State v. Kaeo. ( 2021 )

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUN-2021
07:54 AM
Dkt. 60 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
SAMUEL K. KAEO, Defendant-Appellant
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DCW-XX-XXXXXXX)
JUNE 29, 2021
GINOZA, CHIEF JUDGE AND LEONARD, J.
(WITH NAKASONE, J., DISSENTING)
OPINION OF THE COURT BY GINOZA, CHIEF JUDGE
Defendant-Appellant Samuel K. Kaeo (Kaeo) appeals from
the "Trial Decision and Order" filed on June 15, 2016, and the
"Judgement and Notice of Entry of Judgment" (Judgment) filed on
June 29, 2016, by the District Court of the Second Circuit
(District Court).1 On July 31, 2015, Plaintiff-Appellee State of
Hawai#i (State) charged Kaeo by Complaint with: refusal to
provide ingress or egress in violation of Hawaii Revised Statutes
1
The Honorable Blaine J. Kobayashi presided.
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(HRS) § 852-1 (count 1); failure to disperse in violation of HRS
§ 711-1102 (count 2); and disorderly conduct in violation of HRS
§ 711-1101(1)(d) (count 3).2 The State ultimately proceeded only
on count 3.
On June 29, 2016, after a bench trial for count 3, the
District Court convicted Kaeo of disorderly conduct, in violation
of HRS § 711-1101(1)(d) (2014)3 and sentenced Kaeo to pay a fine
of $200 and a fee of $30.
On appeal, Kaeo contends that his conviction should be
reversed because: (1) he engaged in constitutionally protected
conduct; and (2) findings of fact (FOFs) 4 and 23, and
conclusions of law (COLs) 1, 2, and 3 in the Trial Decision and
Order are erroneous.
We conclude that Kaeo's conduct in this case was not
constitutionally protected conduct, and that the District Court
did not err in its findings of fact and conclusions of law that
Kaeo challenges on appeal. We therefore affirm the Judgment by
the District Court.
I. Background4
On July 30, 2015, a convoy of vehicles was scheduled to
transport large components from the Central Maui Baseyard
2
On September 1, 2015, after Kaeo demanded a jury trial, the case was
committed to the Circuit Court of the Second Circuit ( Circuit Court). On
March 24, 2016, the Circuit Court entered an Order of Remand for count 3 after
counts 1 and 2 were dismissed.
3
HRS § 711-1101(1)(d) provides:
§711-1101 Disorderly conduct. (1) A person commits
the offense of disorderly conduct if, with intent to cause
physical inconvenience or alarm by a member or members of
the public, or recklessly creating a risk thereof, the
person:
. . .
(d) Creates a hazardous or physically offensive
condition by any act which is not performed
under any authorized license or permit[.]
4
"Findings of fact ... that are not challenged on appeal are binding
on the appellate court." Okada Trucking Co. v. Bd. of Water Supply, 97
Hawai#i 450, 458, 40 P.3d 73, 81 (2002); Bremer v. Weeks, 104 Hawai #i 43, 63,
85 P.3d 150, 170 (2004). The District Court made numerous findings in its
Trial Decision and Order which are not challenged on appeal.
2
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(Baseyard) to the Daniel K. Inouye Solar Telescope (DKIST)
construction site at the summit of Haleakalâ on Maui. The convoy
was scheduled to leave at 10 p.m. through what was called the
MECO gate.
Joseph McMullen (McMullen), a project manager at DKIST
testified that the Baseyard is an outdoor storage facility just
off of Mokulele highway used by DKIST to hold large components.
McMullen's duties included managing the day-to-day construction
of the DKIST and delivery of the materials for the telescope's
construction. According to McMullen, at around 7 p.m. on the day
in issue, Kaeo arrived at the Baseyard, spoke with McMullen,
asked McMullen "is this the place where the transport was going
to happen?", and after being told it was, Kaeo told McMullen "you
better get ready" and that they "were in for the night."
McMullen testified that initially there were about ten
protesters, but the number continued to grow. At around 8:30
p.m., the Maui Police Department (MPD) set up lights across the
median. McMullen testified that by 10:00 p.m., over a hundred
protesters were outside the Baseyard, holding signs and walking
around the crosswalk located outside the gate. At around 9:30
p.m. and 10:00 p.m., the convoy attempted to exit the Baseyard
through the MECO gate as scheduled. According to McMullen, after
the gates were opened, the trucks made a turn and the nose of a
truck was pulled out just beyond the gate but was unable to go
any farther as the protesters approached the trucks and the
trucks had to stop. McMullen testified the protesters were just
a few feet from the trucks, with the truck engines still running.
McMullen also testified that the transport convoy consisted of
four vehicles, three trucks, and several mechanics trucks, and he
was in one of the vehicles.5 Further, McMullen testified that
approximately twenty people, including the truck drivers, were
5
McMullen testified about the load of telescope components on one of
the three trucks, which was approximately 18-19 feet wide, 12 feet high, 30
feet long, and weighed almost 25 tons.
3
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involved with transporting the materials to the construction
site.
MPD received a call for assistance and Lieutenant Wade
Maeda (Lt. Maeda) was dispatched to the Baseyard at 10:05 p.m.
Lt. Maeda testified that when he first arrived at the Baseyard,
the road and sidewalk outside the MECO gate were completely
covered with people. Lt. Maeda also testified he informed one of
the protesters that there were specific guidelines for peaceful
protest and that the protesters were currently breaking the law.
Lt. Maeda told several protesters to disperse. At around 10:15
p.m., Lt. Maeda activated the Specialized Emergency Enforcement
Detail (SPEED) team because the protesters did not disperse and
the convoy could not leave.
Lt. Maeda further testified that lines of five or six
people connected their hands through PVC pipes and used duct tape
to secure the PVC pipes to their arms so the pipes could not be
slipped off. The first line of people laid themselves down
approximately twenty feet from the Baseyard gate, preventing the
convoy from moving forward. Lt. Maeda testified that at this
point the truck engines were still running.
MPD Captain Clyde Holokai (Captain Holokai), commander
of the SPEED team, testified that Kaeo was part of the first line
of people connected with PVC pipes and that Kaeo had both arms
connected to another protester. Captain Holokai approached the
line of protesters on the ground, asked if they wanted to do this
and warned they would be arrested. The protesters did not
respond and remained on the ground. Captain Holokai ordered his
sergeant and the dismantling team to start removing the PVC
pipes.
Sergeant Russell Kapalehua (Sgt. Kapalehua) testified
that the protesters lying on the ground connected with PVC pipes
would not stand up on their own and that it would have taken a
lot of people to carry the protesters off the road. Sgt.
Kapalehua also testified that it would have been hazardous to
attempt to remove the protesters while they were connected.
4
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According to Sgt. Kapalehua, the SPEED team moved slowly to cut
the PVC pipe with a hacksaw to ensure no one was injured. Sgt.
Kapalehua testified that he could almost feel the heat of the
engine from the trucks while he worked to get Kaeo detached. At
around 12:45 a.m., the SPEED team finished separating the chained
protesters and the convoy left. MPD arrested the protesters who
had been chained together, including Kaeo.
II. Discussion
A. Kaeo's Conduct Was Not Constitutionally Protected
Kaeo contends that his conviction must be reversed
because his actions in this case were constitutionally protected
conduct and speech under the First and Fourteenth Amendments of
the United States Constitution and article I, § 4 of the Hawai#i
Constitution.6
"Questions of constitutional law are reviewed de novo
under the right/wrong standard." State v. Miranda, 147 Hawai#i
171, 179, 465 P.3d 618, 626 (2020) (citing State v. Ui, 142
Hawai#i 287, 292, 418 P.3d 628, 633 (2018)).
The First Amendment to the U.S. Constitution and
article I, § 4 of the Hawai#i Constitution prohibit the enactment
of any law that abridges freedom of speech or the right peaceably
to assemble.7 However, these rights are not without limits.
6
In his opening brief, Kaeo briefly references article I, § 5 of the
Hawai#i Constitution but provides no argument with respect to this provision,
which states:
No person shall be deprived of life, liberty or property
without due process of law, nor be denied the equal
protection of the laws, nor be denied the enjoyment of the
person's civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or ancestry.
Haw. Const. art. I, § 5. Because Kaeo fails to provide any argument regarding
article I, §5, this issue is waived. See Hawai #i Rules of Appellate Procedure
(HRAP) Rule 28(b)(7) ("Points not argued may be deemed waived.").
7
The U.S. Constitution provides:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
(continued...)
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In Cox v. State of La., 379 U.S. 536, 554-55 (1965),
the U.S. Supreme Court explained that:
The rights of free speech and assembly, while fundamental in
our democratic society, still do not mean that everyone with
opinions or beliefs to express may address a group at any
public place and at any time. The constitutional guarantee
of liberty implies the existence of an organized society
maintaining public order, without which liberty itself would
be lost in the excesses of anarchy. The control of travel
on the streets is a clear example of governmental
responsibility to insure this necessary order. A
restriction in that relation, designed to promote the public
convenience in the interest of all, and not susceptible to
abuses of discriminatory application, cannot be disregarded
by the attempted exercise of some civil right which, in
other circumstances, would be entitled to protection. One
would not be justified in ignoring the familiar red light
because this was thought to be a means of social protest.
Nor could one, contrary to traffic regulations, insist upon
a street meeting in the middle of Times Square at the rush
hour as a form of freedom of speech or assembly.
Governmental authorities have the duty and responsibility to
keep their streets open and available for movement. A group
of demonstrators could not insist upon the right to cordon
off a street, or entrance to a public or private building,
and allow no one to pass who did not agree to listen to
their exhortations.
(citations omitted) (emphases added).
The U.S. Supreme Court then stated: "We emphatically
reject the notion urged by appellant that the First and
Fourteenth Amendments afford the same kind of freedom to those
who would communicate ideas by conduct such as patrolling,
marching, and picketing on streets and highways, as these
amendments afford to those who communicate ideas by pure speech."
Id. at 555. The Supreme Court then reaffirmed that "it has never
been deemed an abridgement of freedom of speech or press to make
a course of conduct illegal merely because the conduct was in
part initiated, evidenced, or carried out by means of language,
7
(...continued)
U.S. Const. amend. I. The First Amendment is applicable to the States through
the Fourteenth Amendment. Virginia v. Black, 538 U.S. 343, 358 (2003).
The Hawai#i Constitution provides:
No law shall be enacted respecting an establishment of
religion, or prohibiting the free exercise thereof, or
abridging the freedom of speech or of the press or the right
of the people peaceably to assemble and to petition the
government for a redress of grievances.
Haw. Const. art. I, § 4.
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either spoken, written, or printed." Id. (quoting Gilboney v.
Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)).8
Notwithstanding Kaeo's argument that he intended to
express his opposition to the DKIST construction in a peaceful
and non-violent manner, he protested by physical conduct,
chaining himself to others and blocking the transport convoy from
having access to the highway from the Baseyard. See State v.
Jim, 105 Hawai#i 319, 334, 97 P.3d 395, 410 (App. 2004) (relying
on case law citing Cox and holding that the defendant's protest,
which physically obstructed county water supply workers from
doing their work on Hawaiian Home Lands property, was conduct
outside the scope of any free speech right under the First
Amendment of the U.S. Constitution and article I, § 4 of the
Hawai#i Constitution); State v. Guzman, 89 Hawai#i 27, 36, 968
P.2d 194, 203 (App. 1998) (rejecting defendants' argument that a
statute, which prohibited obstruction of ingress or egress from
any public or private place, was unconstitutional for chilling
free expression where defendants picketed at the entrance to a
hospital due to a labor dispute and impeded traffic). Here,
Kaeo's act of lying on the ground connected with PVC pipes to
other individuals to prevent the convoy from exiting the Baseyard
8
Kaeo argues that Cox is distinguishable, where the U.S. Supreme Court
reversed the conviction of the defendant. However, with regard to the
pertinent part of Cox, related to the defendant's conviction for Obstructing
Public Passages, the conviction was not reversed because the Louisiana statute
was constitutionally infirm, but rather because the U.S. Supreme Court
determined that public officials in Baton Rouge were allowed unbridled
discretion to determine which gatherings would be allowed and thus enabled
such officials to determine which expressions would be permitted and which
would not. Id. at 557. The U.S. Supreme Court thus concluded:
[H]ere it is clear that the practice in Baton Rouge allowing
unfettered discretion in local officials in the regulation
of the use of the streets for peaceful parades and meetings
is an unwarranted abridgment of appellant's freedom of
speech and assembly secured to him by the First Amendment,
as applied to the States by the Fourteenth Amendment. It
follows, therefore, that appellant's conviction for
violating the statute as so applied and enforced must be
reversed.
Id. at 558. Kaeo raises no argument in this case that Hawai #i's Disorderly
Conduct statute, HRS § 711-1101, has been applied in a discriminatory manner
or with unfettered discretion.
7
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onto the adjacent highway constituted expression mixed with
conduct which was outside the scope of First Amendment and
article I, § 4 freedom of speech and freedom to assemble
protection.
Alternatively, Kaeo argues that HRS § 711-1101(1)(d)
must be construed to include the federal and state constitutional
right of free speech and assembly as an "authorized license or
permit." However, Kaeo does not provide any legal authority to
support his contention and does not argue that the statute is
unconstitutionally vague or overbroad. Regardless, as discussed
above, his actions did not fall within the scope of federal and
state constitutional protections of free speech and peaceful
assembly. Therefore, we disregard this argument.
B. The District Court Did Not Err in FOF 4 and FOF 23
Kaeo contends the District Court's FOF 4 and FOF 23 are
clearly erroneous.
1. FOF 4
The District Court's FOF 4 states, "McMullen
demonstrated, using State's Exhibits 7, 9, and 12, that there was
only one practical exit from the Central Maui Baseyard to
Mokulele Highway through which the transport trucks could leave."
Kaeo contends FOF 4 is clearly erroneous because McMullen, as the
project manager of DKIST, "was not competent to testify as to any
authorized ingress and egress at the [Baseyard] because no
foundation was laid as to his personal knowledge."
"Findings of fact 'are subject to the clearly erroneous
standard of review. A finding of fact is clearly erroneous when,
despite evidence to support the finding, the appellate court is
left with a definite and firm conviction that a mistake has been
committed.'" State v. Enos, 147 Hawai#i 150, 158–59, 465 P.3d
597, 605–06 (2020) (quoting State v. Rapozo, 123 Hawai#i 329,
336, 235 P.3d 325, 332 (2010)).
Kaeo raised his objection to McMullen's testimony as
follows:
[THE STATE:] Okay. And why did you choose this area to
exit, um, with the equipment pieces?
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[MCMULLEN:] That's the –- we were given permission to do
that and that's the only gate that really is practical for
the size trucks that we have to egress from the baseyard.
[THE STATE:] You say at the tame [sic] there was a gate that
blocked the entrance to the baseyard itself?
[DEFENSE COUNSEL:] Objection, your Honor, lack of
competency. Apparently he's not the proprietor of this area
and I object for grounds of not competent.
THE COURT: What was your question again, Mr. Segal?
[THE STATE:] At the time on July 30th, was –- was there a
gate that blocked entrance to the area?
[MCMULLEN:] Yeah –-
[DEFENSE COUNSEL:] Your Honor, again, I really want to
object. He is simply a project manager of the telescope.
There's no relevancy as to his personal contact and
knowledge about the baseyard.
[THE STATE:] He established, Judge, he was there on July
30th.
THE COURT: Your objection is noted and overruled.
