# State v. Rocker

> Hawaii Supreme Court · October 21, 1970 · 52 Haw. 336

URL: https://www.frixlaw.com/law-library/cases/9604300

## Case

- **Full name:** State of Hawaii v. Richard Barry Rocker and Joseph Cava
- **Court:** Hawaii Supreme Court
- **Decided:** October 21, 1970
- **Citations:** 52 Haw. 336; 475 P.2d 684; 1970 Haw. LEXIS 135
- **Precedential status:** Published
- **Opinion:** Dissent by Levinson
- **Judges:** Richardson, Marumoto, Abe, Levinson, Kobayashi
- **Cited by:** 55 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9604300

## How later opinions describe it (automated extraction)

- holding that beach isolated by hill and ledge, away from view of road and adjoining beaches, but accessible by path and used by twenty to twenty-five people over two-month period, was a public place because defendants’ nudity likely to be seen by a number of casual observers
- stating that "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"
- holding that individuals bathing in the nude on a public beach had committed the offense of indecent exposure

## Opinion text

*348 DISSENTING OPINION OF
LEVINSON, J.
I dissent because I think that the evidence adduced by the government at the close of the prosecution’s case was insufficient to sustain a conviction of either defendant. The tidal judge erroneously denied the defendants’ motion for acquittal made at that time. My view of the role that the motion for acquittal plays in the criminal process leads me to conclude that in reviewing a denial of such a motion, the appellate court should consider only the record as it existed when the motion was made. The majority opinion appears to concur in this view. However, it does so without any discussion of the important constitutional and policy considerations which I believe require the adoption of this standard of review. Thus I feel compelled to begin by stating the basis for my belief that this standard of review is the only effective means of ensuring that the motion for acquittal fulfills its proper role in the criminal process. I shall then analyse the evidence in the record at the close of the prosecution’s case, indicating why I believe it to be insufficient to establish a prima facie case against either defendant.
I. THE IMPORTANCE OF THE MOTION FOR ACQUITTAL AS A GUARDIAN OF DEFENDANTS’ RIGHTS IN THE CRIMINAL PROCESS.
In our system of law the privacy of the individual is entitled to protection from unwarranted government interference. The guarantees found in both the Hawaii and Federal Constitutions admonish the government to move in a highly circumspect manner when instituting criminal proceedings against the individual. Article I, sec. 5 of the Hawaii Constitution, as amended in 1968, contains the following guarantee:
The right of the people to be secure in their persons, houses, papers and. effects against unreasonable *349 searches, seizures, and invasions of privacy shall not be violated;. . . (emphasis added). 1
Moreover, the State may not use inquisitorial methods in its relations with its inhabitants. It is prohibited from using any form of compulsion to exact incriminating evidence from a person accused of a crime. 2 These safeguards clearly exhibit the deep concern which our society displays for the dignity of the individual. As Mr. Justice Brandéis said in his now famous dissenting opinion in Olmstead v. United States, 277 U.S. 438, 478 (1928), they confer, “as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”
Affirming this right of the individual to be “let alone” are the concepts in Anglo-American criminal law that even when the State has undertaken to move against the individual, the law presumes him to be innocent and that this presumption is not overcome until the State proves him to be guilty beyond a reasonable doubt. A recent Supreme Court decision has held this reasonable doubt standard to be constitutionally mandated, recognizing that it “provides concrete substance for the presumption of innocence — that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’” In re Winship, 397 U.S. 358, 363 (1970). See also State v. Dias, 52 Haw. 100, 109 , 470 P.2d 510, 515 (1970), citing In re Winship, and HRS § 705-2. It is within the context of the value system embodied by the ideas of presumption of innocence and proof beyond a reasonable doubt that we must view the role played by the motion for judgment of acquittal.
The motion for acquittal is governed by rule 29(a) of *350 the Hawaii Rules of Criminal Procedure, which provides, 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.
A simple reading of- this rule clearly indicates that it was meant to he a primary device for implementing the safeguards embodied in the concepts of “presumption of innocence” and “proof beyond a reasonable doubt.”
Rule 29(a) empowers the trial judge to raise the motion for acquittal on his own initiative, thus demonstrating that a defendant’s right not to be vexed with prosecutions founded upon inadequate evidence should not be lost merely because his attorney fails to make the motion. In this context, the trial judge is not a mere arbiter between adversaries. He may act independently when -it becomes apparent that the State has failed to prove its case. Of course, in the present ease, the attorney for the defendants did make the appropriate motion.
