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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
12-NOV-2019
08:25 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI I
---o0o---
STATE OF HAWAI I
Respondent/Plaintiff-Appellee,
vs.
KEITH KAUHANE,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 15-1-0808(4))
NOVEMBER 12, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
In 2016, Keith Kauhane was convicted of Obstructing
after participating in a demonstration against the construction
of the Daniel K. Inouye Solar Telescope (DKIST) on the summit of
Haleakalā.
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The Intermediate Court of Appeals (ICA) vacated the
conviction based on an error in the jury instructions, and
remanded for a new trial. See State v. Kauhane, 144 Hawai i 109,
112, 436 P.3d 1192, 1195 (App. 2018). Nevertheless, on
certiorari, Kauhane asks this court to further determine: (1)
whether the ICA erred in determining that the State’s complaint
was sufficient, despite its failure to define the statutory term
“obstructs”; and (2) whether the ICA erred in its analysis of a
“golden rule” objection made by the State during Kauhane’s
closing argument.
We hold that the complaint was defective. By failing
to include the statutory definition of “obstructs,” the complaint
omitted an essential element of the offense of Obstructing and
did not apprise Kauhane of what he was required to defend
against. Even under the “liberal construction” standard
applicable to charges challenged for the first time on appeal,
the complaint cannot within reason be construed to charge a
crime. State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983); State
v. Wells, 78 Hawai i 373, 894 P.2d 70 (1995).
Additionally, although the ICA correctly concluded that
defense counsel did not make an improper “golden rule” argument,
we disagree with the ICA’s conclusion that the argument was
otherwise improper because it misstated the law.
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Accordingly, we vacate the ICA’s judgment, and remand
to the Circuit Court of the Second Circuit (circuit court) with
instructions to dismiss the Obstructing charge without prejudice.
I. BACKGROUND
On August 20, 2015, the Maui Police Department’s
Specialized Emergency Enforcement Detail (SPEED) team, led by
Captain Clyde Holokai (Captain Holokai), was assigned to
accompany construction vehicles and equipment from the Central
Maui Baseyard in Kahului to the DKIST construction site at the
summit of Haleakalā.
On Crater Road, the convoy encountered fifteen to
twenty protestors blocking the roadway, standing shoulder to
shoulder. When those protestors eventually cleared, seven more
protestors were revealed, sitting in the middle of the roadway,
chanting and praying. These seven protestors, including Kauhane,
were arrested.
A. Circuit Court Proceedings
1. The Complaint
After his arrest, the State charged Kauhane with: (1)
Failure to Disperse, in violation of Hawai i Revised Statutes
(HRS) § 711-1102 (2014); (2) Obstructing, in violation of HRS
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§ 711-1105(1)(a) (2014);1 and (3) Disorderly Conduct, in
violation of HRS § 711-1101(1)(d) (2014). The complaint set
forth the Obstructing charge as follows:
Count II: [Obstructing]
That on or about the 20th day of August, 2015, in the
County of Maui, State of Hawai i, KEITH KAUHANE,
whether alone or with others and having no legal
privilege to do so, did knowingly or recklessly
persist to obstruct any highway or public passage,
after a warning by a law enforcement officer to move
to prevent or to cease such obstruction, thereby
committing the offense of Obstructing in violation of
Section 711-1105(1)(a) of the [HRS].
(Emphasis added).
Notably, the charge did not define “obstructs,” which
is defined in HRS § 711-1100 (Supp. 2015) as “renders impassable
without unreasonable inconvenience or hazard.”
2. Evidence
At trial,2 the State called four witnesses to describe
the protest scene. Captain Holokai explained that it was “very
dim” when the convoy encountered the line of standing protestors,
and that the road was “very steep and narrow.” Captain Holokai
further testified that as he approached the line of protestors
with the SPEED team, he and the other officers “repeatedly
ordered [the protestors] to get off the roadway.”
1
HRS § 711-1101(1)(a) (Obstructing) provides: “[a] person commits
the offense of obstructing if, whether alone or with others and having no
legal privilege to do so, the person knowingly or recklessly . . . [o]bstructs
any highway or public passage[.]” (Emphasis added).
2
The Honorable Richard T. Bissen, Jr. presided.
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Captain Holokai testified that he first encountered
Kauhane as the line of standing protestors dispersed. Because of
Kauhane’s position in the middle of the road, and the positions
of the other sitting protestors, Captain Holokai explained that
the convoy could not have continued past them. Captain Holokai
testified that the SPEED team had to “physically pry” the sitting
protestors apart, and that even after being handcuffed, “they
wouldn’t walk.” As such, he explained, each of the seven
protestors had to be removed from the roadway by stretcher.
On cross-examination, Captain Holokai explained that it
took about five minutes to remove Kauhane from the roadway.
Although Captain Holokai admitted that he did not specifically
warn Kauhane that he would be arrested if he did not move to the
side of the road, Captain Holokai explained that he had given
this warning multiple times to the protestors standing in front
of Kauhane.
Sergeant Russell Kapahulehua (Sergeant Kapahulehua)
confirmed the events described by Captain Holokai and stated that
the protestors had created a “dangerous situation.” Sergeant
Kapahulehua testified that although Captain Holokai might not
have specifically warned Kauhane that he could be arrested, he
recalled that Captain Holokai’s general warnings to the group of
protestors were announced “very loudly” and that the standing and
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sitting protestors “were all pretty close together.”
Rex Hunter (Hunter), the DKIST’s project manager, as
well as Ervin Pigao (Pigao), an employee with the State’s
Department of Transportation (Department), also testified for the
State. Hunter, who had accompanied the convoy, testified that
the materials being transported were “extraordinarily wide,” and
that were the materials to fall, they “could kill someone.” He
further testified that the convoy had to stop multiple times
because of protestors as it made its way to the summit. Pigao,
who did not accompany the convoy, added that he had checked the
Department’s records, and could confirm that the Department had
not issued any licenses or permits to block the roadway.
The defense first called Professor Hokulani Holt-
Padilla (Professor Holt-Padilla) to testify as an expert in the
field of Hawaiian custom, culture, history, and religion.
Professor Holt-Padilla explained that Haleakalā was one of the
“most significant cultural and religious sites on Maui” for
Native Hawaiians. Construction of the DKIST, she explained, was
not just a “desecration” and an “affront” to the Hawaiian
culture, but would also affect many Native Hawaiians
“emotionally, spiritually, and physically.”
Kauhane then testified that DKIST’s construction had
caused him “serious emotional harm,” and that as long as the
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telescope continued to be built, he and other Hawaiians would be
harmed. Kauhane thus testified that he went to Crater Road to
pray and to protest the mountain’s desecration. He acknowledged
that by going to Crater Road, he had also meant to stop the
transport of the DKIST’s materials, and that while praying, he
was “obstructing” the middle of the road. Despite this, Kauhane
denied hearing the SPEED team’s warnings that he would be
arrested if he failed to move.
3. Jury Instructions
At the close of evidence, the following instructions,
which were agreed upon by both parties, were read to the jury
with regard to the offense of Obstructing:
Instruction 17
In Count Two of the Complaint, the Defendant, KEITH
KAUHANE, is charged with the offense of Obstructing.
A person commits the offense of Obstructing if,
whether alone or with others and having no legal
privilege to do so, the person knowingly or recklessly
persists to obstruct any highway or public passage,
after a warning by a law enforcement officer to move
to prevent or to cease such obstruction. There are
three material elements of the offense of Obstructing,
each of which the prosecution must prove beyond a
reasonable doubt. These three elements are:
[(1)] [T]hat on or about August 20, 2015, in the
County of Maui, State of Hawai i, the
Defendant, whether alone or with others
and having no legal privilege to do so,
obstructed any highway or public passage;
[(2)] [T]hat the Defendant persisted to obstruct
any highway or public passage, after a
warning by a law enforcement officer to
move to prevent or to cease such
obstruction; and
[(3)] [T]hat the Defendant did so knowingly or
recklessly as to the above elements.
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. . . .
Instruction 26
“Obstructs” means “renders impassable without
unreasonable inconvenience or hazard.”
The jury was also given an instruction on the choice-
of-evils defense:3
Instruction 30
It is a defense to the offense charged that the
defendant’s conduct was legally justified. The law
recognizes the “choice of evils” defense, also
referred to as the “necessity” defense.