Hawaii Rules of Evidence (HRE) Rule 602 states in
relevant part, "[a] witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove
personal knowledge may, but need not, consist of the witness' own
testimony." Furthermore, "[a] witness must testify based on
personal knowledge, which by definition means the witness
perceived an event and has a present recollection of that
perception." State v. Wakamoto, 143 Hawai#i 443, 452, 431 P.3d
816, 825 (2018) (citing Commentary to HRE Rule 602).
Prior to Kaeo's objection, McMullen testified that he
worked on the DKIST project for about four-and-a-half years and
that as the project manager, McMullen managed the day-to-day
construction efforts and was responsible for, inter alia, the
delivery of the full science scope at the observatory. McMullen
testified that he had been to the Baseyard a few times and became
familiar with the layout of the Baseyard as part of his duties.
McMullen also provided details of the components, explained the
plans for transporting the components and testified that he was
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in Maui on July 30, 2015, in particular for the transport of the
components.
McMullen's testimony regarding the authorized egress of
the components through the MECO gate was based on his familiarity
with the Baseyard and his personal knowledge of the plan for the
convoy on July 30, 2015. Thus, there was sufficient foundation
for McMullen's testimony that the MECO gate was the only
practical exit for the size of the trucks and the District Court
did not err in allowing McMullen's testimony regarding the egress
of the convoy. Accordingly, the District Court's FOF 4 is not
erroneous.
2. FOF 23
The District Court's FOF 23 states, "[a]s the custodian
of records for []DOT, [Irvin] Pigao testified that on July 30,
2015, []DOT did not issue any permits to block the multi-use
pathway or to block the ingress and egress onto Mokulele Highway
in the area of the Central Maui Baseyard." Kaeo contends that
FOF 23 is clearly erroneous because the District Court erred in
not admitting into evidence Defense Exhibit L, which consisted of
permits issued by the State of Hawai#i Department of
Transportation (DOT) to DKIST and its agents for the transport of
oversized trucks during June and July 2015.
Kaeo sought to introduce Defense Exhibit L to show DOT
had not issued permits to DKIST or its agents to transport the
materials on July 30, 2015. Kaeo also alleges Defense Exhibit L
contradicts McMullen's testimony that the MECO gate was the only
practical exit from the Baseyard. The District Court refused to
admit this evidence after the State objected based on relevance.
When there can only be one correct answer as to
admissibility of evidence, or when reviewing questions of
relevance under HRE Rules 401 and 402, the appellate court
applies the right/wrong standard of review. State v. Acacio, 140
Hawai#i 92, 98, 398 P.3d 681, 687 (2017) (citation omitted). HRE
Rule 401 provides the definition for relevant evidence as
"evidence having any tendency to make the existence of any fact
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that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
HRE Rule 402 provides, in pertinent part that "[e]vidence which
is not relevant is not admissible."
Kaeo fails to explain how a permit or lack thereof for
the convoy to transport the materials to Haleakalâ is relevant to
FOF 23, which found that DOT did not issue permits to block the
crosswalk or the ingress and egress onto Mokulele Highway in the
area of the Baseyard. Kaeo also fails to explain how Defense
Exhibit L contradicts McMullen's testimony that the MECO gate was
the only practical exit from the Baseyard. Thus, the District
Court properly concluded that the evidence of whether DKIST or
its agents had a permit for the convoy on July 30, 2015, was
irrelevant to the determination of the charge against Kaeo. See
HRS § 711-1101(1)(d). Accordingly, the District Court's FOF 23
is not erroneous.
C. The District Court Did Not Err in COL 1, COL 2, or COL 3
Kaeo contends that the District Court's COL 1, COL 2,
and COL 3 are wrong.
1. COL 1
In COL 1, the District Court concluded that "[t]he
testimony of the State's witnesses were more credible than that
of the Defendant and the Defendant's witnesses." Kaeo contends
that the District Court's COL 1 is erroneous as a matter of law
because it is arbitrary and against the weight of the evidence.
Kaeo does not provide any authority in support of his
contention. Nevertheless, "[i]t is well-settled that an
appellate court will not pass upon issues dependent upon the
credibility of witnesses and the weight of the evidence; this is
the province of the trier of fact." State v. Jenkins, 93 Hawai#i
87, 101, 997 P.2d 13, 27 (2000) (citations and brackets omitted).
The Hawai#i Supreme Court has also stated that in a bench trial,
it is for the trial judge as fact-finder to assess the
credibility of witnesses and to resolve all questions of
facts; the judge may accept or reject any witness's
testimony in whole or in part. State v. Eastman, 81 Hawai #i
131, 139, 913 P.2d 57, 65 (1996). It is not the role of the
appellate court to weigh credibility or resolve conflicting
evidence. Id.11
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State v. Monteil, 134 Hawai#i 361, 368, 341 P.3d 567, 574 (2014)
(internal quotation marks, brackets, and citation omitted).
Kaeo also argues that the District Court should have
specified which part or parts of the testimony it found was not
credible. However, "a court is not required to make express
findings regarding credibility and weight." State v. Rodrigues,
128 Hawai#i 200, 210, 286 P.3d 809, 819 (2012) (citing State v.
Patterson, 58 Haw. 462, 468, 571 P.2d 745, 749 (1977)). Thus,
the District Court did not err in finding the State's witnesses
more credible.
2. COL 2
COL 2 states that "[t]he State has proven, beyond a
reasonable doubt, each and every element of the charge of
Disorderly Conduct as set forth in the complaint filed July 31,
2015." Kaeo argues that COL 2 is erroneous because his conduct
was directed toward a private entity, his conduct did not create
a hazardous or physically offensive condition, and even if the
evidence is sufficient to sustain his conviction, the evidence is
insufficient to sustain the offense as a petty misdemeanor.
Kaeo challenges the sufficiency of the evidence, which
we review as follows:
Evidence adduced in the trial court must be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to
support a conviction; the same standard applies whether the
case was before a judge or jury. The test on appeal is not
whether guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.
State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)
(citations and brackets omitted). "'Substantial evidence' as to
every material element of the offense charged is credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Id. (citation omitted).
As previously stated, HRS § 711-1101(1)(d) provides:
§711-1101 Disorderly conduct. (1) A person commits
the offense of disorderly conduct if, with intent to cause
physical inconvenience or alarm by a member or members of
the public, or recklessly creating a risk thereof, the
person:
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. . .
(d) Creates a hazardous or physically offensive
condition by any act which is not performed
under any authorized license or permit[.]
(emphases added).
We first address whether the approximately twenty
individuals involved in the convoy in this case constitute a
"member or members of the public" under HRS § 711-1101(1)(d).
"Statutory interpretation is a question of law reviewable de
novo." State v. Castillon, 144 Hawai#i 406, 411, 443 P.3d 98,
103 (2019) (citation omitted).
As set forth in HRS § 711-1100 (2014), "[p]ublic" means
"affecting or likely to affect a substantial number of persons."
Further, "[p]ublic place" means:
a place to which the public or a substantial group of
persons has access and includes highways, transportation
facilities, schools, places of amusement or business, parks,
playgrounds, prisons, and hallways, lobbies, and other
portions of apartment houses and hotels not constituting
rooms or apartments designed for actual residence.
(emphasis added).
The commentary to HRS § 711-1101 carves out an
exception for police officers and provides in pertinent part:
A person may not be arrested for disorderly conduct as a
result of activity which annoys only the police, for
example. Police officers are trained and employed to bear
the burden of hazardous situations, and it is not infrequent
that private citizens have arguments with them. Short of
conduct which causes "physical inconvenience or alarm to a
member or members of the public" arguments with the police
are merely hazards of the trade, which do not warrant
criminal penalties.
(emphases added) (footnote omitted).
The approximately twenty individuals involved with the
convoy in this case were not police officers. Kaeo argues his
conduct "was directed toward a small, private entity – the DKIST
– and did not cause any inconvenience or alarm to any member or
members of the public[.]" However, neither the commentary to HRS
§ 711-1101 nor the definition of "public" under HRS § 711-1100
preclude the approximately twenty individuals involved in the
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convoy, whether they were employees of DKIST or otherwise,9 from
being members of the public for purposes of HRS § 711-1101(1).
