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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000052
                                                              23-DEC-2014
                                                              09:56 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAIʻI,
                    Respondent/Plantiff-Appellee,

                                    vs.

                       JACQUES RAYMOND MONTEIL,
                   Petitioner/Defendant-Appellant.


                            SCWC-12-0000052

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                  (CAAP-12-0000052, 3P711-1171)

                           December 23, 2014

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

                OPINION OF THE COURT BY POLLACK, J.

                            I. Introduction

          Defendant was convicted by the District Court for the

Third Circuit (district court) of committing the offense of

prostitution in violation of Hawaiʻi Revised Statutes (HRS) §

712-1200(1) (1993, Supp. 2013).       Defendant appealed the

conviction to the Intermediate Court of Appeals (ICA), arguing
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there was insufficient evidence to sustain the conviction.               The

ICA affirmed the conviction.      Defendant filed an application for

writ of certiorari in which he argued the ICA erred by finding

sufficient evidence to prove the commission of a prostitution

offense.   We affirm the judgment on appeal of the ICA, and

clarify the prior-to-trial advisement required by State v.

Lewis, 94 Hawaiʻi 292, 297, 12 P.3d 1233, 1238 (2000).

                             II. Background

           On August 3, 2011, James Raymond Monteil was charged

by complaint in the district court with the offense of

prostitution, in violation of HRS Section 712-1200(1).1            Monteil

pleaded not guilty to the charge, and trial was scheduled before

the district court on January 10, 2012.

                A. Prior-to-Trial Tachibana Advisory

           At the commencement of Monteil’s bench trial,2 the

judge conducted the following colloquy to inform Monteil of his

right to testify and the right not to testify:

           THE COURT: All right. Mr. Monteil, let me inform you:
           You have the right to remain silent and the right against

     1
           HRS § 712-1200(1) states,

           A person commits the offense of prostitution if the person:

           (a)   Engages in, or agrees or offers to engage in, sexual
           conduct with another person for a fee; or

           (b)   Pays, agrees to pay, or offers to pay a fee to
           another to engage in sexual conduct.
     2
           The Honorable Joseph P. Florendo, Jr. presided.




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            self-incrimination. No one can force you to testify in
            this matter. Do you understand?

            MR. MONTEIL:   Yes, your Honor.

            THE COURT: You don’t have to present any evidence
            whatsoever. It’s up to the State to prove this case beyond
            a reasonable doubt. Do you understand?

            MR. MONTEIL:   Yes, sir.

            THE COURT: Do you understand that if you wish to testify,
            the Court will allow you to do so; and if you do wish to
            testify, your testimony will be taken under oath and
            subject to penalties of perjury, the prosecutor can cross-
            examine you, and the Court can consider your testimony in
            deciding if you are guilty or not guilty?

            MR. MONTEIL:   Yes, your Honor.

            THE COURT: You can wait until after the State has
            completed its evidence in order to decide if you wish to
            testify, and you can talk to your attorney before you
            decide. All right?

            MR. MONTEIL:   Yes, your Honor.

            THE COURT:   All right.    Call your first witness.

Notably, the court did not inform Monteil that if he did not

testify, his silence could not be used against him in deciding

the case.

                                      B. Trial

            At the conclusion of the court’s colloquy, the State

called its first witness, Honolulu Police Department (HPD)

Sergeant Chad Taniyama (Sgt. Taniyama).             Sgt. Taniyama testified

that his duties as a detective included organizing prostitution

sting operations and that he had conducted approximately ten

such operations with the HPD.           Some operations involved setting

up email accounts and placing advertisements in the escort

section of web sites such as “Backpage” or “Craigslist.”


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            Sgt. Taniyama testified he was the lead investigator

in such an operation on July 18, 2011.          He placed an

advertisement in the escort section of “backpage.com” on July

16, 2011, entitled, “ExOtIC BeAuTy AwAiTs You ToDaY.”              The

advertisement read as follows:

            Hey fellas my name is SiN.

            I am here for a short visit, take advantage while you can.
            I’m proof that amazing beauty comes in small packages. I’m
            5’ with race car curves and eager to make your dreams come
            true. Your imagination is our only limit. 100% REAL!! I
            guarantee you won’t want to say goodbye.

            420 Friendly.

            Send me a message at sinsplayground@gmail.com to set up an
            appointment.

            Sgt. Taniyama testified he received email messages

from several individuals in response to the advertisement,

including messages from Monteil on July 16 and July 18, 2011.3

Monteil’s email conversation with Sgt. Taniyama on July 16,

2011, reads, in relevant part, as follows:

            MONTEIL: r u on big island?

            SGT. TANIYAMA (posing as “SiN”): Hey babe, i am not on the
            Big Island right now. i will b in kona on Monday. i would
            love to meet. lmk if we can hook up.

            MONTEIL:   grat, what time u be i kona?   lmk will like to
            meet u

            SiN: ill b in kona in the afternoon. i shold b ready 2 go
            by 5 or so. if you would like to book now i can pencil u
            in. my book fills up pretty quickly. lmk if we can meet
            and what kind of party u want.



      3
            The transcript of the email messages between Monteil and Sgt.
Taniyama was admitted into evidence at trial without objection.




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      MONTEIL: so then i be #1 in kona. . . where you staying?
      catch a drink first is better if u ok with that

      SiN: like I said hun my book fills up fast. my first
      party is taken. book now or miss the greatest ride on
      earth. can have a drink at my place if u like. ill be
      staying in kona town. what kind of party ru lookin for
      tiger?

