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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2023
08:54 AM
Dkt. 47 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee, v.
KENT STEINER, Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DDC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)
Defendant-Appellant Kent Steiner appeals from the
District Court of the Second Circuit, Wailuku Division's
July 20, 2022 Judgment and Notice of Entry of Judgment, 1
convicting him of (1) "Closing of areas," in violation of Hawai‘i
Administrative Rules (HAR) § 13-146-4(a) (Amended 1999); and
(2) "Swimming; nudity," in violation of HAR § 13-146-38(a)
1 The Honorable Blaine J. Kobayashi presided.
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(Amended 1999). 2 The district court sentenced Steiner to pay a
fine of $200.00 (suspending $100.00 on the condition that there
was no conviction for similar violations in six months), and a
criminal injury fee of $30.00, for each offense. On appeal,
Steiner challenges the sufficiency of the evidence.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve
Steiner's challenge to the sufficiency of the evidence below,
and reverse in part and affirm in part.
2 HAR § 13-146-4(a), Closing of areas, provides as follows:
The board or its authorized representative may
establish a reasonable schedule of visiting hours for all
or portions of the premises and close or restrict the
public use of all or any portion thereof, when necessary
for the protection of the area or the safety and welfare of
persons or property, by the posting of appropriate signs
indicating the extent and scope of closure. All persons
shall observe and abide by the officially posted signs
designating closed areas and visiting hours.
(Emphasis added.)
HAR § 13-146-2 (Amended 2010) defines "Premises" as "any lands within
the state park system."
HAR § 13-146-38(a), Swimming; nudity, provides as follows:
A person may swim or bathe except in waters and at
times where these activities are prohibited in the interest
of public health or safety. These waters shall be
designated by posting of appropriate signs. No person
shall bathe, swim, walk, sunbathe, or remain on the
premises in the nude, or take outdoor showers in the nude,
except for bathing or changing clothes within enclosed
facilities provided for these purposes or for the exposed
breast of a nursing mother in the act of breastfeeding an
infant.
(Emphasis added.)
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For sufficiency of the evidence, "[t]he 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." State v. Matavale, 115 Hawai‘i
149, 157-58, 166 P.3d 322, 330-31 (2007) (citation omitted).
The "evidence 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[.]" Id. at 157,
166 P.3d at 330 (citation omitted).
"Substantial evidence" as to every material element of the
offense charged is credible evidence which is of sufficient
quality and probative value to enable a person of
reasonable caution to support a conclusion. And as trier
of fact, the trial judge is free to make all reasonable and
rational inferences under the facts in evidence, including
circumstantial evidence.
115 Hawai‘i at 158, 166 P.3d at 331 (citation and brackets
omitted). "Verdicts based on conflicting evidence will not be
set aside where there is substantial evidence to support the
trier of fact's findings." State v. Sua, 92 Hawai‘i 61, 69,
987
P.2d 959, 967 (1999) (citation and brackets omitted).
(1) We first address Steiner's contention that "there
was no substantial evidence that [he] recklessly disregarded the
signs indicating that he was in a closed area or that he
recklessly swam while nude . . . ." because Department of Land
and Natural Resources Conservation and Resource Enforcement
Officer Wyatt Burns (Officer Burns) "did not see how [he] had
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entered the ocean and could not confirm that [he] had passed the
closed-area or nudity-prohibited signs before he entered the
ocean." Steiner asserts that because "the State failed to prove
that [he] was aware of the prohibitions on the signs there was
no substantial evidence that he recklessly failed to abide by
the directives on the sign regarding" the offenses.
"A person acts recklessly with respect to his conduct
when he consciously disregards a substantial and unjustifiable
risk that the person's conduct is of the specified nature."
Hawaii Revised Statutes (HRS) § 702-206(3)(a) (2014).
A risk is substantial and unjustifiable within the
meaning of this section if, considering the nature and purpose
of the person's conduct and the circumstances known to him,
the disregard of the risk involves a gross deviation from the
standard of conduct that a law-abiding person would observe in
the same situation.
HRS § 702-206(3)(d) (2014) (emphasis added).
Due to the difficulty of proving state of mind by
direct evidence in criminal cases, "proof by circumstantial
evidence and reasonable inferences arising from circumstances
surrounding the defendant's conduct is sufficient. Thus, the
mind of an alleged offender may be read from his acts, conduct
and inferences fairly drawn from all the circumstances." State
v. Batson, 73 Haw. 236, 254,
831 P.2d 924, 934 (1992) (cleaned
up).
As for the park closure offense, the evidence shows
Officer Burns encountered Steiner on February 20, 2022 at
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4:15 p.m. 3 The State presented a photo of a sign showing Mākena
State Park closed at 7:00 p.m. on the weekdays, and closure time
on the weekends depended on the beach, with "Oneloa (Big) Beach"
and "Oneuli (Black Sand) Beach" closing at 7:00 p.m. and "Pu‘u
Ola‘i (Little) Beach" closing at 4:00 p.m. But the photo of the
sign in evidence and Officer Burns' testimony did not indicate
how the signage informed a person they were at Pu‘u Ōla‘i Beach
(closing at 4:00 p.m.), as opposed to Oneloa or Oneuli beaches
(closing at 7:00 p.m.), within Mākena State Park.
