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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0000087
                                                              24-SEP-2014
                                                              09:33 AM




             IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                           STATE OF HAWAIʻI,
                    Respondent/Plaintiff-Appellee,

                                    vs.

                             JAMES E. ABEL,
                    Petitioner/Defendant-Appellant.


                            SCWC-13-0000087

            CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-13-0000087; CASE NO. 1P1120008541)

                           September 24, 2014

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

                  OPINION OF THE COURT BY POLLACK, J.

            James Abel seeks review of his conviction for the

offense of Solicitation With Animals in Waikiki Special

District.    We conclude that an element of this offense is the

use of a live animal to request or demand money or gifts.             As
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insufficient evidence was adduced at trial to prove this element

of the offense, we reverse the Intermediate Court of Appeals’

(ICA) Judgment on Appeal and the District Court of the First

Circuit’s (district court) judgment of conviction.

                              I.   Background

            On August 8, 2012, James Abel (Abel) was charged via

complaint in district court with Solicitation With Animals in

Waikiki Special District, “in violation of Section 29-13.2(b) of

the Hawaii Revised Statutes.”1        The complaint stated in relevant

part as follows:


      1
            Although the State charged Abel with violating the Hawaiʻi Revised
Statutes (HRS), the number of the provision indicates that the prosecutor
intended to charge Abel under the Revised Ordinances of Honolulu (ROH) § 29-
13.2 (1999), which reads:

            Sec. 29-13.2 Prohibition.
            In the Waikiki special district, no person shall use any
            live animal in furtherance of any solicitation on any
            public property, except in compliance with all of the
            following conditions of this section or, if applicable,
            Section 29-13.2A:
            (a)   The animal shall be held or carried by the person
                  conducting the solicitation at all times. No animal
                  too large to be held or carried shall be used in any
                  solicitation. This subsection shall not apply to a
                  service animal as defined in 49 CFR Section 37.3 when
                  such service animal is being used by an individual
                  with a disability requiring such service animal.
            (b)   The person conducting the solicitation shall not
                  place the animal on or otherwise transfer the animal
                  to any other person.
            (c)   The person shall not place any cage, table, stand, or
                  other object on public property.
            (d)   The person shall not use any city-owned or maintained
                  street furniture or structure, including any bench,
                  planter, utility cabinet, or other street furniture
                  or structure permanently installed on public
                  property, for the display of anything whatsoever in
                  connection with the solicitation, or otherwise put
                  such bench, planter, utility cabinet, street
                                                               (continued. . .)

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                  On or about the 31st day of July, 2012, in the City
            and County of Honolulu, State of Hawaii, JAMES E. ABEL did
            intentionally, knowingly, or recklessly use any live animal
            in furtherance of any solicitation on any public property
            in the Waikiki Special District . . . and did
            intentionally, knowingly or recklessly place said animal on
            or otherwise transfer said animal to any other person,
            thereby committing the offense of Solication [sic] With
            Animals in Waikiki Special District, in violation of
            Section 29-13.2(b) of the Hawaii Revised Statutes.
            Pursuant to Section 29-13.1 of the Revised Ordinances of
            Honolulu, ‘public property’ includes any . . . sidewalk . .
            . under the jurisdiction of any governmental entity or
            otherwise open to the public. Pursuant to Section 29-13.12


      (continued. . .)
            (e)   furniture or structure to use in furtherance of such
                  solicitation.
            (f)   The person conducting the solicitation shall wear at
                  all times on that person’s chest so that it is
                  clearly visible to persons being solicited a sign of
                  at least 8 1/2 x 11 inches in size, upon which the
                  following words are legibly printed in letters or
                  characters at least 2 inch in height in both English
                  and Japanese:
                  (1)   Solicitor: (Name and address of the person or
                        organization conducting the solicitation).
                  (2)   Purpose: (The reason the solicitation is being
                        made.)
                  (3)   YOU NEED NOT PAY OR CONTRIBUTE ANY MONEY TO
                        THIS PERSON, ANY PAYMENT OR CONTRIBUTION IS
                        COMPLETELY VOLUNTARY.
                  (4)   The Japanese translation for the disclaimer set
                        forth in (3).
                  The statements required in (3) and (4) shall be in
                  capital letters and bold type.

