State v. Calaycay. ( 2019 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
26-AUG-2019
08:02 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
STATE OF HAWAII,
Petitioner/Plaintiff-Appellee,
vs.
BURT CALAYCAY, aka Burt F. Calaycay,
Respondent/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DCW-XX-XXXXXXX)
AUGUST 26, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
This case requires us to consider the circumstances
under which sexually explicit comments can constitute harassment,
pursuant to Hawaii Revised Statutes (HRS) § 711-1106(1)(f)
(2014). Defendant Burt Calaycay was charged with harassment as a
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result of statements that he allegedly made to Complaining
Witness (CW). At the time of the incidents in question, Calaycay
was serving in a supervisory role at a residential program for
at-risk youth. CW was a 17-year-old participant in the program.
At trial, CW testified that on two separate occasions,
Calaycay made sexually explicit comments to her that caused her
to feel uncomfortable, unsafe, and scared. She did not, however,
explicitly state that she believed Calaycay intended to cause her
bodily injury. The District Court of the First Circuit (district
court) found CW’s testimony to be credible, determined that
Calaycay’s statements caused CW to believe that Calaycay intended
to have non-consensual sexual contact with her, and convicted
Calaycay of harassment.1 The Intermediate Court of Appeals (ICA)
concluded that there was no evidence that CW reasonably believed
Calaycay intended to cause her bodily injury - an essential
element of the offense charged - and accordingly, reversed
Calaycay’s conviction.
For the reasons set forth herein, we reverse the ICA’s
Judgment on Appeal and affirm the district court’s Final Judgment
convicting Calaycay of harassment.
I. BACKGROUND
The Youth Challenge Academy (Academy) is a five-month
residential program designed to help at-risk youth earn a General
1
The Honorable Alvin K. Nishimura presided.
2
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Education Development credential (GED). These youth, referred to
as cadets, are supervised by members of the National Guard,
referred to as cadres. Cadres may discipline cadets for breaking
the Academy’s rules or failing to obey orders by subjecting them
to screaming and requiring them to perform physical exercises,
including push-ups, sit-ups, jumping jacks, and flutter kicks.
In the fall of 2013, Calaycay was a cadre at the Academy and CW
was a cadet. Calaycay was 28 years old at the time. CW was 17
years old.
As set forth below, due to allegations arising out of
Calaycay’s interactions with CW “[o]n or about the 25th day of
October, 2013, to and including the 1st day of November, 2013,”
Calaycay was charged by way of complaint with one count of
harassment in violation of HRS § 711-1106(1)(b) and/or HRS § 711-
1106(1)(f).2
2
Harassment is prohibited pursuant to HRS § 711-1106(1), which
provides, in pertinent part:
A person commits the offense of harassment if, with
intent to harass, annoy, or alarm any other person,
that person:
. . . .
(b) Insults, taunts, or challenges another person in a
manner likely to provoke an immediate violent response
or that would cause the other person to reasonably
believe that the actor intends to cause bodily injury
to the recipient or another or damage to the property
of the recipient or another;
. . . .
(f) Makes a communication using offensively coarse
(continued...)
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A. Pre-trial Motion to Compel Election or to Dismiss Complaint
Calaycay filed a Motion to Compel Election or to
Dismiss Complaint, arguing that the Complaint improperly charged
him for two separate offenses, under two respective subsections
of HRS § 711-1106(1), in a single count, in violation of Hawaii
Rules of Penal Procedure (HRPP) Rule 8(a).3 Calaycay requested
that the district court order the State of Hawaii to elect which
subsection of HRS § 711-1106(1) it wished to proceed under, or in
the alternative, dismiss the Complaint.
The district court determined that the State was
pursuing a single charge, rendering HRPP Rule 8 inapplicable.
Accordingly, it denied Calaycay’s Motion to Compel Election or to
Dismiss Complaint and allowed the case to proceed to trial.
B. Bench Trial
The district court held a bench trial at which CW and
Calaycay testified. No other witnesses were called and no other
2
(...continued)
language that would cause the recipient to reasonably
believe that the actor intends to cause bodily injury
to the recipient or another or damage to the property
of the recipient or another.
3
HRPP Rule 8(a) provides:
Two or more offenses may be joined in one charge, with
each offense stated in a separate count, when the
offenses:
(1) are of the same or similar character, even if
not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of
acts connected together or constituting parts of
a single scheme or plan.
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evidence was offered.
1. CW’s Testimony
CW testified that in Fall 2013, she was a 17-year-old
cadet at the Academy. At around 6:00 p.m. on October 25, 2013,
CW was in an open exercise field enjoying free time with her
peers when Calaycay asked her to talk to him away from the other
cadets and cadres. CW stated:
He [told] me he wanted to have sex with me and he
wanted to get me wet and hit me from the back and have
me ride him and that his - it will be okay and he’ll
take me to the - the third floor and we could have sex
in the - in the - where the cadres stay and that his
team had his back and that I wouldn’t get in trouble.
CW explained that she thought Calaycay was referring to
all the other cadres when he said “his team had his back.” CW
further testified that Calaycay’s statements made her feel
uncomfortable because she “didn’t know what to do, and it was
just weird.” Calaycay’s statements made her feel unsafe because
she “didn’t have [her] mom there,” and scared because she “didn’t
have anyone.” She also felt sad and depressed.
CW testified that at around 9:30 p.m. on November 1,
2013, she was awoken by Calaycay “calling [her] from the side of
[her] window.” She stated, “he called me out of my bunkers,4 and
he was telling me how beautiful I was and how he wanted to hook
up with me and how he wanted to see me naked.” CW testified that
this made her feel uncomfortable and unsafe.
4
The term “bunkers” refers to the cadets’ dormitory.
5
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CW stated that during the aforementioned incidents,
Calaycay never physically touched her. He spoke softly, did not
appear angry, and did not threaten her. The following exchange
transpired on cross-examination:
Defense Counsel: When he said he wanted to lick you, okay, what
did you understand that to mean, that he wanted
to give you dirty lickins and beat you up?
CW: No.
Defense Counsel: What did you believe -
CW: In a sexual way.
Defense Counsel: And what would that be in a sexual way?
CW: With his - licking me with his tongue.
Defense Counsel: I see. And when you indicated that - testified
that he wanted to hit you from the back, what
did you believe that - what he meant by that?
CW: Fuck me from the back.
Defense Counsel: What’s that?
CW: Fuck me from the back. That’s what he was -
Defense Counsel: Have sex with you from the back?
CW: Yes.
Defense Counsel: Okay. Did he threaten to hurt you physically?