The “choice of evils” defense justifies the
defendant’s conduct if the defendant reasonably
believes such conduct is necessary to avoid an
imminent harm or evil to himself or another person.
The conduct is justifiable if 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.
If the prosecution has not proved beyond a reasonable
doubt that the defendant’s conduct was not legally
justified by the “choice of evils” defense, then you
must find the defendant not guilty of each of the
offenses. If the prosecution has done so, then you
must find that the “choice of evils” defense does not
apply.
If you find that the defendant was reckless or
negligent in bringing about the situation requiring a
3
The choice-of-evils defense is codified in HRS § 703-302 (2014),
and in relevant part, provides the following:
(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.
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choice of harms or evils or in appraising the
necessity of his conduct, the justification afforded
by this defense is unavailable as a defense to the
offense of Obstructing.
4. Closing Arguments
The State emphasized that the “laws of Hawai i
[existed] for a reason” and that they needed to be followed in
order to protect the community. Acknowledging that Haleakalā was
undoubtedly a sacred place to many, and that all individuals had
the rights to protest, pray, and exercise their religions, the
State urged the jury to find Kauhane guilty as charged because
Kauhane, unlike many of the other protestors on Crater Road, had
chosen to break the law.
In response, drawing upon Professor Holt-Padilla’s
testimony about Native Hawaiian beliefs and Kauhane’s testimony
about his belief of harm, the defense urged the jury to find that
the choice-of-evils defense applied, and that Kauhane stayed in
the middle of the road, despite it being unlawful to do so, to
avert an even greater harm to himself and other Native Hawaiians.
The defense argued:
[W]eigh it out. What’s the harm versus what is he
being imminently harmed with? What’s the difference?
You’ve got to weigh it out, and you as jurors, I hope,
will weigh in favor of my client and find that he
believed that there was going to be imminent harm.
You know, we all experience . . . pain in various
ways. We all experience mental pain and grief and
anxiety in various ways. Pain, grief, and anxiety,
that equals harm. It’s the same thing. And again,
the only way that you can really judge as jurors the
vastness of the harm, the grief, the pain, the anxiety
is to walk in Kalei’s [Kauhane’s] shoes.
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(Emphasis added).
The State objected on the basis of the “golden rule,”
which the circuit court sustained. The defense then rephrased
its argument, omitting any reference to “walking in [Kauhane’s]
shoes,” as follows:
In light of Jury Instruction Number 30 [explaining the
choice-of-evils defense], I’m asking that you find
that my client was justified to be on the mountain at
that point in time because he believed he was going to
be suffering imminent harm from the desecration and
the continuing desecration of Haleakalā.
5. Conviction and Sentence
The jury acquitted Kauhane of the Failure to Disperse
and Disorderly Conduct charges, but found him guilty of
Obstructing. The circuit court then sentenced Kauhane to one day
in jail with credit for time served, six months of probation, and
various fines and fees.
B. ICA Proceedings
On appeal, Kauhane argued: (1) that the circuit court
erred by failing to instruct the jury on the mitigating defense
to the Obstructing charge, which would have reduced his
conviction from a petty misdemeanor to a violation; 4 (2) that the
4
HRS § 711-1105(5) provides that “Obstructing is a petty
misdemeanor if the person persists in the conduct specified in subsection (1)
after a warning by a law enforcement officer; otherwise it is a violation.”
Kauhane argued that the jury should have been instructed on this mitigating
defense, because there was evidence adduced at trial that Kauhane did not hear
a warning by a law enforcement officer to remove himself from the road.
Because the ICA agreed with Kauhane and granted a new trial on that basis,
this opinion does not discuss the parties’ arguments on that issue.
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State’s complaint was defective because it failed to include the
statutory definition of “obstructs”; and (3) that the circuit
court erroneously sustained the State’s “golden rule” objection,
which precluded him from accurately presenting the requirements
of the choice-of-evils defense to the jury. 5
Kauhane first explained that under HRS § 711-1100,
“obstructs” meant to “render[] impassable without unreasonable
inconvenience or hazard.” By omitting that definition from the
complaint, Kauhane alleged that the State had not afforded him
sufficient notice of what he was required to defend against and
had violated his right to due process. Had he known the
definition of “obstructs,” he argued, he could have “adduced
evidence . . . that his conduct did not present a hazardous
situation[,]” or “could have developed a defense that his
conduct[,] at worst[,] created a reasonable inconvenience, given
. . . his rights to peaceably assemble and protest [] official
government action.” In light of these arguments, Kauhane asked
for the ICA to dismiss the State’s complaint without prejudice.
