Solicitation With Birds, or Was It ‘Aloha Spirit’?

     HONOLULU (CN) – A man who said he was merely extending “his aloha spirit” in photographing people with his birds should not have been convicted of solicitation, the Hawaii Supreme Court ruled.
     Prosecutors had charged James Abel in 2012 with soliciting with live animals in public in Waikiki.
     At his trial that December, Sgt. Stacey Christensen with the Honolulu Police Department testified that she saw Abel from a distance of 15 feet, “placing birds on different individuals, taking pictures with the individuals’ cameras and I would see money transfer between the individual and Mr. Able.”
     The state’s only witness, Christensen added that she did not overhear any conversation between Abel and those whose pictures he took. Abel unsuccessfully moved for acquittal, saying Christensen’s observations did not prove the state’s case beyond reasonable doubt.
     Without evidence of a tip jar or a sign requesting money, Abel said the state could not show that he had asked for money.
     Abel did not take the stand, and the defense rested without presenting any evidence. In the closing argument, the defense argued that: “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.”
     This argument failed to impress the court, however, which convicted Abel and issued a $330 fine.
     The Intermediate Court of Appeals affirmed Abel’s conviction, crediting the state’s contention that it need not prove that an actual request for money occurred because the statutes require “only that the state prove that Abel intentionally, knowingly or recklessly used any live animal in the furtherance of any solicitation within the restricted area.” (Emphasis in original.)
     The Hawaii Supreme Court found on Sept. 24, however, that soliciting is an essential part of the statutes with which Abel had been charged.
     Defining solicitation as a request for money of gifts, the court said that the statutes aim to prevent fraud, not to prevent people displaying or taking pictures with animals – conduct protected under the First Amendment.
     “The district court made no finding that a request or demand for money had occurred,” Justice Richard Pollack wrote for the unanimous court. “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.”
     In finding the evidence insufficient to support the conviction, Pollack noted that it “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,” he wrote. “Consistent with the evidence presented, the district court made no finding of a request or demand for money.”

%d bloggers like this: