Lead Opinion
The defendant-appellant Frances E. Vi-glielmo appeals from the judgment and sentence of the district court of the first circuit, the Honorable Barbara P. Richardson presiding, filed on October 9, 2003,
We hold that the district court did not err, on first amendment grounds, in denying Vi-glielmo’s motions to dismiss or in finding her guilty, inasmuch as (1) the district court’s decisions did not run afoul of federal constitutional case law and (2) Viglielmo’s expressive conduct on the premises of Ala Moana Shopping Center was not protected under the first amendment to the United States Constitution. Additionally, we hold that article I, section 4 of the Hawai'i Constitution affords Viglielmo no greater free speech protection than the first amendment to the United States Constitution and that she is therefore not insulated from criminal liability under HRS § 708-814(l)(b).
I. BACKGROUND
The present matter arises out of an incident that occurred on December 15, 2000, in which Viglielmo was peaceably protesting the sale of military toys to children in front of Kay-Bee Toys, located in the Ala Moana Shopping Center (Ala Moana), in the City and County of Honolulu. The prosecution adduced the following testimony at Vigliel-mo’s bench trial, which the district court conducted on February 13, 2001.
At approximately 11:30 a.m., Viglielmo was standing on a sidewalk in front of Kay-Bee Toys holding a sign that read: “Stop selling war hero toys to kids. Adults who plant mines, drop bombs, fire missiles, kill kids. Boycott Kay-Bee till military figures are sold only to adults!” Viglielmo was also handing out pamphlets. Viglielmo was not shouting, creating a public disturbance, or impeding people from entering Kay-Bee Toys.
John Alves was a safety and security officer employed by Ala Moana on December 15, 2000. Alves saw Viglielmo with her sign and observed her distributing pamphlets, at which time he waited for his supervisor, and together they approached Viglielmo. Alves and his supervisor, acting as representatives of Ala Moana, informed Viglielmo that she could neither picket nor distribute pamphlets on Ala Moana’s premises, which was private property. Viglielmo refused to leave, stating that Ala Moana was a public facility. Ala Moana’s assistant director of security also arrived to inform Viglielmo that she could not picket or distribute pamphlets on Ala Moana’s premises. Viglielmo again refused to leave. Alves then requested police assistance. Honolulu Police Department (HPD) Officer Antonio Bustamante was sent by police dispatch to Ala Moana. Upon Officer Bustamante’s arrival, he first spoke to Alves and his supervisor and then to Viglielmo, explaining to her that she could protest on
This is a trespass warning issued to you as provided in the Hawaii Revised Statutes. I am Johnnual Alves, an authorized agent representing GGP Ala Moana L.L.C., the owner of this property, situated at 1450 Ala Moana Blvd. You are hereby warned that your presence is not welcome on or within the above premises, including, but not limited to, any commercial establishment, parking area, common area, and structure. You are directed to immediately leave and not return to this property or premises for a period of one (1) year.
Failure to comply with this warning is in direct violation of Section 708-814 of the Hawaii Penal Code and may subject you to arrest and criminal prosecution which may result in a fine or incarceration, or both.
SECTION 708-814 CRIMINAL TRESPASS IN THE SECOND DEGREE
“A person commits the offense of criminal trespass in the second degree if ...
(b) He/she enters or remains unlawfully in or upon commercial premises after the reasonable warning or request to leave by the owner or lessee of the commercial premises or his authorized agent or police officer
On 12-15-00, at 1145 hours, the above notice was read and a copy presented to [Viglielmo]....
Viglielmo refused to sign the trespass warning, and Alves issued her a copy.
Officer Bustamante called his sergeant over to explain to Viglielmo that she was required to leave, after which the Ala Moana security officers and the HPD officers renewed their request to Viglielmo that she leave the premises. Officer Bustamante then placed Viglielmo under arrest for failing to comply with the officers’ requests to leave Ala Moana property.
On January 11, 2001, Viglielmo filed a pretrial motion to dismiss, pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 12(b) (2001),
On February 13, 2001, the district court conducted a pretrial hearing on Viglielmo’s. motion to dismiss and proceeded to arraign Viglielmo on the charge of criminal trespass in the second degree, see supra note 2. The district court denied Viglielmo’s motion to dismiss, stating that “the [e]ourt does find that the statute is not unconstitutional and therefore the [c]ourt will deny the motion to dismiss.” That same morning, the district court conducted a bench trial on the charged offense. At Viglielmo’s bench trial, Officer Bustamante and Alves testified to the foregoing summary of events. In addition to Officer Bustamante’s and Alves’s testimony, the prosecution introduced into evidence, and the defense stipulated to, the pamphlet that Vi-glielmo was distributing and the written trespass warning issued to Viglielmo.
At the close of the prosecution’s case-in-chief, Viglielmo again moved to dismiss the charge, during which the following colloquy occurred:
[DEFENSE COUNSEL]: I’d like ... [to] make a motion to dismiss again for the reason that the constitutional rights of my client have been violated by this [prosecution as previously asserted in the motion to dismiss.
Secondly, the State has failed to prove that my client was not invited, which is an-element of the offense. The State has also failed to prove the state of mind required to violate this statute[,] to wit: that sheacted intentionally or knowingly and recklessly or negligently to violate the statute with the state of mind required and, therefore, this Court should find her not guilty and dismiss at this time.
THE COURT: [Deputy prosecuting attorney (DPA) ]?
[DPA]: [T]he State has proven at least by a prima facie case that all the elements have been met; not invited is not an element. All that is required by the statute is that she was asked to leave by the owner and that she refused to leave. And we had testimony by Mr. Alves that he was an authorized representative of Ala Moana at the time; so he meets the requirements that she was asked to leave by an agent or an owner as well as she was asked to leave by a police officer. So we feel those elements have all been met. State of mind can be inferred by [Viglielmo] refusing over four times by many different people to leave the area. State has at least put on a prima facie case, Your Honor.
THE COURT: Taking the evidence in the light most favorable to the State, the Court finds that there has been a prima facie case presented to the Court and therefore the Court will deny the motion.
Viglielmo testified on her own behalf at trial. She stated that she had never seen any signs in Ala Moana shopping center prohibiting her from leafleting or picketing, that she was not creating a disturbance, and that she considered the common areas of Ala Moana to be “free speech and free assembly turf.” In addition to Viglielmo’s own testimony, through Defendant’s Exhibits A through D, stipulated into evidence by the prosecution, she adduced the following information regarding Ala Moana at trial. Ala Moana is situated on fifty acres, hosts over two million people each month, houses more than two hundred retail stores, holds nearly 550 performances each year, includes a central bus transfer station that averages 2,100 buses per day, and has 8,500 parking spaces, a United States Post Office, and a Honolulu satellite city hall.
After the defense rested, Viglielmo renewed her motion to dismiss on the same constitutional grounds raised previously. The district court heard final arguments pri- or to ruling on the evidence and Viglielmo’s final motion to dismiss. The district court subsequently found Viglielmo guilty of the charged offense, remarking as follows:
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The Court finds the facts to be that [Viglielmo] remained unlawfully on the premises of Ala Moana Shopping Center[,] which was a commercial premise[s]; that [Viglielmo] was given reasonable requests to leave verbally and also a written warning ... was given, that is Exhibit 3, offered by the State and stipulated into evidence by the defense. The Court also finds that the owner of the property or its agent ... did give [Viglielmo] a warning and a request to leave the premises. A police officer also gave the defendant a request to leave the premises of Ala Moa-na Shopping Center. [Viglielmo] refused to leave and ... [Viglielmo’s] conduct was not ... subject to regulation by the National Labor Relations Act. The Court finds that the written warning or request to leave was communicated to [Viglielmo] clearly.
Therefore, the Court does find that [Vi-glielmo] committed the offense of criminal trespass in the second degree and finds [Viglielmo] guilty.
Having found Viglielmo guilty of criminal trespass in the second degree, see supra note 2, the district court sentenced her to a six-month term of probation and a one hundred dollar fine. On February 28, 2001, Viglielmo filed a timely notice of appeal.
II. STANDARDS OF REVIEW
A. Sufficiency of the Evidence
We have long held that 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 a jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidenceto support the conclusion of the trier of fact.
State v. Batson,73 Haw. 236 , 248,831 P.2d 924 , 931, reconsideration] denied,73 Haw. 625 ,834 P.2d 1315 (1992) (citations omitted); see also State v. Silva,75 Haw. 419 , [434],864 P.2d 583 , 590 (1993) (citations 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.” Batson,73 Haw. at 248-49 ,831 P.2d at 931 (citation omitted). See also Silva, 75 Haw. at [432],864 P.2d at 590 (quoting State v. Matias,74 Haw. 197 , 207,840 P.2d 374 , 379 (1993) [ (1992) ]); State v. Aplaca,74 Haw. 54 , 64-65,837 P.2d 1298 , 1304 (1992) (citations omitted).
In the Interest of John Doe, Bom on January 5, 1976,76 Hawai'i 85 , 92-93,869 P.2d 1304 ,1311-12 (1994); see also State v. Valdivia,95 Hawai'i 465 , 471,24 P.3d 661 , 667 (2001).
