Case Information
*1
Electronically Filed Intermediate Court of Appeals CAAP-16-0000515 29-JUN-2021 07:54 AM
Dkt. 60 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI'I
---o0o---
STATE OF HAWAI'I, Plaintiff-Appellee, V.
SAMUEL K. KAEO, Defendant-Appellant
NO. CAAP-16-0000515
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT WAILUKU DIVISION
(CASE NO. 2DCW-15-0002103)
JUNE 29, 2021
GINOZA, CHIEF JUDGE AND LEONARD, J.
(WITH NAKASONE, J., DISSENTING)
OPINION OF THE COURT BY GINOZA, CHIEF JUDGE
Defendant-Appellant Samuel K. Kaeo (Kaeo) appeals from
the "Trial Decision and Order" filed on June 15, 2016, and the "Judgement and Notice of Entry of Judgment" (Judgment) filed on June 29, 2016, by the District Court of the Second Circuit (District Court).
[1]
On July 31, 2015, Plaintiff-Appellee State of Hawai'i (State) charged Kaeo by Complaint with: refusal to provide ingress or egress in violation of Hawaii Revised Statutes
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FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
(HRS) § 852-1 (count 1); failure to disperse in violation of HRS § 711-1102 (count 2); and disorderly conduct in violation of HRS § 711-1101(1)(d) (count 3). [2] The State ultimately proceeded only on count 3 .
On June 29, 2016, after a bench trial for count 3, the District Court convicted Kaeo of disorderly conduct, in violation of HRS and sentenced Kaeo to pay a fine of 200 \ .
On appeal, Kaeo contends that his conviction should be reversed because: (1) he engaged in constitutionally protected conduct; and (2) findings of fact (FOFs) 4 and 23, and conclusions of law (COLs) 1, 2, and 3 in the Trial Decision and Order are erroneous.
We conclude that Kaeo's conduct in this case was not constitutionally protected conduct, and that the District Court did not err in its findings of fact and conclusions of law that Kaeo challenges on appeal. We therefore affirm the Judgment by the District Court.
I. Background [4]
On July 30, 2015, a convoy of vehicles was scheduled to transport large components from the Central Maui Baseyard
3 HRS § 711-1101(1)(d) provides:
§711-1101 Disorderly conduct. (1) A person commits the offense of disorderly conduct if, with intent to cause physical inconvenience or alarm by a member or members of the public, or recklessly creating a risk thereof, the person:
(d) Creates a hazardous or physically offensive condition by any act which is not performed under any authorized license or permit [.]
4 "Findings of fact ... that are not challenged on appeal are binding on the appellate court." Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai'i 450, 458, 40 P.3d 73, 81 (2002); Bremer v. Weeks, 104 Hawai'i 43, 63, 85 P.3d 150, 170 (2004). The District Court made numerous findings in its Trial Decision and Order which are not challenged on appeal.
*3 (Baseyard) to the Daniel K. Inouye Solar Telescope (DKIST) construction site at the summit of Haleakalā on Maui. The convoy was scheduled to leave at 10 p.m. through what was called the MECO gate.
Joseph McMullen (McMullen), a project manager at DKIST testified that the Baseyard is an outdoor storage facility just off of Mokulele highway used by DKIST to hold large components. McMullen's duties included managing the day-to-day construction of the DKIST and delivery of the materials for the telescope's construction. According to McMullen, at around 7 p.m. on the day in issue, Kaeo arrived at the Baseyard, spoke with McMullen, asked McMullen "is this the place where the transport was going to happen?", and after being told it was, Kaeo told McMullen "you better get ready" and that they "were in for the night." McMullen testified that initially there were about ten protesters, but the number continued to grow. At around 8:30 p.m., the Maui Police Department (MPD) set up lights across the median. McMullen testified that by 10:00 p.m., over a hundred protesters were outside the Baseyard, holding signs and walking around the crosswalk located outside the gate. At around 9:30 p.m. and 10:00 p.m., the convoy attempted to exit the Baseyard through the MECO gate as scheduled. According to McMullen, after the gates were opened, the trucks made a turn and the nose of a truck was pulled out just beyond the gate but was unable to go any farther as the protesters approached the trucks and the trucks had to stop. McMullen testified the protesters were just a few feet from the trucks, with the truck engines still running. McMullen also testified that the transport convoy consisted of four vehicles, three trucks, and several mechanics trucks, and he was in one of the vehicles. [5] Further, McMullen testified that approximately twenty people, including the truck drivers, were
*4 involved with transporting the materials to the construction site.
MPD received a call for assistance and Lieutenant Wade Maeda (Lt. Maeda) was dispatched to the Baseyard at 10:05 p.m. Lt. Maeda testified that when he first arrived at the Baseyard, the road and sidewalk outside the MECO gate were completely covered with people. Lt. Maeda also testified he informed one of the protesters that there were specific guidelines for peaceful protest and that the protesters were currently breaking the law. Lt. Maeda told several protesters to disperse. At around 10:15 p.m., Lt. Maeda activated the Specialized Emergency Enforcement Detail (SPEED) team because the protesters did not disperse and the convoy could not leave.