Kauhane also alleged that by sustaining the State’s
“golden rule” objection, the circuit court prevented him from
properly explaining to the jury in his closing argument that it
5
On appeal, Kauhane also argued that insufficient evidence
supported his conviction. The ICA rejected this argument. Because Kauhane
does not challenge the sufficiency of the evidence on certiorari, we do not
address the issue further.
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could contemplate Kauhane’s choice-of-evils defense by “walking
in [his] shoes.” Thus, in the alternative, he requested a new
trial on that basis.
The State agreed with Kauhane that: (1) the circuit
court had erred by failing to instruct the jury on Obstructing’s
mitigating defense; (2) the complaint was defective; and (3) the
circuit court had erred by sustaining the “golden rule”
objection.
Despite its concession with respect to the complaint’s
deficiency, however, the State noted that because Kauhane did not
object to the charge until his appeal, the Motta/Wells rule
applied.6 Under this post-conviction “liberal construction
rule,” the State contended that Kauhane could not show (1) that
the charge was “so obviously defective that by no reasonable
construction [could] it be said to charge the offense for which
the conviction was had”; or (2) that he was substantially
prejudiced. The State thus contended that Kauhane’s conviction
could not be vacated on this ground.
In its published opinion, the ICA vacated the circuit
court’s judgment and remanded the case for a new trial, based on
6
The Motta/Wells rule derives from State v. Motta, 66 Haw. 89, 657
P.2d 1019 (1983), and State v. Wells, 78 Hawai i 373, 894 P.2d 70 (1995). In
Motta, this court adopted a “liberal construction standard for post-conviction
challenges to indictments,” while in Wells, we limited this standard to
judicial review of charges challenged for the first time on appeal.
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its conclusion that the court had erred by failing to instruct
the jury on the mitigating defense to Obstructing. 7 Kauhane, 144
Hawai i at 112, 114-16, 436 P.3d at 1195, 1197-99. The ICA
rejected Kauhane’s argument that the State’s complaint was
defective, however, and found that although the circuit court had
erred in sustaining the State’s “golden rule” objection, such
error was harmless. Id. at 113-14, 120-22, 436 P.3d at 1196-98,
1203-05.
To determine the sufficiency of the complaint, which,
as the State pointed out, was challenged for the first time on
appeal, the ICA indicated that it was applying the Motta/Wells
rule. Id. at 113, 436 P.3d at 1196. Accordingly, it explained
that it would only vacate Kauhane’s conviction based on the
sufficiency of the charge if he could show: (1) that the
complaint could not within reason be construed to charge a crime;
7
The ICA held that the circuit court’s failure to instruct the jury
on the mitigating defense to Obstructing was plain error. Kauhane, 144
Hawai i at 114, 436 P.3d at 1197. The ICA explained that under HRS § 711-
1105(5), Obstructing could be either a petty misdemeanor or a violation,
dependent on whether the individual persisted in blocking a highway or public
passage after a warning by a law enforcement officer. Id.
Here, the ICA concluded, there was some evidence that Kauhane may
not have received a warning to clear the roadway, and that therefore, his
offense could have qualified as a violation. Id. at 116, 436 P.3d at 1199.
The ICA noted that Captain Holokai did not recall giving Kauhane an individual
warning, that Sergeant Kapahulehua only recalled Captain Holokai speaking
“very loudly” to the general group, and that Kauhane had testified that he did
not hear any warning. Id.
The ICA thus concluded that, because evidence existed in the
record to support Kauhane’s contention that he may not have been warned to
move, the circuit court had erred by failing to provide instructions to the
jury on this mitigating defense. Id.
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or (2) that he was prejudiced. Id.
The ICA found that the complaint adequately charged the
offense of Obstructing and that the complaint was sufficient as a
matter of law. Id. at 113-14, 436 P.3d at 1196-97.
