1999) (internal quotation marks and citations
omitted). None of the parties contend and we do not discern that the
language of HRS § 707-734 is ambiguous inasmuch as, on its face,
there is no "doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression." Id. In interpreting this
statute, then, no need to consult extrinsic aids such as
legislative committee reports arises. Hence, "we do not resort to legislative history to cloud a
statutory text that is clear." Ratzlaf v. United States, 510
U.S. 135, 147-48 (1994) (citations omitted). See also Dines v.
Pacific Ins. Co., 78 Hawaii 325, 332, 893 P.2d 176, 183 (1995)
(indicating that "'[s]tatements by legislators or even committee
reports need not reflect the purpose which a majority of the
legislators believed is carried out by [a] statute,'" (quoting
Yoshizaki v. Hilo Hosp., 50 Haw. 150, 153 n.5, 433 P.2d 220, 223
n.5 (1967)), and that "'our duty in interpreting statutes is to
give effect to the legislature's intent[,] which is obtained
primarily from the language of the statute'" (quoting Allstate
Ins. Co. v. Hirose, 77 Hawaii 362, 364, 884 P.2d 1138, 1140
(1994))). Moreover, despite the comments regarding nude
sunbathing in the 1991 legislative committee report, it is not at
all evident from the statutory language ultimately enacted that
the legislature meant to include all nude sunbathing within the
proscription of HRS § 707-734. (7) See State v. Dudoit, 90 Hawaii
262, 271, 978 P.2d 700, 709 (1999) (citing Buch, 83 Hawaii at
325-26, 926 P.2d at 616-17 (Levinson, J., concurring and
dissenting) ("Even where the Court is convinced in its own mind
that the Legislature really meant and intended something not
expressed by the phraseology of the Act, it has no authority to
depart from the plain meaning of the language used.") (internal
quotation marks and citations omitted)). Additionally, due process of law under the fourteenth amendment
to the United States Constitution and article 1, section 5 of the
Hawaii Constitution requires that a penal statute state with
reasonable clarity the act it proscribes and provide fixed
standards for adjudicating guilt; otherwise, the statute must be
held void for vagueness. State v. Richie, 88 Hawaii 19, 31, 960
P.2d 1227, 1239 (1998). This is because, to comport with due
process, penal statutes must inform a person of ordinary
intelligence of what conduct is prohibited so that he or she may
choose between lawful and unlawful conduct. State v. Crouser, 81
Hawaii 5, 14, 911 P.2d 725, 734 (1996); State v. Riveira, 92
Hawaii 521, 993 P.2d 555 (2000) (adopting the dissenting opinion
of Acoba, J. in State v. Riveira, 92 Hawaii 546, 993 P.2d 580
(App. 1999)). [D]ue respect must be accorded the effect of words used by the legislature,
even if their true significance is not imparted in legislative committee
reports. . . . When faced with interpreting statutes, the courts must be
vigilant of the consequences statutes work, whether declared by the
legislature or not. It is how the statute would be read by the layperson
which guides our construction in criminal cases. Riveira, 92 Hawaii at 561, 993 P.2d at 595 (Acoba, J.,
dissenting). "Because construction of a criminal statute must be
guided by the need for fair warning, it is rare that legislative
history or statutory policies will support a construction of a
statute broader than that clearly warranted by the text."
Crandon v. United States, 494 U.S. 152, 160 (1990). Consonant with this precept, this court has also said that,
"[w]hen possible, we interpret enactments of the [l]egislature
contained in the criminal code so as to uphold their
constitutionality," and, therefore, "presume that such
legislation purports to operate within the limitations of our
state and federal constitutions." In re John Doe, 76 Hawaii 85,
93, 869 P.2d 1304, 1312 (1994) (internal quotation marks and
citations omitted). Therefore, to avoid running afoul of these
fundamental principles, we give HRS § 707-734 a construction that
would not ensnare conduct beyond the plain import of the statute.