Like beat you up?
CW: No.
Defense Counsel: Did you feel like he - when he said he wanted to
lick you, did you believe that it was your
impression that he was trying to tell you that
he was gonna hurt you or have you experience
sexual pleasure?
CW: Sexual pleasure.
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(Emphases added).
CW admitted that she had been disciplined for sniffing
pills prior to these encounters with Calaycay. CW also testified
that on a previous occasion, another cadre, Cadre Jarvis, had her
take off her clothes so that he could search her with only her
panties on. She reported this incident to her supervising cadre.
Although CW told her friends about Calaycay’s
statements, she did not tell her supervising cadre or otherwise
report Calaycay’s behavior. The Deputy Prosecuting Attorney
(DPA) questioned CW as follows:
DPA: Why did you only tell your friends and not
anyone else when it first happened?
CW: I was scared.
DPA: Why were you scared?
CW: Because I didn’t know what would happen to me if
I wouldn’t be able to graduate or -
DPA: What happens if you don’t graduate?
CW: I don’t get a GED, and I would be in there for
nothing.
DPA: Do the cadres have any input as to whether you
graduate or not?
CW: Yes.
DPA: You mentioned when [Defense Counsel] was asking
you questions that you thought the defendant
intended to, and correct me if I’m misstating,
subject you to sexual pleasure?
CW: Yes.
DPA: And that made you uncomfortable?
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CW: Yes.
DPA: And that made you scared?
CW: Yes.
DPA: And that made you feel unsafe?
CW: Yes.
DPA: And he did so on two occasions between October
25th and November 1st?
CW: Yes.
(Emphases added).
2. Motion for Judgment of Acquittal
Following the conclusion of CW’s testimony, Calaycay
made an oral Motion for Judgment of Acquittal on the grounds that
CW’s testimony did not “support the elements that [Calaycay]
insulted, taunted, or challenged [CW] in a manner that . . .
would cause her to reasonably believe [Calaycay] intended to
cause her bodily injury,” and further, that “the allegedly coarse
language that was allegedly used did not cause [CW] to reasonably
believe that [Calaycay’s] acts were intended to cause her bodily
injury.”
The district court denied Calaycay’s motion, as the
language Calaycay allegedly used “could be construed to be
insulting or offensively coarse” and CW “could certainly believe
from that language that [Calaycay] intended to cause bodily
injury to her.” The district court further determined that
“nonconsensual sex can be construed to be causing bodily injury
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to the other person.”
3. Calaycay’s Testimony
Calaycay testified that in 2013, he was a 28-year-old
cadre at the Academy, assigned to supervise the first platoon of
male cadets. Calaycay did not reside on Academy property, but
rather, returned home when he was not working. Prior to serving
as a cadre at the Academy, Calaycay deployed to Iraq for two
tours as a member of the National Guard. Calaycay testified that
he had disciplined CW on at least one occasion.
Calaycay stated that, prior to the interactions at
issue, he heard that CW had accused Cadre Jarvis of “touching her
in the [wrong] place.” He also knew CW was one of several cadets
who were caught sniffing pills. Calaycay testified that, prior
to his conversation with CW on the exercise field, he saw Cadre
Jarvis discipline CW and the other cadets by requiring them to do
push-ups, sit-ups, flutter kicks, and jumping jacks. He admitted
that he did not actually see CW sniffing pills and was not
present when Cadre Jarvis searched her, so he did not know for
sure what happened during either incident.
Calaycay stated that he spoke with CW on October 25,
2013, because she looked sad and depressed. He explained:
I . . . took her on the side right where the kids
were, I spoke to her asking her what was wrong with
her, so she told me about she was sad, that, you know,
all that sniffing pills, that she might get kicked out
and all that stuff. And then I told her that you know
the consequences of sniffing the pills, overdose, you
know, maybe get kicked out of the academy, and I told
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her just keep your head up, you know, try not for do
that again.
Calaycay denied saying anything of a sexual nature to
CW during this conversation. He did not tell CW that he wanted
to have sex with her, that he wanted to lick her, or that he
wanted to hit her from the back.
Calaycay stated that he knew where CW “was particularly
housed” and stated “her room is like right where the camera is.”
Calaycay further testified that he knew which areas were captured
by security cameras and which areas were not.5 He denied going
to CW’s dormitory and calling her outside to talk, and stated
that on November 1, 2013, he “went home” and “never came back.”
4. Conviction and Sentence
The district court found CW’s testimony to be credible.
It also determined that Calaycay intended to harass, annoy, or
alarm CW, and that his statements were insulting under HRS § 711-
1106(1)(b) and constituted offensively coarse language under HRS
§ 711-1106(1)(f). Noting the fact that Calaycay “was in a
supervisory capacity,” or had “some level of control over” CW,
and that CW was “in a setting where she’s not really free to
leave,” the district court further found that CW “reasonably
believed that [Calaycay] intended to cause bodily injury to her.”
Accordingly, the district court found Calaycay guilty
of harassment. The district court postponed sentencing to allow
5
No security camera footage was admitted into evidence.
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defense counsel additional time to file a Motion for
Reconsideration.
a. Motion for Reconsideration
Calaycay filed a Motion for Reconsideration, arguing
that the district court’s verdict was “not in accord with the law
or evidence.” Calaycay explained that “solicitations for
consensual sex” did not constitute an intent to cause bodily
injury, and “[CW] testified unequivocally that she believed
[Calaycay’s] solicitations were offers to give her sexual
pleasure, not pain, illness or bodily impairment.” Thus,
Calaycay argued, there was reasonable doubt as to one of the
material elements of harassment under HRS §§ 711-1106(1)(b) and
(f). The district court did not directly rule on Calaycay’s
Motion for Reconsideration, but implicitly denied the motion
through entry of its Findings of Fact, Conclusions of Law, and
Order (FOFs, COLs, and Order), discussed below.
b. Findings of Fact, Conclusions of Law
The district court’s FOFs included the following:
2.d.i: [CW] understood ‘hit you from the back’ to
mean that [Calaycay] wanted to subject her
to sexual pleasure.
2.d.ii: [CW] testified that Defendant’s remarks
made her feel uncomfortable and awkward.
. . . .
3.b: [The statements that Calaycay made to CW
at night, from outside of her balcony,]
made [CW] feel awkward, uncomfortable,
unsafe, and scared.
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. . . .
5: The Court found [CW’s] testimony to be
credible.
The district court’s COLs included the following:
4.a: Unwelcome and unsolicited sexual advances, given
[CW’s] place of inferiority with respect to
[Calaycay’s] position of power and control,
sufficiently establish the intent element of “to
harass, annoy, or alarm.”
