Instruction 13.00A

H.R.S. §712-1202 [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant’s name), is charged with the offense of Promoting Prostitution in the First Degree. A person commits the offense of Promoting Prostitution in the First Degree if he/she knowingly [advances prostitution by compelling or inducing a person by force, threat, fraud, or intimidation to engage in prostitution] [profits from the advancement of prostitution by another who compels or induces a person by force, threat, fraud, or intimidation to engage in prostitution] [[advances] [profits] from prostitution of a person less than eighteen years old]. There are two material elements of the offense of Promoting Prostitution in the First Degree, each of which the prosecution must prove beyond a reasonable doubt. These two elements are: 1. That on or about (date) in the [City and] County of (name of county), the Defendant [advanced prostitution by compelling or inducing a person by force, threat, fraud, or intimidation to engage in prostitution] [profited from the advancement of prostitution by another who compelled or induced a person by force, threat, fraud, or intimidation to engage in prostitution] [[advanced] [profited] from prostitution of a person less than eighteen years old]; and 2. That the Defendant did so knowingly. [A person "advances prostitution" if, acting other than as a prostitute or a patron of a prostitute, the person knowingly [causes or aids a person to commit or engage in prostitution] [procures or solicits patrons for prostitution] [provides persons for prostitution purposes] [permits premises to be regularly used for prostitution purposes] [operates or assists in the operation of a house of prostitution or a prostitution enterprise] [engages in any conduct designed to institute, aid, or facilitate an act or enterprise of prostitution].] [A person "profits from prostitution" if, acting other than as a prostitute receiving compensation for personally-rendered prostitution services, the person accepts or receives money or other property pursuant to an agreement or understanding with any person whereby the person participates or is to participate in the proceeds of prostitution activity.] “Fraud” means making material false statements, misstatements, or omissions. “Prostitution” means to [engage in, or agree or offer to engage in, sexual conduct with another person for a fee] [pay, agree to pay, or offer to pay a fee to another to engage in sexual conduct]. “Threat” means a threat by word or conduct to do any of the following: (a) Cause bodily injury in the future to the person threatened or to any other person; (b) Cause damage to property or cause damage to a computer, computer system, or computer network, including any impairment to the integrity or availability of data, a program, a system, a network, or computer services; (c) Subject the person threatened or any other person to physical confinement or restraint; (d) Commit a penal offense; (e) Accuse some person of any offense or cause a penal charge to be instituted against some person; (f) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt, or ridicule, or to impair the threatened person's credit or business repute; (g) Reveal any information sought to be concealed by the person threatened or any other person; (h) Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; (i) Take or withhold action as a public servant, or cause a public servant to take or withhold such action; (j) Bring about or continue a strike, boycott, or other similar collective action, to obtain property that is not demanded or received for the benefit of the group that the defendant purports to represent; (k) Destroy, conceal, remove, confiscate, or possess any actual or purported passport, or any other actual or purported government identification document, or other immigration document, of another person; or (l) Do any other act that would not in itself substantially benefit the defendant but that is calculated to harm substantially some person with respect to the threatened person's health, safety, business, calling, career, financial condition, reputation, or personal relationships. Notes H.R.S. §§712-1200, 712-1201, 712-1202, 707-764(1), 707-700, and 708-890. For definition of states of mind, see instruction: For definition of terms defined by H.R.S. Chapter 707, see instructions: H.R.S. §712-1203 [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant’s name), is charged with the offense of Promoting Prostitution in the Second Degree. A person commits the offense of Promoting Prostitution in the Second Degree if he/she knowingly [advances] [profits from] prostitution. There are two material elements of the offense of Promoting Prostitution in the Second Degree, each of which the prosecution must prove beyond a reasonable doubt. These two elements are: 1. That on or about (date) in the [City and] County of (name of county), the Defendant [advanced] [profited from] prostitution; and 2. That the Defendant did so knowingly. [A person “advances prostitution” if, acting other than as a prostitute or a patron of a prostitute, the person knowingly [causes or aids a person to commit or engage in prostitution] [procures or solicits patrons for prostitution] [provides persons for prostitution purposes] [permits