In State v. Spencer, No. 29176, 2009 WL 1888943, at *1
(App. July 2, 2009) (SDO), the defendant was convicted of
disorderly conduct, but argued on appeal that the State failed to
show that he intended to cause physical inconvenience or alarm by
a member or members of the public. In that case, the defendant
yelled at the complaining witness, challenged him to a fight,
attempted to strike him, and followed him into a building in
which the defendant did not reside in order to confront him. Id.This court concluded that the defendant's conduct recklessly
caused alarm and rejected the defendant's argument that there
were no members of the public present. Id. We explained:
There was evidence that there were a "bunch of people"
standing in front of the building, about twenty people
standing in the lobby of the building, and five room
assistants inside the lobby who witnessed the incident.
Spencer's argument that the incident took place in a private
building rather than a public place and that what occurred
was private conduct between two people in a private building
is also without merit. Spencer's conduct was committed in a
public place as defined in HRS § 711–1100.
Id. We thus affirmed the defendant's conviction.
Further, we conclude that State v. Leung, 79 Hawai#i
538, 904 P.2d 552 (App. 1995), is distinguishable. In Leung,
this court held there was insufficient evidence of disorderly
conduct under HRS § 711-1101(1)(b)10 where the defendant
allegedly made unreasonable noise in a theater lobby while
detained by four police officers and the theater manager. Id. at
544, 904 P.2d at 558. The theater manager had already detained
the defendant and his three companions when the police arrived,
with the manager explaining that he had heard a loud popping
noise like fire crackers or something similar to a gun shot and
that the defendant and his friends were possibly the cause of the
9
It is unclear from the record whether the individuals involved with
the convoy were employees of DKIST.
10
Subsection (b) of HRS § 711-1101(1) provides: "(b) Makes
unreasonable noise[.]"
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noise. Id. at 540, 904 P.2d at 554. After the police arrived,
the defendant cursed at the theater manager and began to yell and
shout obscenities at the manager and police. Id. During the
incident, there were people leaving who had been watching a movie
and people outside gathering, with a police officer estimating a
hundred people outside and at least a hundred people inside. Id.
at 541, 904 P.2d at 555. This court noted that theater patrons
waiting for or exiting a movie, who simply stopped or slowed to
satisfy their curiosity about the defendant's encounter with
police cannot be said to be physically inconvenienced or alarmed.
Id. at 544, 904 P.2d at 558. Further, we noted "[t]here is no
evidence that Defendant caused physical inconvenience to any
member of the public or that the public was alarmed because at
the time he allegedly made 'unreasonable noise,' he was under the
control of the four police officers and the theater manager."
Id. (emphases added). Further, we explained that "[a]ssuming
there was some inconvenience or alarm, there was clearly 'no
physical inconvenience or alarm' to any members of the public[.]"
Id.In Leung, therefore, this court did not consider or
analyze the theater manager as a member of the public because the
manager had been the one to detain the defendant. Further, the
theater manager did not testify, id. at 542, 904 P.2d at 556,
and thus there was no evidence from the theater manager whether
the manager was physically inconvenienced or alarmed by the
defendant.
Similarly, we conclude that State v. Moser, 107 Hawai#i
159, 111 P.3d 54 (App. 2005), is distinguishable from the instant
case. In Moser, we held there was insufficient evidence to
support a conviction for disorderly conduct based on unreasonable
noise in a public library, under HRS § 711-1101(1)(b). In Moser,
the defendant was soft-spoken when she first approached the
circulation desk and a library employee to apply for a library
card. Id. at 161, 111 P.3d at 56. However, the defendant became
upset and began speaking loudly when the employee requested to
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clarify the defendant's middle initial. Id. The library manager
was in a back room when he heard someone raise their voice, so he
went out to investigate. Id. at 162, 111 P.3d at 57. After
initially observing the defendant, the manager approached her,
told her that her behavior was not appropriate, identified
himself, and said if she did not lower her voice she would be
asked to leave. Id. at 162-63, 111 P.3d at 57-58. The defendant
did not lower her voice, the manager asked her to leave but she
would not leave, so the manager called the police. Id. at 163,
111 P.3d at 58.
In reversing the conviction in Moser, we noted that the
defendant's behavior was "considerably tamer" than in Leung and
in other disorderly conduct cases based on unreasonable noise
that had been reversed on appeal. Id. at 175, 111 P.3d at 70.
We also noted there was no evidence the defendant addressed
anyone other than the library employee and the manager, or that
the defendant intended to physically inconvenience or alarm any
member of the public by speaking loudly. Id. Given the
evidence, we noted "it is unclear whether any other patron was in
the library that day and, if so, whether it was the raising of
[the defendant's] voice or the dialogue between [the defendant]
and [the library manager] that attracted the patron's attention."
Id. at 175-76, 111 P.3d at 70-71.
Although Moser does not analyze the effect of the
defendant's conduct on the library employee or the library
manager, there is also no analysis or holding that these
individuals could not be "a member or members of the public"
under HRS § 711-1101(1). The evidence previously recited in
Moser reflects that neither of these individuals was physically
inconvenienced or alarmed by the defendant's conduct. The
library employee testified the defendant's voice was not the
loudest she had ever heard in the library and her testimony did
not reflect any alarm or physical inconvenience to her by the
defendant's conduct. Id. at 161-62, 111 P.3d at 56-57.
Similarly, the library manager's testimony did not reflect any
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alarm or physical inconvenience to him by the defendant's
conduct. Id. at 162-63, 111 P.3d at 57-58. The manager's
testimony included that, after hearing someone raise their voice
he "went out to investigate the situation[,]" he thought it was
"kind of interesting that [the defendant] would be so upset about
something like her middle initial," he initially just "sat there
and witnessed" the library employee continue to process the
library card application, he approached the defendant after she
was given her library card and she continued to be upset, and
"since he was in charge of the branch, it was his responsibility
to ask patrons who engage in behavior deemed disruptive by the
library staff to leave." Id. at 162-63, 111 P.3d at 57-58(quotation marks and ellipsis omitted). When the defendant would
not "tone it down[,]" the manager asked her to leave but she did
not, so he called the police. Id. at 163, 111 P.3d at 58. After
calling the police he "probably wandered around the library
trying to continue his work[,]" and the defendant "used the
library quietly until the police arrived." Id. (quotation marks
and brackets omitted).
Unlike the current case, in Moser there was no evidence
of physical inconvenience by anyone due to the defendant's
conduct to support the disorderly conduct conviction based on
unreasonable noise.
In this case, based on HRS § 711-1101(1)(d), i.e.
creating a hazardous or physically offensive condition,
McMullen's testimony establishes that Kaeo's conduct of chaining
himself to others and lying in the driveway by the MECO gate
blocked the convoy from reaching the highway and delayed the
transport for three hours. The convoy consisted of four
vehicles, three trucks, and several mechanics trucks, with
approximately twenty workers involved in the transport convoy.
In short, those involved with the transport convoy were
physically inconvenienced because Kaeo was lying on the driveway
between the MECO gate and the highway.
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Given the record in this case, there is sufficient
evidence to support the District Court's conclusion that the
approximately twenty individuals involved with the transport
convoy were "members of the public" within the meaning of HRS
§ 711-1101 and that Kaeo intended to cause, or recklessly created
a risk of causing, physical inconvenience to them.
Next, Kaeo cites to the commentary for HRS § 711-1101
and suggests that his conduct of lying on the ground did not
create a hazardous or physically offensive condition.11 However,
Kaeo's conduct went beyond simply lying on the ground.