      MONTEIL: drink at ur place is k. just good fun – do i
      really need to say on e-mail . . . . n yes what time do u
      have open?

      SiN: that my screening hun, making sure ur not popo.
      xoxoxo.

      Convince me ur not popo and u can have me 6.   xoxoxo.

      MONTEIL: not a cop if that is what u r asking – the ride
      of my life that is . . . r u in any law enforcement group
      since we are been honest?

      convinced enough?

      SiN: me?? popo . . . hehehe. i have played a naughty cop
      many times. jus lmk what kind of party u want babe.
      xoxoxoxo.

      MONTEIL:   gfe experience for an hour or two

      u r so freaking cute too . . .

      SiN: gfe sounds like fun!! my part for a hour will be
      $300. I cant wait to get my hands on you. i will let u
      know where to cum on monday. or send me a message.
      xoxoxo.

      ooooooo!!!!! flattery will get u everywhere.    o and i
      taste as good as i look. xoxoxo

      MONTEIL: k . . . perfect then, I will e-mail u Monday
      around noon – hope u can get out of the 5 n i make ur while
      . . . .
      i specialize in tasting competitions – until theres no more
      to taste. U r gorgeous – assume photos in ur ad recent?

      SiN: o really?? i would love to put that to the test. my
      pics r recently done. xoxoxoxo

      MONTEIL: u will experience it i gtd it – but better then
      if i meet u first at 4pm than 5 – who knows what u be doing
      in that hour – but then an hour might not be enough . . . I
      am a great massage therapist so imagine that first and then
      a full tasting[.]




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           Two days later, on July 18, 2011, Monteil and Sgt.

Taniyama continued the email conversation in which they agreed

to meet later that day:

           MONTEIL: Hi there – still on at 6?   looking forward to
           meeting u. where u stayin at?

           SiN: yes we r sweets.    i cant wait to get my hands on u.
           cu at 6. xoxoxo

           . . . .
           ok babe im in and ready!! u can cum early if u like.     lmk,
           so I can give u the hotel.

           MONTEIL: K, just like u I have to be safe so need u to
           answer a simple question. Are u associated with any law
           enforcement? Yes or no?

           SiN: No hun.    I’m not popo. But I know how u feel.     need
           to b careful.   xoxoxo. Love Sin.

           MONTEIL:   K, where r u at?

           SiN:   I’m at the kona reef, u know it? . . . Love Sin

           MONTEIL:   Alii drive right?

           SiN:   Yes hun.   Love Sin

           MONTEIL:   Room number

           SiN:   F13 . . . Love Sin

           Sgt. Taniyama testified that Monteil arrived at Kona

Reef Condominiums (Kona Reef) room F-13 at 6:00 p.m. on July 18,

2011.   When Monteil arrived at the room, he knocked on the door,

and Officer Sharon Yoon (Officer Yoon), who was assigned by Sgt.

Taniyama to dress “as a prostitute,” answered, “Who is it?”                A

voice replied, “It’s me.”       Officer Yoon opened the door and let

Monteil into the unit.       Officer Yoon informed Monteil that she

was “gonna get ready” and left the room.          At that juncture, “the

vice officers came into the room from a separate room in the


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unit and placed [Monteil] under arrest.”          Sgt. Taniyama

testified he conducted a search incident to the arrest and

recovered $300.00 in cash from Monteil’s person.

          Sgt. Taniyama testified Monteil had agreed to receive

“GFE” in exchange for $300.       The Officer defined the term “GFE”

as “girlfriend experience” and explained that “GFE” meant

unprotected sex.

          THE STATE:   And what is a “GFE”?

          SGT. TANIYAMA: That’s an internet escort term for a
          “girlfriend experience.”

          THE STATE:   And what does “girlfriend experience” mean?

          SGT. TANIYAMA: As it relates to escorts, “girlfriend
          experience” would mean that the john would like to be
          treated as if he was dealing with his girlfriend with the
          escort. As it relates to sexual intercourse, it would mean
          sexual intercourse without any contraceptives.

          THE STATE:   And is that what the defendant requested?

          SGT. TANIYAMA:   Yes, a GFE.

          . . . .
          THE STATE: And just to clarify: Going back to the term
          “GFE,” that means “girlfriend experience.” With regard
          specifically to sexual conduct –- I’m sorry, what –- how
          would you describe what a “girlfriend experience” is?

          . . . .
          SGT. TANIYAMA: Vaginal intercourse or anal intercourse or
          any intercourse without contraceptives.

          THE STATE:   So without the use of a condom, for example?

          SGT. TANIYAMA:   Correct.

          THE STATE:   Okay.   No further questions, your Honor.

          On cross-examination, Sgt. Taniyama acknowledged the

email exchange did not expressly mention sexual conduct.              Sgt.

Taniyama also acknowledged that from the time Monteil arrived at



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the Kona Reef until the time he was arrested, Monteil did not

make any indication that he came to the room to have sex.

            At the conclusion of the State’s case, the judge

inquired if there were any witnesses for the defense.              The

defense counsel responded, “Yes, your Honor.            We’re gonna have

Mr. Monteil take the stand. . . . So if you’d like to question

him.”    The judge replied, “I think I already did that.”

