State v. Gimbernat ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-APR-2021
07:51 AM
Dkt. 66 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
ANTONIO GIMBERNAT, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Antonio Gimbernat (Gimbernat)
appeals from the "Judgment and Notice of Entry of Judgment"
(Judgment) entered by the District Court of the Second Circuit,
Wailuku Division1 on March 22, 2018. For the reasons explained
below, we affirm the Judgment in part, vacate in part, and remand
for resentencing consistent with this summary disposition order.
Gimbernat was charged by amended complaint with one
count of Harassment, in violation of Hawaii Revised Statutes
(HRS) § 711-1106(1)(b) and/or (f),2 and one count of Disorderly
1
The Honorable Kelsey T. Kawano presided.
2
HRS § 711-1106 (2014) provides, in relevant part:
§ 711-1106 Harassment. (1) A person commits the
offense of harassment if, with intent to harass, annoy, or
alarm any other person, that person:
(continued...)
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Conduct in violation of HRS § 711-1101(1)(c),3 based on incidents
that allegedly took place on February 22, 2017, at a McDonald's
restaurant in Pukalani, Maui. Gimbernat pleaded not guilty.
A jury-waived trial began on November 17, 2017. The
parties stipulated State's exhibits 1 and 2 (compact discs
containing video camera footage) into evidence. The teenaged
victims (AM and CK) testified at trial that while they were
waiting for their food order, Gimbernat walked up behind them and
yelled a racial epithet — with his hand raised — in an
aggressive, threatening, angry tone that was loud enough for the
entire restaurant to hear. They both testified that Gimbernat,
an adult, was much larger then either of them. They both feared
that Gimbernat was going to hurt them.
2
(...continued)
. . . .
(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; [or]
. . . .
(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.
(2) Harassment is a petty misdemeanor.
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HRS § 711-1101 (2014) provides, in relevant part:
§ 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:
. . . .
(c) Subjects another person to offensively coarse behavior
or abusive language which is likely to provoke a
violent response[.]
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The McDonald's employee who was working in the drive-
thru window testified that Gimbernat went over to AM and CK and
said something "in a tone that was sort of angry and loud[.]"
The employee turned "to see what was going on." Other customers
also turned toward Gimbernat, who "seemed angry, mad, upset about
something." The employee testified she was worried for the
teens' safety "because [Gimbernat's] tone of voice, and just the
way he started walking after he made the loud noise. . . . [H]e
seemed very upset and mad. I was scared." She alerted her
manager that something was going on. A male customer got between
Gimbernat and AM and pushed Gimbernat out of the restaurant. He
did not return.
No other witnesses testified. The district court found
Gimbernat guilty as charged on both counts; the court rejected
Gimbernat's argument that the counts merged. The district court
made the following findings:
This incident occurred on February 22nd, 2017 at about
6:44 in the evening. The victims of alleged harassment were
two teenagers, [AM], age 15 years; and [CK], age 16. [AM]
has brown skin complexion. [CK] has fair skin complexion.
They were, at the time of the incident, in a dating
relationship. The couple entered a fast food restaurant in
Pukalani, Maui.
Inside they were accosted by defendant, Antonio
Gimbernat, who said to them, I'm sick of you fucking
niggers. He said this in a loud aggressive angry tone.
[AM] was stunned, shocked, confused, frightened. And
extremely offended. He thought defendant was going to hit
him. [CK] was shocked, scared, threatened and fearful that
the defendant was going to hurt them.
Defendant's words immediately caused the disturbance
that drew the attention of the two diners within the
restaurant. Causing them to leave their seats and engage
with the defendant.
The restaurant employee manning the drive-thru window
left her work station to enter the dining area to see what
the disturbance was about. Defendant continued his afront
[sic] of the couple saying in the same loud, aggressive,
angry tone, you shouldn't be with that white girl.
The restaurant clerk . . . was scared for herself.
Worried that the couple, and perhaps others, would be hit,
was concerned that the restaurant customers who were now
getting involved in the confrontation.
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And in the span of a few seconds, between the first
and second comments, [AM] had recovered from his initial
shock and angrily approached the defendant causing one of
the two customers to step in between to avert a physical
fight.
This customer turned defendant around and escorted him
out of the restaurant door while [CK] pulled her boyfriend
[AM] back away from the defendant.
(Underscoring added.)
The district court sentenced Gimbernat to 30 days in
jail on each count, to run concurrently, with credit for time
served. This appeal followed.
Gimbernat raises three points of error:
1. there was insufficient evidence to convict
him of harassment;
2. there was insufficient evidence to convict
him of petty misdemeanor disorderly conduct; and
3. even if there was sufficient evidence to
sustain both convictions, the harassment and
disorderly conduct offenses merged.
1. The evidence was sufficient to
support a conviction for harassment.
When an appellate court reviews the sufficiency of
evidence on appeal:
[E]vidence 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. Richie, 88 Hawai#i 19, 33, 960 P.2d 1227, 1241 (1998)
(citations omitted).
Gimbernat argues that his conduct could not reasonably
have caused AM and CK to believe that he intended to cause bodily
injury to them or to anyone else, or to cause property damage.
The evidence presented at trial, viewed in the strongest light
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for the prosecution, established that AM and CK reasonably
believed that Gimbernat intended to cause them bodily injury.
Gimbernat's first point of error is without merit.
2. The district court did not find facts
sufficient to support a conviction for
petty misdemeanor disorderly conduct.
Gimbernat concedes that the district court "found that
Gimbernat's use of offensively coarse language inconvenienced
several customers and restaurant employees in addition to [AM]
and [CK]." He argues there was no evidence he intended to cause
substantial harm or serious inconvenience, which is an element of
petty misdemeanor (as opposed to violation) disorderly conduct.
HRS § 707-1101(3) provides:
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.
The district court stated, when announcing its decision
on the disorderly conduct count:
Defendant's language was offensively coarse. The
public was affected. There were four other persons
subjected to this language besides the primary target of
defendant's racist (inaudible) language, being [AM].
Also present were [CK], the two customers in the
restaurant, and the employee of the restaurant. All of whom
were present. All of whom were drawn into this
confrontation. Which did result in inconvenience or alarm
by them.
[CK]'s date was spoiled. The customer's meals were
interrupted. The employees [sic] work duties were
interfered with. The language was likely and did provoke a
violence -- violent response from [AM]. And defendant was
fully aware of this situation and consciously disregarded
the risk that his language would be offensive.
The Court finds the defendant guilty on count two.
The district court made no finding that Gimbernat "intended to
cause substantial harm or serious inconvenience." Such a finding
was necessary for Gimbernat to be convicted of a petty
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misdemeanor. Accordingly, it was error for the district court to
sentence Gimbernat to 30 days for the petty misdemeanor
disorderly conduct offense; Gimbernat should have been sentenced
for a violation.
3. The district court's finding that the
harassment and disorderly conduct offenses
did not merge was supported by substantial
evidence.
Gimbernat argues he cannot be convicted of both haras-
sment and disorderly conduct because the offenses merged under
HRS § 701-109(1)(e). That statute provides, in relevant part:
§ 701-109 Method of prosecution when conduct
establishes an element of more than one offense. (1) When
the same conduct of a defendant may establish an element of
more than one offense, the defendant may be prosecuted for
each offense of which such conduct is an element. The
defendant may not, however, be convicted of more than one
offense if:
. . . .
(e) The offense is defined as a continuing course of
conduct and the defendant's course of conduct
was uninterrupted, unless the law provides the
specific periods of conduct constitute separate
offenses.
Gimbernat claims to have committed only one crime because he
"engaged in only one continuous and uninterrupted course of
criminal conduct directed at one criminal goal, i.e. to harass
one specific individual [AM] by making offensive racially charged
remarks."
The district court stated, while addressing Gimbernat's
merger argument:
The Court is considering where this is a situation of
defendant's conduct was, as the cases note, one continuing
course of conduct, in which the Court would have to say that
there was but one intention, one general impulse, one plan.
And the Court will have the record reflect that in its view
the evidence indicated that that was not the situation.
While we have a single episode here of conduct, there were
separate intentions. There were separate acts.
We had the initial harassment of the male minor. And
we had a second incident which occurred across the room,
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bringing into the fray a restaurant employee who was nervous
and scared. The defendant was yelling at such a volume that
she had to come out from her drive-thru window to see what
was going on.
The customers in the restaurant were alarmed, so much
so that they stood up from the table and had to intercede.
So, there were separate things going on. Separate
proofs, separate offenses, that did not merge here.
(Underscoring added.)
The district court's findings are supported by State's
Exhibit 1 (the McDonald's security video). The video (which does
not have audio) shows Gimbernat seated in the restaurant, eating
his food. He appears to be watching AM and CK, who are standing
together waiting for their food order. Gimbernat stands, picking
up his food tray. He does not walk toward the trash receptacle,
which is to his right and across the room from where AM and CK
are standing. Instead, he walks to his left, behind another
table and around a woman standing nearby. He is holding his food
tray in his right hand. He approaches AM and CK from behind. He
appears to be yelling at the teens. The teens turn to look at
him. He raises his left arm and hand. CK takes a step back.
Gimbernat then turns his back on AM and CK. He takes 8
or 9 steps across the restaurant to the trash receptacle. He is
facing the security camera and does not appear to be speaking as
he is walking toward the trash receptacle. He throws away his
trash. At this time the video shows Gimbernat, AM, CK, the woman
standing, and four other people seated, in the restaurant.
After Gimbernat throws his trash in the receptacle, he
turns to face AM and CK, who are still standing in the same spot.
He raises his right hand and arm. He appears to be yelling
across the restaurant. He makes a sweeping gesture with his
right arm and hand. At that point, a man in a red shirt and a
woman in a black outfit stand up; they appear to be speaking to
Gimbernat, who turns toward them. They both begin to step toward
Gimbernat and point toward the door, apparently urging that
Gimbernat leave the restaurant.
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AM then begins walking toward Gimbernat, holding his
phone as if he is filming (in fact State's Exhibit 2 is video
from AM's phone). As Gimbernat turns to face AM, the man in the
red shirt steps between Gimbernat and AM. CK pulls AM back
toward her. The man in the red shirt puts his hand on
Gimbernat's shoulder. Gimbernat does not resist as the man
guides Gimbernat toward the door, away from AM.
The district court's finding that Gimbernat committed
acts independently violative of the harassment statute and the
disorderly conduct statute is supported by substantial evidence
and is not clearly erroneous. Under those facts, HRS § 701-
109(1)(e) does not prohibit convictions under both the harassment
and disorderly conduct statutes. State v. Arceo, 84 Hawai#i 1,
21, 928 P.2d 843, 863 (1996) (noting that HRS § 701-109(1)(e)
"does not apply where [the defendant's] actions constitute
separate offenses under the law.") (quoting State v. Hoopii, 68
Haw. 246, 251, 710 P.2d 1193, 1197 (1985)); State v. Freeman, 70
Haw. 434, 441, 774 P.2d 888, 893 (1989) (holding that "[i]n the
course of [the defendant's] criminal transaction, he committed
acts independently violative of both statutes and therefore, HRS
§ 701–109(1)(e) does not prohibit multiple convictions for the
separate and distinct offenses[.]")
Moreover, the Hawai#i Supreme Court has held:
Whether a course of conduct gives rise to more than
one crime depends in part on the intent and objective of the
defendant. The test to determine whether the defendant
intended to commit more than one offense is whether the
evidence discloses one general intent or discloses separate
and distinct intents. Where there is one intention, one
general impulse, and one plan, there is but one offense.
All factual issues involved in this determination must be
decided by the trier of fact.
State v. Alston, 75 Haw. 517, 531, 865 P.2d 157, 165 (1994)
(underscoring added) (citations omitted). The district court did
not err when it denied Gimbernat's motion to merge the harassment
and disorderly conduct counts.
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CONCLUSION
For the foregoing reasons, the Judgment entered by the
district court on March 22, 2018, is affirmed with respect to
Gimbernat's conviction for harassment. With respect to
Gimbernat's conviction for disorderly conduct, his sentence for a
petty misdemeanor is vacated and this matter is remanded to the
district court for resentencing consistent with this summary
disposition order.
DATED: Honolulu, Hawai#i, April 8, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Peter A. Hanano, Chief Judge
Deputy Prosecuting Attorney,
County of Maui, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge
Matthew K. Ka#aihue, /s/ Karen T. Nakasone
Deputy Public Defender, Associate Judge
for Defendant-Appellant.
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