V. A. Applying the statute as written to the stipulated facts, it is
evident and not disputed that, by sunbathing in the nude,
Defendant exposed his genitals to persons to whom he was not
married. However, whether Defendant possessed the requisite
state of mind to incur criminal liability is disputed. On appeal, Defendant maintains the prosecution was obligated to
prove that he "possessed the specific intent to expose his
genitals to a particular person." Relying on Rocker, the
prosecution contends that a general intent "that exposure was
made where it was likely to be observed by others" suffices.
However, arguments concerning specific and general intent are no
longer relevant. Hawaii has adopted the MPC's state of mind
requirements, which have abandoned the common law concepts of
"specific intent" and "general intent," in favor of four defined
culpable states of mind. See HRS § 702-206; see also Stand. Comm. Rep. No.
227, in 1971 House Journal, at 785 (stating that "[in Chapter 702,] the [Hawaii Penal Code(HPC)] would eliminate
the wide diversity of words and phrases used to denote or connote a state of mind sufficient to impose penal liability,
limiting the provisions of the law to four states of mind: intentional, knowing, reckless and negligent");
commentary to MPC § 2.02 ("The purpose of articulating [four kinds of culpability] is . . . to dispel the obscurity
with which the culpability requirement is often treated when such concepts as 'general criminal intent,' 'mens rea,'
'presumed intent,' 'malice,' 'wilfulness,' 'scienter' and the like have been employed."). In that regard, this court, in applying the HPC, has indicated
that a state of mind with which the defendant acts applies to all
elements of the offense, unless otherwise specified in the
statute defining the offense. HRS § 701-114(1)(a) and (b) (1993) requires proof beyond a reasonable doubt of
each element of the offense, as well as the state of mind required to
establish each element of the offense. Moreover, HRS § 702-204 (1993)
provides in relevant part that "a person is not guilty of an offense unless
the person acted intentionally, knowingly, recklessly, or negligently, as the
law specifies with respect to each element of the offense." . . . HRS §
702-207 (1993) provides that "[when] the definition of an offense specifies
the state of mind sufficient for the commission of that offense, without
distinguishing among the elements thereof, the specified state of mind shall
apply to all elements of the offense, unless a contrary purpose plainly
appears." In addition, pursuant to HRS § 702-205 . . . , the requisite state
of mind applies to such conduct, attendant circumstances, and results of
conduct as are specified by the definition of the offense. State v. Hoang, 86 Hawaii 48, 58, 947 P.2d 360, 370 (1997)
(internal quotation marks and citations omitted; some ellipsis
points added and some in original; brackets in original)
(emphases added). On its face, HRS § 707-734 "specifies the
state of mind sufficient for the commission of the offense,
without distinguishing among the elements thereof." Id. As a
result, "the specified state of mind [in HRS § 707-734, that a
defendant act intentionally,] applies to all elements of [that]
offense." Id. B. HRS § 702-206(1) defines the "intentional" state of mind as
follows: (a) A person acts intentionally with respect to his conduct when it is his
conscious object to engage in such conduct. (b) A person acts intentionally with respect to attendant circumstances when
he is aware of the existence of such circumstances or believes or hopes that
they exist. (c) A person acts intentionally with respect to a result of his conduct when
it is his conscious object to cause such a result. Accordingly, as to the "conduct" element of indecent exposure,
i.e., the exposure of Defendant's genitals to another person, the
prosecution was required to prove, pursuant to HRS § 702-206(1)(a), that it was Defendant's conscious object to engage in
the exposure. As to the "attendant circumstance" elements of the
offense, i.e., that the other person was not married to Defendant
and that, under the circumstances, the exposure was likely to
affront the other person, the prosecution was required to prove,
pursuant to HRS § 702-206(1)(b), that Defendant was aware,
believed, or hoped that the other person was not married to him
and was likely to be affronted. A subsidiary issue raised by the defense's formulation of the
intent issue is whether HRS § 707-734 protects the person or
persons at whom a defendant directs his or her conduct or, as the
court found, protects those who "could" happen on such conduct. (8)
The prosecution, agreeing with the latter position, argues that
Defendant's nude sunbathing on a public beach was likely to cause
affront to someone because anyone, if present, could have
observed his conduct. As worded, the harm sought to be avoided in HRS § 707-734 -- an
affront -- follows from the prohibited preceding and
precipitating exposure to "a person" to whom the defendant is not
married. Since the exposure that precedes the affront is to "a
person," it is logical to conclude that the affront suffered is
that incurred by the same "person" (or persons) to whom a
defendant bares his or her genitals. Thus, the objective of HRS
§ 707-734, as textually manifested, is the prevention of the
affront that would be experienced by one who is so confronted by
a defendant. This construction is confirmed by an in pari materia reading of
HRS §§ 707-734 and -733(1)(b), both of which concern exposure of
a person's genitals to another person. "[L]aws in pari materia,
or upon the same subject matter, shall be construed with
reference to each other [and w]hat is clear in one statute may be
called in aid to explain what is doubtful in another." State v.