Lt. Maeda further testified that lines of five or six people connected their hands through PVC pipes and used duct tape to secure the PVC pipes to their arms so the pipes could not be slipped off. The first line of people laid themselves down approximately twenty feet from the Baseyard gate, preventing the convoy from moving forward. Lt. Maeda testified that at this point the truck engines were still running.
MPD Captain Clyde Holokai (Captain Holokai), commander of the SPEED team, testified that Kaeo was part of the first line of people connected with PVC pipes and that Kaeo had both arms connected to another protester. Captain Holokai approached the line of protesters on the ground, asked if they wanted to do this and warned they would be arrested. The protesters did not respond and remained on the ground. Captain Holokai ordered his sergeant and the dismantling team to start removing the PVC pipes.
Sergeant Russell Kapalehua (Sgt. Kapalehua) testified that the protesters lying on the ground connected with PVC pipes would not stand up on their own and that it would have taken a lot of people to carry the protesters off the road. Sgt. Kapalehua also testified that it would have been hazardous to attempt to remove the protesters while they were connected.
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According to Sgt. Kapalehua, the SPEED team moved slowly to cut the PVC pipe with a hacksaw to ensure no one was injured. Sgt. Kapalehua testified that he could almost feel the heat of the engine from the trucks while he worked to get Kaeo detached. At around 12:45 a.m., the SPEED team finished separating the chained protesters and the convoy left. MPD arrested the protesters who had been chained together, including Kaeo.
II. Discussion
A. Kaeo's Conduct Was Not Constitutionally Protected
Kaeo contends that his conviction must be reversed because his actions in this case were constitutionally protected conduct and speech under the First and Fourteenth Amendments of the United States Constitution and article I, of the Hawai'i Constitution. [6] "Questions of constitutional law are reviewed de novo under the right/wrong standard." State v. Miranda, 147 Hawai'i 171, 179, 465 P.3d 618, 626 (2020) (citing State v. Ui, 142 Hawai'i 287, 292, 418 P.3d 628, 633 (2018)).
The First Amendment to the U.S. Constitution and article I, of the Hawai'i Constitution prohibit the enactment of any law that abridges freedom of speech or the right peaceably to assemble. [7] However, these rights are not without limits.
No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.
Haw. Const. art. I, . Because Kaeo fails to provide any argument regarding article I, 5$, this issue is waived. See Hawai'i Rules of Appellate Procedure (HRAP) Rule 28 (b) (7) ("Points not argued may be deemed waived.").
7 The U.S. Constitution provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
(continued...)
*6 In Cox v. State of La., 379 U.S. 536, 554-55 (1965), the U.S. Supreme Court explained that:
The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations. (citations omitted) (emphases added). The U.S. Supreme Court then stated: "We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech." Id. at 555. The Supreme Court then reaffirmed that "it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language,
The Hawai'i Constitution provides:
*7 either spoken, written, or printed." Id. (quoting Gilboney v. Empire Storage &; Ice Co., 336 U.S. 490, 502 (1949)). [8]
Notwithstanding Kaeo's argument that he intended to express his opposition to the DKIST construction in a peaceful and non-violent manner, he protested by physical conduct, chaining himself to others and blocking the transport convoy from having access to the highway from the Baseyard. See State v. Jim, 105 Hawai'i 319, 334, 97 P.3d 395, 410 (App. 2004) (relying on case law citing Cox and holding that the defendant's protest, which physically obstructed county water supply workers from doing their work on Hawaiian Home Lands property, was conduct outside the scope of any free speech right under the First Amendment of the U.S. Constitution and article I, of the Hawai'i Constitution); State v. Guzman, 89 Hawai'i 27, 36, 968 P.2d 194, 203 (App. 1998) (rejecting defendants' argument that a statute, which prohibited obstruction of ingress or egress from any public or private place, was unconstitutional for chilling free expression where defendants picketed at the entrance to a hospital due to a labor dispute and impeded traffic). Here, Kaeo's act of lying on the ground connected with PVC pipes to other individuals to prevent the convoy from exiting the Baseyard
Id. at 558. Kaeo raises no argument in this case that Hawai'i's Disorderly Conduct statute, HRS 711-1101$, has been applied in a discriminatory manner or with unfettered discretion.
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onto the adjacent highway constituted expression mixed with conduct which was outside the scope of First Amendment and article I, freedom of speech and freedom to assemble protection.
Alternatively, Kaeo argues that HRS 711-1101$ (1) (d) must be construed to include the federal and state constitutional right of free speech and assembly as an "authorized license or permit." However, Kaeo does not provide any legal authority to support his contention and does not argue that the statute is unconstitutionally vague or overbroad. Regardless, as discussed above, his actions did not fall within the scope of federal and state constitutional protections of free speech and peaceful assembly. Therefore, we disregard this argument.
B. The District Court Did Not Err in FOF 4 and FOF 23
Kaeo contends the District Court's FOF 4 and FOF 23 are clearly erroneous.
1. FOF 4
The District Court's FOF 4 states, "McMullen demonstrated, using State's Exhibits 7, 9, and 12, that there was only one practical exit from the Central Maui Baseyard to Mokulele Highway through which the transport trucks could leave." Kaeo contends FOF 4 is clearly erroneous because McMullen, as the project manager of DKIST, "was not competent to testify as to any authorized ingress and egress at the [Baseyard] because no foundation was laid as to his personal knowledge." "Findings of fact 'are subject to the clearly erroneous standard of review. A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with a definite and firm conviction that a mistake has been committed.'" State v. Enos, 147 Hawai'i 150, 158-59, 465 P.3d 597, 605-06 (2020) (quoting State v. Rapozo, 123 Hawai'i 329, 336, 235 P.3d 325, 332 (2010)).
Kaeo raised his objection to McMullen's testimony as follows: [THE STATE:] Okay. And why did you choose this area to exit, um, with the equipment pieces?
*9 [MCMULLEN:] That's the -- we were given permission to do that and that's the only gate that really is practical for the size trucks that we have to egress from the baseyard. [THE STATE:] You say at the tame [sic] there was a gate that blocked the entrance to the baseyard itself? [DEFENSE COUNSEL:] Objection, your Honor, lack of competency. Apparently he's not the proprietor of this area and I object for grounds of not competent.
THE COURT: What was your question again, Mr. Segal? [THE STATE:] At the time on July 30th, was -- was there a gate that blocked entrance to the area? [MCMULLEN:] Yeah -- [DEFENSE COUNSEL:] Your Honor, again, I really want to object. He is simply a project manager of the telescope. There's no relevancy as to his personal contact and knowledge about the baseyard. [THE STATE:] He established, Judge, he was there on July 30th.
THE COURT: Your objection is noted and overruled. Hawaii Rules of Evidence (HRE) Rule 602 states in relevant part, "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony." Furthermore, "[a] witness must testify based on personal knowledge, which by definition means the witness perceived an event and has a present recollection of that perception." State v. Wakamoto, 143 Hawai'i 443, 452, 431 P.3d 816, 825 (2018) (citing Commentary to HRE Rule 602).
Prior to Kaeo's objection, McMullen testified that he worked on the DKIST project for about four-and-a-half years and that as the project manager, McMullen managed the day-to-day construction efforts and was responsible for, inter alia, the delivery of the full science scope at the observatory. McMullen testified that he had been to the Baseyard a few times and became familiar with the layout of the Baseyard as part of his duties. McMullen also provided details of the components, explained the plans for transporting the components and testified that he was
*10
in Maui on July 30, 2015, in particular for the transport of the components.
McMullen's testimony regarding the authorized egress of the components through the MECO gate was based on his familiarity with the Baseyard and his personal knowledge of the plan for the convoy on July 30, 2015. Thus, there was sufficient foundation for McMullen's testimony that the MECO gate was the only practical exit for the size of the trucks and the District Court did not err in allowing McMullen's testimony regarding the egress of the convoy. Accordingly, the District Court's FOF 4 is not erroneous.
2. FOF 23
The District Court's FOF 23 states, "[a]s the custodian of records for []DOT, [Irvin] Pigao testified that on July 30, 2015, []DOT did not issue any permits to block the multi-use pathway or to block the ingress and egress onto Mokulele Highway in the area of the Central Maui Baseyard." Kaeo contends that FOF 23 is clearly erroneous because the District Court erred in not admitting into evidence Defense Exhibit L, which consisted of permits issued by the State of Hawai'i Department of Transportation (DOT) to DKIST and its agents for the transport of oversized trucks during June and July 2015.
Kaeo sought to introduce Defense Exhibit L to show DOT had not issued permits to DKIST or its agents to transport the materials on July 30, 2015. Kaeo also alleges Defense Exhibit L contradicts McMullen's testimony that the MECO gate was the only practical exit from the Baseyard. The District Court refused to admit this evidence after the State objected based on relevance. When there can only be one correct answer as to admissibility of evidence, or when reviewing questions of relevance under HRE Rules 401 and 402, the appellate court applies the right/wrong standard of review. State v. Acacio, 140 Hawai'i 92, 98, 398 P.3d 681, 687 (2017) (citation omitted). HRE Rule 401 provides the definition for relevant evidence as "evidence having any tendency to make the existence of any fact
*11
that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." HRE Rule 402 provides, in pertinent part that "[e]vidence which is not relevant is not admissible."
Kaeo fails to explain how a permit or lack thereof for the convoy to transport the materials to Haleakalā is relevant to FOF 23, which found that DOT did not issue permits to block the crosswalk or the ingress and egress onto Mokulele Highway in the area of the Baseyard. Kaeo also fails to explain how Defense Exhibit L contradicts McMullen's testimony that the MECO gate was the only practical exit from the Baseyard. Thus, the District Court properly concluded that the evidence of whether DKIST or its agents had a permit for the convoy on July 30, 2015, was irrelevant to the determination of the charge against Kaeo. See HRS 711-1101$ (1) (d). Accordingly, the District Court's FOF 23 is not erroneous. C. The District Court Did Not Err in COL 1, COL 2, or COL 3
Kaeo contends that the District Court's COL 1, COL 2, and COL 3 are wrong.