premises to be regularly used for prostitution purposes] [operates or assists in the operation of a house of prostitution or a prostitution enterprise] [engages in any conduct designed to institute, aid, or facilitate an act or enterprise of prostitution].] [A person "profits from prostitution" if, acting other than as a prostitute receiving compensation for personally-rendered prostitution services, the person accepts or receives money or other property pursuant to an agreement or understanding with any person whereby the person participates or is to participate in the proceeds of prostitution activity.] “Prostitution” means to [engage in, or agree or offer to engage in, sexual conduct with another person for a fee] [pay, agree to pay, or offer to pay a fee to another to engage in sexual conduct]. Notes H.R.S. §§712-1200, 712-1201, 712-1203, and 707-700. For definition of states of mind, see instruction: For definition of terms defined by H.R.S. Chapter 707, see instructions: [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant’s name), is charged with the offense of Promoting Travel for Prostitution. A person commits the offense of Promoting Travel for Prostitution if he/she knowingly [sells] [offers to sell] travel services that [include] [facilitate] travel for the purpose of engaging in what would be prostitution if occurring in the state. There are two material elements of the offense of Promoting Travel for Prostitution, each of which the prosecution must prove beyond a reasonable doubt. These two elements are: 1. That on or about (date) in the [City and] County of (name of county), the Defendant [sold] [offered to sell] travel services that [included] [facilitated] travel for the purpose of engaging in what would be prostitution if occurring in the state; and 2. That the Defendant did so knowingly. “Prostitution” means to [engage in, or agree or offer to engage in, sexual conduct with another person for a fee] [pay, agree to pay, or offer to pay a fee to another to engage in sexual conduct]. “Travel services” includes transportation by air, sea, or rail; related ground transportation; hotel accommodations; or package tours, whether offered on a wholesale or retail basis.* Notes H.R.S. §§ 712-1200, 712-1201, 712-1208, 707-700, and 468L- 1. For definition of states of mind, see instruction: For definition of “sexual conduct,” see H.R.S. § 712- 1200(2) For definition of terms defined by H.R.S. Chapter 707, see instructions: *See H.R.S. § 486L-1 as to hotels and air carriers excluded from the definition of “travel services.” H.R.S. §712-1209.5 [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant’s name), is charged with the offense of Habitual Solicitation of Prostitution. A person commits the offense of Habitual Solicitation of Prostitution if he/she is a habitual prostitution offender and [pays] [agrees to pay] [offers to pay] a fee to another person to engage in sexual conduct. There are three material elements of the offense of Habitual Solicitation of Prostitution, each of which the prosecution must prove beyond a reasonable doubt. These three elements are: 1. That on or about (date) in the [City and] County of (name of county), the Defendant was a habitual prostitution offender; and 2. That the Defendant [paid] [agreed to pay] [offered to pay] a fee to another person to engage in sexual conduct; and 3. That the Defendant acted intentionally, knowingly, or recklessly as to each of the foregoing elements. A person is a “habitual prostitution offender” if the person, at the time of the conduct for which he/she is charged, had two or more convictions within ten years of the instant offense for [Prostitution, in violation of section 712- 1200(1)(b)] [Street Solicitation of Prostitution, in violation of section 712-1207(1)(b)] [Habitual Solicitation of Prostitution, in violation of section 712-1209.5] [an offense of any other jurisdiction that is comparable to [Prostitution, in violation of section 712-1200(1)(b)] [Street Solicitation of Prostitution, in violation of section 712-1207(1)(b)] [Habitual Solicitation of Prostitution, in violation of section 712- offenses from among the foregoing bracketed alternatives)]. The convictions must have occurred on separate dates and be based on separate incidents on separate dates. “Conviction” means a judgment on the verdict or a finding of guilt, or a plea of guilty or nolo contendere that, at the time of the instant offense, has not been expunged by pardon, reversed, or set aside. Notes H.R.S. § 712-1209.5 For the basis of the applicable state of mind see H.R.S. § 702-204. For definition of states of mind, see instructions: For definition of “sexual conduct,” see H.R.S. § 712- 1200(2) For definition of terms defined by H.R.S. Chapter 707, see instructions: When the Defendant stipulates to element 1 and the state of mind applicable to it, instructions 13.00A.5A and 13.00A.5B should be given in place of the instant instruction. H.R.S. §712-1209.5 – (When Defendant Stipulates to Prior Convictions) [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant’s name), is charged with the offense of Solicitation of Prostitution. A person commits the offense of Solicitation of Prostitution if, he/she had two or more predicate convictions within ten years of the instant offense and