ROH § 29-13.2 (1999) (emphasis added), available at http://www.honolulu.gov/
rep/site/ocs/roh/ROH_Chapter_29__.pdf.pdf.
      2
            ROH § 29-13.1 (1999) states:

            For the purposes of this article:
            “Public property” includes any street, highway, boulevard,
            road, sidewalk, alley, island, lane, bridge, parking lot,
            park, square, space, grounds, mall, building, or other
            property owned by or under the jurisdiction of any
            governmental entity or otherwise open to the public.
            “Solicitation” means to request or demand money or gifts.
            “Waikiki special district” means the Waikiki special
            district as defined in Section 21-9.80-2.

ROH 29-13.1 (1999), available at http://www.honolulu.gov/rep/site/ocs/roh/
ROH_Chapter_29__.pdf.pdf.



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             of the Revised Ordinances of Honolulu, “solicitation” means
             to request or demand money or gifts.

(First and last emphasis added; footnote added).3

             At Abel’s December 17, 2012 bench trial,4 the State

called a single witness, Honolulu Police Department (HPD)

Sergeant Stacey Christensen (Sgt. Christensen), who testified

concerning the events resulting in the charge against Abel.

Sgt. Christensen indicated that she had been a Honolulu police

officer for 25 years and, on July 31, 2012, she had been

assigned to the Waikiki district “enforcing parking violations.”

At the time of the incident, “there were a lot of cars going

through Kalakaua” and there were people in the area.             Sgt.

Christensen was standing on the sidewalk, near the street, when

her attention was drawn to Abel who was about 15 feet away.                 She

observed Abel “with birds fronting the Outrigger standing on the

sidewalk.”

             [Prosecutor]: Uh, what did defendant do at that point?

             [Sgt. Christensen]: He was placing birds on different
             individuals taking pictures with the individuals [sic]
             cameras and I would see money transfer between the
             individual and Mr. Abel.

             [Prosecutor]: Uh, if we can just briefly talk about
             transferring, um, the birds. Could you -- could you
             describe as specifically as possible how he transferred?




      3
            The oral charge read at Abel’s trial on December 12, 2012,
contained nearly identical language, including the improper reference to the
HRS with the numerical citation matching ROH § 29-13.2.
      4
             The Honorable Linda K.C. Luke presided.


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           [Sgt. Christensen]: So he would have the birds in his
           hands. He would place them on the individuals, take the
           individuals’ camera or phone –

           [Prosecutor]: Um-hmm.

           [Sgt. Christensen]: -- take a photo, take the pho -- uh,
           the birds back, and they would give him money.

           [Prosecutor]: Okay. So defendant reached out to, uh, other
           people –

           [Sgt. Christensen]: Yes, sir.

           [Prosecutor]: -- with the birds?   Okay.

           Sgt. Christensen testified that she was not able to

hear anything that was said between Abel and any of the persons

who gave him money or discern how much money was given to Abel.

           After Sgt. Christensen’s testimony, Abel made a motion

for judgment of acquittal.         Abel argued that, viewed in the

light most favorable to the prosecution, Sgt. Christensen’s

testimony did not prove that solicitation occurred.           The State

argued that even though Sgt. Christensen did not hear any of the

conversations, she saw Abel placing animals on individuals, he

was taking their photos with the birds on them, and he was

receiving money as a result.        These observations, argued the

State, were sufficient to prove its case beyond a reasonable

doubt.   Abel responded that the circumstantial evidence was

insufficient because it was not “established that he requested

money or demanded money or gifts in exchange,” there was “no tip

jar that was referred to, no sign requesting any payment,” and




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thus no solicitation had been proved.        The district court denied

the motion.

          Abel did not testify, and the defense rested without

presenting any evidence.      In closing argument, the State

acknowledged that it was not able “to subpoena witnesses to

address specifically the solicitation aspect,” but maintained

that Abel “was placing [birds] on individuals, taking pictures

with them of the birds, and that he was receiving money as a

result after these two actions took place.”          Thus, the State

concluded that there was circumstantial evidence sufficient for

a conviction.

          The defense countered that a significant doubt

remained as to whether solicitation, i.e., a demand for gifts or

money occurred.    “There’s been no clear evidence from any

witness who may have allegedly been solicited that [Abel] did

indeed request or demand money or gifts.”         “Merely extending the

gesture by placing birds on someone and taking a photo is just

an extension of his aloha spirit.        It’s not meant to . . . be a

solicitation.”

          The court orally found Abel guilty of the charge based

on “an exchange of cash immediately following the activity of

picture taking” within the Waikiki Special District.           The

court’s oral ruling was follows:



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          Based on the court [sic] and following the hearing and
          after full consideration of the evidence, the court will
          find beyond a reasonable doubt that Mr. Abel is in
          violation of Revised Ordinances as noted 29-13.2B based on
          the credible evidence of Sergeant Christensen. The aloha
          spirit is one thing, but in terms of the evidence adduced,
          there was an exchange of cash immediately following the
          activity of picture taking. This occurred within the
          prohibited Waikiki district, and I believe the court -- the
          State has proven its case beyond a reasonable doubt albeit
          circumstantially.

 (Emphasis added).    The court did not make a finding that a

solicitation had occurred or that a request or demand for money

or gifts had occurred.

          On January 14, 2013, the district court issued written

findings of fact and conclusions of law that also made no

finding of solicitation or that there had been a request or

demand by Abel for money or gifts.        The relevant findings of

fact stated as follows:

          1. The Defendant is charged with Solicitation with Animals
          in Waikiki Special District under [ROH] § 29-13.2(b)[.]

          . . . .

          3. On July 31, 2012, Officer Stacey Christensen was on duty
          enforcing parking violations in Waikiki on Kalakaua Avenue.

          4. Officer Christensen observed Defendant placing birds on
          an individual while on Kalakaua Avenue. Defendant then took
          pictures of the individual with the birds. The individual
          then handed Defendant an unknown amount of money.

          6. Officer Christensen made these observations from
          approximately fifteen feet away. However, she was unable to
          hear what Defendant and the unknown individual were saying.

(Emphasis added).5    The district court’s relevant conclusions of

law stated as follows:


     5
          The district court did not include a finding of fact #5.


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            2. The court finds and concludes that on or about the 31st
            day of July, 2012, when Defendant, while in the Waikiki
            Special District in the City and County of Honolulu, State
            of Hawaiʻi, placed birds on another individual, took
            pictures of said individual with the birds, then accepted
            an unknown amount of money, Defendant intentionally,
            knowingly or recklessly solicited with animals in the
            Waikiki Special District.

            3. The court, therefore, finds that the State has proven
            beyond a reasonable doubt that on or about the 31st day of
            July, 2012, in the Waikiki Special District in the City and
            County of Honolulu, State of Hawaiʻi, Defendant did
            intentionally, knowingly or recklessly use a live animal in
            furtherance of any solicitation on public property in the
            Waikiki Special District and intentionally, knowingly or
            recklessly placed or otherwise transferred said animal to
            another person, thereby committing the offense of
            Solicitation With Animals In Waikiki Special District, in
            violation of [ROH §] 29-13.2(b)[.]

(Emphases added).     Accordingly, the district court concluded

Abel had “intentionally, knowingly or recklessly solicited with

animals” and therefore committed the charged offense.             Abel was

sentenced to pay a $300 fine plus a $30 crime victim fee,6 and

the judgment of conviction was issued by the district court.

                       II.   Appellate Proceedings

            On February 12, 2013, Abel filed a Notice of Appeal.

In his Opening Brief (OB), Abel contended that the district

court wrongly denied his motion for judgment of acquittal and

wrongly adjudged him guilty as charged because the State failed

to provide sufficient evidence regarding the element of

solicitation.


      6
            At a January 15, 2013 hearing, the court stated that Abel was
subject to a $55 crime victim compensation fee, however the judgment of
conviction states that the fee was $30.



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          Abel challenged the district court’s conclusions of

law ¶¶ 2 & 3.   Abel contended that the “use of animals during

solicitations in the Waikiki Special District is authorized with

the exception of specific prohibitions.”         Abel argued that ROH §

29-13.2 contains four essential elements: (1) a request or

demand for money or gifts; (2) the use of live animals in

furtherance of this solicitation; (3) a transferring of the

animal onto another person; and (4) the solicitation occurred on

public property in the Waikiki Special District.           Abel

maintained that the State failed to present substantial evidence

“that [he] actually requested or demanded money or gifts to take

pictures with his birds.”

          Citing to State v. Xiao, 123 Hawaiʻi 251, 258, 231 P.3d

968, 975 (2010), Abel compared ROH § 29-13.2(b) to the offense

of prostitution under HRS § 712-1200 in that to affirm a

conviction under either law, evidence of an offer to engage in

specific conduct in return for a fee was required.           Abel

maintained that because the dispositive issue was whether he

transferred his animals to an individual for a fee and there was

no evidence of such an exchange, Abel’s conduct failed to meet

the minimum threshold for a conviction.         Thus, Abel concluded

that the entry of the conviction based on the evidentiary record

violated Abel’s due process right not to be convicted except on



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proof beyond a reasonable doubt of every element of the offense

charged.

           In its Answering Brief (AB), the State contended that

“it does not need to prove that an ‘actual’ request or demand

for money or gifts took place between Abel and the people he

took photographs of with his birds” because ROH § 29-13.2(b) and

HRS § 702-204 (1993)7 required “only that the State prove that

Abel intentionally, knowingly, or recklessly used any live

animal in furtherance of any solicitation within the restricted

area.”   (Brackets omitted).

           The State maintained “the criminal offense in this

case was completed when Abel used his birds within the

restricted area and with the requisite mens rea – intentionally,

knowingly, or recklessly using any live animal in furtherance of

any solicitation.”    Hence, the pertinent issue was “Abel’s state

of mind when he used his birds; or, in other words, determining

Abel’s motivation for using his birds in the manner he did in

this case.”



     7
           HRS § 702-204 (1993) states:

           Except as provided in section 702-212, 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.
           When the state of mind required to establish an element of
           an offense is not specified by the law, that element is
           established if, with respect thereto, a person acts
           intentionally, knowingly, or recklessly.


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           Consequently, the State argued that it did “not need

to prove that a ‘solicitation’ actually took place, as defined

in ROH § 29-13.1.”    Instead, the offense requires proof “only

that Abel intentionally, knowingly, or recklessly used his birds

‘in furtherance of any solicitation’ within the restricted

area.”   Because “in furtherance” was not statutorily defined,

the State defined it by its plain meaning:         “furtherance” means

“promotion,” which in turn means to “encourage to exist.”            The

State contended that with regard to mens rea, “the mind of an

alleged offender may be read from his acts, conduct and

inferences fairly drawn from all the circumstances.”           Thus, a

defendant could be found guilty of solicitation even if the

“urging” was not actually communicated, “as long as it was

designed to be communicated.”

           Based on this interpretation of the statute, the State

concluded that “by reaching out to people with his birds,

placing his birds onto other people, taking a photograph of the

person with his birds in Waikiki, taking his birds back, and

thereafter accepting money from that person, Abel clearly

intentionally, knowingly, or recklessly used his birds in

promotion of a request for money or gifts.”

           On January 8, 2014, the ICA issued its Summary

Disposition Order (SDO).      After recounting the evidence at

trial, the ICA’s analysis was as follows:

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            Sergeant Christensen’s testimony constituted sufficient
            evidence proving that Abel intentionally, knowingly, or
            recklessly used his birds in furtherance of solicitation by
            reaching out to people with his birds, placing his birds
            onto other people, taking a photograph of the person with
            his birds in Waikiki, taking his birds back, and accepting
            money from that person. There is substantial evidence that
            Abel intentionally, knowingly, or recklessly used his birds
            in furtherance of a request for money.

The ICA therefore affirmed the conviction.

                 III.   Application for Writ of Certiorari

            On April 6, 2014, Abel filed his Application for Writ

of Certiorari (Application) and presented the following

question:

            1.     Whether the ICA gravely erred in [not] holding that
                   the district court wrongly denied Abel’s motion for
                   judgment of acquittal and wrongly adjudged him guilty
                   as charged because the State failed to provide
                   sufficient evidence regarding the element of
                   solicitation.

            Abel again sets forth the four essential elements of

ROH § 29-13.2(b) that are required to establish the offense.

Abel maintains that the State “failed to present substantial

evidence . . . that Abel actually requested or demanded money or

gifts to take pictures with his birds.”

            Abel argues that Sgt. Christensen admitted to not

being able to hear if any request for money was made, did not

testify as to any hand or head gestures Abel may have made

indicating a request for money, and did not testify that Abel

had a sign or tip jar suggesting Abel was requesting money in

exchange for taking pictures with his birds.



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            Abel reiterates the comparison between the offenses of

prostitution and Solicitation with Animals in Waikiki Special

District on the grounds that both require proof that the

defendant engaged in specific conduct for a fee.           Abel admits

that he did engage in the conduct of transferring his bird to

another person and that this person gave him money.            “However,

like Xiao, there was no evidence that Abel transferred his birds

in exchange for a fee.”      Thus, “Abel’s conduct did not meet the

minimum threshold that was required” for a conviction.             Abel

concludes that his conviction violated his due process right not

to be convicted except upon proof beyond a reasonable doubt as

to every element of a crime and requests that the ICA’s Judgment

of Conviction and the district court’s judgment of conviction be

reversed.

            On April 21, 2014, the State filed its Response.              The

State reasserts its arguments from its Answering Brief that “the

State does not need to prove that a ‘solicitation’ actually took

place, as defined by ROH § 29-13.1.”         The State compares ROH §

29-13.2 to criminal solicitation under HRS § 705-510(2) (1993),8


     8
            HRS § 705-510 (1993) states:

            (1) A person is guilty of criminal solicitation if, with
            the intent to promote or facilitate the commission of a
            crime, the person commands, encourages, or requests another
            person to engage in conduct or cause the result specified
            by the definition of an offense or to engage in conduct
            which would be sufficient to establish complicity in the
            specified conduct or result.
                                                              (continued. . .)

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“inasmuch as the offense of criminal solicitation similarly does

not require a communication between the defendant and the person

solicited.”   Thus, the State maintains that Abel can be

convicted based on evidence showing that Abel clearly used his

birds in promotion of a request for money or gifts.

           In addition, the State maintains that ROH § 29-13.2(b)

“presupposes that a person did in fact ‘use any live animal in

furtherance of any solicitation’ within ‘public property’ of the

‘Waikiki special district.’”       “In other words, ROH § 29-13.2(b)

describes one of the ‘conditions’ that must be followed if a

person does in fact ‘use any live animal in furtherance of any

solicitation[.]’”    The State continues that, even if subsection

(b) is an additional element, the element added is not a

“solicitation” that is “separate and distinct from the words ‘in

furtherance of any solicitation,’” but rather it is satisfied by

“plac[ing] the animal on or otherwise transfer[ing] the animal

to any other person[.]”

                             IV.   Discussion

                                    A.

           “The elements of an offense are such (1) conduct, (2)

attendant circumstances, and (3) results of conduct, as:

     (continued. . .)
           (2) It is immaterial under subsection (1) that the
           defendant fails to communicate with the person the
           defendant solicits if the defendant’s conduct was designed
           to effect such communication.


