State v. Olson

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-DEC-2024
07:50 AM
Dkt. 45 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
RYAN C. OLSON, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)

Defendant-Appellant Ryan Olson (Olson), appeals from

the "Findings of Fact, Conclusions of Law, and Order Denying

Defendant's Motion to Dismiss Due to Entrapment, and/or State v.

Modica[, 58 Haw. 249, 567 P.2d 420 (1977) (Modica)], and/or

Motion to Suppress Evidence" (Order), filed on November 15,
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2023, by the Circuit Court of the Second Circuit (circuit

court).1 Olson contends on appeal that the circuit court erred

when it issued the Order,2 which rejected Olson's: (1)

allegations that the Maui Police Department (MPD) committed

entrapment and violated his due process rights; (2) allegation

that the MPD violated Modica; and (3) motion to suppress

evidence.3

Upon careful review of the record and relevant legal

authorities, and having given due consideration to the arguments

advanced and the issues raised by the parties, we resolve

Olson's contentions as follows:

(1) Olson contends that the circuit court erred by

denying his Motion to Dismiss, and challenges certain FOF and

COL associated with that ruling. Olson's Motion to Dismiss set

forth two separate defenses based on MPD's conduct: (1) a

1 The Honorable Michelle L. Drewyer presided.

2 The Order set forth findings of fact (FOF) and conclusions of law
(COL), and ruled that,

IT IS HEREBY ORDERED that [Olson's] Motion to Dismiss
Due to Entrapment and/or State v. Modica, and/or Motion to
Suppress Evidence is DENIED.

3 Olson was charged by felony information, following an MPD
undercover operation, with violating Hawaii Revised Statutes (HRS) § 712-
1209.1 (Supp. 2022), Commercial Sexual Exploitation of a Minor.

In September 2023, Olson filed a Motion to Dismiss Due to
Entrapment and/or State v. Modica, and/or Motion to Suppress Evidence (Motion
to Dismiss). Following the circuit court's entry of its Order denying the
Motion to Dismiss, Olson moved for, and was granted, leave to file an
interlocutory appeal and a stay of the circuit court proceedings pending
appeal. This appeal followed.
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statutory defense of entrapment, pursuant to HRS § 702-237

(2014); and (2) a constitutional due process defense. We review

the circuit court's ruling on the Motion to Dismiss for an abuse

of discretion. State v. Mortensen-Young, 152 Hawaiʻi 385, 392,

526 P.3d 362, 369 (2023).

Olson first contends that the circuit court erred in

denying his Motion to Dismiss because the MPD entrapped him as a

matter of law by conducting an "underaged decoy bait and

switch[,]" thereby "manufactur[ing]" Olson's violation of HRS

§ 712-1209.1. Olson contends that the tactics the MPD employed

during its undercover operation created a substantial risk that

Olson would be persuaded or induced to commit the crime of

Commercial Sexual Exploitation of a Minor.

Entrapment is an affirmative defense that requires

defendants to prove, by a preponderance of the evidence, that

they,

engaged in the prohibited conduct or caused the prohibited
result because the defendant was induced or encouraged to
do so by a law enforcement officer . . . who, for the
purpose of obtaining evidence of the commission of an
offense, either:
(a) Knowingly made false representations designed to
induce the belief that such conduct or result was not
prohibited; or
(b) Employed methods of persuasion or inducement which
created a substantial risk that the offense would be
committed by persons other than those who are ready
to commit it.

HRS § 702-237(1); State v. Anderson, 58 Haw. 479, 480 n.3, 482—

84, 572 P.2d 159, 160 n.3, 161—63 (1977). "Whether the

defendant was entrapped or not ordinarily is a matter for the
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jury to decide"; entrapment may only be established as a matter

of law if the evidence is undisputed and clear. State v.

Powell, 68 Haw. 635, 638, 726 P.2d 266, 267—68 (1986).

During the undercover operation, two MPD police

officers assumed the persona of "Sweet Leilani" and indicated

Sweet Leilani was thirty-four years old. According to the

circuit court's findings, on July 21, 2023, Olson and Sweet

Leilani agreed to meet in person for "full service" for $150.

At 8:59 p.m., Sweet Leilani texted, "Im almost 17. You alright

with that?" Olson responded, "Ok."4 At 10:10 p.m., Olson made

contact with the officer deployed to pose as Sweet Leilani.

Where the officers posing as Sweet Leilani informed

Olson that Sweet Leilani was sixteen years old over an hour

before Olson met up with Sweet Leilani, the evidence was not

undisputed and clear so as to "create[] a substantial risk that

the offense would be committed by persons other than those ready

to commit it." See HRS § 702-237(1)(b). And Olson did not

present evidence that the officers made false statements

designed to induce Olson to believe offering to provide $150 to

a minor to engage in sexual conduct was not prohibited. See id.

§ 702-237(1)(a).

4 Olson acknowledges that Sweet Leilani received his response at
9:05 p.m.

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The circuit court thus did not err by denying Olson's

Motion to Dismiss and, in so doing, declining to conclude as a

matter of law that Olson was entrapped.5

Olson next contends that the circuit court erred in

denying his Motion to Dismiss because the MPD's conduct during

the undercover operation violated his due process rights.