State v. Martinez,
B. Questions of Constitutional Laiv
“We answer questions of constitutional law ‘by exercising our own independent judgment based on the facts of the case,’ ” and, thus, questions of constitutional law are reviewed on appeal “under the ‘right/wrong’ standard.” State v. Jenkins,93 Hawai'i 87 , 100,997 P.2d 13 , 26 (2000) (citations omitted).
State v. Kaua,
“Whether speech is protected by the first amendment [to the United States Constitution], as applied to the states through the due process clause of the fourteenth amendment, is a question of law which is freely reviewable on appeal.” In re John Doe,
C. Statutory Inteipretatim
“[T]he interpretation of a statute ... is a question of law reviewable de novo.” State v. Arceo,84 Hawai'i 1 , 10,928 P.2d 843 , 852 (1996) (quoting State v. Camara,81 Hawai'i 324 , 329,916 P.2d 1225 , 1230 (1996) (citations omitted)). See also State v. Toyomura,80 Hawai'i 8 , 18,904 P.2d 893 , 903 (1995); State v. Higa,79 Hawai'i 1 , 3,897 P.2d 928 , 930 (1995); State v. Nakata,76 Hawai'i 360 , 365,878 P.2d 699 , 704 (1994)....
Gray v. Administrative Director of the Court,84 Hawai'i 138 , 144,931 P.2d 580 , 586 (1997) (some brackets added and some in original). See also State v. Soto,84 Hawai'i 229 , 236,933 P.2d 66 , 73 (1997). Furthermore, our statutory construction is guided by established rules:
When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists....
In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in ' order to ascertain their true meaning.” HRS § 1-15(1) [ (1993) ]. Moreover, the courts may resort to extrinsic aids indetermining legislative intent. One avenue is the use of legislative history as an interpretive tool.
Gray,84 Hawai'i at 148 ,931 P.2d at 590 (iquoting State v. Toyomura,80 Hawai'i 8 , 18-19,904 P.2d 893 , 903-04 (1995)) (brackets and ellipsis points in original) (footnote omitted). This court may also consider “[t]he reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning.” HRS § 1-15(2)(1993). “Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another.” HRS § 1-16 (1993).
Kaua,
III. DISCUSSION
A. First Amendment Free Speech Protections Do Not Insulate Viglielmo From Prosecution For Criminal Trespass In The Second Degree.
Viglielmo argues that the district court erred in denying her motions to dismiss prior to trial, at the close of the prosecution’s case, and at the close of the evidence, inasmuch as her prosecution, pursuant to HRS § 708-814(l)(b), “violated her constitutional rights to free speech, assembly, due process, and equal protection, and deprived her of enjoyment of life, liberty, and the pursuit of happiness,” as guaranteed by the first and fourteenth amendments to the United States Constitution and article I, sections 2, 4, and 5 of the Hawai'i Constitution.
. Viglielmo submits that she was “simply exercising her [f]irst [a]mendment rights to protest the sale of military toys ... on the sidewalk in the common area of the shopping center.” Specifically, Viglielmo posits that Ala Moana is “like a small city” and that she was “engaged in her constitutionally protected rights on the sidewalk outside the store of this small city.” Viglielmo maintains that the evidence admitted at trial, showing that Ala Moana is a large shopping center and gathering place, “compels the conclusion that this is a public area....” Ala Moana being akin to a municipality, Viglielmo submits that her constitutional right to free speech is protected therein, and she may protest on the sidewalks of the common areas of the shopping center. Considering Viglielmo’s claims in the context of federal constitutional law, other states’ case law, and in light of the Hawai'i Constitution, we find Viglielmo’s arguments to be unpersuasive. Because we^ have not previously been called upon to determine whether to interpret the free speech provision of Hawaii’s constitution more broadly than its federal counterpart, we first discuss the United States Supreme Court’s pronouncements on the balance between free speech and priváte property rights and then look for guidance to the opinions of other courts that have considered similar matters.
1. The first amendment to the United States Constitution
The relevant portion of the first amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. Freedom of speech is “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the [f]ourteenth [ajmendment from impairment by the [s]tates.” In re John Doe,
2. Marsh v. Alabama
An exception to the requirement of government action, however, was delineated in Marsh v. Alabama,
The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many year’s, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet.... In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.