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(a) Are specified by the definition of the offense, and (b)

Negative a defense[.]”     HRS § 702-205 (1993).       “An essential or

material element of a crime is one whose specification with

precise accuracy is necessary to establish the very illegality

of the behavior[.]”     State v. Cummings, 101 Hawaiʻi 139, 144, 63

P.3d 1109, 1114 (2003) (quotation marks and brackets omitted).

           “[W]hen interpreting a municipal ordinance, we apply

the same rules of construction that we apply to statutes.”

Coon v. City & Cnty. of Honolulu, 98 Hawaiʻi 233, 245, 47 P.3d

348, 360 (2002).    “When construing a[n] [ordinance], our

foremost obligation is to ascertain and give effect to the

intention of the [City Council], which is to be obtained

primarily from the language contained in the [ordinance]

itself.”   Id.   “[W]e must read [the ordinance’s] language in the

context of the entire [ordinance] and construe it in a manner

consistent with its purpose.”       Id.

           Defendant was charged with violating ROH § 29-13.2(b),

Solicitation With Animals in Waikiki Special District.            ROH

§ 29-13.2(b) (1999) provides in relevant part:

           Sec. 29-13.2 Prohibition.
           In the Waikiki special district, no person shall use any
           live animal in furtherance of any solicitation on any
           public property, except in compliance with all of the
           following conditions of this section . . .
           . . . .
           (b) The person conducting the solicitation shall not place
           the animal on or otherwise transfer the animal to any other
           person.



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Id. (emphases added).     Accordingly, the elements of the offense

are: (1) a solicitation, (2) use of a live animal in furtherance

of the solicitation, (3) a transferring of the animal by the

person conducting the solicitation onto another person, and (4)

the occurrence of the solicitation on public property in the

Waikiki Special District.      ROH § 29-13.2.     Solicitation means

“to request or demand money or gifts.”         ROH § 29-13.1 (1999).

          Thus, based on the plain meaning of ROH § 29-13 as a

whole, a request or demand for money or gifts must occur for a

person to fall within the purview of ROH § 29-13.2.           Proving

that an actual request or demand for money or gifts was made as

prescribed by ROH § 29-13.1 is a requisite element of ROH § 29-

13.2.

          In addition, “the plain language rule of statutory

construction . . . does not preclude an examination of sources

other than the language of the [ordinance] itself even when the

language appears clear upon perfunctory review.”           Keliipuleole

v. Wilson, 85 Hawaiʻi 217, 221, 941 P.2d 300, 304 (1997).            One

such source is the legislative history, from which courts may

“discern the underlying policy [that] the legislature sought to

promulgate.”   State v. McKnight, 131 Hawaiʻi 379, 388, 319 P.3d

298, 307 (2013).    If a court could not examine other sources,

such as legislative history, a court may be “unable to determine

if a literal construction would produce an absurd or unjust

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result, inconsistent with the policies of the [ordinance].”

Keliipuleole, 85 Hawaiʻi at 221, 941 P.2d at 304.

           The purpose of ROH § 29-13.2 is emphasized in the bill

that created the ordinance.      The primary concern of the Honolulu

City Council (Council) in passing Bill 108, FD1 (1996) was that

“a new form of solicitation has been occurring on the crowded

sidewalks and public places of Waikiki:         Persons soliciting

monetary donations, purportedly for wildlife preservation or

environmental causes, have been carrying brightly colored exotic

birds -- usually parrots -- to attract and stop pedestrians.”

Bill 108, FD1 at 1 (1996) (passed as Ordinance 97-66) (emphases

added).   The Bill notes that “[t]here are reports of

unscrupulous solicitors demanding a fixed amount of money from

these tourists, and refusing to give back the tourist’s camera

until payment is made.”     Bill 108, FD1 at 1 (1996) (emphasis

added).

           The Council found that the “regulation of solicitation

using animals” was necessary to prevent fraud, ensure the

orderly flow of pedestrian traffic, protect the public against

injuries and disease from the animals, and preserve and protect

the aesthetic ambiance of Waikiki.        Id. at 2 (emphasis added).

However, the Council added, “[a]t the same time, the Council

desires to protect and preserve the rights to conduct expressive

activities under the First Amendment of the United States

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Constitution and Article I, Section 4 of the Constitution of the

State of Hawaii.”          Id.

                 Thus, the Council enacted ROH § 29-13.2 to regulate

persons who made requests or demands of money from tourists or

others and used animals in furthering the solicitation.                  The

Council did not seek to prevent persons from displaying animals

in Waikiki or even from allowing other people to have their

pictures taken with animals in Waikiki.               The Council sought

instead to prohibit a person from requesting or demanding money

or gifts from another person and using an animal to further the

solicitation unless specific guidelines were followed.9

Therefore, requiring the State to prove that an actual request

or demand for money or gifts occurred in order to convict a

person of violating ROH § 29-13.2 is in accordance with the

Council’s purpose in enacting the ordinance and with the

ordinance’s plain meaning.

                 The complaint in this case sets forth the elements of

the offense defined in ROH § 29-13.2, stating that “[Abel] did

intentionally, knowingly, or recklessly use any live animal in

furtherance of any solicitation . . . in violation of [ROH §]

29-13.2(b)[.]”          The complaint included the definition of the

term “solicitation,” as meaning “to request or demand money or


        9
                 Those guidelines are outlined in subsections (a)-(e) in ROH § 29-
13.2.       See supra note 1.


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gifts.”   [ROA 4-5]   Thus, the complaint correctly alleges that

proof of a request or demand for money or gifts must be proved

by the State in order to convict Abel of violating ROH § 29-

13.2.

                                    B.

           The district court appears not to have considered

solicitation to be an essential element of the case.           The court

did not make a factual finding that a request or demand for

money or gifts was made, or that any of Abel’s gestures or words

indicated a request or demand for money.         The court’s oral

findings stated only that “there was an exchange of cash

immediately following the activity of picture taking.”            [Tr.

12/17/12 at 22]

           Similarly, the district court’s written findings of

facts stated that “Officer Christensen observed Defendant

placing birds on an individual while on Kalakaua Avenue.

Defendant then took pictures of the individual with the birds.

The individual then handed Defendant an unknown amount of

money.”   Thus, the court also did not make a written finding

that Abel made a request or demand for money or gifts.

           The district court’s conclusion of law ¶ 2 stated

“when Defendant . . . placed birds on another individual, took

pictures of said individual with the birds, then accepted an

unknown amount of money, Defendant intentionally, knowingly or

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recklessly solicited with animals in the Waikiki Special

District.”    This conclusion of law indicates that in the court’s

view, “when Defendant placed birds on another individual, took

pictures . . . then accepted money,” the Defendant had

“solicited with animals.”

             The State appears to have analyzed the statute in a

similar manner as the district court.        The State asserts that it

“does not need to prove that a ‘solicitation’ actually took

place, as defined by ROH § 29-13.1.”        The State focuses instead

on the words “in furtherance,” and argues that, absent proof of

an actual request for money or gifts, a person could be

convicted of violating ROH § 29-13.2 if the person’s conduct

sufficiently “promoted” solicitation and the person acted in a

way contrary to one of ROH § 29-13.2’s specific subsections.

             However, neither the State’s nor the district court’s

analysis is correct.     The purpose of ROH § 29-13.2, based upon

its plain meaning and its legislative history, is to prevent a

specific form of solicitation.       A solicitation is an essential

element of ROH § 29-13.2, and a solicitation is defined as a

request for money or gifts.      See HRS § 702-205; Cummings, 101

Hawaiʻi at 144, 63 P.3d at 1114; ROH § 29-13.1.          Thus, the State

was required to prove that a request or demand for money or

gifts was made in order to prove the offense.



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          The district court made no finding that a request or

demand for money had occurred.       By not requiring proof of this

element, the district court found Abel guilty of violating ROH §

29-13.2(b) without requiring proof of a solicitation.

                                    C.

