***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** 

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 

Electronically Filed

Supreme Court

SCWC-13-0000087

24-SEP-2014

09:33 AM
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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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 21 

 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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 22 

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 

for petitioner 

Keith M. Kaneshiro and 

Brandon H. Ito 

for respondent 

/s/ Mark E. Recktenwald 

/s/ Paula A. Nakayama 

/s/ Sabrina S. McKenna 

/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.