Id. at 502-503,
The United States Supreme Court refused to accept the argument that, because all property interests in the town were held by a single company, it was “enough to give that company power, enforceable by a state statute, to abridge [first amendment] freedoms.” Id. at 505,
3. Amalgamated Food Employees Union, Local 590 v. Logan Valley Plaza
Marsh was only briefly extended by Amalgamated Food Employees Union, Local 590 v. Logan Valley Plaza,
[T]he company town [in Marsh] was found to have all of the attributes of a state-created municipality and the company was found effectively to be exercising official power as a delegate of the State. In the context of that ease, the streets of the company town were as available and as dedicated to public purposes as the streets of an ordinary town. The company owner stood in the shoes of the State in attempting to prevent the streets from being used as public streets are normally used. The situation here is starkly different.... Logan Valley Plaza is not a town but only a collection of stores. In no sense are any parts of the shopping center dedicated to the public for general purposes or the occupants of the Plaza exercising official powers. The public is invited to the premises but only in order to do business with those tvho maintain establishments there. The invitation is to shop for the products which are sold.
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I am fearful that the Court’s decision today will be a license for pickets to leave the public streets and carry out their activities on private property, as long as they are not obstructive. I do not agree that when the owner of private property invites the public to do business writh him he impliedly dedicates his property for other uses as well. I do not think the /fjirst [ajmendment, which bars only official interferences with speech, has this reach.
Logan Valley,
4. Lloyd Corp. v. Tanner
Four years later, in Lloyd Corp. v. Tanner,
The basic issue in this case is whether respondents, in the exercise of asserted [fjirst [ajmendment rights, may distribute handbills on Lloyd’s private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the [fjirst and [¡fourteenth [ajmend-ments safeguard the rights of free speech and assembly by limitations on state action, not on action by the cnvner of private property used nondiscriminatorily for private purposes only.
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Respondents contend, however, that the property of a large shopping center is ‘open to the public,’ serves the same purposes as a ‘business district’ of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town.
The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semiofficial municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case[,][t]here is no comparable assumption or exercise of municipal functions or power.
Nor does property lose its private character merely because the ■public is generally invited to use it for designated purposes. Few would argue that a freestanding store, with abutting parking space for customers, assumes significant public attributes merely because the public is invited to shop there. Nor is size alone the controlling factor. The essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modem shopping center.
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We hold that there has been no such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted [fjirst [ajmendment rights.
Lloyd,
5. Hudgens v. NLRB
A mere two years after Lloyd, the United States Supreme Court laid to rest any doubt that it had overruled the holding in Logan Valley when it stated that “we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case.” Hudgens,
6. Federal constitutional protections of free speech do not insidate Viglielmo from prosecution.
The United States Supreme Court has established through the foregoing cases that property does not “lose its private character [for free speech purposes] merely because the public is generally invited to use it for designated purposes.” Lloyd,
B. The Free Speech Protections Found In Article I, Section U Of The Hawai'i Constitution Do Not Insidate Vigliel-mo From Prosecution For Criminal Trespass In The Second Degree.
Although Viglielmo is unable to avail herself of the first amendment’s protection of free speech within privately owned shopping centers, the United States Supreme Court has established that the states are free to interpret their own constitutional protections more broadly, as long as the restraints on private property “do not amount to a taking without just compensation or contravene any other federal constitutional provision.” PruneYard Shopping Center v. Robins,
1. PnmeYard Shopping Center v. Robins
In PnmeYard, the California Supreme Court construed its state constitution to protect free speech and petition rights, when reasonably exercised, in privately owned shopping centers, and the shopping center owner argued on appeal to the United States Supreme Court that recognition of such rights violated his “right to exclude others.”
2. State courts that more broadly interpret their constitutions to protect speech in shopping centers
The few states that construe their constitutions to offer broader protection of speech in privately owned shopping centers than does the United States Supreme Court under the first amendment have done so under circumscribed conditions and usually under another provision unique to their constitutions. For example, the Washington Supreme Court has interpreted its state constitution to protect the right to gather initiative signatures at a privately owned shopping center because the speech and initiative provisions of the Washington Constitution do not require the same “state action” as the fourteenth amendment to the United States Constitution. Alderwood Associates v. Washington Environ
3. State courts that limit free speech rights in shopping centers
The majority of state appellate courts that have considered whether their constitutions afford broader protection to speech in privately owned shopping centers than does the first amendment have concluded that they do not. Oregon recently narrowed its interpretation of state constitutional protections of speech and the initiative process; the Oregon Supreme Court held that the state constitutional right to initiate laws and constitutional amendments does not confer the right to solicit signatures for initiative petitions on private property over the owner’s objections, abrogating prior state case law to the contrary. Stranahan v. Fred Meyer, Inc.,
Perhaps the decision most factually analogous to the record before us is State v. Wicklund,
4. Application of article I, section of the Hawai‘i Constitution to the exercise of free speech in privately owned shopping centers
The United States Constitution prohibits Congress from enacting laws “abridging the freedom of speech.... ” U.S. Const, amend. I. Article I, section 4 of the Hawaii Constitution provides in relevant part that “[n]o law shall be enacted ... abridging the freedom of speech.” “The rights specified in this section, virtually unchanged since statehood, are often referred to as ‘first amendment rights’ because they are identical to those found in the [f]irst [a]mendment to the [United States] Constitution.” In re John Doe,
We have long recognized, “beginning with State v. Texeira,
We have also long recognized that “[t]he Hawai'i Constitution must be construed with due regard to the intent of the framers and the people adopting it[,]” Kam,
The initial inquiry, then, is whether, notwithstanding the identical language of article I, section 4 of the Hawai'i Constitution and the first amendment to the United States Constitution, the framers of the Ha-wai'i Constitution intended Ihe protections afforded free speech therein to apply more broadly than their federal counterparts. Unfortunately, the proceedings of the 1950, 1968, and 1978 Hawai'i Constitutional Conventions shed no light on the framers’ intent regarding the breadth of Hawaii’s constitutional protection of free speech.
Inasmuch as there is no indication from the constitutional conventions to suggest that the Hawai'i constitutional protection of free speech was intended to be applied more broadly than its federal counterpart, we note that there is nothing intrinsic in the language of article I, section 4 that requires more extensive protection of free speech than the first amendment affords in the context of privately owned shopping centers. Thus, somewhat analogously, in Estes v. Kapiolani Women’s and Children’s Medical Center,
Viglielmo argues that we should adopt the reasoning of the United States Supreme Court in Logan Valley, see supra section III.A.3, as well as that of the few states that have interpreted their constitutions to offer broader protections for speech in shopping centers than does the United States Constitution, contending that shopping centers now perform the traditional function of what in bygone times was the town center, and that, therefore, free speech must be protected on shopping center grounds.
5. Viglielmo was not constitutionally immunized from the purview of HRS § 708-8U(l)(b).
Viglielmo urges that the evidence of Ala Moana’s size, number of retail outlets, live entertainment performances, sidewalk sales, satellite city hall, and post office “compels the conclusion that this is a public area where [she] was protesting the sale of military toys to children.” Viglielmo additionally argues that she believed she was a “business invitee” of Ala Moana, invited to “the premises of the shopping center to exercise her [f]irst [a]mendment rights of free speech and assembly.” Viglielmo’s proposition that property is, without more, somehow converted from private to public for free speech purposes because it is openly accessible to the public is simply wrong as a matter of law.
Pursuant to HRS § 708-814(l)(b), see supra note 2, “[a] person commits the offense of criminal trespass in the second degree if ... [t]he person enters or remains unlawfully in or upon commercial premises after reasonable warning or request to leave by the owner or lessee of the commercial premises or the owner’s or lessee’s authorized agent or police officer[.]” (Emphasis added.)
We are unable to distinguish the present matter from Wicklund, see supra section III. B.3, and ultimately agree with the reasoning of the Minnesota Supreme Court. The facts of Wickhmd and the present matter are virtually indistinguishable. Both involve prosecutions for criminal trespass and peaceful protests directed at a retail store, and both take place on the premises of two of the largest shopping centers in the United States. Indeed the Mall of America (MOA) is even larger and attracts more visitors than Ala Moana, also houses a post office, boasts over four hundred retail outlets, is home to numerous entertainment venues, and includes a wedding chapel, an alternative school, and a police substation. Wicklund,
Viglielmo has provided us with no compelling reason in her ease to apply Hawaii’s state constitutional protections more broadly than the protection afforded by the first amendment. Article I, section 4 of the Hawaii Constitution, like the first amendment, mandates state action of some kind as a precondition to its application, and there has been simply no state action abridging Vigliel-mo’s right of free speech in the present matter.
IV. CONCLUSION
In light of the foregoing analysis, we affirm the district court’s judgment of conviction and sentence.
Notes
. On October 1, 2003, this court remanded the present matter to the district court for the entry of a written judgment pursuant to State v. Bohannon,
. HRS § 708-814(l)(b) provides.
(1) A person commits the offense of criminal trespass in the second degree if:
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(b) The person enters or remit ins unlawfully in or upon commercial premises after reasonable warning or request to leave by the owner or lessee of the commercial premises or the owner’s or lessee’s authorized agent or police officer; provided that this paragraph shall not apply to any conduct or activity subject to regulation by the National Labor Relations Act.
For purposes of this section, "reasonable warning or request” means a warning or request communicated in writing at any time within a one-year period inclusive of the date the incident occurred, which may contain but is not limited to the following information:
(1) A warning statement advising the person that the person’s presence is no longer desired on the property for a period of one year from the date of the notice, that a violation of the warning will subject the person to arrest and prosecution for trespassing pursuant to section 708—814(l)(b), and that criminal trespass in the second degree is a petty misdemeanor;
(ii) The legal name, any aliases, and a photograph, if practicable, or a physical description, including but not limited to sex, racial extraction, age, height, weight, hair color, eye color, or any other distinguishing characteristics, of the person warned;
(iii) The name of the person giving the warning along with the date and time the warning was given; and
(iv) The signature of the person giving the warning, the signature of a witness or police officer who was present when the warning was given and, if possible, the signature of the violator.
(2) Criminal trespass in the second degree is a petty misdemeanor.
. Article I, section 2 of the Hawai'i Constitution provides:
All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possessing of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities.
Article I, section 4 of the Hawai'i Constitution provides in relevant part that "fn]o law shall be enacted ... abridging the freedom of speech!.]”
Article I, section 5 of the Hawai'i Constitution provides that "[n]o 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.”
. The first amendment to the United States Constitution provides in relevant part that "Congress shall make no law ... abridging the freedom of speech!.]”
The fourteenth amendment to the United States Constitution provides in relevant part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
. Although Viglielmo does not specify, she presumably filed her pretrial motion to dismiss under HRPP Rule 12(b)(2), which states that "defenses and objections based on defects in the charge” must be raised prior to trial.
. As discussed infra, Viglielmo's constitutional challenge to HRS § 708-814(l)(b), see supra note 2, is primarily “as applied” to her, inasmuch as she was exercising her constitutionally-protected right to free speech. Viglielmo also advances an argument that HRS § 708-814(l)(b) is facially unconstitutional because it exempts from its purview any conduct or activity subject to regulation by the National Labor Relations Act (NLRA). Viglielmo contends that if holding a sign in protest in front of Kay-Bee Toys in Ala Moana was conduct regulated under the NLRA it could not be prosecuted, thus discriminating "invidiously” against her by restricting her constitutional right to free speech, which would otherwise be protected under the NLRA. In support of her claim, Viglielmo cites only City of Ladue v. Gilleo,
Furthermore, if Viglielmo’s facial challenge to HRS § 708—814(l)(b) were to succeed, her conduct would have to be subject to regulation by the NLRA, which it clearly was not. The NLRA only governs relationships between employers and employees; Viglielmo was not employed by Ala Moana or any of its retail stores and was not protesting an employer's labor practices or engaged in any other activity regulated by the NLRA.
Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.
29 United States Code (U.S.C.) § 151.
. Viglielmo's motion to dismiss at the close of the prosecution’s case, however, asserted for the first time that the prosecution had failed to prove that she possessed the requisite state of mind to commit trespass in the second degree, namely, that she acted "intentionally, knowingly, recklessly, or negligently[.]” Viglielmo also orally renewed her motion for a dismissal at the close of the prosecution’s case with respect to her argument that her constitutional rights were violated by the mere fact of her prosecution. Nevr ertheless, to the extent dial Viglielmo argued that the prosecution failed to prove that she possessed the requisite state of mind to violate HRS § 708-814(1 )(b), the district court was correct in treating Viglielmo’s motion to dismiss, effectively, as a motion for judgment of acquittal, pursuant to HRPP Rule 29(a) (2001), by ruling that "[tjaking the evidence in the light most favorable to the State, the Court finds that there has been a prima facie case presented to the Court and therefore the Court will deny the motion.” HRPP Rule 29(a) provides in pertinent part that ”[t]he court on motion of a defendant ... shall order the entry of judgment of acquittal of one or more offenses alleged in the charge after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense....”
With regard to Viglielmo’s argument that the prosecution failed to prove that she possessed the requisite state of mind to commit second degree criminal trespass, the governing statute is HRS' § 702-204, which provides in relevant part that "[wjhen the state of mind required to establish an element of an offense is not specified by the law, that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly.” The prosecution adduced testimony that Viglielmo "knowingly” refused to leave the premises after repeated requests from Ala Moana’s authorized agents and HPD officers to do so, thereby subjecting herself to arrest. Thus, Viglielmo’s citation of State v. Cavness,
Moreover, Viglielmo’s claim that she lacked the requisite state of mind is, in essence, a mistake of law claim—i.e., Viglielmo could not violate HRS § 708—814(1 )(b) because she believed she had a constitutional right of free speech to protest on the Ala Moana premises—which is no longer authorized by HRS § 702-218 (1993), see Cavness,
. Viglielmo also repeatedly cites State v. Cargill,
. Inasmuch as Viglielmo’s conduct was not protected by article I, section 4 of the Hawai'i Constitution, and thus her prosecution did not violate her constitutional right to free speech, Vigliel-mo's contention that her prosecution under HRS § 708-814(l)(b) violates article I, sections 2 and 5 is without merit and, thus, we do not address it further herein. In the present matter, without a violation of Viglielmo’s right to free speech there can be no deprivation—by virtue of Ala Moana’s enforcement of its no-protest policy or Vigliel-mo’s prosecution under HRS § 708-814(l)(b)— of her "enjoyment of life, liberty and the pursuit of happiness,” pursuant to article I, section 2 of the Hawai'i Constitution, or deprivation of “life, liberty or property without due process of law,” pursuant to article I, section 5 of the Hawai'i Constitution.
Dissenting Opinion
Dissenting Opinion by
I believe that Article I, section 4 of the Hawai'i Constitution protects Defendant-Appellant Frances Viglielmo’s expressional rights of leafleting and sign holding at community shopping centers like Ala Moana Shopping Center (Ala Moana Center). Therefore, I would reverse the October 9, 2003 judgment and sentence of the district court (the court).
I.
The United States Supreme Court has interpreted the words “[n]o law shall be enacted ... abridging the freedom of speech” contained in the federal constitution, U.S. Const, amend. I, as affording a person freedom of speech rights in a privately owned “company town” or “community business block,” Marsh v. Alabama,
because the shopping center serves as the community business block and is freely accessible and open to the people in the area and those passing through, the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.
Id. at 319-20,
However, in a 5^4 split decision in Lloyd Corp. v. Tanner,
II.
While textual differences may be a factor in determining whether we follow federal court construction of the same or similar words found in our constitution, such differences are plainly not determinative. The Supreme Court has recognized that “[i]t is fundamental that state courts be left free and unfettered . by [the Court] in interpreting their state constitutions.” Bock v. Westminster Mall Co.,
Thus, we need not adopt the federal courts’ narrow application of language in the federal constitution that is the same or similar to that in the Hawaii Constitution, but may afford persons in our state broader protections. See e.g., State v. Custodio,
Conversely, broader language in Hawaii’s Constitution than that found in the U.S. Constitution has not necessarily resulted in an expansion of rights. See State v. Okubo,
III.
Preliminarily, it should be noted that Estes is not an obstacle to the application of free speech rights at a privately owned shopping center. Although it was said that “state action is a prerequisite to a showing that the freedom of speech has constitutionally been abridged,”
IV.
Justice Marshall, who authored Logan, stated in his dissent
We must remember that it is a balance that we are striking—a balance between the freedom to speak, a freedom that is given a preferred place in our hierarchy of values, and the freedom of a private property owner to control his property. When the competing interests are fairly weighed, the balance can only be struck in favor of speech.
The view that, in balancing first amendment and private property rights, the state may place restrictions on the latter to preserve expressional conduct at shopping centers, has found acceptance even where free expression provisions in a state constitution differ from that of the federal constitution.
New Jersey has adopted a balancing test for “determining the existence and extent of the State free speech right on privately-owned property.”
is to measure the strength of the plaintiffs claim of expressional freedom and the strength of the private property owners’ claim of a right to exclude such expression—all for the ultimate purpose of “ac-hiev[ing] the optimal balance between the protections to be accorded private property and those to be given to expressional freedoms exercised upon such property.”
New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp.,
The Supreme Judicial Court of Massachusetts employed a balancing test in determining that individuals could gather signatures at a private shopping center. The Massachusetts court stated that “[cjlose attention must be given to the property interests of a mall owner in determining whether an intrusion is reasonable in time, place, and manner,” Batchelder v. Allied Stores Int’l, Inc.,
In Bock, the Colorado Supreme Court utilized a balancing test in upholding the right of individuals to distribute political leaflets in the common area of a shopping mall. The Colorado court stated that “[c]onsidering all the facts and circumstances underlying the Mall’s operation with the preferred liberty of speech in mind,” free speech protections were triggered. Bock,
In the exercise of such free speech rights at shopping centers, “those who wish to disseminate ideas [do not] have free rein[,]” but may be subject to time, place and manner rules as reasonably required. Pruneyard,
On the other hand, the approach adopted in State v. Wicklund,
V.