            Monteil then took the stand and testified that in the

email communications prior to his arrest, all he asked was if he

could “meet somebody and have dinner or a drink,” and he

maintained that “GFE” had no sexual connotations that he knew

of.   Monteil stated as a realtor, he “use[d] ‘GFE’ as ‘good

faith estimate’ all the time” and that he did not “know what the

intent of ‘GFE’ [was] in [the] prostitute world.”             Monteil

acknowledged his email interaction with “SiN” was not a “real

estate transaction,” but he asserted that when he used the term

“GFE” he meant “good fun everywhere experience,” “which [was] a

very common term in any hotel industry.”           He added that “having

good fun everywhere [could mean] go and have dinner and have []

drinks,” and he maintained that his purpose for going to the

Kona Reef was to take someone to dinner.           However, on cross-

examination, Monteil acknowledged he did not mention going to

dinner with SiN in his emails, but rather requested a “GFE

experience for an hour or two.”


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          With respect to his email communication with “SiN”

about police, Monteil stated he thought it was “very strange

that [he] was being asked if [he] was popo,” and he maintained

he “didn’t know what ‘popo’ was.”        When asked about his comment

in the email correspondence about “tastings,” Monteil testified

he was “a food and beverage director” and the “conversation

ha[d] nothing to lead to any sex or anything.”          Monteil

additionally testified he had $400 on his person at the time of

his arrest rather than the $300 the police testified to

recovering from him.     At the conclusion of Monteil’s testimony,

the defense rested.

          The State’s closing relied on the testimony of Sgt.

Taniyama, Officer Yoon, and the cross-examination of Monteil.

The defense maintained in its closing that under the

prostitution statute the defendant’s state of mind is at issue,

not the police officer’s beliefs.        For that reason, the defense

argued Sgt. Taniyama’s testimony as to the meaning of the term

“GFE” was not relevant in determining whether Monteil had the

intent to engage in sexual conduct with “SiN.”          The defense

concluded that the evidence presented failed to demonstrate

Monteil had the intent to engage in sexual conduct and thus the

court should find Monteil not guilty.

            The district court indicated “the critical issue” was

the definition of the term “GFE” or “GFE experience.”            The court


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found “[t]aken into effect the entirety of [the email exchanges

between Monteil and “SiN”], together with the actions of

[Monteil], [Monteil] did agree to engage in a girlfriend

experience, which, as testified by Sgt. Taniyama, would be

treated as if [Monteil], or the customer, were the boyfriend of

the female and had sex without contraceptives.”          Thus, the State

“proved beyond a reasonable doubt that [Monteil] intentionally,

knowingly, or recklessly paid or agreed to pay or offered to pay

a fee to another to engage in sexual conduct.”

          When asked if he wished to make any further

statements, Monteil stated, “Your Honor, . . . I am a law-

abiding officer -- law-abiding citizen . . . . There was no

intent whatsoever to do that.”

          In response to Monteil’s statement, the court

explained to Monteil that his testimony was an additional factor

it considered in finding him guilty of prostitution:

          Part of your testimony led me to believe that you did have
          [] intent. You initially said you didn’t have any idea
          what “GFE” means and you referred to your real estate
          experience, but the communication in this e-mail shows that
          you were the one who suggested the “GFE experience,”
          . . . . but when you came onto the witness stand, you said
          you didn’t know what “GFE” means. . . . [t]hat’s one factor
          that I used to decide this case.

          The court imposed a $500 fine and a $30 criminal

injury fee.




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                      III. Appellate Proceedings

            On appeal to the ICA, Monteil argued the district

court erred by concluding there was sufficient evidence to

support a conviction of prostitution based on the term “GFE.”

Monteil maintained that in order to establish that “[he] paid,

agreed to pay, or offered to pay a fee to another to engage in

sexual conduct, the district court would have to find the

following, beyond a reasonable doubt”: (1) “‘GFE’ means ‘Girl

Friend Experience[,]’” and (2) “the term ‘Girl Friend

Experience’ is defined or means sexual conduct.”           Monteil argued

there was “contradictory testimony on the definition of the term

“Girl Friend Experience” and whether the term in fact means

sexual conduct.

            Monteil contended Hawaiʻi cases dealing with

prostitution have held that “when a term is not statutorily

defined, [courts] may resort to legal or other well accepted

dictionaries as one way to determine its ordinary meaning.”

Monteil pointed out neither Black’s Law Dictionary nor any other

“generally regarded dictionaries” reference the term “GFE” or

“Girl Friend Experience,” and therefore, the “term ‘GFE’ [wa]s

not commonly understood, or widely accepted to possess a generic

meaning.”    Monteil further argued, “Hawaiʻi appellate courts have

never recognized GFE to mean ‘Girl Friend Experience’” and no




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Hawaiʻi case law “defines a ‘Girl Friend Experience’ to mean []

sexual conduct, sexual contact or sex without contraceptives.”4

            Monteil contended Hawaiʻi case law requires the trial

court to find a “meeting of the minds” for an “agreement to pay

a fee to another to engage in sexual conduct” when slang terms

or phrases of uncertain meaning are used.          Monteil maintained

the “GFE” acronym was “not known or used by the general public

to the extent that it ha[d] a general recognized meaning in the

public,” and therefore, the “acronym, standing by itself[,]

[was] insufficient to establish the element and finding of the

district court, that [he] paid, agreed to pay, or offered to pay

a fee to another to engage in sexual conduct.”           Accordingly,

Monteil requested the ICA reverse his conviction.

            In its Answering Brief, the State asserted it was

“well within the [district] court’s discretion [to] . . . make

credibility determinations and draw reasonable inferences from

[the] evidence presented.”       The State maintained that the

evidence supported the court’s finding that “GFE” meant

“girlfriend experience,” which constituted sexual conduct, and

that Monteil solicited a “GFE” experience from “SiN.”

Therefore, the State contended that the trial court’s finding

Monteil guilty of prostitution was not clearly erroneous.
      4
            Monteil instead argued the term “GFE” has been uniformly
recognized as “Good Faith Estimate” by federal courts located in Hawaiʻi.




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            Alternatively, the State argued that even if the

district court clearly erred by finding “GFE” meant “girlfriend

experience,” there was “still substantial evidence Monteil

agreed to pay a fee to engage in sexual conduct” as evidenced by

the nature of the online advertisement and the “sexually

saturated remarks” in Monteil’s email exchange with Sgt.

Taniyama.   The State maintained “these exchanges—and the

reasonable inferences that follow given the context—[were]

sufficiently credible and probative that the agreement for a GFE

concerned ‘sexual conduct’ as that term is defined under the

Hawaiʻi Penal Code.”

            The State asserted the district court “reasoned that

the exhibits, [Sgt.] Taniyama’s testimony, and Monteil’s

behavior on the stand—considered in its entirety—showed that

Monteil agreed to pay a fee in return for sexual conduct.”             The

State concluded that the evidence presented was of “sufficient

quality and probative value to sustain Monteil’s conviction even

if [Sgt.] Taniyama’s testimony [was] disregarded.”

                  A. ICA Summary Disposition Order

            In its Summary Disposition Order (SDO), the ICA

concluded there was sufficient evidence to support the district

court’s finding that Monteil’s use of the term “GFE” conveyed

his intent to engage in sex for a fee.         The ICA noted that it

was Monteil who first used the term “GFE” to describe the “kind


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of party” he wanted in response to Sgt. Taniyama’s email and who

subsequently agreed to pay “for this experience.”           The ICA

additionally noted that Sgt. Taniyama testified the term “GFE”

had “a literal meaning of girlfriend experience” but “within the

context of the escort industry was the equivalent of having sex

as boyfriend and girlfriend without contraceptives.”

            The ICA noted that “even assuming that there are other

meanings” for the acronym “GFE” and “the meaning testified to by

Officer Taniyama has not been recognized by the courts of Hawaiʻi

as Monteil argues, Officer Taniyama testified GFE is understood

as referring to unprotected sex in the escort context, and when

Monteil used the term in that context, it was to convey that

meaning.”   The ICA further noted that the “District Court

credited Officer Taniyama’s testimony.”

            The ICA found the context of the email exchange

supported Sgt. Taniyama’s testimony.        The ICA held “[i]t [was]

well-settled that an appellate court will not pass upon issues

dependent upon the credibility of witnesses and the weight of

the evidence” within “the province of the trier of fact.”             The

ICA concluded that in considering the evidence in the strongest

light for the prosecution, there was substantial evidence as to

every material element of the offense charged.          Thus, the ICA

affirmed the district court’s judgment of conviction.




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                B. Application for Writ of Certiorari

            In his Application for Writ of Certiorari

(Application) to this court, Monteil raises the following point

of error:

            The ICA committed grave error when it found the State
            introduced sufficient evidence to find Monteil guilty under
            the new prostitution statute, because he never agreed or
            offered to pay another for sexual conduct.

            Monteil reiterates his argument that there was

insufficient evidence demonstrating he offered to pay another

for sexual conduct and that the trial court’s determination of

the meaning of “GFE” was improper.

            Additionally, Monteil argues that, assuming he meant

“girlfriend experience” in his email, Sgt. Taniyama’s definition

“as it relates to escorts” was “consistent with an offer to pay

for . . . lawful services provided by escorts, including dates,

dancing, dinner, drinks, . . . or flirting in an email exchange,

all of which fall outside the definition of sexual conduct.”

Monteil argues that the ICA’s conclusion that there was

sufficient evidence to convict him of prostitution was “clearly

wrong” and that “girlfriend experience,” as it relates to

services performed by an escort, does not involve sexual contact

or sexual intercourse.

            Monteil asks this court to reverse the ICA’s SDO and

the district court’s judgment of conviction and remand this case

for entry of an acquittal.


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          In its Response to Monteil’s Application (Response),

the State contends Monteil made “many sexually saturated

remarks” throughout his email exchange with “SiN,” which

evidences that “he wanted to engage in sexual conduct.”            The

State concludes that these remarks, “and the reasonable

inferences that follow, given Monteil’s subsequent actions, are

sufficiently credible and probative that the $300 agreement for

a ‘gfe experience’ was vernacular for sexual conduct.”

          In Monteil’s Reply, he argues that “75% of the

‘sexually saturated remarks’ in the email exchange were made by

Sgt. Taniyama, and exchanges about ‘popo’ and ‘tasting’ were

initiated by SiN, not Monteil.”       Monteil argues the “prohibited

conduct must be shown by the defendant’s words, not police

suggestions,” and he contends that he did not “email SiN [in

response to the ad] requesting sexual favors.”

                        IV. STANDARD OF REVIEW

          On appeal, the test for sufficiency of the evidence is

“not whether guilt is established beyond a reasonable doubt, but

whether there is ‘substantial evidence’ to support the

conclusion of the trier of fact.”        State v. Matavale, 115 Hawaiʻi

149, 157-58, 166 P.3d 322, 330-31 (2007) (quoting State v.

Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992)).

“Substantial evidence” is “credible evidence which is of

sufficient quality and probative value to enable a person of


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reasonable caution to support a conclusion.”          Id. at 158, 166

P.3d at 331 (quoting Batson, 73 Haw. at 248-49, 831 P.2d at

931).   When considering the legal sufficiency of evidence to

support a conviction, such “evidence adduced in the trial court

must be considered in the strongest light for the prosecution.”

Matavale, 115 Hawaiʻi at 157, 166 P.3d at 330.

            In a bench trial, “the trial judge is free to make all

reasonable and rational inferences under the facts in evidence,

including circumstantial evidence.”        Batson, 73 Haw. at 249, 831

P.2d at 931.   Further, “[i]t is for the trial judge as fact-

finder to assess the credibility of witnesses and to resolve all

questions of facts; the judge may accept or reject any witness’s

testimony in whole or in part.”       State v. Eastman, 81 Hawaiʻi

131, 139, 913 P.2d 57, 65 (1996).        It is not the role of the

appellate court to weigh credibility or resolve conflicting

evidence.   Id.; State v. Wallace, 80 Hawaiʻi 382, 418, 910 P.2d

695, 731 (1996).

                              V. DISCUSSION

                   A. Sufficiency of the Evidence

            A person commits the offense of prostitution if he or

she “[p]ays, agrees to pay, or offers to pay a fee to another to

engage in sexual conduct.”      HRS § 712-1200(1)(b).       In this case,

the State adduced evidence that Monteil responded to Sgt.

Taniyama’s online advertisement in which the officer portrayed


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an escort named “SiN.”      The email conversations between Monteil

and “SiN” were replete with sexual innuendo,5 and at several

times during the conversation, Monteil expressed concern about

whether “SiN” was involved in law enforcement.6           Ultimately,

Monteil asked “SiN” for a “GFE experience for an hour or two”

and offered to pay $300.00 for such experience.           After reaching

an agreement with “SiN” to pay $300.00 for “GFE,” Monteil

arranged a date, time and location to meet “SiN,” and he

followed through with those plans.

              Sgt. Taniyama and Monteil both testified as to the

meaning of “GFE.”     Sgt. Taniyama explained the term “GFE” was

vernacular in the internet escort community for “girlfriend

experience,” which in turn meant to have sex with another

without the use of contraceptives.         Monteil testified he did not

know what “GFE” meant in the context of prostitution; he

asserted that “GFE” means “good faith estimate” in the real

      5
            For example, “SiN” made several sexually suggestive comments to
Monteil: 1) he needs to “book [her] now or miss the greatest ride on earth,”
2) she “played a naughty cop many times,” 3) she “can’t wait to get [her]
hands on [him],” and 4) she “will let [Monteil] know where to cum.”
Additionally, in response to “SiN’s” comment that she “taste[d] as good as
she look[ed]” in her ad, Monteil told “SiN” that 1) he specialized in
“tasting competitions,” 2) he would taste her “until there’s no more to
taste,” and 3) he guaranteed that she would “experience” the “tasting.”
      6
            When “SiN” initially asked what “kind of party” he wanted,
Monteil was resistant to answering on email, “Do i really need to say on e-
mail . . . .” Monteil then asked whether or not “SiN” was in any “law
enforcement group.” On the day that Monteil was scheduled to meet with
“SiN,” Monteil again asked “SiN” if she was “associated with any law
enforcement.”




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estate context and that “GFEE” means “good fun everywhere

experience” in the hotel industry.

            In its oral ruling, the district court expressly

relied on Sgt. Taniyama’s testimony in finding “GFE” constituted

sexual conduct; by contrast, the judge noted Monteil’s testimony

regarding the term “GFE” was inconsistent and contradictory.

The sexual nature of the email conversation between Monteil and

“SiN” further supports Sgt. Taniyama’s contention that “GFE”

constitutes sexual conduct.

            When viewed in the light most favorable to the State,

the totality of the evidence—including the email conversation,

Sgt. Taniyama’s testimony,7 and Monteil’s subsequent actions—

constitutes substantial evidence that Monteil contacted “SiN” to

solicit sexual conduct.      Thus, the ICA did not err in concluding

the evidence adduced at trial was sufficient to sustain

Monteil’s conviction for prostitution.




      7
            The ICA has previously relied on police testimony to discern the
meaning of colloquial words, phrases, or other types of street vernacular.
State v. Connally, 79 Hawai#i 123, 127, 899 P.2d 406, 410 (App. 1995)
(affirming the defendant’s conviction for prostitution based, in part, on the
officer’s testimony that the defendant’s question in Japanese to the Japanese
male tourists, “Would you like to play?” was the street vernacular equivalent
to “Would you like to have sex?”).




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                     B. Prior-to-Trial Advisement

                                  1.

           Hawaiʻi law has long recognized that a defendant

accused of a criminal offense is accorded specific fundamental

rights, including the right to be represented by counsel, the

right to have guilt proved beyond a reasonable doubt, and, as

relevant to this case, the right to testify and the right not to

testify.   See Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293

(1995); see also Lewis, 94 Hawai#i at 295, 12 P.3d at 1236.

           A defendant’s “right to testify is guaranteed by the

United States’ Sixth Amendment guarantee of compulsory process,

and Fourteenth Amendment guarantee of due process; the Hawai#i

Constitution’s parallel guarantees under Article I, sections 14,

and 5, respectively; and HRS § 801-2 (1993)’s statutory

protection of the right to testify, which states, ‘In the trial

of any person on the charge of any offense, he shall have a

right . . . to be heard in his defense.’”         State v. Pomroy, 132

Hawai#i 85, 91, 319 P.3d 1093, 1099 (2014) (citing Tachibana, 79

Hawai#i at 231-32, 900 P.2d at 1298-99); accord State v. Han, 130

Hawai#i 83, 87, 306 P.3d 128, 132 (2013).