Thus, when viewing the evidence presented, even in the
light most favorable to the prosecution, there was insufficient
evidence to establish Steiner recklessly disregarded the
"officially posted signs designating closed areas and visiting
hours." See HAR § 13-146-4(a); State v. Vliet, 91 Hawai‘i 288,
293, 983 P.2d 189, 194 (1999). Without sufficient evidence,
Steiner's conviction for the park closure offense must be
reversed, and we need not address Steiner's remaining arguments
challenging this conviction.
As for the nudity offense, two photos in evidence of
signs at Mākena State Park showed that nudity was prohibited,
regardless of the beach. Officer Burns testified that there
were "some belongings that was placed on the beach[,]" and
3 We take judicial notice that February 20, 2022 was a Sunday. See
Hawai‘i Rules of Evidence Rule 201.
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Steiner dressed from those belongings. Signs prohibiting nudity
were twenty and thirty yards away from Steiner's belongings on
the beach. The signage, the belongings on the beach, and
Steiner were all located within Mākena State Park.
Based on the exhibits in evidence and Officer Burns'
testimony, it is fair to infer that Steiner being nude on the
premises at Mākena State Park "involve[d] a gross deviation from
the standard of conduct that a law-abiding person would observe
in the same situation." HRS § 702-206(3)(d). Thus, there was
sufficient evidence to support the district court's conclusion
that the State proved the requisite state of mind for the nudity
offense.
(2) Steiner next contends that he was not within the
park's premises, arguing that he "was in the ocean waters, not
within the Park boundaries, when [Officer] Burns first saw him"
and that he "only walked onto the beach and within the Park
boundaries when [Officer] Burns gave him a lawful order to do
so." 4
HAR § 13-146-38(a) provides in part that "[n]o person
shall bathe, swim, walk, sunbathe, or remain on the premises in
Steiner also argues that Officer Burns' calling him out of the water
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was entrapment under HRS § 702-237(1)(b) (2014). Steiner fails to show in
his points of error where he raised this affirmative defense during trial
below. Thus, we consider this argument waived. See Hawai‘i Rules of
Appellate Procedure Rule 28(b)(4); State v. Nicholson, 120 Hawai‘i 480, 485,
210 P.3d 3, 8 (App. 2009) (explaining that defendant "waived his entrapment
claim by failing to raise it in the circuit court").
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the nude . . . ." The State was required to prove beyond a
reasonable doubt that Steiner was "on the premises" for the
nudity offense. See generally, State v. Lima, 64 Haw. 470, 474,
643 P.2d 536, 539 (1982).
"Premises" is defined as "any lands within the state
park system." HAR § 13-146-2. The State Park System is "those
public lands or lands under the control and management of the
division of state parks[,]" and land is defined as including
"upland, land under water, beaches, water, and water rights."
HAR § 13-146-2; HRS § 184-1 (2011).
Officer Burns testified that Pu‘u Ōla‘i Beach is located
within Mākena State Park, and he observed Steiner "on the
shoreline kind of within the waters swimming about." Officer
Burns testified that he stood by "some belongings that was
placed on the beach" and called Steiner over. Steiner walked
over to Officer Burns' location and Officer Burns observed that
Steiner was nude. Steiner then dressed with the items next to
Officer Burns, and those items were "within the boundaries of
Pu‘u Ola‘i Beach[.]"
Swimming in the ocean aside, Officer Burns' testimony
was evidence from which it could justifiably be inferred that
Steiner was on the beach nude prior to entering the water. See
State v. Dow, 96 Hawai‘i 320, 324, 30 P.3d 926, 930 (2001) ("we
review evidence for sufficiency in the light most favorable to
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the prosecution, giving full play to the right of the fact
finder to determine credibility, weigh the evidence, and draw
justifiable inferences of fact") (citation and internal
quotation marks omitted); see generally, Batson, 73 Haw. at 254,
831 P.2d at 934. Thus, there was sufficient evidence to support
the district court's conclusion that Steiner was "on the
premises" for the nudity offense.
(3) Finally, Steiner contends that he "was not 'nude'
within the meaning of HAR § 13-146-38(a)" because he "was torso-
deep in the water. [His] genital and pubic areas were not
visible. It was not until [Officer] Burns gave [him] a lawful
order to leave the water that [Officer] Burns saw that [he] was
unclothed."
"Nude" is defined as "uncovered post-pubertal human
genitals, pubic areas, or the nipple or areola of post-pubertal
human female breast." HAR § 13-146-2.
The State presented a photo of Steiner walking out of
the water with his genitals and pubic area uncovered, which was
direct evidence that Steiner was nude. And Officer Burns
testified that Steiner then dressed from the belongings on the
beach, which was evidence from which it could be inferred that
Steiner was nude prior to entering the water. Thus, there was
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sufficient evidence to support the district court's conclusion
that Steiner was nude.
Based on the foregoing, we reverse Steiner's
conviction of the "Closing of areas" offense, and affirm
Steiner's conviction of the "nudity" offense.
DATED: Honolulu, Hawai‘i, June 30, 2023.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Rachel K.X. Murakami,
Deputy Public Defender, /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge
Renee Ishikawa Delizo, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.
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