McMullen testified that when the trucks attempted to
leave the Baseyard and the nose of a truck pulled out just beyond
the gate, the protesters approached the trucks, the trucks had to
stop, and the protesters were just a few feet from the trucks
with the engines of the trucks still running. According to
McMullen, some protesters who had black tubes connecting their
arms then laid themselves down onto the ground a few feet in
front of the trucks. Capt. Holokai testified that Kaeo was one
of the protesters attached to others with PVC pipes on the ground
approximately five to ten feet away from the transport trucks.
Sgt. Kapalehua testified that Kaeo was among the protesters lying
on the ground on his back, legs spread, with both of his arms
linked to others by PVC pipes, and that Kaeo was very close to
the trucks. Sgt. Kapalehua testified the trucks were idling and
he could almost feel the heat from the engine while working to
get Kaeo detached. Sgt. Kapalehua further testified that because
11
The HRS § 701-1101 commentary provides, in relevant part:
Subsection (1)(d) is defined to include creation of a
hazardous or physically offensive condition by an act not
covered by any authorized license or permit. It would
prohibit, for example, the use of a "stink bomb," strewing
garbage or other noxious substances in public places, and
turning off the lights in a public auditorium. Although
there is some degree of overlap in some situations between
this provision and § 708-828 (criminal use of noxious
substances) and § 708-829 (criminal littering), subsection
(1)(d) is needed to cover those cases of public annoyance
where a private property owner does not wish to file a
complaint or where title to property is not clear.
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the protesters were non-compliant it would have been hazardous to
move Kaeo and the others while they were linked together.
Given the record, there was substantial evidence to
support a finding that Kaeo's conduct created a hazardous
condition.
Next, Kaeo argues that his conviction should be a
violation and not a petty misdemeanor because there is
insufficient evidence to sustain a finding that he "intended to
cause substantial harm or serious inconvenience." HRS § 711-
1101(3) provides that: "Disorderly conduct is a petty misdemeanor
if it is the defendant's intention to cause substantial harm or
serious inconvenience, or if the defendant persists in disorderly
conduct after reasonable warning or request to desist. Otherwise
disorderly conduct is a violation."
Addressing the issue of intent, the Hawai#i Supreme
Court has stated that:
We have consistently held that since intent can rarely be
proved by direct evidence, proof by circumstantial evidence
and reasonable inferences arising from circumstances
surrounding the act is sufficient to establish the requisite
intent. Thus, the mind of an alleged offender may be read
from his acts, conduct, and inferences fairly drawn from all
the circumstances.
State v. Kiese, 126 Hawai#i 494, 502-03, 273 P.3d 1180, 1188-89
(2012) (citation omitted).
Here, Kaeo drove onto the Baseyard before 7 p.m. on the
evening in question, asked McMullen "is this the place where the
transport was going to happen?" and then said "you better get
ready" and that they "were in for the night." Kaeo also tied his
arms to other protesters with PVC pipes and duct tape before
lying down in front of the convoy. This made it difficult for
MPD officers to physically move Kaeo and the other protesters out
of the way without first cutting the PVC pipe. Additionally, the
SPEED team had to move slowly in cutting through and removing the
PVC pipe to ensure no one was injured. McMullen testified that
as a result of the protester's actions, the transport was delayed
for three hours. In FOF 60, the District Court found that during
cross-examination, Kaeo testified that his intent was, inter
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alia, to challenge DKIST developers and that he was hoping for
the same result from the month prior where the DKIST transport
was stopped but no one was arrested. Given the record in this
case, there was substantial evidence to support Kaeo's conviction
as a petty misdemeanor.
3. COL 3
Finally, Kaeo contends that the District Court erred in
COL 3 which states, "Defendant argued at trial that the Choice of
Evils defense, set forth in Section 703-302, Hawaii Revised
Statutes, applies in the instant case. The Court concludes that
the Defendant failed to establish the essential elements of the
Choice of Evils defense."12 (Footnote omitted). The defendant
has the burden of producing some credible evidence of the
existence of a justification defense such as choice of evils.
See HRS § 703-301 (2014) cmt. Kaeo argues the evidence clearly
shows he had established the essential elements of the choice of
evils defense under HRS § 703-302 and that he reasonably believed
his actions were necessary to prevent imminent harm to his psyche
due to the cultural desecration of Haleakalâ from the delivery of
DKIST construction materials.
12
HRS § 703-302 (2014) provides, in relevant part:
§703-302 Choice of Evils. (1) Conduct which the actor
believes to be necessary to avoid an imminent harm or evil
to the actor or to another is justifiable provided that:
(a) The harm or evil sought to be avoided by such
conduct is greater than that sought to be
prevented by the law defining the offense
charged;
(b) Neither the Code nor other law defining the
offense provides exceptions or defenses dealing
with the specific situation involved; and
(c) A legislative purpose to exclude the
justification claimed does not otherwise plainly
appear.
(2) When the actor was reckless or negligent in
bringing about the situation requiring a choice of harms or
evils or in appraising the necessity for the actor's
conduct, the justification afforded by this section is
unavailable in a prosecution for any offense for which
recklessness or negligence, as the case may be, suffices to
establish culpability.
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In State v. Maumalanga, 90 Hawai#i 58, 63, 976 P.2d
372, 377 (1998), the Hawai#i Supreme Court held that all of the
elements of the choice of evils defense are contained within the
express statutory language of HRS § 703-302 and any common law
considerations have been superseded by the adoption of the
Hawai#i Penal Code. For the choice of evils defense to apply,
one element on which Kaeo had to present credible evidence was
that he believed his conduct "to be necessary to avoid an
imminent harm or evil to the actor or to another[.]" HRS § 703-
302(1); See also HRS § 703-300 (2014) ("'Believes' means
reasonably believes."); State v. Kauhane, 145 Hawai#i 362, 374,
452 P.3d 359, 371 (2019) (holding that for the choice of evils
defense, although the defendant's belief had to be objectively
reasonable, it was also necessary that the defendant in fact
subjectively held such a belief).
The commentary to HRS § 703-302 emphasizes that the
choice of evils or "necessity" defense is permitted in certain
limited situations. See HRS § 703-302 cmt. The commentary also
states that "[t]he danger causing the necessity of choosing
between evils must be imminent[,]" and explains that blind
compliance with a criminal statute is unlikely to be required in
the face of an emergency. See HRS § 703-302 cmt; see also U.S.
v. Maxwell, 254 F.3d 21, 27 (1st Cir. 2001) (explaining
"'imminent harm' connotes a real emergency, a crisis involving
immediate danger to oneself or to a third party."); Com. v.
Capitolo, 498 A.2d 806, 809 (Pa. 1985) (holding that the
necessity defense was not applicable to defendants who had
trespassed onto a nuclear power plant, sat down holding hands,
and refused to leave, where "[t]heir act of criminal trespass was
a deliberate and calculated choice, not an act that was urgently
necessary to avoid a clear and imminent danger.").
Here, as the District Court found, Kaeo testified that
he had attempted through many other avenues and hearings to stop
the telescope construction, and that his claimed harm to
Haleakalâ as a result of the ongoing construction had been going
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on for the last four to five years. The asserted harm Kaeo
sought to avoid had been ongoing and continuous. Given the
record in this case, Kaeo did not establish an emergency or
imminent harm under the choice of evils defense.
The District Court did not err in concluding that Kaeo
failed to establish the essential elements of the choice of evils
defense.
III. Conclusion
Based on the foregoing, the "Trial Decision and Order"
filed on June 15, 2016, and the "Judgement and Notice of Entry of
Judgment" filed on June 29, 2016, by the District Court of the
Second Circuit, are affirmed.
On the briefs:
/s/ Lisa M. Ginoza
Hayden Aluli, Chief Judge
for Defendant-Appellant.
/s/ Katherine G. Leonard
Renee Ishikawa Delizo, Associate Judge
Deputy Prosecuting Attorney,
for Plaintiff-Appellee.
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DISSENTING OPINION by Nakasone, J.