          Based on our determination that a request or demand

for money or gifts is an element of ROH § 29-13.2, we consider

whether there was sufficient evidence to support the conviction.

The standard of review for sufficiency of the evidence is well

established:

          [E]vidence adduced in the trial court must be considered in
          the strongest light for the prosecution when the appellate
          court passes on the legal sufficiency of such evidence to
          support a conviction[.] The test on appeal 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. Indeed, even if it could be said in a
          bench trial that the conviction is against the weight of
          the evidence, as long as there is substantial evidence to
          support the requisite findings for conviction, the trial
          court will be affirmed.

State v. Eastman, 81 Hawaiʻi 131, 135, 913 P.2d 57, 61 (1996)

(emphasis added).    Substantial evidence is “credible evidence

which is of sufficient quality and probative value to enable a

person of reasonable caution to support a conclusion.”            State v.

Fields, 115 Hawaiʻi 503, 512, 168 P.3d 955, 964 (2007) (brackets

omitted); see also Eastman, 81 Hawaiʻi at 135, 913 P.2d at 61.

          As discussed, the offense of Solicitation With Animals

in Waikiki Special District requires that the State establish

that a request of money or gifts was in fact made.           ROH §§ 29-

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13.1 and 13.2.    However, the evidence showed only that Abel

transferred an animal to another person, took a picture of that

person, and then that person gave Abel money.          The State’s only

witness acknowledged that she could not hear anything said by or

to Abel.   Consistent with the evidence presented, the district

court made no finding of a request or demand for money.

           The ICA found that Abel “used his birds in furtherance

of solicitation by reaching out to people with his birds,

placing his birds onto other people,” and then taking pictures

of the people and receiving money from them.          (Emphasis added).

However, in describing the conduct of “reaching out to people

with his birds,” Sgt. Christensen was answering a specific

question as to how Abel transferred the birds to other people,

not describing a request or demand for money or gifts.

Consequently, Abel’s reaching out to place the birds on the

individuals did not provide substantial evidence that Abel made

a request or demand for money or gifts.

           Further, there were no other facts circumstantially

showing a request or demand for money.         Sgt. Christensen did not

hear any conversations between Abel and other individuals, or

overhear any statement or comment regarding a fee.           There was no

evidence that Abel had a sign requesting money or a tip jar on

the public sidewalk that would imply money was expected.

Likewise, there was no evidence that Abel made any hand or head

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gestures indicating a request for money.          Thus, there was

insufficient evidence to show solicitation, and consequently

insufficient evidence to sustain Abel’s conviction under ROH §

29-13.2(b).10

                              V.   Conclusion

            Accordingly, the ICA erred in affirming Abel’s

conviction, and the ICA’s Judgment on Appeal and the district

court’s judgment of conviction are reversed.



James S. Tabe                          /s/ Mark E. Recktenwald
for petitioner
                                       /s/ Paula A. Nakayama
Keith M. Kaneshiro and
Brandon H. Ito                         /s/ Sabrina S. McKenna
for respondent
                                       /s/ Richard W. Pollack

                                       /s/ Michael D. Wilson




      10
            In State v. Xiao, 123 Hawaiʻi 251, 231 P.3d 968 (2010), the
defendant was accused of prostitution for engaging in sexual conduct with an
undercover police officer after the officer purchased forty-dollar drinks for
her. Id. at 252-255, 231 P.3d at 969-972. The Xiao court held that there
had to be a causal link between the payment of the fee and the illegal
activity: “there must be evidence of an understanding on the part of [the
defendant] that the forty-dollar drink (i.e., the ‘fee’) paid for by [the
officer] was to buy sexual favors from her. Without such evidence, there can
be no prostitution.” Id. at 260, 231 P.3d at 977.
            The offense of Solicitation With Animals in Waikiki Special
District likewise requires a link between the “use” of “any live animal” and
the “request or demand [for] money or gifts.” ROH §§ 29-13.1-13.2. Because
the State did not prove a solicitation had been made in this case, the
requirement of a link between the solicitation and the use of the animal is
not presented.


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