Putnam, 93 Hawaii 362, 371 n.9, 3 P.3d 1239, 1248 n.9 (2000)
(internal quotation marks, brackets, and citations omitted). As
the legislative history of these two statutes indicates, supra,
this prohibited act is treated as two separate offenses, one
where the act is "likely to cause fear of bodily injury or
alarm," enacted as HRS § 707-733(1)(b), and the other as a less
serious offense where the act is merely "likely to cause
affront," enacted as HRS § 707-734. In aid of construing HRS
§ 707-734, HRS § 707-733(1)(b) makes clear that the proscription
arising from the prohibited act is aimed at the harm, in the case
of HRS § 707-733(1)(b), the "alarm" and "fear of bodily injury"
undergone by the person to whom the defendant exposed his or her
genitals: (b) The person knowingly exposes the person's genitals to another person
under circumstances in which the actor's conduct is likely to alarm the other
person or put the other person in fear of bodily injury[.] (Emphases added.) Hence, HRS § 707-733 makes express what is
implied in HRS § 707-734, that is, that these statutes seek to
protect the person or persons to whom the defendant directs his
conduct, the only distinction between HRS §§ 707-733 and -734 in
this regard being the circumstantial effect on the person so
assailed. This court has held that "when the appellate court passes on the
legal sufficiency of [trial] evidence to support a conviction . .
. [t]he test . . . is not whether guilt is established beyond a
reasonable doubt, but whether there was substantial evidence to
support the conclusion of the trier of fact." State v. Eastman,
81 Hawaii 131, 135, 913 P.2d 57, 61 (1996) (internal quotation
marks and citations omitted). "'Substantial evidence' as to
every material element of the offense charged is credible
evidence which is of sufficient quality and probative value to
enable [a person] of reasonable caution to support a
conclusion[.]" Id. (brackets in original). There is nothing in the stipulated facts that directly or
inferentially proves that Defendant possessed the requisite
culpable state of mind with respect to a key attendant
circumstance, i.e., that he was aware, believed, or hoped that
his act of exposure "was likely to cause affront" to Barry. At the time of his arrest, Defendant was conversing with Barry.
There is no evidence Defendant was in the observable vicinity of
any other person. Barry was in the same state of undress as
Defendant and apparently not disturbed by Defendant's lack of
attire, much less their mutual state of nudity. All other
occupants of the area except for the police were, like Defendant,
similarly unattired. Objectively viewing Defendant's intent in
the context of these circumstances, no reasonable trier of fact
could find that Defendant's act was likely to cause affront to
Barry. Since Barry was in the same state of undress, there is no
rational or logical basis for concluding that Defendant intended
to cause affront to Barry. Therefore, we conclude that the
evidence was not of "sufficient quality and probative value to
enable [a person] of reasonable caution to support [the]
conclusion" that Defendant acted intentionally under
circumstances likely to cause affront. Id. (brackets in
original). As a result, the court's conclusion of guilt was
wrong. State v. Wilson, 92 Hawaii 45, 47, 987 P.2d 268, 270
(1999) ("The circuit court's conclusions of law are reviewed
under the right/wrong standard.") (citation omitted)). The prosecution argues that Defendant's nude sunbathing on a
public beach was likely to cause affront to someone. Emphasizing
the word "likely" within the phrase "the actor's conduct is
likely to cause affront," as it appears in HRS § 707-734, the
prosecution maintains the "indecent exposure [statute] does not
require that anyone actually be exposed to the activity." As we
determined supra, the text of HRS § 707-734, its legislative
history and that of HRS § 707-733, and an in pari materia
construction of both statutes compels the conclusion that HRS
§ 707-734 seeks to protect the particular person or persons at
whom a defendant directs his or her conduct. Hence, the
requirement that a defendant, by his or her act, "intentionally"
seeks to cause an affront assumes that a particular person was or
identifiable persons were, in fact, "actually . . . exposed to
the activity." Thus, in this context, the phrase "likely to
cause affront" has nothing to do with whether another person is
actually affronted, but, rather, modifies and establishes, from
an objective point of view, the relevant "attendant
circumstances" that result in criminal liability. See Sen. Com.
Rep. No. 1000, in 1991 Senate Journal, at 1103 (quoted supra at
page 7) (stating that circumstances are those in which "it is
likely" that "a substantial part of the community" would be
affronted). As previously indicated, the prosecution contends that Rocker
supports Defendant's conviction because, in Rocker, this court
held that the defendants' nude sunbathing at a public beach
supported their convictions of indecent exposure under HRS § 727-1 (1968). Rocker is not applicable. In Rocker, "indecent
exposure" was not defined as it is in HRS § 707-734, but was an
enumerated example of the HRS § 727-1 "offense of common
nuisance." (9)
It was said that indecent exposure by a person in a public place
where it may be seen by others was a common nuisance. Rocker, 52
Haw. at 339, 475 P.2d at 687. But the Rocker court was careful
to point out that the offense of indecent exposure, described in
the proposed draft of HRS § 707-738 (1972), the predecessor of
HRS § 707-734, (10)
was distinct from the common nuisance offense
involved in Rocker. (11) X. For the reasons stated above, the court's March 25, 1999 judgment
of conviction and sentence is reversed. On the briefs: Shirley M. Kawamura, Deputy Public Defender, for defendant-appellant. Alexa D. M. Fujise, Deputy Prosecuting Attorney, City and County of Honolulu, for plaintiff- appellee.
2. 0 that the parties agreed to use the declaration as part of the stipulated facts. Thus, the facts stated in the police report and in the declaration are
not considered in this appeal. This court's decision is based solely on the
stipulations in the transcripts. 3. The record does not indicate whether the area was part of the beach or the park. 4. Although there was no evidence that the police were affronted, codefendants also argued,
citing 5. The legislature employed the words "to a person to whom the person is not married" in
order "to prevent spouses from bringing false charges as a means of settling domestic disputes."
Conf. Com. Rep. No. 44, in 1991 Senate Journal, at 761. 6. HRS § 707-734 and the pertinent definition section (HRS § 707-700) (1993) do not define the
term "affront." We may "[r]esort to legal or other well accepted dictionaries as one way to
determine the ordinary meaning of certain terms [not statutorily defined]." 7. The statute of course does not expressly refer to nude
sunbathing.
8. In this respect, the commentary to HRS § 701-103 (1993) states that a purpose of the
MPC is to "[codify] specific offenses which constitute harms to social interests which the law in
general and this Code in particular seek to protect: i.e., offenses against the person, property
rights, the family and incompetents, public administration, public order, and public health and
morals."
9. HRS § 727-1 provided in pertinent part 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[.]
(Emphasis added).
10. 0 See supra text at part III. for the provisions of HRS § 707-738.
11. [T]he 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 herself] or of any person, he [or she] exposes his [or her] genitals to a person to whom he [or she] is not married under circumstances in which he [or she] knows his [or her] conduct is likely to cause affront or alarm. (2) Sexual assault in the fifth degree is a petty misdemeanor. 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.
Rocker, 52 Haw. at 338 n.1, 475 P.2d at 687 n.1. (citation omitted) (emphasis added).