A state appeals court has overturned the harassment conviction of a former member of the Hawaii Youth Challenge Academy because the alleged victim did not say that the teen’s proposition for sex made her fear that he was going to physically harm her.
The state charged Burt F. Calaycay in 2014 with petty misdemeanor harassment involving a 17-year-old female Youth Challenge Academy cadet and with two counts of misdemeanor sexual assault for having sexual contact with another 17-year-old female cadet.
A petty misdemeanor conviction is punishable by up to 30 days in jail and a $1,000 fine. The maximum penalty for a misdemeanor conviction is a one-year jail term and a $2,000 fine.
The harassment charge accused Calaycay of making the girl believe that he intended to cause her bodily injury by insulting, taunting or challenging her, or by using offensively coarse language.
At trial in 2016 on the harassment charge, the girl testified that Calaycay’s propositions made her feel uncomfortable, scared, unsafe and depressed that she would not be able to graduate from the program and get her GED.
State Per Diem Judge Alvin Nishimura found Calaycay guilty and proposed imposing a $100 fine.
Calaycay appealed. He also pleaded no contest in front of another judge to the two counts of misdemeanor sexual assault and had his sentencing put on hold pending the outcome of his appeal of the harassment conviction.
The Hawaii Intermediate Court of Appeals handed down an opinion Monday that overturned the harassment conviction because the state failed to prove one of the elements of the crime, that Calaycay intended to inflict bodily injury.
Calaycay is scheduled for sentencing on the sexual assault charges in November. He is asking the court for an opportunity to avoid conviction by deferring his no contest pleas.
The Hawaii National Guard runs the Youth Challenge Program. A spokesman said the National Guard removed Calaycay from the program after he was charged. Calaycay, however, remained a National Guard service member.