           A defendant’s right not to testify is guaranteed by

the United States’ Fifth Amendment guarantee against compelled

testimony and the Hawaiʻi Constitution’s parallel guarantee under


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Article I, section 10.     See State v. Silva, 78 Hawaiʻi 115, 124,

890 P.2d 702, 711 (App. 1995), abrogated on other grounds by

Tachibana, 79 Hawaiʻi 226, 900 P.2d 1293; see also Lewis, 94

Hawai#i at 293, 12 P.3d at 1234.       As early as 1887, this court

held that a defendant should not be prejudiced for exercising

the right not to testify and for remaining silent at trial.                See

The King v. McGiffin, 7 Haw. 104, 114 (Haw. Kingdom 1887)

(holding a comment by the prosecution in its summation as to the

defendant’s failure to testify was “highly improper, and

contrary to the statute” although not prejudicial in the

particular case as the court intervened and directed the jury

not to take notice).     The Hawaiʻi Legislature later adopted and

codified this common law rule when it enacted HRS § 621-15 that

provided, in part, “[N]o inference shall be drawn prejudicial to

the accused by reason of such neglect or refusal [to testify],

nor shall any argument be permitted tending to injure the

defense of the accused person on account of such failure to

offer himself as a witness.”      HRS § 621-15 (1976) (repealed

1980).   This provision has evolved over the years and is found

today in Hawaiʻi Rules of Evidence (HRE) Rule 513, which

prohibits the court or counsel to comment on, or draw any

inference from, a defendant’s exercise of the right not to

testify.   HRE Rule 513(a) (codified at HRS § 626-1).




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             Thus, Hawai#i has historically protected both the right

to testify and the right not to testify.            To ensure that a

decision to waive the fundamental right to testify is an

intelligent and voluntary act, this court adopted the colloquy

approach in which “the trial judge, as a matter of routine,

conducts an [on-the-record] inquiry . . . with the defendant.”

Tachibana, 79 Hawaiʻi at 233, 900 P.2d at 1300.

             In Tachibana, this court reviewed a defendant’s claim

that his attorney had prevented him from testifying at trial,

and thus violated his right to testify.            79 Hawaiʻi at 230, 900

P.2d at 1297.      To protect the right to testify and to limit

similar post-conviction challenges, Tachibana required that the

trial court conduct an “ultimate colloquy” in cases in which a

defendant has not testified prior to the close of the case.                   79

Hawaiʻi at 236, 900 P.2d at 1303.           The court is required to

advise defendants of their right to testify and must obtain an

on-the-record waiver of that right in every case in which the

defendant does not testify.         Id.

             “In conducting the colloquy, the trial court must be

careful not to influence the defendant’s decision whether or not

to testify.”      Tachibana, 79 Hawaiʻi at 236 n.7, 900 P.2d at 1303

n.7.    Accordingly, the court’s advisory to the defendant must

maintain an “even balance” between a defendant’s right to




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testify and the right not to testify.         Lewis, 94 Hawai#i at 295,

12 P.3d at 1236.     Particular caution must be afforded to avoid

infringing upon the right not to testify, which has been

recognized as a “more fragile right”8 than the right to testify.

See id. at 295, 12 P.3d at 1236.

            Expressly recognizing the importance of a balanced

advisement, Tachibana provides the trial courts with specific

guidance for the “ultimate” colloquy to ensure defendants are

informed of their right to testify and not to testify, without

influencing this decision.       As stated by Tachibana, the court

should inform the defendant of the following:

            [H]e or she has a right to testify, that if he or she wants
            to testify that no one can prevent him or her from doing
            so, and that if he or she testifies the prosecution will be
            allowed to cross-examine him or her. In connection with
            the privilege against self-incrimination, the defendant
            should also be advised that he or she has a right not to
            testify and that if he or she does not testify then the
            jury can be instructed about that right.

Tachibana, 79 Hawaiʻi at 236 n.7, 900 P.2d at 1303 n.7

      8
             “Fragile” in the context of the right not to testify derives
from Siciliano v. Vose, 834 F.2d 29 (1st Cir. 1987).

            To require the trial court to follow a special procedure,
            explicitly telling defendant about, and securing an
            explicit waiver of, a privilege to testify (whether
            administered within or outside the jury’s hearing), could
            inappropriately influence the defendant to waive his
            constitutional right not to testify, thus threatening the
            exercise of this other, converse, constitutionally
            explicit, and more fragile right.

Id. at 30. The court in Siciliano suggests that advising the defendant of
the right to testify may inappropriately influence the defendant to
relinquish the more fragile constitutional right not to testify.




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(emphasis added).

              In addition to requiring an “ultimate colloquy,”

Tachibana strongly recommended trial courts conduct a prior-to-

trial advisement to inform defendants of their right to testify

and the right not to testify.         Id. at 237 n.9, 900 P.2d at 1304

n.9 (noting that “although the ultimate colloquy should be

conducted after all evidence other than the defendant’s

testimony has been received, it would behoove the trial court,

prior to the start of trial” to inform the defendant of his or

her right to testify or not to testify).           However, not all trial

courts took heed of Tachibana’s recommendation.