1. COL 1
In COL 1, the District Court concluded that "[t]he testimony of the State's witnesses were more credible than that of the Defendant and the Defendant's witnesses." Kaeo contends that the District Court's COL 1 is erroneous as a matter of law because it is arbitrary and against the weight of the evidence. Kaeo does not provide any authority in support of his contention. Nevertheless, "[i]t is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the trier of fact." State v. Jenkins, 93 Hawai'i 87, 101, 997 P.2d 13, 27 (2000) (citations and brackets omitted). The Hawai'i Supreme Court has also stated that in a bench trial, it is for the trial judge as fact-finder to assess the credibility of witnesses and to resolve all questions of facts; the judge may accept or reject any witness's testimony in whole or in part. State v. Eastman, 81 Hawai'i 131, 139, 913 P.2d 57, 65 (1996). It is not the role of the appellate court to weigh credibility or resolve conflicting evidence. Id.
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State v. Monteil, 134 Hawai'i 361, 368, 341 P.3d 567, 574 (2014) (internal quotation marks, brackets, and citation omitted).
Kaeo also argues that the District Court should have specified which part or parts of the testimony it found was not credible. However, "a court is not required to make express findings regarding credibility and weight." State v. Rodrigues, 128 Hawai'i 200, 210, 286 P.3d 809, 819 (2012) (citing State v. Patterson, 58 Haw. 462, 468, 571 P.2d 745, 749 (1977)). Thus, the District Court did not err in finding the State's witnesses more credible.
2. COL 2
COL 2 states that "[t]he State has proven, beyond a reasonable doubt, each and every element of the charge of Disorderly Conduct as set forth in the complaint filed July 31, 2015." Kaeo argues that COL 2 is erroneous because his conduct was directed toward a private entity, his conduct did not create a hazardous or physically offensive condition, and even if the evidence is sufficient to sustain his conviction, the evidence is insufficient to sustain the offense as a petty misdemeanor.
Kaeo challenges the sufficiency of the evidence, which we review as follows:
Evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.
State v. Kalaola, 124 Hawai'i 43, 49, 237 P.3d 1109, 1115 (2010) (citations and brackets omitted). "'Substantial evidence' as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id. (citation omitted).
As previously stated, HRS 711-1101$ (1) (d) provides: \$711-1101 Disorderly conduct. (1) A person commits the offense of disorderly conduct if, with intent to cause physical inconvenience or alarm by a member or members of the public, or recklessly creating a risk thereof, the person:
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FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
(d) Creates a hazardous or physically offensive condition by any act which is not performed under any authorized license or permit[.] (emphases added). We first address whether the approximately twenty individuals involved in the convoy in this case constitute a "member or members of the public" under HRS (1)(d). "Statutory interpretation is a question of law reviewable de novo." State v. Castillon, 144 Hawai'i 406, 411, 443 P.3d 98, 103 (2019) (citation omitted).
As set forth in HRS (2014), "[p]ublic" means "affecting or likely to affect a substantial number of persons." Further, "[p]ublic place" means:
a place to which the public or a substantial group of
persons has access and includes highways, transportation
facilities, schools, places of amusement or business, parks,
playgrounds, prisons, and hallways, lobbies, and other
portions of apartment houses and hotels not constituting
rooms or apartments designed for actual residence.
(emphasis added). The commentary to HRS carves out an exception for police officers and provides in pertinent part: A person may not be arrested for disorderly conduct as a result of activity which annoys only the police, for example. Police officers are trained and employed to bear the burden of hazardous situations, and it is not infrequent that private citizens have arguments with them. Short of conduct which causes "physical inconvenience or alarm to a member or members of the public" arguments with the police are merely hazards of the trade, which do not warrant criminal penalties. (emphases added) (footnote omitted). The approximately twenty individuals involved with the convoy in this case were not police officers. Kaeo argues his conduct "was directed toward a small, private entity - the DKIST - and did not cause any inconvenience or alarm to any member or members of the public[.]" However, neither the commentary to HRS nor the definition of "public" under HRS preclude the approximately twenty individuals involved in the
*14 convoy, whether they were employees of DKIST or otherwise, [9] from being members of the public for purposes of HRS 711-1101$ (1). In State v. Spencer, No. 29176, 2009 WL 1888943, at *1 (App. July 2, 2009) (SDO), the defendant was convicted of disorderly conduct, but argued on appeal that the State failed to show that he intended to cause physical inconvenience or alarm by a member or members of the public. In that case, the defendant yelled at the complaining witness, challenged him to a fight, attempted to strike him, and followed him into a building in which the defendant did not reside in order to confront him. Id. This court concluded that the defendant's conduct recklessly caused alarm and rejected the defendant's argument that there were no members of the public present. Id. We explained:
There was evidence that there were a "bunch of people" standing in front of the building, about twenty people standing in the lobby of the building, and five room assistants inside the lobby who witnessed the incident.