The rule speaks-in mandatory terms, the court “shall” order the entry of judgment of acquittal, again pointing to the importance of the trial judge’s role in screening a defendant from cases not fit for trial. As I indicated in my concurring opinion in State v. Stuart, 51 Haw. 656, 667 , 466 P.2d 444, 450 (1970) the triai judge may not reserve his ruling on the motion when it is made at the close of the prosecution’s case. All this attests to the fact that the motion for a judgment of- acquittal was not meant'to be a neglected safeguard in protecting á defendant’s right not to be harrassed by improvidently. brought prosecutions. 3
*351 II. THE MOTION. FOR ACQUITTAL WILL NOT FULFILL . ITS PROPER ROLE IN THE CRIMINAL PROCESS UNLESS THERE IS. EFFECTIVE APPELLATE REVIEW OF ITS DENIAL.
In reviéwing a trial coiirt’s denial of a motion for judgment of acquittal some appellate courts consider all tlie evidence in the record, even that introduced after the erroneous denial of the motion. 4 This practice severely dilutes the effectiveness of the motion as a guardian of the defendant’s right to require that the State prove every essential element of its case before he is put to his defense.
The advocates of this practice, in effect, have taken a rule of law applicable in civil cases and applied it in a criminal contest. The rule in civil cases was stated by this court in Low v. Honolulu Rapid Transit Co., 50 Haw. 582, 585 , 445 P.2d 372, 375 (1968) as follows:
[W] hen a defendant unsuccessfully moves for dismissal under Rule 41(b), and thereafter elects to continue with the trial, he théreby waives the right , on appeal from the final judgment to specify as error the denial of his motion. The only method by which the validity of the adverse rilling on the motion may be considered on appeal is for the defendant to stand .on his motion and permit a final, judgment for the plaintiff to be entered on that state of the record. If a defect in the plaintiff’s proof prior to the denial of the motion to dismiss is later cured by either party, any error in the denial of the motion is harmless error.
It is entirely inappropriate to apply thé above rule to .a review of a motion for acquittal in criminal. cases: The values underlying the criminal process are unique; they are qualitatively different from those embodied in the civil practice of law. Unlike the motion for acquittal in a *352 criminal trial, the motion for dismissal in a civil suit does not find its justification in the common law tradition of presumption of innocence. 5
The demands of our system of criminal justice were well articulated by Mr. Justice Frankfurter in Watts v. Indiana, 338 U.S. 49, 54 (1949), when he stated:
Ours is the accusatorial as opposed to the inquisitorial system.... Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation. (Emphasis added.)
The application of the civil rule to criminal cases violates this principle by permitting an appellate court to lay hold of a defendant’s own testimony, testimony that he ought never to have been required to give in order to sustain the wrongful ruling of the trial court. State v. Bacheller, 89 N.J.L. 433, 436 , 98 A. 829, 830 (1916). I reject the use of the civil “waiver” doctrine in criminal cases because its use in criminal cases violates the basic principle of our system of law that the criminal apparatus of the government should not be permitted to move against the individual until the prosecutor can prove guilt extrinsically, without relying upon the accused. 6
Applying the civil practice to criminal cases greatly undermines the effectiveness of the motion for acquittal by removing the pressure which the motion places on the *353 trial judge to enforce strictly the defendant’s right to an immediate acquittal when it is apparent the State has failed to prove a prima facie case. The pressure is removed because the likelihood of effective appellate review of the motion’s denial is severely lessened by the civil rule. In order to make the motion for acquittal an effective guardian of a defendant’s rights I would hold that in reviewing a denial of the motion, made at the close of the prosecution’s case, an appellate court should look only to the evidence theretofore introduced by the prosecution.
III. THE EVIDENCE ADDUCED BY THE GOVERNMENT AT THE CLOSE OF THE PROSECUTION’S CASE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF THE OFFENSE CHARGED.
Before proceeding to my analysis of the insufficiency of the evidence offered by the prosecution I feel compelled to state the facts in the record at the close of the prosecution’s case. I do this because I believe that the majority has failed to segregate clearly the prosecution’s evidence from that offered by the defense and has omitted stating a key fact which I believe raises a reasonable doubt as to the defendants’ guilt.
A. The Evidence in the Record at the Close of the Prosecution’s Case-in-Chief.
The State’s case consisted solely of the testimony of the two arresting police officers. They both testified that the Puu Olai beach is isolated by a hill and a ledge, away from the view of the public road and adjoining beach. The beach is accessible by two trails. One is a well-worn path leading over the hill. The other is a trail on the Wai-luku side of the beach, which is not well-used and connects *354 the beach to a . small road. The officers testified to being able to see, •with the naked eye, the nudity of the defendants, from the crest of the hill.
One of the officers, George Matsunaga, testified that this beach was one of his favorite fishing spots and that it was a popular location for other, fishermen. He also stated that the fishermen went to the beach in the “day or night.” On examination by the court, .Officer Matsunaga admitted that he had never seen the beach used for picnics or family recreation, and the .only non-fishermen that he recalled having observed on this beach were what he called “hippie type characters.” It was on this evidence alone that, the State rested its case.