            In Lewis, the court reviewed a post-conviction

challenge from a defendant who testified at his trial and was

subsequently found guilty.        Lewis, 94 Hawaiʻi 292, 12 P.3d 1233.

The defendant did not receive either the “ultimate” Tachibana

colloquy or Tachibana’s recommended prior-to-trial advisement.

Id.   On appeal, the defendant argued the trial court erred by

failing to obtain an on-the-record waiver of his right not to

testify.    Id.

            In finding the trial court did not err, the Lewis

court observed Tachibana’s “ultimate” colloquy was primarily

intended to protect the right to testify and thus was “only

required in cases in which the defendant does not testify.”                  Id.



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at 295, 12 P.3d at 1236 (internal quotation marks omitted).

Lewis further noted the prior-to-trial advisement discussed in

Tachibana was a recommendation, not a requirement for trial

courts.   Id. at 296-97, 12 P.3d at 1237-38.          As such, Lewis held

the trial court in that case was not required to advise the

defendant of his right not to testify.          Id.

            Although holding the trial court did not err,9 Lewis

found that there was a “salutary effect” gained from “a trial

court addressing a defendant” prior to trial regarding the right

to testify or not testify.       Id.    Specifically, the court noted a

prior-to-trial advisement would “have the beneficial impact of

limiting any post-conviction claim that a defendant testified in

ignorance of his or her right not to testify.”           Id.   The

pretrial advisement also lessened the risk that the “ultimate

colloquy” would affect the defendant’s right not to testify.

Tachibana, 79 Hawaiʻi at 236 at 236 n.9, 900 P.2d at 1303 n.9

(“Such an early warning would reduce the possibility that the

trial court’s colloquy could have any inadvertent effect on []

the defendant’s right not to testify . . . .”).           Lewis thus

recognized the fundamental importance of a trial court informing

      9
            The Lewis court concluded that although the trial court did not
advise the defendant of his right not to testify, there was “nothing to
indicate [] [the defendant’s] decision to testify was anything other than
voluntarily, knowingly, and intelligently made,” and the court affirmed the
conviction. Lewis, 94 Hawai#i at 296-97, 12 P.3d at 1237-38.




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a defendant of the constitutional right not to testify prior to

the commencement of trial.

             Accordingly, Lewis set forth a prospective requirement

that, prior to the start of trial, trial courts must “(1) inform

the defendant of his or her personal right to testify or not to

testify and (2) alert the defendant that if he or she has not

testified by the end of the trial, the court will briefly

question the defendant to ensure that the decision not to

testify is the defendant’s own decision.”         94 Hawaiʻi at 297, 12

P.3d at 1238 (quoting Tachibana, 79 Haw. at 237 n.9, 900 P.2d at

1304 n.9).    In contrast to Tachibana’s delineated advisory for

the “ultimate” colloquy, Lewis did not specify the content of

the prior-to-trial advisement.

                                  2.

             In this case, at the commencement of trial, the court

conducted a prior-to-trial advisement to inform Monteil of his

right to testify and right not to testify.         As to Monteil’s

right not to testify, the court advised him that he had the

“right to remain silent and the right against self-

incrimination” and that no one could “force [him] to testify.”

The court also informed Monteil that he did not “have to present

any evidence whatsoever” and that it was “up to the State to

prove [the] case beyond a reasonable doubt.”          However, the

court’s prior-to-trial advisement did not inform Monteil that if


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he exercised his right not to testify, his silence could not be

used against him in deciding the case.         Monteil later testified

without a further advisory from the court.

                                  3.

            A defendant’s understanding of the right to testify or

not to testify is fundamental to a fair trial.          A court has a

“serious and weighty responsibility to determine whether” a

waiver of the right to testify is a knowing and intelligent

decision.   Tachibana, 79 Hawaiʻi at 233, 900 P.2d at 1300.

Similarly, a decision by a defendant not to testify should be

based upon a defendant’s awareness of the “relevant

circumstances and likely consequences” of such a decision.             See

Brady v. United States, 397 U.S. 742, 748 (1970) (“Waivers of

constitutional rights not only must be voluntary but must be

knowing, intelligent acts done with sufficient awareness of the

relevant circumstances and likely consequences.”).

            Foremost among the “relevant circumstances” pertaining

to the constitutional right not to testify is the guarantee that

a defendant cannot be penalized for exercising the right not to

testify.    That is, “no inference may be drawn therefrom,” by the

fact finder.   HRE Rule 513(a).      If an inference of guilt could

be drawn from not testifying, such penalty would erode the

constitutional guarantee against compelled testimony as it would

tend to coerce a defendant to testify.


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            In this case, the court did not advise Monteil of the

very significant “relevant circumstance” of his right not to

testify—i.e., that no inference of guilt may be drawn for

exercising this right.      Because Monteil testified, implicitly

waiving his right not to testify prior to the close of his

defense’s case, he did not receive the “ultimate” Tachibana

colloquy.    However, had Monteil waited until he received the

“ultimate” colloquy before deciding whether to testify, he would

have been informed by the court that a decision not to testify

could not be used against him in deciding the case.10

            This imbalance in information between the prior-to-

trial advisement and the “ultimate” colloquy potentially

threatens the “more fragile right” not to testify, as testifying

defendants, such as Monteil, are not assured to receive adequate

advisement of the “relevant circumstance” of exercising the


      10
            The Tachibana ultimate colloquy provides as follows in
relevant part:

            In connection with the privilege against self-
            incrimination, the defendant should also be advised that he
            or she has a right not to testify and that if he or she
            does not testify then the jury can be instructed about that
            right.