Spencer's argument that the incident took place in a private building rather than a public place and that what occurred was private conduct between two people in a private building is also without merit. Spencer's conduct was committed in a public place as defined in HRS 711-1100$. Id. We thus affirmed the defendant's conviction. Further, we conclude that State v. Leung, 79 Hawai'i 538, 904 P.2d 552 (App. 1995), is distinguishable. In Leung, this court held there was insufficient evidence of disorderly conduct under HRS 711-1101(1)(\mathrm{b})^{10}$ where the defendant allegedly made unreasonable noise in a theater lobby while detained by four police officers and the theater manager. Id. at 544, 904 P.2d at 558. The theater manager had already detained the defendant and his three companions when the police arrived, with the manager explaining that he had heard a loud popping noise like fire crackers or something similar to a gun shot and that the defendant and his friends were possibly the cause of the
10 Subsection (b) of HRS 711-1101$ (1) provides: "(b) Makes unreasonable noise[.]"
*15 noise. Id. at 540, 904 P.2d at 554. After the police arrived, the defendant cursed at the theater manager and began to yell and shout obscenities at the manager and police. Id. During the incident, there were people leaving who had been watching a movie and people outside gathering, with a police officer estimating a hundred people outside and at least a hundred people inside. Id. at 541, 904 P.2d at 555. This court noted that theater patrons waiting for or exiting a movie, who simply stopped or slowed to satisfy their curiosity about the defendant's encounter with police cannot be said to be physically inconvenienced or alarmed. Id. at 544, 904 P.2d at 558. Further, we noted "[t]here is no evidence that Defendant caused physical inconvenience to any member of the public or that the public was alarmed because at the time he allegedly made 'unreasonable noise,' he was under the control of the four police officers and the theater manager." Id. (emphases added). Further, we explained that "[a]ssuming there was some inconvenience or alarm, there was clearly 'no physical inconvenience or alarm' to any members of the public[.]" Id.
In Leung, therefore, this court did not consider or analyze the theater manager as a member of the public because the manager had been the one to detain the defendant. Further, the theater manager did not testify, id. at 542, 904 P.2d at 556, and thus there was no evidence from the theater manager whether the manager was physically inconvenienced or alarmed by the defendant.
Similarly, we conclude that State v. Moser, 107 Hawai'i 159, 111 P.3d 54 (App. 2005), is distinguishable from the instant case. In Moser, we held there was insufficient evidence to support a conviction for disorderly conduct based on unreasonable noise in a public library, under HRS 711-1101(1)$ (b). In Moser, the defendant was soft-spoken when she first approached the circulation desk and a library employee to apply for a library card. Id. at 161, 111 P.3d at 56. However, the defendant became upset and began speaking loudly when the employee requested to
*16 clarify the defendant's middle initial. Id. The library manager was in a back room when he heard someone raise their voice, so he went out to investigate. Id. at 162, 111 P.3d at 57. After initially observing the defendant, the manager approached her, told her that her behavior was not appropriate, identified himself, and said if she did not lower her voice she would be asked to leave. Id. at 162-63, 111 P.3d at 57-58. The defendant did not lower her voice, the manager asked her to leave but she would not leave, so the manager called the police. Id. at 163, 111 P.3d at 58 .
In reversing the conviction in Moser, we noted that the defendant's behavior was "considerably tamer" than in Leung and in other disorderly conduct cases based on unreasonable noise that had been reversed on appeal. Id. at 175, 111 P.3d at 70. We also noted there was no evidence the defendant addressed anyone other than the library employee and the manager, or that the defendant intended to physically inconvenience or alarm any member of the public by speaking loudly. Id. Given the evidence, we noted "it is unclear whether any other patron was in the library that day and, if so, whether it was the raising of [the defendant's] voice or the dialogue between [the defendant] and [the library manager] that attracted the patron's attention." Id. at 175-76, 111 P.3d at 70-71.
Although Moser does not analyze the effect of the defendant's conduct on the library employee or the library manager, there is also no analysis or holding that these individuals could not be "a member or members of the public" under HRS 711-1101$ (1). The evidence previously recited in Moser reflects that neither of these individuals was physically inconvenienced or alarmed by the defendant's conduct. The library employee testified the defendant's voice was not the loudest she had ever heard in the library and her testimony did not reflect any alarm or physical inconvenience to her by the defendant's conduct. Id. at 161-62, 111 P.3d at 56-57. Similarly, the library manager's testimony did not reflect any
*17 alarm or physical inconvenience to him by the defendant's conduct. Id. at 162-63, 111 P.3d at 57-58. The manager's testimony included that, after hearing someone raise their voice he "went out to investigate the situation[,]" he thought it was "kind of interesting that [the defendant] would be so upset about something like her middle initial," he initially just "sat there and witnessed" the library employee continue to process the library card application, he approached the defendant after she was given her library card and she continued to be upset, and "since he was in charge of the branch, it was his responsibility to ask patrons who engage in behavior deemed disruptive by the library staff to leave." Id. at 162-63, 111 P.3d at 57-58 (quotation marks and ellipsis omitted). When the defendant would not "tone it down[,]" the manager asked her to leave but she did not, so he called the police. Id. at 163, 111 P.3d at 58. After calling the police he "probably wandered around the library trying to continue his work[,]" and the defendant "used the library quietly until the police arrived." Id. (quotation marks and brackets omitted).
