155 P.3d 1102 (2007)

STATE of Hawai`i, Plaintiff-Appellee
v.
Pame Ann Mary Leilani ROMANO, Defendant-Appellant.

No. 26110.

Supreme Court of Hawai`i.

February 27, 2007. As Amended March 30, 2007.

*1103 William A. Harrison (Harrison & Matsuoka), on the briefs, Honolulu, for defendant-appellant.

Daniel H. Shimizu, Deputy Prosecuting Attorney, City & County of Honolulu, on the briefs, for plaintiff-appellee.

MOON, C.J., NAKAYAMA, ACOBA, and DUFFY, JJ.; and LEVINSON, J., Dissenting.

*1104 Opinion of the Court by ACOBA, J.

We hold that Defendant-Appellant Pame Ann Mary Leilani Romano (Defendant) has not established, as she argues on appeal, that (1) "[Plaintiff-Appellee State of Hawai`i (the prosecution)] failed to support a prima face [sic] case of prostitution because the [prosecution] failed to prove . . . that Defendant was not a law enforcement officer," (2) "the [prosecution] failed to present sufficient evidence to support a prima face [sic] case of prostitution," (3) "there was insufficient evidence adduced to support a finding of guilt," and (4) "Lawrence v. Texas[, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003),] renders Hawaii Revised Statutes [(HRS)] § 712-1200 et seq. unconstitutional as applied in this case." (Capitalization omitted.) Therefore, Defendant's August 26, 2003 judgment of conviction and sentence by the district court of the first circuit (the court)^[1] for the offense of prostitution, HRS § 712-1200(1) (Supp.2006),^[2] is affirmed.

I.

A.

Trial began on August 13, 2003, and the evidence following was adduced. On January 18, 2003, Officer Jeffrey Tallion was on duty with the Narcotics/Vice Division of the Honolulu Police Department Morals Detail. He testified he was on assignment investigating prostitution in the Waikīkī area. Tallion related that the investigations involved "checking into hotel rooms and then . . . either go[ing] on to the street or . . . set[ting] up appointments either in the telephone book or `Pennysaver,' `Midweek,' or internet cases."

In preparation for his undercover operation, Tallion obtained a hotel room at the Aston Waikiki Beach Hotel and dressed in civilian clothes. He browsed through the "Pennysaver" newspaper and called the phone number on a massage advertisement. When Defendant answered the phone call, Tallion asked if she did "out calls." At this time, there was no discussion of any illicit conduct or sexual acts.

Tallion set up an appointment with Defendant and they met on the street in front of the Aston Waikiki Beach Hotel, but then moved to Tallion's hotel room. In court, Tallion positively identified Defendant as the individual he met outside on January 18, 2003.

Upon arriving in the room, Tallion confirmed that the price of an out call was $100 and then asked Defendant whether "she did anything else." Defendant responded, "Like what? Dance?" Tallion responded, "No," so Defendant asked, "Well, what do you have in mind?"

Tallion then answered, "Well, I was referring to a blowjob."^[3] Defendant replied, "No, hands only." Tallion clarified, "So no blowjob, so handjob." Defendant responded, "Yeah, I can do that." Tallion asked the cost and Defendant responded, "Add 20." Tallion reconfirmed with, "Oh, $20 for a handjob?" and Defendant replied, "Yes." Tallion testified that a handjob is street vernacular commonly used in prostitution for "assisted masturbation."

Following Defendant's reply, Tallion "gave a pre-determined signal" and the arrest team *1105 entered the hotel room. Tallion apprised Honolulu police officer William Lurbe of the facts and Lurbe placed Defendant under arrest.

Tallion testified that he had been with the Morals Detail for three years; he was involved in 400 prostitution cases in 2002 as either the undercover or arresting officer; maybe five of the prostitution cases were initiated from "Pennysaver" ads; and after the talk about "handjob," Defendant added $20.00 to her quoted $100.00 charge for the out-call service. On cross-examination, Tallion recounted that he found Defendant's advertisement in "Pennysaver's" Massage/Acupuncture Section and not the Adult Section. He also related that "hands only" could have meant what a masseuse actually does.

In his testimony, Lurbe testified that he arrested Defendant for prostitution on January 18, 2003, after being "informed by [Tallion] that he [had] obtained a prostitution violation from [Defendant], which was assisted masturbation for $20." On cross-examination, Lurbe indicated that Tallion notified him of the violation via cellular phone.

Following Lurbe's testimony, the prosecution rested. Defendant moved for a continuance "to subpoena, investigate and talk to witnesses who were in the room adjoining this, this room." Over the prosecution's objection, the court continued the case to August 26, 2003.

B.

On August 21, 2003, Defendant filed a "Motion to Dismiss." In the memorandum attached to the motion, Defendant asserted that Lawrence "invalidate[d] Hawaii's prostitution statutes [and] thus[,] the [prosecution's] case [against Defendant] must necessarily fail."

At the start of the proceedings held on August 26, 2003, Defendant moved for a judgment of acquittal, arguing that the prosecution had failed to prove (1) that there was an offer and agreement to engage in sexual conduct for a fee; and (2) that Defendant was "not a police officer, a sheriff, works for the sheriff's department or law enforcement acting in the course or scope of her duties." After hearing from the prosecution, the court denied Defendant's motion.

Defendant's "Motion to Dismiss" was then heard. The court denied the motion, stating that it "[did] not agree with the applicability of [Lawrence] to the instant situation."

Defendant took the witness stand in her own defense and testified that she was a self-employed license massage therapist, she had been a licensed massage therapist for "19 years, going on 20" and her license was current and up-to-date on January 18, 2003. She testified that she placed her ad under the "Body, Mind and Spirit," "Massage," or "Health and Fitness" sections and not under the "Personal" or "Adult" sections.

Defendant also recounted that on January 18, 2003, Tallion immediately asked for a blow job when she entered the hotel room. She explained that she was "caught off guard" because she was "not the typical person that men want this from," as she was "overweight" and "old."

She reported that after Tallion asked for the "blow job," she put her hands up and stated, "Hey, I only do hands only." She also declared that she was shaking her head "no" at the same time. Defendant then indicated that Tallion repeated his question again and also asked how much it would cost. Defendant again said, "No, hands only." Defendant also maintained that Tallion was "loud," "demanding," and "boisterous."

After Defendant repeated "hands only" again, Tallion asked about handjobs. Defendant claims that she had no intent to commit any kind of sexual contact with Tallion. She explained that she only gave Tallion a figure of $20 because she felt threatened and because of Tallion's loud demands. She then testified about a 1983 incident where "[she] got beat up real bad by this person who [she] had gone to for a job for telephone soliciting."

On cross-examination, Defendant admitted that she "couldn't remember [the conversation between Tallion and herself] word for word." She also stated that Tallion did not block her way to the door leading to the hallway, Tallion did not tell her she could not leave the room, and she did not attempt to *1106 use the telephone or walk out of the room. Furthermore, Defendant indicated that she said "yes" when Tallion asked for a handjob, she knew that handjob could mean assisted masturbation, she told Tallion that the handjob would cost $20.00 extra, and she said "yes" when Tallion reiterated $20.00 for a handjob. On redirect examination, Defendant claimed that she felt trapped because it was not her room, the room "didn't have much room in it," and "she was within arm's reach of [Tallion]."

Following Defendant's testimony, the defense rested. The court found Defendant guilty of the charged offense. Defendant was sentenced to six months' probation and fined $500.00. Judgment was entered on August 26, 2003. Imposition of sentence was continued for thirty days for perfection of appeal.

The court instructed the prosecution to prepare written findings of facts and conclusions of law. The "Findings of Fact, Conclusions of Law, and Order Finding Defendant Guilty After Jury-Waived Trial" were filed on September 26, 2003. Notice of appeal was filed on September 19, 2003.

II.

As noted previously, Defendant raised four issues on appeal.^[4] In regard to issue (1), an exception to the offense of prostitution applies under HRS § 712-1200(5) for "any member of a police department, sheriff or other law enforcement officer acting in the course of and scope of duties." State v. Nobriga, 10 Haw.App. 353, 357-58, 873 P.2d 110, 112-13 (1994), overruled on other grounds by State v. Maelega, 80 Hawai`i 172, 178-79, 907 P.2d 758, 764-65 (1995), is instructive. According to that case, "[t]he general and well-settled common law rule is that where an exception is embodied in the language of the enacting clause of a criminal statute, and therefore appears to be an integral part of the verbal description of the offense, the burden is on the prosecution to negative that exception, prima facie, as part of its main case." Id. at 357, 873 P.2d at 112-13 (footnote and citation omitted). The Intermediate Court of Appeals (the ICA) further noted that "when the exception appears somewhere other than in the enacting clause, and is thus a distinct substantive exception or proviso, the burden is on the defendant to bring forward evidence of exceptive facts that constitute a defense" and, in such an instance, "[t]he prosecutor is not required to negative, by proof in advance, exceptions not found in the enacting clause." Id. at 358, 873 P.2d at 113 (citations omitted).^[5]

In Nobriga, the defendant was cited under Revised Ordinances of Honolulu (ROH) § 7-2.3 (1990),^[6] "animal nuisance," for keeping numerous roosters at his home. Id. at 355, 873 P.2d at 112. At trial, the defendant *1107 moved for judgment of acquittal on the premise that the State had failed to prove defendant's conduct did not fall within the exceptions to the animal nuisance law set forth in ROH § 7-2.4(a).^[7]Id. at 356, 873 P.2d at 112. The district court denied the motion. The ICA affirmed the denial, stating that the general prohibition against animal nuisance as set forth in ROH §§ 7-2.2 and 7-2.3 govern the elements of the case and "does not incorporate ROH § 7-2.4" as "the exceptions are located in a separate and distinct section of the ordinance." Id. at 359, 873 P.2d at 113.

The ICA also indicated "the burden of proving exceptions to a criminal statute appear to be codified in the Hawai`i Penal Code" pursuant to HRS §§ 701-114(1)(a) (1985) and 702-205 (1985). Id. at 358, 873 P.2d at 113. The ICA declared that HRS § 701-114(1)(a) requires that "the State's burden is to prove, beyond a reasonable doubt, each element of the offense," id. at 358, 873 P.2d at 113; "the elements of an offense" include that which "[n]egative[s] a defense," id.; "HRS § 701-115(1) (1985) defines a `defense' as `a fact or set of facts which negatives penal liability,'" id.; but "`[n]o defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented,'" id. (quoting HRS § 701-115(2)(1985)).

In regard to the penal code requirements, the ICA reiterated that the prosecution "has the initial burden of negativing statutory exceptions to an offense only if the exceptions are incorporated into the definition of the offense." Id. at 359, 873 P.2d at 113. However, as the ICA explained, "[i]f a statutory exception to an offense constitutes a separate and distinct defense, . . . the State's burden to disprove the defense beyond a reasonable doubt arises only after evidence of the defense is first raised by the defendant." Id.

III.

Applying the foregoing formulation, the enacting clause for the offense of prostitution is HRS § 712-1200(1), because this clause "contains the general or preliminary description of the acts prohibited; i.e., proscribes the offensive deed." State v. Lee, 90 Hawai`i 130, 138 n. 7, 976 P.2d 444, 452 n. 7 (1999) (citations omitted) (defining the term "enacting clause"). HRS § 712-1200(5) does not prescribe the offense, but states an exception to the offense for law enforcement officers acting "in the course and scope of duties." Similar to Nobriga, then, the exception here, HRS § 712-1200(5), is not located in the same section, HRS § 712-1200(1), as the definition of the offense.^[8]

As the exception in HRS § 712-1200(5) would negative the prostitution offense, it constitutes a defense. See Nobriga, 10 Haw. App. at 359, 873 P.2d at 113. In order to claim the benefit of this defense, then, evidence that Defendant fell within the exception must have been adduced. See id. However, Defendant did not adduce any such evidence at trial. Under Nobriga, the prosecution is not required to disprove the defense until there is evidence that the defendant falls within HRS § 712-1200(5). Id. Thus, the prosecution was not required to negate the defense. See HRS § 701-115(2) (1993) ("No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented[.]"). There was, then, no defect in the proof of a prima facie case.

IV.

As to issue (2), the prosecution must prove every element of a crime charged and the burden never shifts to the defendant. Territory v. Adiarte, 37 Haw. 463, 470-72 (1947). We recently stated that "`[t]he test on appeal in reviewing the legal sufficiency of the evidence is whether, when viewing the evidence in the light most favorable to the *1108 prosecution, substantial evidence exists to support the conclusion of the trier of fact.'" State v. Agard, 151 P.3d 802, 805 (Haw.2007) (quoting State v. Bui, 104 Hawai`i 462, 467, 92 P.3d 471, 476 (2004) (other citation omitted). "Substantial evidence" is defined as "`credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to reach a conclusion.'" Id. (ellipses points, brackets, and citations omitted)).