Due process is a limited defense that is available

only under certain extreme circumstances. Agrabante, 73 Haw. at

185—87, 830 P.2d at 495—96. As the Hawaiʻi Supreme Court has

instructed, "[w]e must necessarily exercise scrupulous restraint

before we denounce law enforcement conduct as constitutionally

unacceptable; the ramifications are wider and more permanent

than when only a statutory defense is implicated." Id. at 185,

830 P.2d at 495 (citation omitted). To prove a due process

violation, a defendant must show that a law enforcement

officer's conduct violates fundamental fairness or is otherwise

so outrageous that it "shocks the conscience." State v. Tookes,

67 Haw. 608, 611—12, 699 P.2d 983, 986 (1985).

5 We note that defendants would be entitled to a jury instruction
on the entrapment defense if they present some evidence of entrapment.
State v. Agrabante, 73 Haw. 179, 196, 830 P.2d 492, 501 (1992) ("A defendant
in a criminal case is entitled to an instruction on every defense or theory
of defense having any support in the evidence, provided such evidence would
support the consideration of that issue by the jury, no matter how weak,
inconclusive or unsatisfactory the evidence may be.") (cleaned up).

We further note that the circuit court's FOF and COL, which were based
on the preponderance of evidence in the pretrial record, are confined to the
pretrial motion to dismiss.
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Again, the officers posing as Sweet Leilani

represented to Olson that Sweet Leilani was sixteen years old

over an hour before Olson met up with Sweet Leilani. Olson does

not show how this, or any other behavior by the officers, was so

outrageous that it shocks the conscience.

On this record, we determine that the circuit court

was not wrong in concluding that MPD's undercover operation was

not so outrageous or shocking as to violate Olson's due process

rights.

(2) Olson contends that HRS §§ 712-1200 (Supp. 2022)

and 712-1209.1 violate his constitutional rights, pursuant to

Modica, because these statutes permit the "disparate treatment

of similarly situated defendants who differ only in gender and

role in the underlying prostitution contract[,]" thereby

enhancing the criminal consequences against Olson from a petty

misdemeanor offense to a class B felony offense. Olson's

contentions lack merit.

In Modica, the Hawaiʻi Supreme Court held that a

criminal defendant's constitutional rights are violated where

"the same act committed under the same circumstances is

punishable either as a felony or as a misdemeanor" and "the

elements of proof essential to either conviction are exactly the

same[.]" 58 Haw. at 251, 567 P.2d at 422.

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Here, the elements of proof essential to a conviction

under HRS §§ 712-1200 and 712-1209.1 are not "exactly the same."

HRS § 712-1200 provides, in relevant part, that "[a] person

commits the offense of prostitution if the person engages in, or

agrees or offers to engage in, sexual conduct with another

person in return for a fee or anything of value."

HRS § 712-1209.1 provides,

(1) A person eighteen years of age or older commits the
offense of commercial sexual exploitation of a minor
if the person intentionally, knowingly, or
recklessly:
(a) Offers or agrees to provide anything of value
to a member of a police department, a sheriff,
or a law enforcement officer who represents
that person's self as a minor to engage in
sexual conduct;
(b) Provides anything of value to a minor or third
person as compensation for having engaged in
sexual conduct with a minor;
(c) Agrees to provide or offers to provide anything
of value to a minor or third person for the
purpose of engaging in sexual conduct with a
minor; or
(d) Solicits, offers to engage in, or requests to
engage in sexual conduct with a minor in return
for anything of value.

The plain language of HRS § 712-1209.1 expressly instructs that

the offer or agreement to provide "anything of value" must be

for the purpose of, or in exchange for, engaging "in sexual

conduct with a minor" or with a law enforcement officer "who

represents that person's self as a minor to engage in sexual

conduct"; the plain language of HRS § 712-1200 does not.

(Emphasis added.) HRS §§ 712-1209.1 and 712-1200 do not treat

"similarly situated defendants who differ only in gender and

role" differently.
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Therefore, we conclude that the circuit court did not

err in concluding that there was no Modica violation.

(3) Olson contends that the circuit court erred in

denying his Motion to Suppress Evidence. We review the circuit

court's denial of the Motion to Suppress Evidence "de novo to

determine whether the ruling was right or wrong." State v.

Hewitt, 153 Hawaiʻi 33, 40, 526 P.3d 558, 565 (2023) (internal

quotation marks omitted). Olson's contention is premised on his

allegation that MPD violated his due process rights. Because we

conclude the circuit court was not wrong in determining that the

MPD's conduct was not so outrageous or shocking as to violate

Olson's due process rights, we further conclude that the circuit

court was not wrong in denying Olson's Motion to Suppress

Evidence.

For the foregoing reasons, we affirm the Order, filed

November 15, 2023, by the circuit court.

DATED: Honolulu, Hawaiʻi, December 16, 2024.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Myles S. Breiner,
for Defendant-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Richard B. Rost,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
County of Maui, Associate Judge
for Plaintiff-Appellee.

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