Unlike the current case, in Moser there was no evidence of physical inconvenience by anyone due to the defendant's conduct to support the disorderly conduct conviction based on unreasonable noise.
In this case, based on HRS 711-1101$ (1) (d), i.e. creating a hazardous or physically offensive condition, McMullen's testimony establishes that Kaeo's conduct of chaining himself to others and lying in the driveway by the MECO gate blocked the convoy from reaching the highway and delayed the transport for three hours. The convoy consisted of four vehicles, three trucks, and several mechanics trucks, with approximately twenty workers involved in the transport convoy. In short, those involved with the transport convoy were physically inconvenienced because Kaeo was lying on the driveway between the MECO gate and the highway.
*18 Given the record in this case, there is sufficient evidence to support the District Court's conclusion that the approximately twenty individuals involved with the transport convoy were "members of the public" within the meaning of HRS 711-1101$ and that Kaeo intended to cause, or recklessly created a risk of causing, physical inconvenience to them.
Next, Kaeo cites to the commentary for HRS 711-1101$ and suggests that his conduct of lying on the ground did not create a hazardous or physically offensive condition. [11] However, Kaeo's conduct went beyond simply lying on the ground.
McMullen testified that when the trucks attempted to leave the Baseyard and the nose of a truck pulled out just beyond the gate, the protesters approached the trucks, the trucks had to stop, and the protesters were just a few feet from the trucks with the engines of the trucks still running. According to McMullen, some protesters who had black tubes connecting their arms then laid themselves down onto the ground a few feet in front of the trucks. Capt. Holokai testified that Kaeo was one of the protesters attached to others with PVC pipes on the ground approximately five to ten feet away from the transport trucks. Sgt. Kapalehua testified that Kaeo was among the protesters lying on the ground on his back, legs spread, with both of his arms linked to others by PVC pipes, and that Kaeo was very close to the trucks. Sgt. Kapalehua testified the trucks were idling and he could almost feel the heat from the engine while working to get Kaeo detached. Sgt. Kapalehua further testified that because
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the protesters were non-compliant it would have been hazardous to move Kaeo and the others while they were linked together.
Given the record, there was substantial evidence to support a finding that Kaeo's conduct created a hazardous condition.
Next, Kaeo argues that his conviction should be a violation and not a petty misdemeanor because there is insufficient evidence to sustain a finding that he "intended to cause substantial harm or serious inconvenience." HRS 711-$ 1101(3) provides that: "Disorderly conduct is a petty misdemeanor if it is the defendant's intention to cause substantial harm or serious inconvenience, or if the defendant persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a violation."
Addressing the issue of intent, the Hawai'i Supreme Court has stated that:
We have consistently held that since intent can rarely be proved by direct evidence, proof by circumstantial evidence and reasonable inferences arising from circumstances surrounding the act is sufficient to establish the requisite intent. Thus, the mind of an alleged offender may be read from his acts, conduct, and inferences fairly drawn from all the circumstances.
State v. Kiese, 126 Hawai'i 494, 502-03, 273 P.3d 1180, 1188-89 (2012) (citation omitted).
Here, Kaeo drove onto the Baseyard before 7 p.m. on the evening in question, asked McMullen "is this the place where the transport was going to happen?" and then said "you better get ready" and that they "were in for the night." Kaeo also tied his arms to other protesters with PVC pipes and duct tape before lying down in front of the convoy. This made it difficult for MPD officers to physically move Kaeo and the other protesters out of the way without first cutting the PVC pipe. Additionally, the SPEED team had to move slowly in cutting through and removing the PVC pipe to ensure no one was injured. McMullen testified that as a result of the protester's actions, the transport was delayed for three hours. In FOF 60, the District Court found that during cross-examination, Kaeo testified that his intent was, inter
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alia, to challenge DKIST developers and that he was hoping for the same result from the month prior where the DKIST transport was stopped but no one was arrested. Given the record in this case, there was substantial evidence to support Kaeo's conviction as a petty misdemeanor.
3. COL 3
Finally, Kaeo contends that the District Court erred in COL 3 which states, "Defendant argued at trial that the Choice of Evils defense, set forth in Section 703-302, Hawaii Revised Statutes, applies in the instant case. The Court concludes that the Defendant failed to establish the essential elements of the Choice of Evils defense."12 (Footnote omitted). The defendant has the burden of producing some credible evidence of the existence of a justification defense such as choice of evils. See HRS 703-301 \ and that he reasonably believed his actions were necessary to prevent imminent harm to his psyche due to the cultural desecration of Haleakalā from the delivery of DKIST construction materials.
*21 In State v. Maumalanga, 90 Hawai'i 58, 63, 976 P.2d 372, 377 (1998), the Hawai'i Supreme Court held that all of the elements of the choice of evils defense are contained within the express statutory language of HRS and any common law considerations have been superseded by the adoption of the Hawai'i Penal Code. For the choice of evils defense to apply, one element on which Kaeo had to present credible evidence was that he believed his conduct "to be necessary to avoid an imminent harm or evil to the actor or to another[.]" HRS 302(1); See also HRS (2014) ("'Believes' means reasonably believes."); State v. Kauhane, 145 Hawai'i 362, 374, 452 P.3d 359, 371 (2019) (holding that for the choice of evils defense, although the defendant's belief had to be objectively reasonable, it was also necessary that the defendant in fact subjectively held such a belief).
The commentary to HRS emphasizes that the choice of evils or "necessity" defense is permitted in certain limited situations. See HRS cmt. The commentary also states that "[t]he danger causing the necessity of choosing between evils must be imminent[,]" and explains that blind compliance with a criminal statute is unlikely to be required in the face of an emergency. See HRS cmt; see also U.S. v. Maxwell, 254 F.3d 21, 27 (1st Cir. 2001) (explaining "'imminent harm' connotes a real emergency, a crisis involving immediate danger to oneself or to a third party."); Com. v. Capitolo, 498 A.2d 806, 809 (Pa. 1985) (holding that the necessity defense was not applicable to defendants who had trespassed onto a nuclear power plant, sat down holding hands, and refused to leave, where "[t]heir act of criminal trespass was a deliberate and calculated choice, not an act that was urgently necessary to avoid a clear and imminent danger.").
Here, as the District Court found, Kaeo testified that he had attempted through many other avenues and hearings to stop the telescope construction, and that his claimed harm to Haleakalā as a result of the ongoing construction had been going
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on for the last four to five years. The asserted harm Kaeo sought to avoid had been ongoing and continuous. Given the record in this case, Kaeo did not establish an emergency or imminent harm under the choice of evils defense.
The District Court did not err in concluding that Kaeo failed to establish the essential elements of the choice of evils defense.
III. Conclusion
Based on the foregoing, the "Trial Decision and Order" filed on June 15, 2016, and the "Judgement and Notice of Entry of Judgment" filed on June 29, 2016, by the District Court of the Second Circuit, are affirmed.
On the briefs: Hayden Aluli, for Defendant-Appellant. Renee Ishikawa Delizo, Deputy Prosecuting Attorney, for Plaintiff-Appellee. /s/ Lisa M. Ginoza Chief Judge / s/ Katherine G. Leonard Associate Judge
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DISSENTING OPINION by Nakasone, J.
With respect to the Majority's affirmance of COL 2, I dissent because I believe there was insufficient evidence of Kaeo's intent that his conduct cause the specific result of physical inconvenience to a member or members of the public, or with reckless disregard that his conduct might produce such a result. I respectfully disagree with the majority's conclusion that the "approximately 20 individuals involved with the transport convoy were 'members of the public' within the meaning of HRS 711-1101[$.]" "Member or members of the public" means the general public
HRS (1) (2014), the disorderly conduct statute provides: (1) A person commits the offense of disorderly conduct if, with intent to cause physical inconvenience or alarm by a member or members of the public, or recklessly creating a risk thereof, the person: (a) Engages in fighting or threatening, or in violent or tumultuous behavior; (b) Makes unreasonable noise; (c) Subjects another person to offensively coarse behavior or abusive language which is likely to provoke a violent response; (d) Creates a hazardous or physically offensive condition by any act which is not performed under any authorized license or permit; or (e) Impedes or obstructs, for the purpose of begging or soliciting alms, any person in any public place or in any place open to the public. (Emphasis added). As explained infra, I believe that pursuant to statutory construction principles and the Commentary on HRS 711-1101, the words "the public" in the disorderly conduct statute have an ordinary meaning, and that the HRS (2014 &; Supp. 2015) definition of the adjective "public" as "affecting or likely to affect a substantial number of persons," does not apply to the phrase "member or members of the public" in the disorderly conduct statute.
A "rational, sensible and practicable interpretation of
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a statute is preferred to one which is unreasonable or impracticable, because the legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality." In re Doe, 90 Hawai'i 246, 251, 978 P.2d 684, 689 (1999) (internal citations, brackets and quotation marks omitted)). Using the HRS 711-1100 \ definition of "public"). This does not make sense. In addition, using the HRS 711-1100$ definition of the adjective "public" in the definitions of "private place"1 and "public place" [2] that also appear in that section and contain the term "the public," similarly leads to illogical and redundant results. "It is a cardinal rule of statutory construction that courts are bound, if rational and practicable, to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute." Franks v. City and County of Honolulu, 74 Haw. 328, 330, 843 P.2d 668, 669 (1993) (citations omitted). If the words "the public" in the disorderly conduct statute mean "affecting or likely to affect a substantial number of persons[,]" then the statute cannot logically be
2 The "public place" definition in HRS 711-1100$ provides, inter alia, that it means "a place to which the public or a substantial group of persons has access . . . ." (Emphasis added).
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employed in a case where only one person, or a single member of the public, is affected. HRS \ . The disorderly conduct statute, however, clearly does apply where even a single "member" of "the public" is inconvenienced or alarmed by a defendant's conduct. Conversely, if the words "the public" in the disorderly conduct statute mean "affecting or likely to affect a substantial number of persons," then the plural "members of the public" is redundant. The plural form "members" is unnecessary and superfluous if "public" already means a substantial number of persons. See HRS \ 1101. For these reasons, applying HRS 711-1100$ 's definition of the adjective "public" to the words "the public" in the disorderly conduct statute, renders the words "member or members" redundant or superfluous, leading to an illogical construction and absurd result. [3] HRS 711-1100 \ is plainly required.