With respect to the Majority's affirmance of COL 2, I
dissent because I believe there was insufficient evidence of
Kaeo's intent that his conduct cause the specific result of
physical inconvenience to a member or members of the public, or
with reckless disregard that his conduct might produce such a
result. I respectfully disagree with the majority's conclusion
that the "approximately 20 individuals involved with the
transport convoy were 'members of the public' within the meaning
of HRS § 711-1101[.]"
"Member or members of the public" means the general
public
HRS § 711-1101(1) (2014), the disorderly conduct
statute provides:
(1) A person commits the offense of disorderly conduct if,
with intent to cause physical inconvenience or alarm by a
member or members of the public, or recklessly creating a
risk thereof, the person:
(a) Engages in fighting or threatening, or in violent
or tumultuous behavior;
(b) Makes unreasonable noise;
(c) Subjects another person to offensively coarse
behavior or abusive language which is likely to
provoke a violent response;
(d) Creates a hazardous or physically offensive
condition by any act which is not performed under
any authorized license or permit; or
(e) Impedes or obstructs, for the purpose of begging
or soliciting alms, any person in any public place
or in any place open to the public.
(Emphasis added). As explained infra, I believe that pursuant to
statutory construction principles and the Commentary on HRS §
711-1101, the words "the public" in the disorderly conduct
statute have an ordinary meaning, and that the HRS § 711-1100
(2014 & Supp. 2015) definition of the adjective "public" as
"affecting or likely to affect a substantial number of persons,"
does not apply to the phrase "member or members of the public" in
the disorderly conduct statute.
A "rational, sensible and practicable interpretation of
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a statute is preferred to one which is unreasonable or
impracticable, because the legislature is presumed not to intend
an absurd result, and legislation will be construed to avoid, if
possible, inconsistency, contradiction, and illogicality." In re
Doe, 90 Hawai#i 246, 251, 978 P.2d 684, 689 (1999) (internal
citations, brackets and quotation marks omitted)). Using the HRS
§ 711-1100 definition of the adjective "public" for the noun "the
public" in the disorderly conduct statute leads to illogicality.
Applying this definition to the disorderly conduct charge here,
the language in the Complaint would read, "Samuel K. Kaeo, with
intent to cause substantial harm or serious physical
inconvenience by a member or members of the ['affecting or likely
to affect a substantial number of persons'], or reckless creating
a risk thereof . . . ." See Count 3 of the Complaint (quoting
HRS § 711-1100 definition of "public"). This does not make
sense. In addition, using the HRS § 711-1100 definition of the
adjective "public" in the definitions of "private place"1 and
"public place"2 that also appear in that section and contain the
term "the public," similarly leads to illogical and redundant
results.
"It is a cardinal rule of statutory construction that
courts are bound, if rational and practicable, to give effect to
all parts of a statute, and that no clause, sentence, or word
shall be construed as superfluous, void, or insignificant if a
construction can be legitimately found which will give force to
and preserve all words of the statute." Franks v. City and
County of Honolulu, 74 Haw. 328, 330, 843 P.2d 668, 669 (1993)
(citations omitted). If the words "the public" in the disorderly
conduct statute mean "affecting or likely to affect a substantial
number of persons[,]" then the statute cannot logically be
1
The "private place" definition in HRS § 711-1100 provides, inter
alia, that it "does not include a place to which the public or a substantial
group thereof has access." (Emphasis added).
2
The "public place" definition in HRS § 711-1100 provides, inter
alia, that it means "a place to which the public or a substantial group of
persons has access . . . ." (Emphasis added).
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employed in a case where only one person, or a single member of
the public, is affected. HRS §§ 711-1100, 711-1101. The
disorderly conduct statute, however, clearly does apply where
even a single "member" of "the public" is inconvenienced or
alarmed by a defendant's conduct. Conversely, if the words "the
public" in the disorderly conduct statute mean "affecting or
likely to affect a substantial number of persons," then the
plural "members of the public" is redundant. The plural form
"members" is unnecessary and superfluous if "public" already
means a substantial number of persons. See HRS §§ 711-1100, 711-
1101. For these reasons, applying HRS § 711-1100's definition of
the adjective "public" to the words "the public" in the
disorderly conduct statute, renders the words "member or members"
redundant or superfluous, leading to an illogical construction
and absurd result.3 HRS § 711-1100 acknowledges that its
definitions apply "unless a different meaning is plainly
required, or the definition is otherwise limited . . . ."
(Emphasis added). For the disorderly conduct statute, a
different meaning of "the public" other than the definition of
"public" in HRS § 711-1100 is plainly required.
The Commentary on HRS § 711-1101 "may be used as an aid
in understanding the provisions of the [Hawai#i Penal] Code."
HRS § 701-105 (2014); see State v. Teale, 139 Hawai#i 351, 355-
56, 390 P.3d 1238, 1242-43 (2017) (utilizing the commentary to
HRS § 711-1101 as an aid to determine the meaning of "tumultuous"
3
The same absurd interpretation results when applying the default
"public" definition in HRS § 711-1100 as an adjective, to other public order
offenses in HRS Chapter 711 that use the term "the public" as a noun. See
e.g. HRS § 711-1101(e) offense of Begging or Soliciting ("Impedes or
obstructs, for the purpose of begging or soliciting alms, any person in any
public place or in any place open to the public.") (emphasis added); HRS §
711-1107(1) offense of Desecration ("(1) A person commits the offense of
desecration if the person intentionally desecrates: (a) Any public monument or
structure; (b) A place of worship or burial; or (c) In a public place the
national flag or any other object of veneration by a substantial segment of
the public.") (emphasis added); HRS § 711-1111(3) offense of Violation of
Privacy in the Second Degree ("'Public place' means an area generally open to
the public, regardless of whether it is privately owned, and includes but is
not limited to streets, sidewalks, bridges, alleys, plazas, parks, driveways,
parking lots, buses, tunnels, buildings, stores, and restaurants.") (emphasis
added).
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in the disorderly conduct statute subsection (1)(a)). The
Commentary to HRS § 711-1101 pertinently provides:
Subsection (1)(a) is a standard clause in disorderly conduct
legislation, aimed at actual fights and at other behavior
tending to threaten the public generally, for this section
requires public alarm, etc., as distinguished from the
private alarm which may accompany assault. This is an
important point. A person may not be arrested for
disorderly conduct as a result of activity which annoys only
the police, for example. Police officers are trained and
employed to bear the burden of hazardous situations, and it
is not infrequent that private citizens have arguments with
them. Short of conduct which causes "physical inconvenience
or alarm to a member or members of the public" arguments with
the police are merely hazards of the trade, which do not
warrant criminal penalties.
(Emphases added) (footnote in original omitted). The Commentary
on HRS § 711-1101 emphasizes as an "important point" that the
statute is "aimed" at behavior directed to "the public
generally." Id. The Commentary clarifies that subsection (a)
encompasses fighting or threatening behavior that threatens or
tends to threaten the public generally, and the statute does not
include fighting or threatening directed to private individuals.
See id. In an assault charge, a defendant's fighting is targeted
to a private individual and may cause "private alarm," as
distinguished from the public alarm required for disorderly
conduct. See id. To fall within the scope of the disorderly
conduct statute, a defendant's fighting behavior must be targeted
to the public generally to establish the required public alarm
element. The Commentary cites the police as an "example" of a
group or a category of persons that is excluded from "the public
generally[.]" Id. In noting that the police are but one example
of an exclusion, the Commentary does not suggest that the police
are the only example. Other categories of persons or groups may
also be excluded from "the public generally," depending on the
circumstances.
The statutory focus on specifically targeting conduct
that impacts the public generally is consistent with the Model
Penal Code (MPC). "[I]t is appropriate to look to the Model
Penal Code and its commentary for guidance" when interpreting
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criminal statutes derived from the MPC. State v. Aiwohi, 109
Hawai#i 115, 126, 123 P.3d 1210, 1221 (2005); see Teale, 139
Hawai#i at 355-56, 390 P.3d at 1242-43. Hawai#i's disorderly
conduct statute is based on MPC § 250.2, which provides:
§ 250.2 Disorderly Conduct
(1) Offense Defined. A person is guilty of disorderly
conduct if, with purpose to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof,
he:
(a) engages in fighting or threatening, or in
violent or tumultuous behavior; or
(b) makes unreasonable noise or offensively
coarse utterance, gesture or display, or addresses abusive
language to any person present; or
(c) creates a hazardous or physically offensive
condition by any act which serves no legitimate purpose of
the actor.
"Public" means affecting or likely to affect persons in a
place to which the public or a substantial group has access;
among the places included are highways, transport
facilities, schools, prisons, apartment houses, places of
business or amusement, or any neighborhood.
Model Penal Code § 250.2 (Am. Law Inst. 1980) (asterisk removed)
(first emphasis in original and second emphasis added). MPC §
250.2 pertinently explains that:
The Model Code does not authorize police intrusion into the
home or place of business to control private misbehavior
simply because it may be offensive to others. Instead, the
offense is limited to persons who act purposely or
recklessly with respect to public annoyance or alarm. Of
course, if private offensive conduct rises to the level of
assault or other crime, it may be punished elsewhere in the
Model Code.
Id. § 250.2 cmt. (Emphases added). The MPC clarifies that the
disorderly conduct statute is "limited" to conduct that has the
specified impact of "public inconvenience or alarm" and excludes
"private misbehavior." Id. Further, the MPC notes that the
disorderly conduct statute does not punish such behavior that
occurs in private places such as a "home or place of business"
and points out that if such private conduct rises to the level of
crime, it may be punished via other MPC statutes. See id.
Applying an ordinary meaning of "the public" to the
disorderly conduct statute leads to a rational and practical
construction that comports with the Commentary to the statute.
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The words "the public" are ubiquitously used, and have an
ordinary, common meaning. In conducting a plain meaning
analysis, the words of a statute "must be taken in their ordinary
and familiar signification," with regard "to their general and
popular use." Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439,
449, 420 P.3d 370, 380 (2018) (quotation marks and citations
omitted). A court may also "resort to legal or other well
accepted dictionaries as one way to determine the ordinary
meaning of certain terms not statutorily defined." Id. at 449-
50, 420 P.3d at 380-81 (quotation marks and citations omitted).
In standard English usage, "the public" means "[t]he community or
people as a whole" or "ordinary people in general." Public, The
American Heritage Dictionary (2d college ed. 1982); The public,
The New Oxford American Dictionary (2001). "The public is also
the people who do not belong to a particular group or
organization." Public, Cambridge Dictionary, (Cambridge
University Press 2010), http://dictionary.cambridge-
.org/us/dictionary/english/public. Thus, an ordinary meaning
should apply to the term "the public" as used in the disorderly
conduct statute, referring to the community or ordinary people as
a whole or in general, not belonging to a group or organization.
See Wells Fargo Bank, N.A., 142 Hawai#i at 449, 420 P.3d at 380.
As applied to this case, the approximately 20 individuals
involved in the DKIST transport convoy were members of a select
group, rather than members of the community as a whole or the
general public.
Insufficient evidence of Kaeo's intent to cause the
result prohibited by the statute to the general public
In State v. Jendrusch, 58 Haw. 279, 281-82, 567 P.2d
1242, 1244 (1977),4 the supreme court held:
4
In Jendrusch, the supreme court reversed the defendant's
disorderly conduct conviction and remanded for a dismissal of the complaint
that did not contain "the averment that defendant's conduct resulted or
threatened to result in physical inconvenience" and only stated "with intent
to cause public inconvenience . . . ." 58 Haw. at 280, 567 P.2d at 1243. The
Jendrusch Court focused on the sufficiency of the charge rather than
(continued...)
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An essential element of an offense under this statute is an
intent or a reckless disregard on the part of the defendant
that his conduct will have a specific result. That
consequence which the statute seeks to prevent is actual or
threatened physical inconvenience to, or alarm by, a member
or members of the public. The intent to produce this
particular effect, or recklessly creating a risk thereof, is
an essential ingredient of the conduct proscribed by the
statute.
(Emphasis added) (footnote omitted). In this case, there was
insufficient evidence of Kaeo's intent to cause the specific
result prohibited by the statute, of physical inconvenience to a
member or members of the general public. See State v. Faulkner,
64 Haw. 101, 104, 637 P.2d 770, 773 (1981); State v. Moser, 107
Hawai#i 159, 111 P.3d 54 (App. 2005); State v. Leung, 79 Hawai#i
538, 904 P.2d 552 (App. 1995); State v. Nakasone, 1 Haw. App. 10,
612 P.2d 123 (App. 1980).
Three years after the Jendrusch Court's explanation of
required result to prove disorderly conduct, this court, relying
on Jendrusch, 58 Haw. at 281-82, 567 P.2d at 1244, reversed a
disorderly conduct conviction for unreasonable noise under HRS §
711-1101(1)(b) for insufficient evidence in the 1980 decision in
Nakasone, 1 Haw. App. 10, 612 P.2d 123. The evidence in Nakasone
showed that a police officer who was getting a cup of coffee at a
"fairly crowded" Beretania Street McDonald's restaurant
approached the defendant who was talking to some customers. 1
Haw. App. at 11, 612 P.2d at 123-24. "Without checking with the
customers to determine if they were being inconvenienced," the
officer told the defendant "to stop bothering the customers if he
didn't know them." Id. The defendant began yelling at the
officer and did not heed the officer's numerous commands to quiet
down and warning that he would be arrested. Id. at 11, 612 P.2d
at 124. A crowd of "unspecified size" began to gather, and the
defendant was arrested for disorderly conduct. Id. at 12, 612
P.2d at 124. In concluding there was insufficient evidence that
the defendant acted intentionally or recklessly with regard to
4
(...continued)
sufficiency of the evidence.
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the required result, this court noted that the "State offered no
other competent evidence of any actual or threatened physical
inconvenience to, or alarm by, a member or members of the
public." Id. at 12, 612 P.2d at 124. Thus, in Nakasone, the
members of the public were the patrons in the McDonald's
restaurant, whom this court concluded were not shown to have been
inconvenienced by the defendant's conduct.
The following year, the supreme court reversed a
disorderly conduct conviction for unreasonable noise under HRS §
711-1101(1)(b) in its 1981 decision in State v. Faulkner. In
Faulkner, the incident occurred during the late afternoon near
the Honolulu Zoo, when the defendant called the police for
assistance when his car windshield was damaged after an angle
iron had been thrown at it by another male. 64 Haw. at 104, 637
P.2d at 773. The defendant became loud, swearing, and
belligerent at the police due to his frustration with the police
investigation. Id. at 103-04, 637, P.2d at 773. A crowd began
to gather, traffic was slowing down, as passerby and bystanders
were looking to see what was going on. Id. at 103, 637 P.2d at
773. The police arrested the defendant for disorderly conduct.
Id. at 103, 637 P.2d at 772. In concluding that there was
insufficient proof of the required element of the result of
"actual or threatened physical inconvenience to, or alarm by, a
member or members of the public," the Faulkner Court reasoned
that:
[T]here has been no evidence presented by the State that the
defendant's conduct had the effect of causing actual
physical inconvenience to any member of the public.
Neither, in the circumstances, was it likely that any member
of the public would have been physically disturbed or
alarmed by the noise created by the defendant. Pedestrians
stopping of their own volition to satisfy their curiosity,
or motorists slowing down for the same reason, cannot be
said to be physically inconvenienced or alarmed within the
meaning of the statute.
Id. at 104-05, 637 P.2d at 773-74. Thus, in Faulkner, the
members of the public were the passersby, bystanders, and passing
motorists, none of whom the evidence showed were physically
inconvenienced or alarmed by the defendant's conduct.