This ease is governed by the central principles established in Marsh, Logan Valley, and the state decisions recounted above. In Marsh and Logan Valley, the U.S. Supreme Court construed the same words found in Article I, section 4 of our constitution. In that context, it first is apparent that Ala Moana Center is the functional equivalent of a “business district of a city.” Lloyd Corp.,
We may judicially notice that Ala Moana Center is more than a site where people shop, but is a gathering place where people engage in personal and social activities. It houses a United' States Post Office and a Satellite City Hall. It is the site of various and numerous activities, among which are (1) Aloha Festival events, (2) voter registration, (3) blood bank drives, and (4) tai chi classes. Thus, it may be said of the Ala Moana Center, that
[although the ultimate purpose of these shopping centers is commercial, their normal use is all-embracing, almost without limit, projecting a community image, serving as their own communities, encompassing practically all aspects of a downtown business district including expressive uses and community events.... [N]o private property ... more closely resembles 'public property.
New Jersey Coalition,
Second, Viglielmo’s activities did not interfere with normal business operations at the Center. Yiglielmo was protesting the sale of military toys to children, encouraging passers-by to refrain from patronizing Kay-Bee Toy Store until the store stopped such sales. She was holding a sign and handing out
VI.
A sound regard for the purposes of expres-sional activity warrants the extension of protection under Article I, section 4 of our constitution to the exercise of free speech rights at shopping centers that was once secured by the federal constitution.
Justice Marshall foreordained that, “[a]s . governments rely on private enterprise, public property decreases in favor of privately owned property.” Lloyd Corp.,
Justice Marshall’s statement rings true today. Predictably, shopping centers have increased in number and size. In their evolution, shopping centers have consciously expanded their role far beyond that of simply doing business. Public activities are solicited and invited into shopping malls. The role of traditional “downtown” forums where the public was reached on the streets and sidewalks, and in parks, and squares has been prominently replaced. Community shopping centers have become the new gathering place for the public. In the real world barring free speech activities at shopping centers will concomitantly diminish the exercise of expressional rights.
For many people “who do not have easy access to television, radio, the major newspapers, and the other forms of mass media, the only way they can express themselves to a broad range of citizens on issues of general public concern is to picket, or to handbill, or to utilize other free or relatively inexpensive means of communication.” Id. at 580-81,
The community shopping malls like the Ala Moana Center strive to “completely satisfy [the community’s] wants[.]” Id. at 580,
As public forums change in nature, form, and location, the preservation of expressional rights demands a reasoned and measured but resolute application of protections in areas which may afford the only “effective means of eommunication[ ]” for many. Id. at 586,
. Amalgamated Food Employees Union, Local 590 v. Logan Valley Plaza, Inc. described the "suburban shopping center” as "typically a cluster of individual retail units on a single large privately owned tract.”
. We have adopted the positions of dissenting justices in United States Supreme Court cases. See e.g. State v. Cuntapay,
. As mentioned, Justice Marshall, in his dissent in Lloyd Corp., advocated “a balance between the freedom to speak, a freedom that is given a preferred place in our hierarchy of values, and the freedom of a private property owner to control his property."
He argued that "state courts and legislatures may take this action without violating the owner's or the property occupant’s federal constitutional rights[ ]" because "reasonable 'time, place, and manner’ controls will suffice to enable the private owner to protect its legitimate economic and autonomy interests.” Id. Berger maintained that "land ownership should not become the legal vehicle for closing off appropriate channels of political expression.” Id. He asserted that "where the land’s configuration and the activity it attracts begin to resemble those of a public forum, the owner's autonomy recedes in the face of a heightened need to find alternative channels for grassroots political activity.” Id.
Thus, according to Berger, "[t]he nature of the private property at issue should be an essential part” in balancing "whether the rights of the specific property holder outweigh the interests of the party seeking entry.” Id. at 666 (emphasis added). "Persons seeking expressive entry to a mall would have to convince a court to regard the property, despite its private ownership, as the equivalent of a public forani—a highly appropriate location for the activity in question.” Id. at 666-67. Under this approach, the court may "conclude that 'under our State law the ownership of this shopping mall ‘does not include the right to bar access to’ persons seeking to enter the mall for enumerated political activities and hence there was no trespass.” Id. at 667.
. To determine whether free speech rights may be exercised on private property, the New Jersey Supreme Court balances:
(1) the nature, purposes, and primary use of such private property, generally, its “normal” use, (2) the extent and nature of the public’s invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property.
New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp.,
. "The Minnesota Constitution provides that 'all persons may freely speak on all subjects, being responsible for the abuse of such right.' ” Wicklund,
. The majority points out that "the proceedings of the 1950, 1968, and 1978 Hawaii Constitutional Conventions shed no light on the framers’ intent regarding the breadth of Hawaii's constitutional protection of free speech.” Majority opinion at 211,
. Viglielmo was sixty-nine at the time of the incident. She is 5'6" tall and weighs 132 pounds. .