B. Intent to be Been by Others.
My reading of the majority opinion leads me to. conclude that in order to prove a prima facie case against the defendants it was necessary for the prosecution to demonstrate that the defendants possessed a general intent to expose themselves in a place where it would be likely that they would be observed by others. To prove this, it would be. enough for the prosecution to establish the defendants’ awareness of sufficient facts and circumstances from which a trier of fact could infer such intent beyond a reasonable doubt. From the evidence in the record at the close of the prosecution’s case I do not think that a trier of fact could be justified in inferring beyond a reasonable doubt that the defendants possessed the necessary general intent to be seen by others. 7
*355 Although there was testimony that the beach was visited by fishermen there was no lihk established between the visits by the fishermen and visits to the beach by the defendants. Officer Matsunaga, one of the fishermen who used the beach, did not testify to ever having observed the defendants on this beach prior to arresting them. Thus, this evidence could not be used to support an inference that the defendants were aware that this beach was used by fishermen and therefore public.
Nor could a trier of fact infer beyond a reasonable doubt that the defendants were aware of the “well-worn” path leading over the hill to the beach and therefore knew that they Were sunbathing in an area readily accessible to the public. One of the police officers testified that, the beach was accessible by another trail which was not “well-used.” There was no other evidence that would eliminate as a reasonable doubt the possibility that the defendants had used this other path and therefore inferred from its unused nature that the public would not be likely to see them. The majority opinion does not mention this possibility in assessing the adequacy of the prosecution’s case. In failing to prove that the defendants were aware of the visits of the fishermen or the well-worn path I believe the State failed to prove beyond a reasonable doubt defendants’ awareness of facts sufficient to establish a general intent to be seen by others.
C. The Affront to the Moral Sense of the Community.
In order to prove that the defendants were guilty of committing a common nuisance the prosecution had to show that the facts and circumstances surrounding the *356 defendants’ conduct were such that the “sense of decency, propriety and morality which most people entertain” would be offended. The State elicited no testimony establishing that the beach was used by the general public and, in fact, there was testimony to the effect that the contrary was true. The evidence indicated that the only group of people who were likely to see the defendants were the fishermen who came to the beach to fish. Given the exclusive nature of the clientele frequenting this beach and the well-known general hardiness of spirit of men who enjoy the sport of fishing I do not see how one could conclude beyond a reasonable doubt that the moral sense of the community would be outraged by defendants’ acts of nude sunbathing.
Since the prosecution failed to prove a prima facie case against the defendants the motion for acquittal was erroneously denied. I would reverse the convictions.
See also, United States Constitution, amendment IV.
Hawaii Constitution, article I, section 8; United States Constitution, amendment V.
See generally, Note,. The Motion for Acquittal:- A Neglected Safeguard, 70 Tale L.J. 1151 (1961) State v. Stuart, 51 Haw. 656, 664 , 466 P.2d 444, 448 (1970) (concurring opinion).
See Note, supra, note 3 at 1152, n.9 (citing .cases). '
By way of. contrast it is worth noting that H.R.C.P., Rule 41(b), governing the order for dismissal in a civil suit, makes no provision for the court to grant the dismissal on its own initiative. In addition, the court is specifically empowered to decline to make a ruling until after the close of all the evidence.
Cephus v. United States, 324 F.2d 893 (D.C. cir. 1963); United States v. Rizzo, 416 F.2d 734 , 736 n.3 (7th cir. 1969); see also, A. Gold-stein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149 , 1161 (1960); Note, The Motion for Acquittal: A Neglected Safeguard, 70 Yale L.J. 1151 , 1159-60 (1961).
The majority opinion adopts the “reasonable doubt” standard discussed in my concurring opinion in State v. Stuart, 51 Haw. 656 ; 667; 466 P.2d 444 . 450 (1970) to test the sufficiency of the evidence adduced by the prosecution to withstand the defendants’ motion for acquittal made at the close of the prosecution’s case. Unfortunately, the majority then goes on to use the vaguer “substantial evidence” test in reviewing the sufficiency of the evidence at the conclusion of the trial to support the verdict. For the reasons set forth in my concurring opinion, in *355 State v. Butler. 51 Haw. 180, 186 , 455 P.2d 4, 8 (1969), I believe that the majority should proceed to the next logical step and make it clear that “substantial evidence” is that evidence which would justify a reasonable trier of fact in finding that the defendants were guilty beyond any reasonable doubt.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9604300. Public record. Not legal advice.