he/she [pays] [agrees to pay] [offers to pay] a fee to another person to engage in sexual conduct. There are three material elements of the offense of Solicitation of Prostitution, each of which the prosecution must prove beyond a reasonable doubt. These three elements are: 1. That on or about (date) in the [City and] County of (name of county), the Defendant had two or more predicate convictions within ten years of the instant offense; and 2. That the Defendant [paid] [agreed to pay] [offered to pay] a fee to another person to engage in sexual conduct; and 3. That the Defendant acted intentionally, knowingly, or recklessly as to each of the foregoing elements. Notes H.R.S. § 712-1209.5 For the basis of the applicable state of mind see H.R.S. § 702-204. For definition of states of mind, see instructions: For definition of “sexual conduct,” see H.R.S. § 712- 1200(2) For definition of terms defined by H.R.S. Chapter 707, see instructions: When the Defendant stipulates to element 1 and the state of mind applicable to it, this instruction and instruction Consistent with State v. Murray, 116 Hawai`i 3, 169 P.3d 955 (2007), the offense is referred to in the body of the instruction as “Solicitation of Prostitution” rather than “Habitual Solicitation of Prostitution.” See notes accompanying instruction 13.00A.5B. The court should consider obtaining, on the record, the Defendant’s consent to the omission of the term “habitual” from references to the title of the offense in the instructions or otherwise during the trial. as to Prior Conviction Element and Applicable State of Mind; Limiting Instruction: H.R.S. § 712-1209.5 The Defendant and the prosecution have stipulated, and you must therefore accept as proved beyond a reasonable doubt that, on (insert date of charged offense), the Defendant (Defendant’s name) had two or more predicate convictions within ten years of the instant offense, and that the Defendant acted intentionally, knowingly, or recklessly as to those convictions. You must not consider this stipulation for any other purpose. Notes This instruction and instruction 13.00A.5A should be given whenever the Defendant stipulates to the prior convictions that comprise the attendant circumstance element of the offense and the state of mind applicable to that element. The court should also consider giving variations of instructions 3.06 (stipulations) and 4.01 (evidence admitted for a limited purpose) immediately after the stipulation is read to the jury. See State v. Murray, 116 Hawai`i 3, 169 P.3d 955 (2007) (“failure to allow the defendant to use the stipulation procedure would not be considered harmless error”). Under Murray, if the defense requests the stipulation procedure: (1) the defendant should be allowed to stipulate to the fact of the required prior convictions; (2) the stipulation may be accepted only after engaging the defendant in an on-the-record colloquy to ensure a knowing and voluntary waiver of his/her right to have the “prior conviction element” proved beyond a reasonable doubt and decided by a jury; (3) the jury should be instructed that the defendant has stipulated to this particular element of the charged offense to make it plain that this element is considered proved beyond a reasonable doubt; (4) the instruction must be carefully crafted to omit any reference to the “name or nature” of the previous convictions; (5) the instruction should ensure that the prior convictions are not considered by the jury for any purpose other than conclusively establishing the “prior convictions element;” and (6) the court must preclude any mention of the name or nature of the prior convictions at any point during the trial, i.e., jury selection, opening statements, presentation of evidence, closing arguments, or instructions. Consistent with (4) and (6) of the Murray requirements enumerated above, in the body of this instruction (and instruction 13.00A.5A as well), the offense is referred to as “Solicitation of Prostitution” rather than “Habitual Solicitation of Prostitution.” H.R.S. §712-__ [In Count (count number) of the Indictment/Complaint, the] [The] Defendant (defendant’s name) is charged with the offense of Solicitation of a Minor for Prostitution. A person commits the offense of Solicitation of a Minor for Prostitution if he/she, being eighteen years of age or older, offers or agrees to pay a fee to a minor to engage in sexual conduct. There are four material elements of the offense of Solicitation of a Minor for Prostitution, each of which the prosecution must prove beyond a reasonable doubt. These four elements are: 1. That on or about (date) in the [City and] County of (name of county), the Defendant [offered] [agreed] to pay a fee to a minor; and 2. The Defendant did so to engage in sexual conduct with that minor; and 3. That at that time, Defendant was eighteen years of age or older; and 4. That the Defendant acted intentionally, knowingly, or recklessly as to each of the foregoing elements. “Minor” means any person less than eighteen years old. Notes H.R.S. § 712-__ For the basis of the applicable state of mind see H.R.S. § 702-204. For definition of states of mind, see instructions: For definition of “sexual conduct,” see H.R.S. § 712- 1200(2) For definition of terms defined by H.R.S. Chapter 707, see instructions: