State v. Teale. , 139 Haw. 351 ( 2017 )

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Electronically Filed
Supreme Court
SCWC-12-0001077
28-FEB-2017
07:46 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
LAULANI TEALE,
Petitioner/Defendant-Appellant.
SCWC-12-0001077
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0001077; CASE NO. 1P1120005320)
FEBRUARY 28, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
This case requires us to consider the definition of
“tumultuous behavior” as a form of conduct on which a conviction
under Hawaii’s disorderly conduct statute may be based. The
State, in its prosecution of Laulani Teale for disorderly
conduct, and the Intermediate Court of Appeals, in affirming
Teale’s conviction, have offered various and conflicting
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definitions of the term “tumultuous behavior.” We address the
meaning of “tumultuous” to settle this issue of first impression
and also determine whether the evidence presented at trial was
sufficient to support Teale’s conviction under the statute.
I. BACKGROUND
On May 1, 2012, Laulani Teale attended the annual May
Day event held at Kapiʻolani Park with members of DeOccupy
Honolulu to petition the Honolulu mayor (Mayor) regarding
actions of the City and County of Honolulu. While in
attendance, Teale was arrested for disorderly conduct. The
complaint filed by the State alleged the disorderly conduct
charge as a petty misdemeanor offense, in violation of Hawaii
Revised Statutes (HRS) § 711-1101(1)(a) and (3) (1993 & Supp.
2003)1:
1
HRS § 711-1101 provides, in relevant part:
(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;
. . . .
(3) Disorderly conduct is a petty misdemeanor . . .
if the defendant persists in disorderly conduct after
reasonable warning or request to desist. Otherwise
disorderly conduct is a violation.
HRS § 711-1101 (1993 & Supp. 2003).
2
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On or about the 1st day of May, 2012, in the City and
County of Honolulu, state of Hawaii, Laulani Teale, also
known as Leslie Ann Hoalani Table, with intent to cause
physical inconvenience and/or alarm by a member or members
of the public and/or recklessly creating a risk thereof,
did engage in fighting and/or threatening and/or in violent
and/or tumultuous behavior persisting in disorderly conduct
after reasonable warning or request to desist thereby
committing the offense of Disorderly Conduct, a petty
misdemeanor, in violation of Section 711-1101(1)(a) and (3)
of the Hawaii Revised Statutes.
Following her not guilty plea, Teale proceeded pro se
at a trial held before the Honolulu District Court of the First
Circuit (district court).2 The State called Honolulu Police
Department (HPD) Officers Keoki Duarte and Nalei Soʻoto to
testify regarding Teale’s conduct at the May Day event. The
State also called two employees of the City Department of Parks
and Recreation who were involved in organizing the event.
According to the testimony of the State’s witnesses,
Teale was accompanied by a group of people at the May Day event.
Teale was observed walking around the area with signs and
blowing a conch shell. At one point, Teale blew the conch shell
several times while standing in a grassy area located about
fifty to sixty yards away from the Kapiʻolani Bandstand
(Bandstand). Teale was also described by the State’s witnesses
as having walked in front of the Bandstand two to three times,
2
The Honorable Dean E. Ochiai presided over the trial proceedings
in this case.
3
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which obstructed views of the performances and caused the
performances to be paused for a few minutes each time so that
police officers could escort Teale away from the Bandstand.3
While at the May Day event, Teale attempted three to
five times to approach the Mayor to speak with him. HPD
officers “intervened” to advise Teale that she needed to use the
proper protocol to meet with the Mayor and that attempting to do
so at the May Day event was inappropriate. Teale was described
as being “aggressive” in seeking to meet with the Mayor--stating
several times to officers, “I want to meet the mayor,” being
“persistent” in wanting to “ask [the Mayor] certain questions,”
becoming “frustrated” when the police intervened and prevented
her from talking to the Mayor, being “loud,” and being
disruptive to persons watching the May Day program.
The culminating event leading to Teale’s arrest
occurred during her final attempt to speak with the Mayor while
he was seated in the audience watching the performances. Before
reaching the Mayor, however, Teale was surrounded by three HPD
police officers who arranged themselves in a semi-circle
formation. According to the testimony of Officer Duarte, Teale
3
Hiroshi Douglas Matsuoka, one of Teale’s witnesses at trial,
disputed that Teale interfered with the May Day event performances and
testified that Teale did not at any time block the view of the audience or
interrupt any performers.
4
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was carrying a conch shell and the police officers were
concerned because a conch shell can be used “for anything,”
“[j]ust like a pen in [the officer’s] pocket.”4 After repeating
that Teale could not speak with the Mayor and informing her that
she needed to step away from the area, Officer Duarte placed
Teale under arrest for disorderly conduct. Teale either sat
down on the ground before she was arrested, during her arrest,
or immediately after her arrest.5 The officers instructed Teale
to “stand up and walk away and just go to the side,” and in
response, Teale stood up and began walking around the officers
in the general direction of the Mayor. The officers then
“picked [Teale] up and then [they] took her away.”
Officer Soʻoto testified that Teale was not violent,
confrontational, or threatening.6 The officer explained that
4
At various points in their testimony, Officers Duarte and Soʻoto
expressed concern that Teale was holding a conch shell because of the
potential that it may have been used to “hit somebody with it.” However,
Officer Soʻoto testified that Teale “[was not] arrested for anything
pertaining specifically for the conch shell.”
5
Though Officer Duarte initially testified that he placed Teale
under arrest before she sat down on the ground, he subsequently testified
that she was only arrested after she sat down. When Officer Duarte was asked
again whether Teale was placed under arrest prior or subsequent to her
sitting down on the ground, Officer Duarte responded, “I can’t recall.”
6
When asked at trial whether Teale was “tumultuous,” Officer Soʻoto
responded, “Tumultuous? Why -- what’s -- what’s the word? I mean [Teale]
[was] disrupting. [Teale] [was] disruptive, and several people was affronted
by [her] behavior.”
5
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“the conch shell had nothing to do with [Teale’s] arrest” and
the conch shell was not taken into evidence. There was also no
evidence that Teale was screaming, shouting, or belligerent at
any time during the May Day event or in her interactions with
police officers or spectators.
However, attendees at the event were described as
“agitated,” “frustrated,” and “mad” because of Teale’s
interruption of the performances. Many members of the crowd
were focused on HPD’s interactions with Teale, in part “because
there were a bunch of policemen there.” One of the State’s
witnesses indicated that audience members yelled for HPD to
remove Teale from the area and shouted at Teale that she was
ruining the show and should leave the festival.
The State also introduced eight clips from a video of
the events leading to Teale’s arrest that was provided to the
State by Teale during discovery. The first four clips show
Teale standing in a grassy area on the outskirts of a crowd and
blowing a conch shell while the Mayor and other individuals
address the audience from the Bandstand.
The fifth clip shows scenes during Teale’s final
attempt to speak with the Mayor. Teale is standing amidst the
audience in front of the Bandstand with her head bowed and
holding the conch shell at waist-level with both arms; she is
6
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surrounded on three sides by HPD police officers and is speaking
in Hawaiian at a normal volume. As police officers ask her to
move, Teale sits down and continues speaking in Hawaiian.
Audience members can be heard urging, “Go away, go away,” while
Teale remains seated on the ground with her arms circling her
legs and her head bowed. An audience member and three police
officers continue to surround Teale. In the sixth clip (which
is an immediate continuation from the fifth clip), Teale stands
and walks towards the Bandstand; when she is quickly approached
by two police officers, she sits back down on the ground. HPD
officers grab her arms, in response to which Teale states, “I
can sit here.” Teale remains seated with her arms resting in
her lap, occasionally gesturing with her hands7 as she speaks to
the surrounding police officers and audience members.
Performances can be heard proceeding on the Bandstand off-
camera. The seventh clip shows HPD police officers carrying
Teale away, and audience members can be heard clapping and
cheering. The eighth clip depicts police officers placing Teale
in handcuffs.
7
When Teale is seen gesturing with her hands in the video, she
leaves the conch shell sitting in her lap.
7
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At the conclusion of trial, the district court found
Teale guilty of disorderly conduct in violation of HRS § 711-
1101. The court considered that although Teale may have
“started the day with the best of intentions . . . [her] own
video pretty much blows [her] entire case.” The court reasoned
that Teale’s actions in repeatedly blowing the conch shell
“show[ed] pure disrespect for the program” and that her decision
to attempt to “see the mayor no matter what” eventually “led
[her] on the path towards disorderly conduct.” In her effort to
communicate with the Mayor, the court noted that Teale “didn’t
sit to peacefully observe the program,” but rather, “sat to
create a spectacle.” The court specified that Teale’s “conduct
became disorderly” when she “made repeated attempts in front of
the audience to try and get to [the Mayor] despite being given
warnings by the police do not do that.”
The district court stated that “all” of the audience
members were “being inconvenienced or annoyed” by Teale’s
actions. The court elaborated that the effect of Teale’s
behavior was demonstrated by the audience’s reaction to Teale
being carried away by police officers, when spectators were
“heard to be clapping and cheering that the obstruction to their
enjoyment of the program was being removed.” With respect to
the conch shell, the judge stated that “[he] underst[ood] a
8
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practitioner would never use a conch as a weapon,” but indicated
that things which are not intended to be weapons may still be
used to inflict harm. The court did not reference the terms
“fighting, “threatening,” “tumultuous,” or “violent” in its oral
findings, but rather, repeatedly described Teale’s conduct as
“disorderly.”8
The court sentenced Teale to six months of probation,
seventy-five hours of community service, and $105 in fees and
assessments.
II. ICA PROCEEDINGS
Teale filed a notice of appeal to the Intermediate
Court of Appeals (ICA) asserting that there was insufficient
evidence to support her conviction.9 Specifically, Teale
contended that the evidence failed to prove that she committed
8
The district court also did not indicate that Teale was found
guilty under the subsection of the disorderly conduct statute under which she
had been charged.
9
In her appeal to the ICA and before this court, Teale also
asserted the following errors: (1) the district court erred in finding the
State’s witnesses credible; (2) her conduct was protected by the First
Amendment; (3) her right to due process was violated; and (4) the district
court erred in not allowing Teale to present additional clips from the video
footage or to assert other defenses. In light of our disposition of Teale’s
challenge to the sufficiency of evidence to support her conviction, we do not
address the remaining points that Teale raises.
9
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the requisite actus reus because she did not fight, threaten, or
engage in violent or tumultuous behavior.10
In a Summary Disposition Order (SDO), the ICA
concluded that there was sufficient evidence to show that Teale
engaged in “tumultuous behavior” within the meaning of the
disorderly conduct statute. Citing Dictionary.com, the ICA
defined “tumultuous” as: (1) “full of tumult or riotousness;
marked by disturbance and uproar”; (2) “raising a great clatter
and commotion; disorderly or noisy”; and (3) “highly agitated,
as the mind or emotions; distraught; turbulent.” Also citing
Dictionary.com, the ICA defined “disorderly” as: (1)
“characterized by disorder; irregular; untidy; confused”; (2)
“unruly; turbulent; tumultuous”; and (3) “contrary to public
order or morality.”
The ICA noted that the “context of Teale’s actions was
a confrontation with the police in the midst of a well-attended
May Day program.” The ICA stated that when “[v]iewed in this
context,” Teale engaged in “tumultuous behavior” by repeatedly
attempting to approach the Mayor, refusing to comply with police
10
As part of her insufficiency of the evidence argument, Teale also
contended that she did not have the requisite mens rea for a disorderly
conduct conviction. The ICA concluded otherwise in its disposition of
Teale’s appeal. In light of our determination with respect to whether Teale
engaged in the requisite actus reus as to the charge in this case, we do not
consider her argument on certiorari regarding mens rea.
10
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warnings and requests, and by disturbing members of the
audience. Therefore, viewing the evidence in the light most
favorable to the State, the ICA concluded that the prosecution
presented substantial evidence to show that Teale engaged in
tumultuous behavior within the meaning of the disorderly conduct
statute.
III. STANDARDS OF REVIEW
Statutory interpretation is a question of law reviewed
de novo. State v. Wang, 91 Hawaiʻi 140, 141, 981 P.2d 230, 231
(1999).
“When reviewing the legal sufficiency of the evidence
on appeal, the test is whether, ‘viewing the evidence in the
light most favorable to the State, there is substantial evidence
to support the conclusion of the trier of fact.’” State v.
Hirayasu, 71 Haw. 587, 589, 801 P.2d 25, 26 (1990) (quoting
State v. Hernandez, 61 Haw. 475, 477, 605 P.2d 75, 77 (1980)).
IV. DISCUSSION
A. HRS § 711-1101(1)(a)
A person commits the offense of disorderly conduct
under HRS § 711-1101(1)(a) “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.”
11
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HRS § 711-1101(1)(a) (1993 & Supp. 2003). Thus, HRS § 711-
1101(1)(a) includes four alternative forms of conduct upon which
guilt may be predicated.
The State asserted both at trial and on appeal that
Teal’s conduct constituted “tumultuous behavior,”11 rather than
“fighting,” “threatening,” or “violent” behavior. Likewise, the
ICA in affirming the trial court’s finding of guilt based its
reasoning solely on its conclusion that “the State presented
sufficient evidence to show that Teale engaged in ‘tumultuous
behavior.’”
The term “tumultuous” is not defined within the Hawaii
Revised Statutes or by our jurisdiction’s case law.12 Thus, to
11
At the outset of its closing argument during trial, the State
asserted that Teale committed the offense of disorderly conduct “when she
engaged in tumultuous behavior” at the May Day event. At no point on appeal
or on certiorari has the State argued that Teale committed the offense of
disorderly conduct by engaging in “fighting,” “threatening,” or “violent”
behavior.
12
At trial, the State initially cited the Merriam Webster’s
Dictionary definition of “tumultuous” as “loud, excited, and emotional.” The
State also cited Dictionary.com, which defined “tumultuous” as “riotous,
marked by disturbance and uproar, raising a great clatter and commotion,
disorderly or noisy” and “highly agitated as the mind or emotions or
turbulent.” Before the ICA, the State suggested an alternative definition of
“tumultuous behavior” obtained from the Random House College Dictionary
(1973):
[F]ull of tumult or riotness; marked by disturbance and
uproar . . . raising a great clatter and commotion;
disorderly or noisy . . . highly disturbed or agitated, as
the mind or emotions; distraught; turbulent.
The State also provided a definition of “tumultuous” from Webster’s New
Riverside Dictionary (Office Ed. 1984) as “[c]onfusedly or violently
(continued. . .)
12
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review whether the evidence presented at trial was sufficient to
support Teale’s conviction under HRS § 711-1101(1)(a), we must
first consider the definition of “tumultuous behavior.”
B. Definition of “Tumultuous Behavior”
Although a clear definition of the term “tumultuous”
is absent in our statutes and case law, guidance as to the
applicability of the disorderly conduct offense is provided by
the Commentary to HRS § 711-1101, which may be used as an aid in
understanding this provision13:
The offense of “disorderly conduct” has been very broadly
defined in the past . . . to include numerous petty
annoyances to the public. Section 711-1101 gives a far
narrower definition to the offense, both because some of
the matters previously treated under that heading are now
treated elsewhere and because some of the previous
provisions seem unwise.
HRS § 711-1101 cmt. (1993) (emphasis added). Specifically, as
to HRS § 711-1101(1)(a), the applicable subsection in this case,
the Commentary provides additional insight as to the meaning of
“tumultuous behavior”:
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
(. . .continued)
agitated.” The ICA in its SDO provided its own definitions, which are
recounted above.
13
See HRS § 701-105 (1993) (“The commentary accompanying this Code
shall be published and may be used as an aid in understanding the provisions
of this Code, but not as evidence of legislative intent.”).
13
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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.
Id. (emphasis added).
The Commentary thus indicates that subsection (1)(a)
of the disorderly conduct statute is directed at the inclusion
of actual fights and other behaviors tending to threaten the
public generally, the exclusion of petty annoyances and conduct
directed only at police officers, and an interpretation of the
statute that is “far [more] narrow[]” than broad. See id.
Though not directly defining “tumultuous,” cases of our
jurisdiction also support this general reading of the statute.
See, e.g., State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242,
1244 (1977) (noting that “mere public inconvenience, annoyance
or alarm” is insufficient to impose criminal liability under
disorderly conduct statute); State v. Faulkner, 64 Haw. 101,
105, 637 P.2d 770, 774 (1981) (considering that pedestrians and
motorists stopping “of their own volition to satisfy their
curiosity” by observing altercation between defendant and police
officers “cannot be said to be physically inconvenienced or
alarmed within the meaning of the [disorderly conduct]
statute”); id. (finding insufficient evidence to support
14
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conviction for unreasonable noise under disorderly conduct
statute where “it [was] not even clear from the record whether
it was the loudness of the defendant’s voice or whether it was
the presence of four uniformed police officers and their
vehicles at the scene that was drawing people’s attention to the
area”); State v. Leung, 79 Hawaiʻi 538, 543, 904 P.2d 552, 557
(App. 1995) (“[a]rguments with the police, without more, do not
fall within the ambit of the disorderly conduct statute”); id.
at 544, 904 P.2d at 558 (“[T]heater patrons waiting for or
exiting a movie who, of their own volition, stop or slow down to
satisfy their curiosity about an encounter between Defendant and
the police in a theater lobby cannot be said to be physically
inconvenienced or alarmed.”).
Additional guidance on the interpretation of the term
“tumultuous” as used within HRS § 711-1101(1)(a) is provided by
the Model Penal Code. Hawaii’s disorderly conduct statute is
derived from Model Penal Code (MPC) § 250.2, and subsection
(1)(a) is identical in the two codes.14 Thus, the interpretation
14
MPC § 250.2 provides in relevant part:
(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:
(continued. . .)
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and application of MPC § 250.2 is instructive in defining the
identical term in HRS § 711-1101(1)(a). See State v. Aiwohi,
109 Hawaiʻi 115, 126, 123 P.3d 1210, 1221 (2005) (determining
that “it is appropriate to look to the Model Penal Code and its
commentary for guidance” when interpreting criminal statutes
derived from the MPC); In re Doe, 76 Hawaiʻi 85, 94-95, 869 P.2d
1304, 1313-14 (1994) (relying on the MPC and its Commentary to
determine the scope and limitations of offense of harassment
under HRS § 711-1106 (1985 & Supp. 1992)).
Although the Model Penal Code does not provide a
definition of “tumultuous,” its Commentary explains that MPC §
250.2 prohibits “mak[ing] orderly behavior criminal merely
because others may create disorder in response thereto.” MPC §
250.2 cmt. at 348 (Am. Law. Inst. 1980). Instead, MPC § 250.2
“is limited to conduct which is itself disorderly.” Id. The
Commentary specifies that subsection (1)(a) “requires that the
actor engage in fighting or threatening, or in violent or
tumultuous behavior.” Id. (alteration and quotations omitted).
Further with respect to subsection (1)(a), “[i]t is not
(. . .continued)
(a) engages in fighting or threatening, or in violent
or tumultuous behavior . . . .
Model Penal Code § 250.2 (Am. Law Inst. (1980)).
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sufficient that peaceable conduct by the actor prompts others to
violence or disruption.”15 Id. Thus, the offense of disorderly
conduct under the Model Penal Code prohibits only conduct that
is itself disorderly and does not punish behavior merely because
it prompts others to respond in a disruptive or chaotic manner.
Other jurisdictions that have adopted the language or
a variation of MPC § 250.2 have likewise recognized that a
definition of “tumultuous” need not depend on a riotous public
response but, rather, may be defined by violent or extreme
outbursts personal to the offender. Such definitions of the
term “tumultuous behavior” as incorporating the offender’s own
extreme conduct properly place the focus of the inquiry on the
defendant’s own behavior. See MPC § 250.2 cmt. at 348. For
example, the Superior Court of Pennsylvania in Commonwealth v.
Love relied on Merriam’s Webster’s Collegiate Dictionary (10th
ed. 1996) in defining the term “tumultuous” as used in its
disorderly conduct statute as “marked by tumult; tending or
15
As an example of this point, the Commentary cites to Taylor v.
Commonwealth, 46 S.E.2d 384 (Va. 1948). In Taylor, an African-American woman
used a “very loud voice” to refuse to move to the back of a bus when
repeatedly commanded to do so, and the bus was delayed for an hour and a half
while the driver detoured to a courthouse to secure her arrest. 46 S.E.2d at
386. The woman’s subsequent conviction for disorderly conduct was reversed
on appeal because the offense required “personal misconduct and misbehavior”
and did not apply where the woman herself was neither “disorderly [n]or
turbulent.” Id. at 387. The Commentary states that MPC § 250.2 was “drafted
to reach the same result on the same ground.” MPC § 250.2 cmt. at 348.
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disposed to cause or incite a tumult; or marked by violent or
overwhelming turbulence or upheaval.” 896 A.2d 1276, 1285 (Pa.
Super. Ct. 2006) (quotations omitted). The Pennsylvania court,
again citing Webster’s, noted the definition of “tumult” as “a
disorderly agitation . . . of a crowd [usually] with uproar and
confusion of voices, or a violent outburst.” Id. (emphasis
added) (quotations omitted). The Love court concluded that the
defendant’s conduct was marked by overwhelming turbulence and
thus constituted “tumultuous behavior” because he was vocally
agitated, angry, yelling, and disruptive in a courthouse for an
extended period of time and because he had “violently interfered
with a law enforcement officer.” Id. at 1279, 1285-86.
Likewise, the Vermont Supreme Court in State v. Lund rejected an
argument that “tumultuous behavior” must be defined by reference
to a public riot or outcry, defining the term instead as a
“violent outburst.” 475 A.2d 1055, 1060 (Vt. 1984) (citing
Webster’s New International Dictionary 2733 (1961)), overruled
on other grounds by State v. Begins, 531 A.2d 595 (Vt. 1987));
see also State v. Amsden, 75 A.3d 612, 618 (Vt. 2013)
(considering Lund, 475 A.2d at 1060, and stating that it was
“obvious that [the court] considered [the defendant’s]
‘outburst’ to be the sort of ‘tumultuous behavior’ contemplated
by the statute”); United Prop. Owners Ass’n of Belmar v. Borough
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of Belmar, 777 A.2d 950, 990 (N.J. Super. Ct. App. Div. 2001)
(defining “tumult” as “either ‘uproar’ or ‘violent agitation of
mind or feelings’” (quoting Webster’s New American Dictionary
555 (Smithmark 1995))).
Considering the Commentary to HRS § 711-1101, the MPC
Commentary to the identical provision of MPC § 250.2, and
relevant case law, “tumultuous behavior” is most appropriately
defined as conduct involving violent agitation or extreme
outbursts. This definition is consistent with the Commentary to
MPC § 250.2 in that an analysis of whether a defendant’s
behavior was marked by extreme outbursts or violent agitation
requires the trier of fact to focus upon what the defendant
personally did, rather than how onlookers or observers reacted
in response.16 See MPC § 250.2 cmt. at 348 (“[I]t is not
sufficient that peaceable conduct by the actor prompts others to
violence or disruption . . . .”). This definition also reflects
our jurisdiction’s general consideration that the congregation
and attention of curious bystanders is insufficient to support a
16
We note that the result or effect of the defendant’s conduct upon
members of the public may be significant when determining whether the
defendant acted with the intent to physically inconvenience or alarm a member
or members of the public or recklessly created a risk thereof, so as to
satisfy the mens rea component of HRS § 711-1101(1)(a). The response of the
public to the defendant’s conduct may also be circumstantial evidence that
the defendant’s behavior was tumultuous; however, its effect may not make
behavior criminal “merely because others may create disorder in response.”
MPC § 250.2 cmt. at 348.
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conviction for disorderly conduct under HRS § 711-1101. See
Faulkner, 64 Haw. at 105, 637 P.2d at 774 (bystanders stopping,
slowing down, or congregating to observe altercation between
defendant and police officers “cannot be said to be physically
inconvenienced or alarmed within the meaning of the statute”);
Leung, 79 Hawaiʻi at 544, 904 P.2d at 558 (same). Further, an
interpretation of the term “tumultuous” as marked by violent
agitation or extreme outbursts is, with some variation, espoused
by several dictionaries. See Tumultuous, Random House Webster’s
Unabridged Dictionary (2d. ed. 2001) (“highly agitated, as the
mind or emotions”); Tumultuous, The American Heritage Dictionary
of the English Language, https://ahdictionary.com/word/search.
html?q=tumultuous (last visited Jan. 10, 2017) (“[c]haracterized
by mental or emotional agitation”); Tumultuous, The American
Heritage Dictionary (Second College Ed. 1982) (“[c]onfusedly or
violently agitated”); see also Hunter v. Allen, 422 F.2d 1158,
1164 n.14A (5th Cir. 1970) (Godbold, J., dissenting) (citing The
Random House Dictionary of the English Language (1966) to define
“tumult” as “[h]ighly distressing agitation of mind or feeling;
turbulent mental or emotional disturbance”), rev’d on other
grounds, Embry v. Allen, 401 U.S. 989 (1971); Lund, 475 A.2d at
1060 (citing Webster’s New International Dictionary (1961) to
define “tumult” as a “violent outburst”).
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The ICA’s expansive definition of “tumultuous
behavior” reaches far beyond conduct that is violently agitated
or marked by extreme outbursts. Under the ICA’s definition,
“tumultuous behavior” was defined to include any conduct raising
a “great clatter and commotion” or “disturbance and uproar,” and
other actions that are “unruly,” “disorderly or noisy,”
“irregular,” or “contrary to public order and morality.” This
definition would therefore include precisely the sort of “petty
annoyances” that the legislature sought to exclude in Hawaii’s
disorderly conduct statute. See HRS § 711-1101 cmt. The ICA’s
definition would also require the trier of fact to focus its
inquiry regarding “tumultuous behavior” on whether the members
of the public affected by the defendant’s conduct reacted in a
way such that a “disturbance,” an “uproar,” or “a great clatter
or commotion” resulted. However, basing a conviction under the
disorderly conduct statute on the actions and perceptions of
others--rather than on the conduct of the defendant--conflicts
with the MPC Commentary that expressly cautions against such
application. See MPC § 250.2 cmt. at 348 (MPC § 250.2 “does not
make orderly behavior criminal merely because others may create
disorder in response thereto”).
An interpretation of the term “tumultuous” as
requiring a manifestation of violent agitation or extreme
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outbursts is also consistent with the settled principle of
statutory construction that words are defined by the company
they keep. State v. Deleon, 72 Haw. 241, 244, 813 P.2d 1382,
1384 (1991) (“There is a rule of construction embodying the
words noscitur a sociis which may be freely translated as ‘words
of a feather flock together,’ that is, the meaning of a word is
to be judged by the company it keeps.” (quoting Advertiser Pub.
Co. v. Fase, 43 Haw. 154, 161 (Haw. Terr. 1959))). In Deleon,
for example, this court considered that the term “extreme pain”
as used in a statute providing a justification defense to abuse
of a family or household member must be defined by reference to
the terms it accompanied, which included “death, serious bodily
injury, disfigurement, extreme metal distress[,] and gross
degradation.” Id. at 243, 813 P.2d at 1383 (citing HRS § 703-
309). Because the pain inflicted by the defendant on his family
member did not rise to a level “anywhere near” the accompanying
terms, “[i]t therefore was not, as a matter of law,” sufficient
to constitute “extreme pain” within the meaning of the statute.
Id. at 244, 813 P.2d at 1384.
Under HRS § 711-1101(1)(a), a person commits the
offense of disorderly conduct when he or she “[e]ngages in
fighting or threatening, or in violent or tumultuous behavior”
with the requisite mens rea (i.e., “intent to cause physical
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inconvenience or alarm by a member or members of the public, or
recklessly creating a risk thereof”). HRS § 711-1101(1)(a).
Thus, the term “tumultuous” should be defined by consideration
of behavior which is of a similar gravity to “fighting,
threatening, . . . or violent” conduct.17
In its SDO, the ICA defined “tumultuous” as, inter
alia, “disorderly or noisy,” and “distraught”; in turn, it
defined “disorderly” as including, “characterized by disorder,”
“irregular,” and “contrary to public order or morality.”
However, conduct that is “noisy” or “contrary to public order or
morality” cannot be fairly characterized as rising to the same
intensity and seriousness as “fighting,” “threatening,” or
“violent” behavior. HRS § 711-1101(1)(a); see supra note 17.
Thus, the definition of “tumultuous behavior” as conduct
17
For example, “fighting” is defined by Merriam-Webster as “to
contend in battle or physical combat” or “to strive to overcome a person by
blows or weapons.” Fighting, https://www.merriam-webster.com/dictionary/
fighting (last visited Jan. 11, 2017). “Threatening” is defined by Merriam-
Webster as “to utter threats against,” or “to hang over dangerously”;
“threat,” in turn, is defined by Merriam-Webster as “an expression of
intention to inflict evil, injury, or damage.” Threatening,
https://www.merriam-webster.com/dictionary/threatening (last visited Jan. 11,
2017); Threat, https://www.merriam-webster.com/dictionary/threat (last
visited Jan. 11, 2017). Finally, Merriam-Webster defines “violent” as
“marked by extreme force or sudden intense activity,” “notably furious or
vehement,” or “emotionally agitated to the point of loss of self-control.”
Violent, https://www.merriam-webster.com/dictionary/violent (last visited
Jan. 11, 2017).
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characterized by violent agitation or extreme outbursts is also
consistent with principles of statutory construction.
Having resolved the definition of “tumultuous
behavior,” we next consider whether there was substantial
evidence presented at trial to support a conclusion that Teale,
with an intent to cause physical inconvenience or alarm by a
member or members of the public or recklessly creating a risk
thereof, engaged in behavior manifesting extreme outbursts or
violent agitation at the May Day event in violation of HRS §
711-1101(1)(a).
C. Sufficiency of the Evidence
“[I]n reviewing the sufficiency of the evidence to
support the conviction the appellate court must take that view
of the evidence with inferences reasonably and justifiably to be
drawn therefrom most favorable to the Government, without
weighing the evidence or determining the credibility of the
witnesses.” State v. Cannon, 56 Haw. 161, 166, 532 P.2d 391,
396 (1975) (citation and internal quotations omitted). “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. Batson,
73 Haw. 236, 248, 831 P.2d 924, 931 (1992) (citations omitted).
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The district court in this case based its oral finding
of guilt on Teale’s blowing of the conch shell and its
theoretical use as a weapon, her interference with the
spectators’ enjoyment of the May Day event and their resulting
“inconvenience[] and annoy[ance],” and Teale’s repeated attempts
to speak with the Mayor despite the police officers’
instructions that she could not talk with him.18 Thus, the
question presented to this court is whether the State presented
substantial evidence at trial that Teale’s conduct constituted
“tumultuous behavior,” that is, whether Teale’s conduct was
violently agitated or marked by extreme outbursts. See HRS §
711-1101(1)(a).
Both the State and the district court placed great
reliance upon Teale’s possession of the conch shell during the
May Day event. Police testimony, however, expressly refuted
that the conch shell had anything to do with Teale’s arrest, as
Teale was not “arrested for anything pertaining specifically for
the conch shell,” and police did not take the conch shell into
evidence for this reason.19 Further, although the district court
18
The ICA affirmed Teale’s conviction based on her interaction with
police officers, her efforts to speak with the Mayor, and the effect of her
conduct on the audience.
19
Further, police testimony at trial suggested that any concern
about the conch shell was based on the mere fact that Teale possessed it when
(continued. . .)
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considered that Teale’s blowing of the conch shell “show[ed]
pure disrespect for the program,” any such disrespect for the
May Day event does not demonstrate that her conduct was
characterized by violent agitation or extreme outbursts.
The State, the district court, and the ICA also
focused on the fact that Teale made repeated efforts to approach
the Mayor in order to speak with him despite being informed by
police officers that it was not the right time to do so.
However, the fact that Teale repeatedly sought to speak with the
Mayor does not itself show tumultuous conduct. Testimony at
trial reflects no evidence that Teale engaged in any form of
extreme outbursts or that she acted violently agitated when she
encountered the police officers. Though Teale may have
disagreed or not complied with the police officers’ orders,
“[a]rguments with the police, without more, do not fall within
the ambit of the disorderly conduct statute.” State v. Leung,
79 Hawaiʻi 538, 543, 904 P.2d 552, 557 (App. 1995). Likewise,
there was no evidence of Teale being confrontational with any
other attendees of the May Day event. In fact, Officer Duarte
(. . .continued)
police interacted with her, and “[j]ust like a pen in [a] pocket,” a conch
shell could be “use[d] for anything.”
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testified that when Teale attempted to approach the Mayor during
the last encounter that led to her arrest, Teale “just sat
there,” which was corroborated by the State’s video evidence
showing Teale seated on the ground. The video also demonstrates
that immediately prior to and during this final attempt to speak
with the Mayor, Teale was speaking in the same normal volume as
the surrounding police officers,20 she did not engage in
outbursts, and she was not physically confrontational.
The State, the district court, and the ICA further
reasoned that Teale’s conviction was warranted because her
actions caused the audience members at the May Day event to be
inconvenienced and annoyed. However, HRS § 711-1101(1)(a) “is
limited to conduct which is itself disorderly,” and the offense
requires that the defendant engaged in fighting, threatening, or
violent or tumultuous behavior. MPC § 250.2 cmt. at 348 (Am.
Law. Inst. 1980) (emphasis added) (the statute may not be used
to “make orderly behavior criminal merely because others may
create disorder in response thereto”). As described above, even
considering the evidence in the most favorable light to the
20
Even assuming that Teale spoke “loud[ly]” during her encounter
with the police, as was argued by the State before the ICA, such conduct did
not rise to the level of an extreme outburst based upon the evidence
presented. It is noted that noise that becomes excessively “loud” may be
prosecuted under subsection (1)(b) of the disorderly conduct statute, which
prohibits the “[making] of unreasonable noise.” See HRS § 711-1101(1)(b).
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State, Teale’s actions at the May Day event were not marked by
violent agitation or extreme outbursts, and the reaction of the
crowd “clapping and cheering that the obstruction to their
enjoyment of the program was being removed” does not transform
Teale’s behavior into something it was not.21 Although Teale’s
conduct might well have constituted an annoyance to the public
present at the May Day program, HRS § 711-1101 “gives a far
narrower definition to the offense.” HRS § 711-1101 cmt.
(1993); see also State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d
1242, 1244 (1977) (“mere public inconvenience, annoyance or
alarm” is insufficient to impose criminal liability under
disorderly conduct statute).
Our conclusion should not in any way be viewed as
condoning Teale’s behavior at the May Day event, and we are
mindful that the State’s evidence indicates that Teale
temporarily interrupted the performances and caused irritation
to spectators watching the performances.22 To that effect, we
21
As noted earlier, see supra note 16, the reaction of a member or
members of the public may be relevant to the mens rea required for conviction
under HRS § 711-1101(1)(a).
22
See In re Doe, 76 Hawaiʻi 75, 98, 869 P.2d 1304, 1317 (1994) (“We
do not condone or encourage abusive language, but even crude speech may be
entitled to constitutional protection . . . .” (quoting State v. John W., 418
A.2d 1097, 1108 (Me. 1980))); State v. Stocker, 90 Hawaiʻi 85, 96, 976 P.2d
399, 410 (1999) (“We emphasize that our opinion today should not in any way
be construed as an expression of approval of the parental conduct that
precipitated the prosecution of the matter before us.”).
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note that other statutes, ordinances, and rules may have been
relevant to the conduct in this case.23 However, a criminal
conviction based on “tumultuous behavior” under subsection
(1)(a) of the disorderly conduct statute requires that Teale
engaged in behavior marked by violent agitation or extreme
outbursts. Because the State did not present substantial
evidence that Teale’s conduct was “tumultuous” within the
meaning of HRS § 711-1101(1)(a), there was insufficient evidence
to support her conviction for disorderly conduct, and the ICA
erred in affirming the conviction.
V. CONCLUSION
A determination that a defendant engaged in
“tumultuous behavior” within the meaning of HRS § 711-1101(1)(a)
requires a finding that the defendant’s conduct was
characterized by violent agitation or extreme outbursts. Even
23
See City & Cty. of Honolulu, Dep’t of Parks and Recreation, Rules
and Regulations Governing Recreational Activities § 4.B(3),
http://www.honolulu.gov/rep/site/dpr/rules/Rules_Recreational_Activities.pdf
(last visited Feb. 8, 2017) (setting forth rule adopted by the director of
the Department of Parks and Recreation that “[c]ity parks and recreational
facilities may not be used for activities” which may, inter alia,
“unreasonably interfere with . . . program activities”); Revised Ordinances
of Honolulu (ROH) § 10-1.6(a) (1990 & Supp. 2013) (granting authorized law
enforcement officers the ability to issue a citation for violation of certain
park rules and regulations and “any rule adopted by the director”); id. § 10-
1.6(a)(2) (authorizing arrest where “the alleged violator refuses to cease
such person’s illegal activity after being issued a citation”); see also HRS
§ 710-1010 (1993 & Supp. 2001) (setting forth offense of obstructing
government operations); HRS § 852-1 (Supp. 2002) (setting forth offense of
refusal to provide ingress or egress).
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viewing the evidence presented in the light most favorable to
the State, there was insufficient evidence in this case to
support Teale’s conviction under HRS § 711-1101(1)(a). The
district court thus erred in finding Teale guilty of disorderly
conduct, and the ICA also erred in affirming the conviction.
Accordingly, we reverse the ICA’s August 25, 2016 Judgment on
Appeal and the district court’s November 15, 2012 Order and
Decree of the Court.
Walter J. Rodby /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
30