As indicated previously, HRS § 712-1200(1) provides in relevant part that prostitution is committed "if the person . . . agrees . . . to engage in . . . sexual conduct with another person for a fee." Under HRS § 712-1200(2), "sexual conduct" includes "sexual contact," as that term is "defined in section 707-700." In pertinent part, "`sexual contact' meant any touching of the sexual or other intimate parts of a person not married to the actor[.]" HRS § 707-700.

The evidence demonstrated that Defendant agreed to give Tallion a "handjob" for a fee of $20.00. Tallion confirmed with Defendant that the charge for the "out-call" was $100.00. When Tallion said, "So no blowjob, so handjob," Defendant responded, "Yah, I can do that." Tallion then asked whether "that cost extra," and according to Tallion, Defendant answered, "Add 20." Tallion testified he confirmed, "Oh, $20 for handjob," and Defendant replied, "Yes." This testimony indicates that the $20 added fee was^[9] for the handjob.

Defendant argues that agreement for a handjob does not necessarily involve sexual conduct. She contends that Tallion never defined "assisted masturbation" and that although Tallion equated a "handjob" with sexual contact, he did admit that another licensed masseuse had given him a hand massage and, thus, the meaning of "handjob" is not always sexual in nature. The phrase "assisted masturbation" would appear susceptible to common understanding. "Masturbation" is defined, inter alia, as "the stimulation, other than by coitus, of another's genitals resulting in orgasm." Random House Dictionary of the English Language 883 (Unabr. ed.1973). Genitals describe "the reproductive organs, especially the external sex organs." The American Heritage Dictionary of the English Language (4th ed.2000), available at http://www.bartleby.com/61/.

Tallion testified that "`[h]andjob' is street vernacular commonly used in prostitution for assisted masturbation." Defendant also testified that she knew that the term "handjob" could mean assisted masturbation.^[10] As noted, the meaning of "sexual contact" in HRS § 712-1200(1) included "any touching of the sexual . . . parts of a person[.]" HRS § 707-700. Plainly, the reference to "hand" in the term "handjob" connotes physical contact with genitals. Hence, considered in the strongest light for the prosecution, substantial evidence was adduced that would enable a person of reasonable caution to conclude, see Agard, 151 P.3d at 805, that Defendant agreed to engage in sexual contact with Tallion for a fee.

V.

As to issue (3), HRS § 702-231 (1993) provides in relevant part:

Duress. (1) It is a defense to a penal charge that the defendant engaged in the conduct or caused the result alleged because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.

. . . .

(5) In prosecutions for any offense described in this Code, the defense asserted under this section shall constitute an affirmative defense. The defendant shall have the burden of going forward with the evidence to prove the facts constituting such defense, unless such facts are supplied by the testimony of the prosecuting witness or circumstance in such testimony, *1109 and of proving such facts by a preponderance of the evidence pursuant to section 701-115.

(Emphases added.)

"The preponderance standard directs the factfinder to decide whether `the existence of the contested fact is more probable than its nonexistence.'" Kekona v. Abastillas, 150 P.3d 823, 829 (Haw.2006) (quoting E. Cleary, McCormick on Evidence § 339, at 957 (3d ed.1984)) (other citation omitted). Accordingly, "[t]o prevail, [the defendant] need only offer evidence sufficient to tip the scale slightly in his or her favor, and [the prosecution] can succeed by merely keeping the scale evenly balanced." Id. (internal quotation marks and citations omitted).

Defendant contends her claims "meet the elements of the affirmative defense of duress by a preponderance of evidence." She argues that because the duress claim was "unchallenged by the [prosecution] or the [c]ourt[,] preponderance of the evidence is indeed established." However, the court considered Defendant's affirmative defense of duress and concluded that Defendant did not meet her burden.

Specifically, in its oral finding, the court stated, "[A]s far as the duress defense, the burden—it becomes an affirmative defense and the burden then shifts to the [D]efendant to prove that the duress did in fact occur by preponderance of the evidence, which the [c]ourt does not feel the [D]efendant has met that burden." In its written findings, the court found "Defendant failed to present an adequate defense to the charge." "`A trial court's findings of fact are reviewed under the clearly erroneous standard.'" State v. Keliiheleua, 105 Hawai`i 174, 178, 95 P.3d 605, 609 (2004) (internal quotation marks and brackets omitted) (quoting Dan v. State, 76 Hawai`i 423, 428, 879 P.2d 528, 533 (1994)).

"`A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made.'" Foo v. State, 106 Hawai`i 102, 112, 102 P.3d 346, 356 (2004) (quoting State v. Okumura, 78 Hawai`i 383, 392, 894 P.2d 80, 89 (1995)). The record indicates that there was substantial evidence to support the finding and that it is not clear that a mistake has been made. See id..

Defendant related that Tallion was "loud" and "demanding" and she only agreed to Tallion's request for a "handjob" because she felt threatened. However, upon cross-examination, Defendant conceded that (1) Tallion had not blocked her egress from the hotel room; (2) Tallion was not holding a weapon when he asked about the "blowjob"; (3) Tallion never told her that she could not leave the room; and (4) she never attempted to use the phone or walk out of the room.

Matters of credibility and the weight of the evidence and the inferences to be drawn are for the fact finder. See Agard, 151 P.3d at 805 (stating that "`appellate courts will give due deference to the right of the trier of fact to determine credibility, weigh the evidence, and draw reasonable inferences from the evidence adduced'" (quoting In re Doe, 107 Hawai`i 12, 19, 108 P.3d 966, 973 (2005) (other citation omitted)) (internal quotation marks omitted)). Defendant did not testify to any "use of, or a threat of use, unlawful force against [her] person[.]" HRS § 702-231(1). Defendant acknowledged Tallion did not block her exit and she did not attempt to leave. Under these circumstances and giving due deference to the court as fact finder, it cannot be said the court's finding that Defendant failed to establish duress by a preponderance of the evidence was clearly erroneous. See Foo, 106 Hawai`i at 112, 102 P.3d at 356.

VI.

As to Defendant's last issue, the dissent agrees with Defendant and argues that (1) "at the time of this court's holding in [State v. Mueller, 66 Haw. 616, 671 P.2d 1351 (1983)], there was no federal precedent addressing whether the criminalization of an utterly private sexual activity (and its associated monetary component) abridged an individual's right to privacy [but] Lawrence created *1110 just such a precedent, confirming that individual decisions by married and unmarried persons `concerning the intimacies of their physical relationship . . . are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment[,]'" dissenting opinion at ___, 155 P.3d at 1118, and (2) "article I, section 6 does not abide the criminalization of wholly private, consensual sexual activity between adults without the state's having demonstrated a compelling interest by way of `injury to a person or abuse of an institution the law protects,' 539 U.S. at 568[, 123 S.Ct. 2472,]" dissenting opinion at ___, 155 P.3d at 1119. We must respectfully disagree with these propositions and discuss them herein.

VII.

The dissent's first position is not tenable because it runs into the specific qualification in Lawrence that excludes prostitution as part of protected "liberty" under the federal due process clause.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

539 U.S. at 578, 123 S.Ct. 2472 (emphases added).

Additionally, despite this clear exclusion, the dissent argues that a logical extension of Lawrence precludes the states from exercising their police power to curb prostitution.

[W]here two consenting adults swap money for sex in a transaction undertaken entirely in seclusion, the analysis of the Lawrence majority, despite the majority's attempt to avoid the notion, leads inexorably to the conclusion that the state may not exercise its police power to criminalize a private decision between two consenting adults to engage in sexual activity, whether for remuneration or not.

Dissenting opinion at ___, 155 P.3d at 1119 (emphasis added). But, the dissent's position is not supportable on this premise. The Court has in the past drawn legal boundaries around its decisions, despite the fact that arguably logic would "lead[] inexorably" beyond such strictures. Thus, in State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988), this court recognized that although the Court had held a state "would not be able to prohibit an individual from possessing and viewing . . . pornographic materials in the privacy of his or her own home[,]" id. at 489, 748 P.2d at 376 (citing Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), "[t]he . . . Court ha[d] effectively ruled that the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others[,]" Kam, 69 Haw. at 490, 748 P.2d at 376 (internal quotation marks and citation omitted), leading to the paradoxical conflict of a "citizenry['s] . . . right to read and possess material which it may not legally obtain[,]") id. at 491, 748 P.2d at 377. Hence, although the Court's language may seemingly point to broader application, that does not portend an extension of a given proposition especially when, as here, the Court expressly limits the scope of the liberty interest protected.^[11]

Furthermore, the dissent misreads Lawrence. As mentioned above, prostitution, i.e., "swap[ping] money for sex," dissenting opinion at ___, 155 P.3d at 1119, is expressly rejected as a protected liberty interest under Lawrence. Lawrence did not involve an exchange *1111 of money for sexual relations but focused on the specific sexual conduct, i.e., sodomy, as being outside the scope of legitimate government concern. It is important to remember that "[t]he question before the Court [was] the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct[,]" 539 U.S. at 562, 123 S.Ct. 2472, described as "(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object[,]" id. (quoting Texas Penal Code Ann. § 21.01(1) (2003)). Lawrence thus contains a lengthy dissertation on homosexual conduct and sodomy dating back to 1533. Id. at 568-77, 123 S.Ct. 2472. As the Court stated, the case involved "two adults who . . . engaged in sexual practices common to a homosexual lifestyle." Id. at 578, 123 S.Ct. 2472 (emphasis added).

Assuming, arguendo, that "Lawrence presupposed private sexual activity between two adults fully capable of giving valid consent[,]" dissenting opinion at ___, 155 P.3d at 1124, that does not mean Lawrence sanctioned prostitution in the "[n]arrow[er]," dissenting opinion at ___, 155 P.3d at 1124, form advocated by the dissent. Lawrence simply placed no qualification on excluding prostitution from its holding.

VIII.

In Lawrence, the Court reconsidered its earlier holding in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), where "Hardwick, in his own bedroom, [was observed] engaging in [sodomy] with another adult male." Lawrence, 539 U.S. at 566, 123 S.Ct. 2472. In doing so the majority adopted the dissent of Justice Stevens in Bowers, where a sodomy statute similar to that in Texas was upheld by the Bowers majority.^[12] In his dissent, Justice Stevens rested on two contentions.

First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.

Bowers, 478 U.S. at 216, 106 S.Ct. 2841 (Stevens, J., dissenting) (footnote and citations omitted) (emphases added). The majority in Lawrence decided that "Justice Stevens' analysis . . . should have been controlling in Bowers and should control here." 539 U.S. at 578, 123 S.Ct. 2472.

Thus, Lawrence invalidated a criminal statute prohibiting the "particular practice" of sodomy because it involved the "intimacies of . . . physical relationship" and such "intimate choices" should be left to unmarried as well as married persons. Id. at 577-78, 123 S.Ct. 2472 (emphasis added). Lawrence, then, was concerned with specific conduct seemingly aimed at persons engaged in homosexual relationships. Consequently, Lawrence precludes government interference or regulation of intimate sexual practices or conduct with respect to homosexual as well as heterosexual adults. Such intimate practices or conduct are not at issue in the instant case or prohibited by HRS § 712-1200, the prostitution statute. Lawrence, then, is not federal precedent for the proposition that "private sexual activity" "associated [with a] monetary component," "abridged" the "right to privacy" as the dissent argues. Dissenting opinion at ___, 155 P.3d at 1118.

*1112 IX.

As to the dissent's second position, in our view Lawrence as construed above does not vitiate the holding in Mueller. In Mueller, the defendant was charged with "engag[ing] in, or agree[ing] to engage in, sexual conduct with another person, in return for a fee, in violation of [HRS §] 712-1200[,]" 66 Haw. at 618, 671 P.2d at 1354, as Defendant was so charged in the instant case. Somewhat similarly the question posed there was "whether the proscriptions of [HRS] § 712-1200 may be applied to an act of sex for a fee that took place in a private apartment." Id. at 619-20, 671 P.2d at 1354. In affirming the conviction, this court said that "we are not convinced a decision to engage in sex for hire is a fundamental right in our scheme of ordered liberty, . . . [therefore] we affirm [the defendant's] conviction." Id. at 618, 671 P.2d at 1353-54.

Unlike in the instant case, in Mueller "the activity in question took place in [defendant's] apartment, the participants were willing adults, and there were `no signs of advertising[.]'" 66 Haw. at 618-19, 671 P.2d at 1354 (emphasis added). Despite the dissent's assertion "that the charged transaction," dissent at ___,