The Commentary on HRS 711-1101 \S 701-105 \S 711-1101$ as an aid to determine the meaning of "tumultuous"
*26 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER in the disorderly conduct statute subsection (1)(a)). The Commentary to HRS 711-1101$ pertinently provides:
Subsection (1)(a) is a standard clause in disorderly conduct
legislation, aimed at actual fights and at other behavior
tending to threaten the public generally, for this section
requires public alarm, etc., as distinguished from the
private alarm which may accompany assault. This is an
important point. A person may not be arrested for
disorderly conduct as a result of activity which annoys only
the police, for example. Police officers are trained and
employed to bear the burden of hazardous situations, and it
is not infrequent that private citizens have arguments with
them. Short of conduct which causes "physical inconvenience
or alarm to a member or members of the public" arguments with
the police are merely hazards of the trade, which do not
warrant criminal penalties.
(Emphases added) (footnote in original omitted). The Commentary on HRS 711-1101$ emphasizes as an "important point" that the statute is "aimed" at behavior directed to "the public generally." Id. The Commentary clarifies that subsection (a) encompasses fighting or threatening behavior that threatens or tends to threaten the public generally, and the statute does not include fighting or threatening directed to private individuals. See id. In an assault charge, a defendant's fighting is targeted to a private individual and may cause "private alarm," as distinguished from the public alarm required for disorderly conduct. See id. To fall within the scope of the disorderly conduct statute, a defendant's fighting behavior must be targeted to the public generally to establish the required public alarm element. The Commentary cites the police as an "example" of a group or a category of persons that is excluded from "the public generally[.]" Id. In noting that the police are but one example of an exclusion, the Commentary does not suggest that the police are the only example. Other categories of persons or groups may also be excluded from "the public generally," depending on the circumstances.
The statutory focus on specifically targeting conduct that impacts the public generally is consistent with the Model Penal Code (MPC). "[I]t is appropriate to look to the Model Penal Code and its commentary for guidance" when interpreting
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criminal statutes derived from the MPC. State v. Aiwohi, 109 Hawai'i 115, 126, 123 P.3d 1210, 1221 (2005); see Teale, 139 Hawai'i at 355-56, 390 P.3d at 1242-43. Hawai'i's disorderly conduct statute is based on MPC 250.2$, which provides: \$ 250.2 Disorderly Conduct (1) Offense Defined. A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. "Public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.
Model Penal Code 250.2 \ 711-1101(1)(b) for insufficient evidence in the 1980 decision in Nakasone, 1 Haw. App. 10, 612 P.2d 123. The evidence in Nakasone showed that a police officer who was getting a cup of coffee at a "fairly crowded" Beretania Street McDonald's restaurant approached the defendant who was talking to some customers. 1 Haw. App. at 11, 612 P.2d at 123-24. "Without checking with the customers to determine if they were being inconvenienced," the officer told the defendant "to stop bothering the customers if he didn't know them." Id. The defendant began yelling at the officer and did not heed the officer's numerous commands to quiet down and warning that he would be arrested. Id. at 11, 612 P.2d at 124. A crowd of "unspecified size" began to gather, and the defendant was arrested for disorderly conduct. Id. at 12, 612 P.2d at 124. In concluding there was insufficient evidence that the defendant acted intentionally or recklessly with regard to
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the required result, this court noted that the "State offered no other competent evidence of any actual or threatened physical inconvenience to, or alarm by, a member or members of the public." Id. at 12, 612 P. 2 d at 124. Thus, in Nakasone, the members of the public were the patrons in the McDonald's restaurant, whom this court concluded were not shown to have been inconvenienced by the defendant's conduct.
The following year, the supreme court reversed a disorderly conduct conviction for unreasonable noise under HRS
4 In Jendrusch, the supreme court reversed the defendant's disorderly conduct conviction and remanded for a dismissal of the complaint that did not contain "the averment that defendant's conduct resulted or threatened to result in physical inconvenience" and only stated "with intent to cause public inconvenience . . . ." 58 Haw. at 280, 567 P.2d at 1243. The Jendrusch Court focused on the sufficiency of the charge rather than (continued...)
(...continued) sufficiency of the evidence.
5 MPD Captain Clyde Holokai testified that the Central Maui Baseyard was a privately owned commercial enterprise.
In Teale, the Hawai'i Supreme Court observed that conduct that does not fall into the scope of the disorderly conduct statute, may be covered elsewhere in the Penal Code. 139 Hawai'i at 360-61, 390 P.3d at 1247-48 (noting that "other statutes, ordinances, and rules may have been relevant to the conduct in this case."). See also Leung 79 Hawai'i at 543, 545, 904 P.2d at 557, 559 (noting that " he State chose not to charge Defendant with harassment of the theater manager or of any of the police officers."); Jendrusch, 58 Haw. at 282 n.3, 567 P.2d at 1245 n. 3 (noting that the "abusive language, coupled with the outrageous physical conduct of the defendant in this case, would have warranted a charge of harassment under HRS 1106.").