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Fourteen years later, this court reversed a disorderly
conduct conviction for unreasonable noise under HRS §
711-1101(1)(b) in its 1995 decision in State v. Leung. In Leung,
the defendant was loudly and repeatedly yelling and cursing a
theater manager and police officers after the theater manager had
detained defendant and his friends after they were identified as
possible persons who had caused a loud popping noise in the
theater. 79 Hawai#i at 540-42, 904 P.2d at 554-56. The
defendant did not comply with the officer's repeated requests to
calm down and not raise his voice; and the defendant continued to
shout obscenities even after the officers warned he would be
arrested. Id. There were around a hundred patrons in the area,
including patrons leaving the theater and patrons waiting outside
for the next show, who were looking into the lobby where
defendant was being detained, to see what was going on. Id. at
541, 904 P.2d at 555. The defendant was arrested for disorderly
conduct. Id. This court reversed the conviction because the
evidence did not sufficiently establish "that when Defendant
addressed the theater manager and the police concerning what he
believed to be an unjustified detention, his intent was to cause
physical inconvenience or alarm by members of the public or that
he recklessly created a risk thereof." Id. at 545, 904 P.2d at
559. The Leung court cited Jendrusch's result element language
that "[t]here must have been the intent by the defendant to cause
physical inconvenience to, or alarm by, a member or members of
the public." Id. at 544, 904 P.2d at 558 (emphasis and quotation
marks omitted). This court reasoned that:
Finally, there is no evidence that Defendant
addressed anyone other than the manager and the police. The
State's brief, itself, states that "Defendant's . . .
conduct was directed at the theater manager, as well as the
officers," and that Defendant "acted belligerently" and in a
"loud, . . . disorderly" voice. Officer Johnson plainly
indicated that he arrested Defendant after Defendant ignored
his warning regarding Defendant's repeated use of profanity
at him and the other officers. This type of conduct is not
an adequate basis for a charge under HRS § 711-1101, but
would rather constitute a possible charge under HRS § 711-
1106 . . . . The officers' testimonies indicated that all
of Defendant's statements pertained to Defendant's belief
that he was being unjustly detained and that the alleged
profanity was aimed only at the officers and the manager,
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not at the public or any member of the public generally.
Id. at 558-59, 904 P.2d at 544-45 (emphases added). Thus, in
Leung, the members of the public were the approximately a hundred
patrons inside and outside the theater, none of whom the evidence
showed were the target of the defendant's outburst. Instead, the
evidence reflected that the defendant's intent and conduct were
"aimed only at the officer and the manager," whom the Leung court
did not consider to be the members of the public. Id.Ten years later in its 2005 decision in State v. Moser,
this court relied on Faulkner, Leung, and Nakasone, inter alia,
in reversing a defendant's conviction for disorderly conduct for
unreasonable noise under subsection (1)(b). The evidence in
Moser consisted of the defendant raising her voice at library
employees in a public library. The Moser court concluded that
defendant's conduct did not constitute unreasonable noise, and
reasoned that:
[T]here is no evidence in the record that Moser addressed
anyone other than Paik [(library employee)] and Huber
[(library manager)] on the occasion in question or intended
to physically inconvenience or alarm any member of the
public by speaking loudly. Indeed, it is unclear whether
any other patron was in the library that day and, if so,
whether it was the raising of Moser's voice or the dialogue
between Moser and Huber that attracted the patron's
attention. We therefore conclude, based on the case law,
that there was insufficient evidence that Moser acted with
any "intent to cause physical inconvenience or alarm by a
member or members of the public[.]"
107 Hawai#i at 175-76, 111 P.3d at 70-71 (brackets and quotation
marks in original).
The Moser court identified the HRS § 711-1100
definition of the adjective "public" as "affecting or likely to
affect a substantial number of persons" in conjunction with the
disorderly conduct statute. Id. at 171, 111 P.3d at 66. The
Moser court, however, did not expressly apply this definition in
its evidentiary sufficiency analysis. The court's reference to
"any member of the public" in the quoted passage above, was
referring to "whether any other patron was in the library that
day" or "anyone other than Paik and Huber[.]" Id. at 175-76, 111
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P.3d at 70-71. This focus on whether "any member of the public"
besides the two library employees were present suggests that this
court did not apply the HRS § 711-1100 definition of "public" as
"substantial number of persons," and instead applied the ordinary
meaning of "the public" that includes even a single member of the
public or a single patron of the library.
Disorderly conduct precedent in Hawai#i has required
that the State show that the defendant intended to cause, or
recklessly disregard the risk of causing, the specific prohibited
result of inconvenience or alarm by a member or members of the
general public. See Faulkner, 64 Haw. 101, 637 P.2d 770; Moser,
107 Hawai#i 159, 111 P.3d 54; Leung, 79 Hawai#i 538, 904 P.2d 552;
Nakasone, 1 Haw. App. 10, 612 P.2d 123. There is no substantial
evidence of this required element of proof in this case.
The record reflects that Kaeo's intent was to stop the
DKIST transport convoy from delivering telescope components to
Haleakalâ. Kaeo's conduct was specifically directed at
preventing a select group of individuals, the DKIST transport
convoy, from egress out of the private property of the Central
Maui Baseyard5 onto a public access road leading to Mokulele
Highway. Rather than constituting members of the general public,
the DKIST transport convoy workers constituted a specific, select
group of individuals engaged in a private transport at the time
Kaeo engaged in the conduct at issue in this case. The
photographs in evidence at trial and MPD Sgt. Russell Kapalehua's
testimony showed that Kaeo's location was not in the public
access road, but on the side of the road, laying down in the
driveway of the private baseyard. The record does not reflect
that any members of the general public were inconvenienced or
recklessly placed at risk of inconvenience by Kaeo's conduct,
which occurred late at night at approximately 10:30 p.m., in the
driveway of a private business.
The disorderly conduct statute is specifically directed
5
MPD Captain Clyde Holokai testified that the Central Maui Baseyard
was a privately owned commercial enterprise.
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at "behaviors tending to threaten the public generally," and the
Commentary to HRS § 711-1101 counsels an "interpretation of the
statute that is far more narrow than broad."6 Teale, 139 Hawai#i
at 356, 390 P.3d at 1243 (citing the Commentary to HRS § 711-
1101)(quotation marks and brackets omitted). For all of the
reasons set forth above, there was insufficient evidence of the
required prohibited result to establish disorderly conduct, that
Kaeo's conduct caused physical inconvenience to members of the
general public. I would hold that the conviction must be
reversed.
/s/ Karen T. Nakasone
Associate Judge
6
In Teale, the Hawai#i Supreme Court observed that conduct that
does not fall into the scope of the disorderly conduct statute, may be covered
elsewhere in the Penal Code. 139 Hawai#i at 360-61, 390 P.3d at 1247-48
(noting that "other statutes, ordinances, and rules may have been relevant to
the conduct in this case."). See also Leung 79 Hawai #i at 543, 545, 904 P.2d
at 557, 559 (noting that "[t]he State chose not to charge Defendant with
harassment of the theater manager or of any of the police officers.");
Jendrusch, 58 Haw. at 282 n.3, 567 P.2d at 1245 n.3 (noting that the "abusive
language, coupled with the outrageous physical conduct of the defendant in
this case, would have warranted a charge of harassment under HRS § 711-
1106.").
In this case, the State did initially avail itself of other
charging options in the Hawai#i Penal Code, and charged, inter alia, Refusal
to Provide Ingress or Egress, in violation of HRS § 852-1 (2014) in Count 1.
HRS § 852-1, proscribes conduct of obstructing ingress to and/or egress from
any public or private place, and intentionally, knowingly or recklessly
refusing or wilfully failing to move as directed by a law enforcement officer.
This charge was dismissed before trial, however; and the record does not
reflect why the State chose to dismiss this count. Unlike a disorderly
conduct charge, the charge of Refusal to Provide Ingress or Egress does not
require proof that a defendant's conduct cause the specific result to members
of the general public.
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