4.b: When [CW] testified that she was concerned for
her safety - that she felt scared, unsafe, and
uncomfortable - notwithstanding the fact that
she understood [Calaycay’s] saying, “I want to
hit you from the back,” to mean that he wanted
to subject her to sexual pleasure, the fact that
she was concerned for her safety is sufficient
evidence that [Calaycay] made communication to
[CW] containing offensive language. State v.
Bush, 98 Hawaii 459, 50 P.3d 428 (2002).
Especially where [Calaycay] communicated
offensively coarse language at night at [CW’s]
place of slumber.
5: [Calaycay’s] interaction with [CW] at the
exercise field sufficiently qualifies as an
insult.
5a: Although a portion of [HRS § 711-1106(1)(b)]
supports more of a scenario where someone
intends to provoke a fight, however, the facts
in the instant case are sufficient to qualify as
insulting.
6: Both the insult and the offensively coarse
language caused the recipient in this case to
believe that [Calaycay] had some kind of intent
to have non-consensual sexual contact with her.
6a: Non-consensual sexual contact can rise to the
level of bodily injury.
. . . .
7: A reasonable seventeen year old Cadet in [CW’s]
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position could reasonably fear that [-] by being
propositioned for sexual acts by someone of
[Calaycay’s] position of power and control[,] to
the point that she felt scared, unsafe, and
uncomfortable [-] non-consensual sexual contact,
and thus bodily injury, might ensue.6
The district court’s order stated, “the State of
Hawaii has met its burden of proof beyond all reasonable doubt,
and the Defendant, Burt Calaycay, . . . is hereby found guilty of
the offense of Harassment, in violation of Sections 711-
1106(1)(b) and (1)(f) of the Hawaii Revised Statutes.”
c. Final Judgment
Pursuant to its FOFs, COLs, and Order, the district
court entered a Notice of Entry of Judgment and/or Order (Final
Judgment) convicting Calaycay of Harassment and imposing a $100
fine and a $30 criminal injuries compensation fee.
C. ICA Proceedings
Calaycay timely appealed the district court’s Final
Judgment to the ICA. In addition to reiterating his position
that the State’s Complaint improperly charged him, Calaycay
challenged the district court’s denial of his Motion for Judgment
of Acquittal and Motion for Reconsideration on the grounds that
there was insufficient evidence to convict him of harassment
under either HRS § 711-1106(1)(b) or HRS § 711-1106(1)(f).
6
The FOFs, COLs, and Order were proposed by the State and entered
by the district court without revision. Calaycay filed written objections to
proposed FOF Nos. 2 and 3 as “misleading,” and opposed COL Nos. 4, 5, 6, and 7
as “unclear and erroneous factual conclusions not supported by evidence.”
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Calaycay also argued that FOF Nos. 2.d.ii and 5, and COL Nos. 4a,
4b, 5, 5a, 6, 6a, and 7 “were clearly erroneous and not supported
by the evidence or the law.” Finally, Calaycay claimed his
conviction under HRS § 711-1106(1)(b) and HRS § 711-1106(1)(f)
violated his constitutional right to free speech, because the
statutory provisions were impermissibly vague and overbroad.
The ICA held that the district court did not err by
denying Calaycay’s Motion to Compel Election or to Dismiss
Complaint.7 It also determined that there was insufficient
evidence to convict Calaycay of harassment. The ICA explained
that because CW’s testimony showed that she did not believe
Calaycay intended to hurt her, there was no evidence to support
an essential element of the offense of harassment:
When the evidence is viewed in the light most
favorable to the prosecution, a reasonable mind could
not fairly conclude guilt beyond a reasonable doubt
because the State failed to produce evidence of all
the elements necessary to convict Calaycay of
Harassment. State v. Hicks, 113 Hawaii 60, 69, 148
P.3d 493, 502 (2006). Specifically, the evidence
presented failed to demonstrate Calaycay’s statements
caused the complainant (CW) to reasonably believe that
Calaycay intended to cause her bodily injury. HRS
§ 711-1106(1)(b) and (f). The State must prove that
the victim in fact reasonably believed that the
defendant intended to cause her bodily injury. State
v. Bush, 98 Hawaii 459, 460, 50 P.3d 428, 429 (2002).
Accordingly, the ICA held that the district court erred
in denying Calaycay’s Motion for Judgment of Acquittal and in
7
Because Calaycay does not challenge this ruling on certiorari, we
do not address it here.
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finding Calaycay guilty of harassment.8 The ICA did not address
whether there was substantial evidence in the record supporting
the remaining element of the offense and the requisite state of
mind, nor did it specifically discuss the district court’s FOFs
and COLs or reach Calaycay’s constitutional challenge. The ICA
entered a Judgment on Appeal reversing the district court’s Final
Judgment and vacating Calaycay’s conviction.
D. Application for Writ of Certiorari
On certiorari, the State argues that the ICA erred in
applying CW’s “sexual pleasure” comment to all of Calaycay’s
statements. The State contends that, had the ICA properly viewed
the testimony in the light most favorable to the State, it would
have limited its consideration of the comment only to the act of
licking, and afforded greater weight to CW’s testimony that she
felt uncomfortable, scared, and unsafe. In addition, the State
argues that the ICA erroneously substituted its own assessment of
8
The ICA held that “[t]he District Court erred by denying the
Motion for Judgment of Acquittal.” However, by presenting evidence in the
form of his testimony after his Motion for Judgment of Acquittal was denied,
Calaycay waived any error made by the district court in denying the motion.
State v. Pudiquet, 82 Hawaii 419, 423, 922 P.2d 1032, 1036 (App. 1996) (“It
is well settled that when the defense presents evidence after a motion for
judgment of acquittal made at the close of the prosecution’s case, any error
by the trial court in the denial of the motion is waived by the defense.”);
State v. Rodrigues, 6 Haw. App. 580, 581, 733 P.2d 1222, 1223 (1987) (the
defendant lost his right to contest the trial court’s denial of his motion for
judgment of acquittal, made at the conclusion of the prosecution’s case-in-
chief, by introducing evidence after the motion was denied); State v. Mitsuda,
86 Hawaii 37, 38 n.3, 947 P.2d 349, 350 n.3 (1997) (defendant was not
entitled to appellate review of the trial court’s denial of his motion for
judgment of acquittal under the plain error doctrine because he waived any
error by presenting evidence after denial of the motion). The ICA therefore
erred in reviewing the district court’s denial of Calaycay’s Motion for
Judgment of Acquittal.
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CW’s testimony for that of the district court by concluding that
CW’s testimony “reflects that she did not believe Calaycay
intended to hurt her,” despite the district court’s conclusion
that, in light of Calaycay’s position of power, a reasonable
person in CW’s situation could reasonably fear that bodily injury
might ensue.
In response, Calaycay contends that the State should be
judicially estopped from arguing that CW’s “sexual pleasure”
comment applied only to Calaycay’s statement that he wanted to
lick her, due to “the State’s own . . . Finding of Fact No.
2d.i,” which is “completely opposite from the argument the State
seeks to assert now on appeal.”9 Should this court disagree with
the ICA’s determination that there was insufficient evidence
supporting the “reasonable belief” element of the offense,
Calaycay also requests that we consider the following arguments,
which were raised on appeal, but not addressed by the ICA:
1) There was insufficient evidence that the Defendant acted
with the requisite intent to harass, annoy or alarm.
2) There was insufficient evidence that Defendant’s words
and/or conduct constituted an “insult, taunt or
9
We note that the State is not judicially estopped from arguing
that CW’s “sexual pleasure” response referred only to the act of licking.
Although the State proposed FOF No. 2.d.i, which states, “[CW] understood ‘hit
you from the back’ to mean that the Defendant wanted to subject her to sexual
pleasure,” the FOFs and COLs are properly attributed to the district court and
should not be construed as a position “taken by the prosecutor at trial.”
Furthermore, the State drafted the proposed FOFs and COLs at the direction of
the district court and the record reflects the State’s intent to draft the
proposed FOFs and COLs so that they reflected statements made by the district
court at trial.
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challenge.”10
3) There was insufficient evidence that Defendant’s words
and/or conduct constituted “offensively coarse language.”
4) Defendant’s conviction for harassment violated his right to
Freedom of Speech under both the United States and Hawaii
State Constitutions.
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 evidence to
support the conclusion of the trier of fact. Indeed,
even if it could be said in a bench trial that the
conviction is against the weight of the evidence, as
long as there is substantial evidence to support the
requisite findings for conviction, the trial court
will be affirmed.
“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. And as trier of fact, the trial judge is
free to make all reasonable and rational inferences
under the facts in evidence, including circumstantial
evidence.
State v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992)
(citations omitted).
10
Because we resolve the case under HRS § 711-1106(1)(f), we need
not address whether there was substantial evidence adduced at trial that
Calaycay insulted, taunted, or challenged CW for purposes of HRS § 711-
1106(1)(b). See infra note 11, at 20.
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B. Constitutional Challenges - Vagueness and Overbreadth
When confronted with a constitutional challenge of a
penal statute on the grounds of vagueness or
overbreadth, we apply a number of principles on
appeal.
First, [t]he constitutionality of a statute is a
question of law which is reviewable under the
right/wrong standard. Additionally, where it is
alleged that the legislature has acted
unconstitutionally, this court has consistently held
that every enactment of the legislature is
presumptively constitutional, and a party challenging
the statute has the burden of showing
unconstitutionality beyond a reasonable doubt. The
infraction should be plain, clear, manifest, and
unmistakable.
Second, we construe penal statutes narrowly,
considering them in the light of precedent,
legislative history, and common sense.
. . . .
Third, where possible, we will read a penal statute in
such a manner as to preserve its constitutionality.
. . . .
Put differently, a statute will not be held
unconstitutional by reason of uncertainty if any
sensible construction embracing the legislative
purpose may be given it. Mere difficulty in
ascertaining its meaning, or the fact that it is
susceptible to interpretation will not render it
nugatory.
State v. Gaylord, 78 Hawaii 127, 137-38, 890 P.2d 1167, 1177-78
(1995) (citations and internal quotation marks omitted).
III. DISCUSSION
In order to convict Calaycay of harassment, it was the
State’s burden to prove all elements of the offense, as well as
the requisite state of mind, beyond a reasonable doubt. HRS
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§§ 701-114(1)(a)-(b) (2014). As applied to the instant case, the
elements of harassment under HRS § 711-1106(1)(f) are: 1)
Calaycay’s statements to CW constituted a communication using
offensively coarse language; and 2) Calaycay’s statements caused
CW to reasonably believe that Calaycay intended to cause her
bodily injury. HRS § 702-205(a) (2014) (“The elements of an
offense are such (1) conduct, (2) attendant circumstances, and
(3) results of conduct, as . . . [a]re specified by the
definition of the offense[.]”); Bush, 98 Hawaii at 460, 50 P.3d
at 429 (holding that in order to satisfy the second element of
harassment under HRS § 711-1106(1)(f), the State was required to
prove that the recipient of Bush’s communication, in fact,
reasonably believed Bush intended to cause bodily injury to the
recipient or another, or damage to the property of the recipient
or another). The requisite state of mind is the specific “intent
to harass, annoy, or alarm.” HRS § 711-1106(1).
On appeal, the ICA determined that “CW’s testimony,
even taken in the light most favorable to the prosecution . . .
does not furnish substantial evidence” of the second element of
harassment. As such, the ICA held that the district court erred
in denying Calaycay’s Motion for Judgment of Acquittal and in
convicting Calaycay of harassment. The ICA vacated Calaycay’s
conviction accordingly. We disagree.
As set forth below, there was substantial evidence to
support Calaycay’s harassment conviction under HRS § 711-
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1106(1)(f).11 Furthermore, HRS § 711-1106(1)(f) is not
unconstitutionally vague or overbroad, and Calaycay’s harassment
conviction did not violate his First Amendment right to the
freedom of speech. We therefore reverse the ICA’s Judgment on
Appeal and affirm the district court’s Final Judgment convicting
Calaycay of harassment.
A. Calaycay’s Conviction Was Supported by Substantial Evidence
Adduced at Trial
We review the entire evidentiary record of the trial to
determine whether, when considered in the strongest light for the
prosecution, there was substantial evidence to support the
conviction. Batson, 73 Haw. at 248-49, 831 P.2d at 931. As set
forth below, there was substantial evidence adduced at trial to
support both elements of harassment and the requisite state of
mind, pursuant to HRS § 711-1106(1)(f).
1. The First Element - the Conduct
To satisfy the first element of harassment under HRS
§ 711-1106(1)(f), it was the State’s burden to prove beyond a
reasonable doubt that Calaycay “made a communication using
offensively coarse language.” The district court concluded that
11
Because we conclude that substantial evidence was adduced at trial
to support Calaycay’s conviction under HRS § 711-1106(1)(f), we need not
determine whether there was substantial evidence to support Calaycay’s
conviction under HRS § 711-1106(1)(b). State v. Nesmith, 127 Hawaii 48, 61,
276 P.3d 617, 630 (affirming OVUII conviction under HRS § 291E-61(a)(3) where
defendant was charged under HRS §§ 291E-61(a)(1) and/or 291E-61(a)(3)).
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Calaycay’s interaction with CW at the exercise field, and his
interaction with her outside her sleeping quarters, both
constituted communications using offensively coarse language,
satisfying the first element of HRS § 711-1106(1)(f).
CW testified that on October 25, 2013, in the Academy’s
exercise field, Calaycay told her that he wanted to have sex with
her, get her wet, hit her from the back, and have her ride him.
CW further testified that seven days later, on November 1, 2013,
she was awoken by Calaycay calling to her. He told her that he
wanted to see her naked and hook up with her. In addition, CW
alleged that Calaycay told her that he wanted to lick her, which
she understood as a sexual comment. It is unclear when Calaycay
made this statement.
As observed by the district court,
In reviewing whether [] words or conduct constituted
harassment, the relevant test is objective, not
subjective. State v. Taliferro, 77 Hawaii 196, 881
P.2d 1264 (1994). But the fact that this standard is
objective does not mean it is uniform in all
situations, and often the issue of criminal liability
will turn on the matter of context. In [Interest of]
Doe, 76 Hawaii 85, 869 P.2d 1304 (1994).
It is undisputed that Calaycay’s statements to CW
constitute “communications” for purposes of HRS § 711-1106(1)(f).
However, Calaycay contends that the language he allegedly used
“did not rise to the level of offensively coarse language[;]”
rather, he was merely “using local teenage slang with a local
teenage girl.” To the contrary, we conclude that there was
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substantial evidence adduced at trial to establish that the
statements that Calaycay made to CW on October 25, 2013 and on
November 1, 2013, constituted communications using offensively
coarse language.
The language contained in Calaycay’s statements is
“offensively coarse” due to its graphic, sexual, and intensely
personal nature. Bush, 98 Hawaii at 460-61, 50 P.3d at 429-30
(holding that the defendant’s statements to the complainant that
“[her] nipples look really good,” that he “wants to suck on [her]
nipples ‘cause he likes [her] nipples,” and “Bitch, you wait . .
. I’m gonna do something to you,” constituted communication using
offensively coarse language for purposes of HRS § 711-
1106(1)(f)). Thus, CW’s testimony, when considered in the
strongest light for the prosecution, established that Calaycay’s
statements constituted communications using offensively coarse
language, satisfying the first element of harassment, pursuant to
HRS § 711-1106(1)(f).
2. The Second Element - the Result of the Conduct
To satisfy the second element under HRS § 711-
1106(1)(f), it was the State’s burden to prove beyond a
reasonable doubt that, as a result of Calaycay’s statements, CW
reasonably believed that Calaycay intended to cause her bodily
injury. Bush, 98 Hawaii at 460, 50 P.3d at 429. The district
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court concluded that Calaycay’s statements “caused [CW] to
believe that [Calaycay] had some kind of intent to have non-
consensual sexual contact with her,” and that “[n]on-consensual
sexual contact can rise to the level of bodily injury.” The
district court further concluded that “[a] reasonable seventeen
year old Cadet in [CW’s] position could reasonably fear that [-]
by being propositioned for sexual acts by someone of [Calaycay’s]
position of power and control[,] to the point that she felt
scared, unsafe, and uncomfortable [-] non-consensual sexual
contact, and thus bodily injury, might ensue.” The district
court thus determined that this element was satisfied.
In contrast, the ICA concluded that “the evidence
presented failed to demonstrate Calaycay’s statements caused [CW]
to reasonably believe that Calaycay intended to cause her bodily
injury.” It therefore reversed the district Court’s Final
Judgment convicting Calaycay of harassment. As set forth below,
we conclude that, when considered in the light most favorable to
the prosecution, CW’s testimony constitutes substantial evidence
that Calaycay’s statements caused her to reasonably believe that
he intended to cause her bodily injury.
CW testified that the statements Calaycay made to her
on the exercise field regarding the sexual acts that “he wanted
to do to [her]” made her feel uncomfortable, unsafe, and scared.
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Despite the fact that CW did not solicit or welcome his advances,
CW further testified that Calaycay approached her again seven
days later, as she slept. The statements that Calaycay made to
CW from outside her window made her once again feel
uncomfortable, unsafe, and scared.
CW’s testimony indicates that she felt threatened by
Calaycay and believed that he intended to subject her to non-
consensual sexual contact. CW’s testimony that she felt scared
and unsafe further indicates that Calaycay’s statements put her
in apprehension of bodily injury. CW’s testimony thus provided
substantial evidence that, as a result of Calaycay’s statements,
CW believed that Calaycay intended to cause her bodily injury.12
There was also substantial evidence adduced at trial
that CW’s belief was reasonable. CW and Calaycay both testified
that, as a cadre at the Academy, Calaycay had supervisory and
disciplinary authority over CW. CW further testified that
Calaycay isolated her from the other cadets and cadres before
making unsolicited and unwelcome sexually explicit statements to
12
The ICA erred by applying CW’s “sexual pleasure” comment to the
entirety of Calaycay’s statements and concluding that “CW’s testimony . . .
reflects that she did not believe Calaycay intended to hurt her.” CW made
this comment in response to the question, “when [Calaycay] said he wanted to
lick you, did you believe that . . . he was trying to tell you that he was
gonna hurt you or have you experience sexual pleasure?” (Emphasis added).
The scope of the question, and therefore the application of CW’s response, is
limited only to Calaycay’s statement that he wanted to lick her. Thus,
contrary to the ICA’s determination, CW’s “sexual pleasure” comment did not
limit or modify her testimony that Calaycay’s other statements made her feel
uncomfortable, unsafe, and scared.
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her on the exercise field. Despite Calaycay’s testimony that he
did not live at the Academy and he was not assigned to supervise
the female cadets, CW testified that Calaycay awoke her seven
days later by calling to her from outside her dormitory window.
Calaycay then made additional sexually explicit statements to
her.
CW’s testimony regarding the context in which Calaycay
made his statements to her and the power dynamic at play
constitutes substantial evidence that CW’s belief that Calaycay
intended to cause her bodily injury was reasonable. Doe, 76
Hawaii at 95, 869 P.2d at 1314 (stating the issue of criminal
liability will often turn on a matter of context). Thus, there
was substantial evidence adduced at trial to establish that
Calaycay’s statements caused CW to reasonably believe that he
intended to cause her bodily injury, the second element of
harassment, pursuant to HRS § 711-1106(1)(f).13
13
It is important to note that Hawaii law recognizes and accounts
for the power dynamic present here. Under HRS § 707-733(1)(d) (Supp. 2018), a
person commits the offense of Sexual Assault in the Fourth Degree if:
The person knowingly engages in or causes sexual
contact with a minor who is at least sixteen years old
and the person is contemporaneously acting in a
professional capacity to instruct, advise, or
supervise the minor; provided that:
(i) The person is not less than five years older
than the minor; and
(ii) The person is not legally married to the minor.
(continued...)
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3. The Requisite State of Mind
The requisite state of mind under HRS § 711-1106(1)(f)
is the specific “intent to harass, annoy, or alarm” CW. The
district court concluded that Calaycay’s “[u]nwelcome and
unsolicited sexual advances, given [CW’s] place of inferiority
with respect to [Calaycay’s] position of power and control,
sufficiently establish[ed] the intent element of ‘to harass,
annoy, or alarm.’”
The law recognizes the difficulty by which intent is
proved in criminal cases. We have consistently held
that since intent can rarely be proved by direct
evidence, proof of 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 of the circumstances.
State v. Kiese, 126 Hawaii 494, 502-03, 273 P.3d 1180, 1188-89
(2012) (quoting State v. Sadino, 64 Haw. 427, 430, 642 P.2d 534,
536-37 (1982)).
To determine whether sufficient evidence was adduced at
trial to support the requisite state of mind for harassment under
HRS § 711-1106, courts in this jurisdiction engage in a fact-
intensive, case-by-case analysis of the defendant’s conduct and
the totality of the surrounding circumstances. See e.g., Kiese,
(...continued)
At the time of the interactions in question, CW was 17 years old and Calaycay
was 28 years old. The two were not married and as a cadre, Calaycay was
acting in a professional capacity to instruct, advise, or supervise CW.
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126 Hawaii at 504, 273 P.3d at 1190 (holding that the
defendant’s choice to repeatedly strike the minor complainant
with a bamboo stick, leaving visible welts, despite his testimony
that a spanking with his hand probably would have corrected the
minor complainant’s misbehavior, constituted substantial evidence
that he intended to harass, annoy, or alarm the minor
complainant); State v. Graybeard, 93 Hawaii 513, 6 P.3d 385(App. 2000) (holding that testimony that the defendant came up
behind the complainant unexpectedly, threatened him, and publicly
denigrated him for ten minutes without provocation or
justification constituted substantial evidence that the defendant
acted with the intent to harass, annoy or alarm the complainant);
Taliferro, 77 Hawaii at 200, 881 P.2d at 1268 (holding that the
defendant’s testimony that he was angry because dog feces were
left in his yard, and that he picked up the feces and walked to
the complainant’s property in order to return them, was
sufficient evidence to prove that the defendant intended to annoy
the complainant); State v. Hopkins, 60 Haw. 540, 592 P.2d 810(1979) (holding that testimony that the defendants approached the
complainants from behind, grabbed and pulled them, and that one
of the defendants put her hand into the back pocket of one of the
complainants, while the complainants resisted, constituted
substantial evidence that the defendants acted with the intent to
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harass, annoy, or alarm the complainants).
We conclude that CW’s testimony constitutes substantial
evidence to support the requisite state of mind with regard to
Calaycay’s conduct. CW’s testimony regarding the statements that
Calaycay made to her on the exercise field indicates that
Calaycay’s initial advances were unwelcome. Yet, Calaycay
continued to pursue CW and made additional unsolicited, sexually
explicit statements to her seven days later. On this occassion,
Calaycay chose to approach CW’s dormitory in the middle of the
night, and to awaken her by calling to her from outside her
dormitory window. The repeated, coercive, and intrusive nature
of Calaycay’s conduct indicates an intent to harass CW.
Furthermore, CW’s testimony that Calaycay’s statements
made her feel scared and unsafe demonstrates that Calaycay’s
uninvited and unwelcomed conduct created an intimidating
situation for CW that gave her a perception of imminent danger
and put her in fear. Thus, when considered in the strongest
light for the prosecution, CW’s testimony regarding the nature of
Calaycay’s statements and the isolating and intrusive
circumstances under which he chose to make them, despite the fact
that CW rebuffed Calaycay’s sexual advances just one week prior,
constitutes substantial evidence that Calaycay acted with the
requisite state of mind of harassment, pursuant to HRS § 711-
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1106(1)(f). Because both elements of harassment and the
requisite state of mind under HRS § 711-1106(1)(f) were supported
by evidence adduced at trial, the district court did not err in
convicting Calaycay of harassment.
B. Calaycay’s Constitutional Challenges are Without Merit
Calaycay argues that HRS § 711-1106(1)(f) is
unconstitutionally overbroad as applied to him. He also argues
that the statute is facially vague and overbroad.
Under the applicable case law, HRS § 711-1106(1)(f) has
a presumption of constitutionality. Gaylord, 78 Hawaii at 137,
890 P.2d at 1177. It is Calaycay’s burden to show
unconstitutionality beyond a reasonable doubt. Id. As set forth
below, he has failed to meet this burden.
1. HRS § 711-1106(1)(f) is Not Overbroad as Applied to
Calaycay
Calaycay contends that, because his harassment
conviction criminalized his alleged statements, which
“[constituted] clearly protected speech,” HRS § 711-1106(1)(f)
was unconstitutionally overbroad as applied to him. Contrary to
his contentions, however, Calaycay’s statements do not constitute
protected speech and therefore, his as-applied challenge is
without merit.
“The First Amendment [of the United States
Constitution] and article I, § 4 of the Hawaii Constitution
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prohibit the enactment of any law that abridges freedom of
speech.” State v. Alangcas, 134 Hawaii 515, 528, 345 P.3d 181,
194 (2015). However, the Supreme Court of the United States “has
carved out some limited categories of unprotected speech,
including . . . speech integral to criminal conduct.” United
States v. Osinger, 753 F.3d 939, 946 (9th Cir. 2014). This court
has similarly held that speech employed to promote or facilitate
the commission of a crime is unprotected by the Hawaii
constitution. State v. Manzo, 58 Haw. 440, 444, 573 P.2d 945,
949 (1977); Alangcas, 134 Hawaii at 529, 345 P.3d at 195.
Calaycay’s statements fall within this exception to the
constitutionally protected freedom of expression.
HRS § 711-1106(1)(f) was not unconstitutionally applied
to Calaycay because Calaycay employed the speech at issue to
promote or facilitate the commission of a crime. Calaycay argues
that “all the State’s evidence showed was a solicitation to have
a sexual encounter.” However, under the circumstances of this
case, such a solicitation is criminalized pursuant to HRS § 707-
733(1)(d). See supra, note 14, at 27. “[S]peech is not
protected when it is merely the vehicle through which a
[criminal] ensnares the victim.” Alangcas, 134 Hawaii at 528,
345 P.3d at 194. As such, Calaycay’s statements do not
constitute protected speech, and were properly criminalized under
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HRS § 711-1106(1)(f).
Furthermore, “state free speech provisions are not
generally violated by criminal statutes that, properly drawn, are
aimed at the injurious effects of a threatening communication
rather than the communication itself.” Doe, 76 Hawaii at 93
n.16, 869 P.2d at 1312 n.16 (internal quotation marks and
brackets omitted) (quoting J. Friesen, State Constitutional Law:
Litigating Individual Rights, Claims and Defenses § 5.04[3] at 5-
20 to 5-20.1). We have stated that, for speech to be punishable
under the harassment statute, “there must be a causal
relationship between the speech at issue and the disturbance
sought to be prevented. . . . Establishing such a causal
relationship obviously requires an examination of the totality of
the circumstances, or, put differently, the context in which the
speech is uttered.” Id. at 96, 869 P.2d at 1312 (emphasis
added).
HRS § 711-1106(1)(f) is aimed at preventing the
injurious effect on the recipient, only criminalizing statements
made “with intent to harass, annoy, or alarm any other person,”
using “offensively coarse language,” that “cause the recipient to
reasonably believe that the [speaker] intends to cause bodily
injury to the [recipient] or another.” Under the totality of the
circumstances, the evidence contained in the record sufficiently
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establishes a causal relationship between Calaycay’s unsolicited,
repeated, and sexually explicit statements, and the disturbance
sought to be prevented by HRS § 711-1106(1)(f): CW’s reasonable
belief that Calaycay intended to cause her bodily injury. Cf.
Id. at 100, 869 P.2d at 1319 (finding no causal relationship
between Minor’s statement, “Hey, if you like go, take your badge
off,” and the disturbance sought to be prevented by HRS § 711-
1106(1)(b) - provoking the recipient police officer to a violent
response). A person who, with the intent to harass, annoy, or
alarm another, makes a communication using offensively coarse
language, thereby causing the recipient to reasonably believe the
person intends to inflict bodily injury, will not find shelter
behind the First Amendment. Cf. State v. Burkert, 174 A.3d 987,
1002 (N.J. 2017). Calaycay’s constitutional right to the freedom
of expression was not violated by the criminalization of his
statements under HRS § 711-1106(1)(f).
2. HRS § 711-1106(1)(f) is Not Facially Unconstitutional
In Pacquing, this court discussed overbreadth
challenges as follows:
An overbreadth challenge is typically available only
to individuals who “assert that [their]
constitutionally protected conduct is being prosecuted
by the State.” Id. In instances where it is
contended that the challenged statute affects
constitutionally protected freedom of expression or
“reaches a substantial amount of constitutionally
protected conduct,” then an individual may initiate a
facial challenge to the statute as overbroad on these
grounds. Id. at 528, 345 P.3d at 194 (quoting Vill.
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of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362(1982)).
State v. Pacquing, 139 Hawaii 302, 309, 389 P.3d 897, 904 (2016)
(emphases added).
Similarly, in Alangcas, this court discussed vagueness
challenges as follows:
This court has recognized that a statute may be found
void for vagueness on its face or as applied. See
State v. Bates, 84 Hawaii 211, 222, 933 P.2d 48, 59
(1997) (observing that where a case does not involve
any first amendment issues, a “defendant has standing
to raise a vagueness challenge only insofar as the
statute is vague as applied to his or her specific
conduct”)[.]
In order for a defendant to succeed on an as-applied
challenge, the defendant must demonstrate that the
disputed statute is vague with respect to his or her
conduct. However, when a statute burdens a
significant constitutional right, such as the freedom
of expression, a defendant whose rights are not
violated may raise the constitutional rights of
others. See [State v. Beltran, 116 Hawaii 146, 151
n.4, 172 P.3d 458, 463 n.4 (2007)].
Alangcas, 134 Hawaii at 531, 345 P.3d at 197 (emphasis added)
(some citations omitted).
Because Calaycay contends that HRS § 711-1106(1)(f)
burdens the constitutionally protected right to free speech, and
we have previously acknowledged that HRS chapter 711 “normally
involves first amendment issues,” Calaycay may initiate facial
challenges to the statute despite our conclusion that his as-
applied overbreadth challenge is without merit. Doe, 76 Hawaii
at 94, 869 P.2d at 1313. We therefore resolve Calaycay’s facial
overbreadth and vagueness challenges, below.
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a. Scope of Prohibited Conduct
When confronted with a constitutional challenge of a
penal statute on the grounds of overbreadth and vagueness, “a
court’s first task is to determine whether the enactment reaches
a substantial amount of constitutionally protected conduct.”
Alangcas, 134 Hawaii at 525, 345 P.3d at 191 (internal quotation
marks and citations omitted). “In determining whether a
substantial amount of protected activity was affected, . . . the
scope of the prohibited conduct requires determination.” Id.
(citing United States v. Williams, 553 U.S. 285, 293 (2008)).
The conduct prohibited by HRS § 711-1106(1)(f) is as
follows:
(1) A person . . . with intent to harass, annoy, or
alarm any other person[:]
. . . .
(f) Makes a communication using offensively
coarse language that would cause the
recipient to reasonably believe that the
actor intends to cause bodily injury to
the recipient or another or damage to the
property of the recipient or another.
As noted above, HRS § 711-1106(1)(f) contains two
conduct elements: (1) a communication; (2) using offensively
coarse language. The statute also contains a result of conduct
element: the actor’s communication actually causes the recipient
to reasonably believe that the actor intends to cause bodily
injury to the recipient or another, or damage to the property of
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the recipient or another. Bush, 98 Hawaii at 460, 50 P.3d at
429 (under HRS § 711-1106(1)(f), the State must show that the
recipient of the defendant’s communication, in fact, reasonably
believed the defendant intended to cause bodily injury to the
recipient or another, or damage to the property of the recipient
or another). The requisite state of mind of the actor is the
specific “intent to harass, annoy, or alarm.” HRS § 711-1106(1).
b. HRS § 711-1106(1)(f) is Not Facially Overbroad
Calaycay contends that HRS § 711-1106(1)(f) is
unconstitutionally overbroad because it “sweep[s] up
constitutionally protected speech[.]” “When the scienter
requirement of a statute sufficiently limits criminal culpability
to reach only conduct outside the protection of the First
Amendment, legitimate speech is not endangered.” Alangcas, 134
Hawaii at 528, 345 P.3d at 194 (citing United States v. Dhingra,
371 F.3d 557, 561 (9th Cir. 2004). However, a specific intent
requirement, such as the one employed by HRS § 711-1106(1),
“fails to eliminate overbreadth concerns whenever the ‘effect’
(e.g., to harass, to annoy, to alarm, etc.) associated with the
intent provision is broad enough to encompass a substantial
amount of protected activity.” People v. Smith, 862 P.2d 939,
942 (Colo. 1993).