Tachibana, 79 Hawaiʻi at 236 at 236 n.7, 900 P.2d at 1303 n.7. Hawai#i
Criminal Jury Instruction No. 3.14, entitled “Defendant Not Required to
Testify” provides as follows:

            The defendant has no duty or obligation to testify, and you must
            not draw any inference unfavorable to the defendant because
            he/she did not testify in this case, or consider this in any way
            in your deliberations.




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right not to testify.      Consequently, a prior-to-trial advisement

that fails to advise the defendant that a decision not to

testify may not be used as evidence of guilt, may jeopardize an

informed decision by the defendant regarding whether to testify.

            The prior-to-trial advisement as given in this case

additionally may not achieve its intended objective of limiting

post-conviction challenges from defendants claiming to have

testified without adequate awareness of the right not to

testify.    Lewis, 94 Hawai#i at 297, 12 P.3d at 1238 (pretrial

advisement “will have the beneficial effect of limiting any

post-conviction claim that a defendant testified in ignorance of

his or her right not to testify”).11        If a court omits a

significant “relevant circumstance” of the right not to testify

from its prior-to-trial advisement, as occurred in this case,

the advisement’s effect on limiting post-conviction challenges

is diminished.     See Lewis, 94 Hawai#i at 297, 12 P.3d at 1238.

            Further, a pretrial advisement that fails to

adequately inform a defendant of a “relevant circumstance” poses

a possibility that the court may inadvertently influence a

defendant’s decision of whether or not to testify.            See Lewis,


      11
            See also Tachibana, 79 Hawai#i at 235, 900 P.2d at 1302 (“[B]y
engaging in the colloquy, a trial judge would establish a record that would
effectively settle the right-to-testify issues in the case, and thereby
relieve the trial judge of extended post-conviction proceedings.” (quoting
Boyd v. United States, 586 A.2d 670, 679-80 (D.C. App. 1991)).




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94 Hawai#i at 295, 12 P.3d at 1236; Tachibana, 79 Hawai#i at 236

n.7, 900 P.2d at 1303 n.7.      In expressly recognizing the risk of

undue influence, Tachibana provided trial courts with express

guidance to ensure the “ultimate” colloquy would “maintain the

even balance of the trial court’s statement to the defendant”

while at the same time providing sufficient information for a

defendant to be adequately informed of his or her right to

testify or not to testify.      Lewis, 94 Hawai#i at 295, 12 P.3d at

1236 (balanced statement was intended to avoid risk that “by

advising the defendant of his or her right to testify, the court

could influence the defendant to waive his or her right not to

testify”).

             In this case Monteil was informed of the right to

remain silent, the right against self-incrimination, and that no

one could force him to testify, however not conveyed was the

critical information that the exercise of the right not to

testify does not permit a fact finder to draw an inference of

guilt from not testifying.      Consequently, such an advisory may

have a potential to influence the decision to testify or not

testify.

             To address the future risk of a court inadvertently

influencing a defendant’s decision, the court’s pretrial

advisement should provide the “even balanced” statement that is

required in the ultimate colloquy—that a decision not to testify


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may not be used against the defendant in deciding the case.

This will ensure that the testifying defendant is provided with

the same information that is given to the non-testifying

defendant regarding the “circumstance” of not testifying, and

thus, the court will avoid emphasizing one right over the other.

It will also help accomplish one of the primary objectives of

the pretrial advisory, which is to reduce the number of post-

conviction challenges from defendants claiming to have testified

in ignorance of their right not to testify.          Lewis, 94 Hawai#i at

297, 12 P.3d at 1238.

           Therefore, we hold that in order to more fully protect

the right not to testify under the Hawai#i Constitution, the

trial courts when informing the defendant of the right not to

testify during the pretrial advisement must also advise the

defendant that the exercise of this right may not be used by the

fact finder to decide the case.       This requirement will be

effective in trials beginning after the date of this opinion.

The inclusion of this information in the pretrial advisement

will enhance the even balance of the trial court’s statement to

defendants regarding the right to testify or the right not to

testify.   See Lewis, 94 Hawai#i at 295, 12 P.3d at 1236.




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                                     4.

            Although the court’s advisement did not inform Monteil

that his silence could not be used against him if he did not

testify, “there is nothing to indicate his decision to testify

was anything other than voluntarily, knowingly, and

intelligently made.”      Lewis, 94 Hawai#i at 296-97, 12 P.3d at

1237-38.   “Thus, there can be no [finding of] error premised on

[the] lack of judicial advice” in this case.12          Id. at 296, 12

P.3d at 1237.

                              VI. Conclusion

            Accordingly, we affirm the March 3, 2014 Judgment on

Appeal of the ICA, but for the reasons set forth in this

opinion.

Peter Van Name Esser and                  /s/ Mark E. Recktenwald
Robert D.S. Kim
for petitioner                            /s/ Paula A. Nakayama

Mitchell D. Roth and                      /s/ Sabrina S. McKenna
Jason R. Kwiat
for respondent                            /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson




      12
            As stated in Lewis, “Because we view this prior-to-trial
advisement as incidental to the ‘ultimate colloquy,’ any claim of prejudice
resulting from the failure of the trial court to give it must meet the same
‘actual[ ] prejudice[]’ standard applied to violations of the colloquy
requirement.” 94 Hawaiʻi at 297, 12 P.3d at 1238 (alterations in original)
(quoting Tachibana, 79 Hawai#i at 237, 900 P.2d at 1304).




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