Harassment statutes that criminalize “offensively
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coarse” communications and contain a specific intent requirement
generally withstand facial overbreadth challenges where they
contain other limiting restrictions. Compare State v. Koetting,
616 S.W.2D 827 (Mo. 1981) (Missouri’s harassment statute was not
overbroad because it applied “only to protect the privacy of
persons within their own homes”) and Burkert, 174 A.3d 987 (New
Jersey’s harassment statute was not facially overbroad because
the statute impliedly limited the prohibited conduct to repeated
communications directed at a person that reasonably put that
person in fear for his safety or security, or that intolerably
interfere with that person’s reasonable expectation of privacy)
with Smith, 862 P.2d 939 (Colorado’s harassment statute was
overbroad on its face where there were no limiting constrictions
that would render the statute constitutional).
Because HRS § 711-1106(1)(f) only criminalizes speech
when it is employed with the specific “intent to harass, annoy,
or alarm,” when it involves “offensively coarse language,” and
when it causes the recipient to reasonably believe the speaker
intends to cause bodily injury or property damage, criminal
culpability under the statutory provision is sufficiently limited
to reach only unprotected speech.14 Thus, Calaycay’s overbreadth
14
Several states have upheld similar statutes based on their
determination that harassment is not protected speech:
(continued...)
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challenge is without merit.
c. HRS § 711-1106(1)(f) is Not Facially Vague
“A penal statute is void for vagueness if it does not
define a criminal offense with sufficient definiteness so that
ordinary people can understand what conduct is prohibited and in
a manner that does not encourage arbitrary and discriminatory
enforcement.” Pacquing, 139 Hawaii at 314, 389 P.3d at 909
(citations, internal quotation marks, and brackets omitted). As
such, we resolve a facial challenge to a criminal statute for
vagueness by determining if the statute: “(1) is internally
inconsistent and incomprehensible to a person of ordinary
intelligence[;] or (2) invites delegation of basic policy matters
to police for resolution on an ad hoc and subjective basis.”
Alangcas, 134 Hawaii at 532, 345 P.3d at 198 (citing Beltran,
116 Hawaii at 153, 172 P.3d at 465).
Calaycay makes no argument that HRS § 711-1106(1)(f) is
internally inconsistent and, from a plain reading of the statute,
14
(...continued)
Prohibiting harassment is not prohibiting speech,
because harassment is not a protected speech.
Harassment is not communication, although it may take
the form of speech. . . . It has never been deemed an
abridgment of freedom of speech . . . to make a course
of conduct illegal merely because the conduct was in
part . . . carried out by means of language, either
spoken, written, or printed.
State v. Thorne, 333 S.E.2d 817, 820, 820 n.5 (W.Va. 1985)(West Virginia’s
statute proscribing phone calls made with the intent to harass was not
overbroad because the statute did not prohibit communicative speech).
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a person of ordinary intelligence would comprehend that it only
criminalizes a subset of speech that: (1) utilizes offensively
coarse language; (2) is uttered with the intent to harass, annoy,
or alarm; and (3) actually causes the recipient to reasonably
believe the speaker intends to cause bodily injury or property
damage. Although the statute fails to define “harass,” “annoy,”
or “alarm,” these terms have commonly understood definitions that
provide adequate notice to the public and sufficient guidance for
enforcement. See e.g., Galloway v. State, 781 A.2d 851, 868 (Md.
2001) (“the terms ‘annoy,’ ‘alarm,’ and ‘harass’ are commonly
understood by ordinary people and, as such, provide fair notice
to potential offenders and adequate guidance for enforcement”).
Calaycay argues that HRS § 711-1106(1)(f) is
unconstitutionally vague because the term “‘offensively coarse
language’ is open to too many subjective interpretations[.]”
However, while the term “offensively coarse language” may be
vague in isolation, when read within the context of the statute,
it is unlikely that the public will misunderstand this term given
the clear statutory definition of the scope of prohibited
conduct. State v. Mortimer, 641 A.2d 257, 266 (N.J. 1994)
(holding that New Jersey’s harassment statute was not
unconstitutionally vague, although the phrase “offensively coarse
language” may be vague in isolation, because the imposition of a
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specific intent requirement sufficiently clarified the proscribed
conduct); cf. Alangcas, 134 Hawaii at 535, 345 P.3d at 201 (the
likelihood that anyone would not understand the word
“communicates” is quite remote where clear requirements of the
statute defined the prohibited conduct).
Moreover, HRS § 711-1106(1)(f) imposes a reasonable
person standard by requiring the recipient of the communication
to reasonably believe that the actor intends to cause bodily
injury to the recipient or another, or damage to the property of
the recipient or another. Employing a reasonable person standard
further ameliorates the concern that a statute is
unconstitutionally vague. Galloway, 781 A.2d at 871-72 (reading
a reasonable person standard into Maryland’s harassment statute
to narrow the statute’s construction and provide an appropriate
guide to conduct); People v. Ewing, 90 Cal.App.4th 199, 208-09
(Cal. Ct. App. 1999) (reading a reasonable person standard into
the definition of harassment in determining that California’s
stalking statute was not void for vagueness).
Calaycay makes no argument that the statute invites
delegation of basic policy matters to police for resolution on a
subjective basis. Calaycay’s vagueness challenge is therefore
without merit.
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IV. CONCLUSION
Calaycay’s harassment conviction was supported by
substantial evidence and his constitutional challenges are
without merit. We therefore reverse the ICA’s Judgment on
Appeal. The district court’s Final Judgment convicting Calaycay
of harassment, pursuant to HRS § 711-1106(1)(f), is affirmed.
Sonja P. McCullen /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Dwight C.H. Lum
for respondent /s/ Sabrina S. McKenna
Kimberly Tsumoto Guidry /s/ Richard W. Pollack
for amicus curiae
/s/ Michael D. Wilson
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