Specifically, the ICA determined that the statutory definition of
“obstructs” within the Obstructing statute comported with its
common definition, and that the use of the term without its
statutory definition would still be “readily comprehensible to
persons of common understanding.” Id.
Further, the ICA explained that Kauhane failed to show
that he was prejudiced by the complaint. Id. at 114, 436 P.3d at
1197. Noting that the parties had agreed upon jury instructions
that included the statutory definition of “obstructs,” the ICA
rejected Kauhane’s contentions that he neither had adequate
notice of the State’s burden of proof nor the elements of the
crime. Id.
And, although the ICA agreed with Kauhane that the
circuit court erred by sustaining the State’s “golden rule”
objection, it concluded that this error was harmless. Id. at
122, 436 P.3d at 1203. Specifically, the ICA explained, Kauhane
was not prejudiced by this error, as the argument he attempted to
make – that the choice-of-evils defense entitled a jury to
consider a defendant’s subjective belief by placing themselves
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“in the [defendant’s] shoes” – was not proper. Id. at 120-22,
436 P.3d at 1203-05 (citing State v. Maumalanga, 90 Hawai i 58,
63, 976 P.2d 372, 377 (1988) (explaining that the choice-of-evils
defense assesses a defendant’s belief under a “reasonable” person
standard). Moreover, “[i]n light of Jury Instruction Number 30,”
which detailed the defense and included language that the
“defendant reasonably believe[d] such conduct [was] necessary,”
the ICA explained that Kauhane was able to properly assert the
choice-of-evils defense, despite his claim otherwise. Id. at
122, 436 P.3d at 1205.
C. Supreme Court Proceedings
On certiorari, Kauhane again argues: (1) that the
State’s complaint was deficient for failing to include the
statutory definition of “obstructs”; and (2) that Kauhane was
prejudiced by the circuit court’s erroneous sustaining of the
State’s “golden rule” objection, in light of the arguments he
sought to present to the jury with respect to his choice-of-evils
defense.
II. STANDARD OF REVIEW
“Whether [a charge] sets forth all the essential
elements of [a charged] offense . . . is a question of law[,]
which [this court reviews] under the de novo, or right/wrong,
standard.” State v. Wheeler, 121 Hawai i 383, 390, 219 P.3d
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1170, 1177 (2009) (internal quotation marks omitted) (quoting
State v. Wells, 78 Hawai i 373, 379, 894 P.2d 70, 76 (1995)
(citations omitted)).
III. DISCUSSION
As set forth below, we conclude that the ICA erred by
failing to properly apply the Motta/Wells rule and by holding
that the State’s complaint was sufficient. We also conclude that
defense counsel’s argument on the choice-of-evils defense was not
improper, and that defense counsel should have been able to ask
the jury to consider Kauhane’s subjective belief of harm.
A. The State’s Complaint Was Insufficient.
1. The ICA Erred by Failing to Apply the Motta/Wells Rule.
As an initial matter, we note that the ICA erred by
misapplying the Motta/Wells rule. When a criminal defendant
challenges the sufficiency of a charge in a timely manner, an
appellate court will uphold that charge if: (1) it contains the
elements of the offense; and (2) it sufficiently apprises the
defendant of what the defendant must be prepared to meet. State
v. Mita, 124 Hawai i 385, 390, 245 P.3d 458, 463 (2010); State v.
Jendrusch, 58 Haw. 279, 283, 567 P.2d 1242, 1245 (1977). In
other words, “[t]he relevant inquiry . . . is whether or not the
charge [has] provided the accused with fair notice of the
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[offense’s] essential elements.” 8 Mita, 124 Hawai i at 390, 245
P.3d at 463 (citation omitted).
However, when a defendant challenges the sufficiency of
a charge for the first time on appeal, an appellate court will
apply a more liberal standard of review, called the Motta/Wells
rule. See, e.g., State v. Merino, 81 Hawai i 198, 213, 915 P.2d
672, 687 (1996) (explaining that the Motta/Wells rule applies to
challenges to oral charges, informations, and complaints raised
for the first time on appeal). Under the Motta/Wells rule,
charges challenged for the first time on appeal are presumed
valid. Wheeler, 121 Hawai i at 399-400, 219 P.3d at 1186-87.
Accordingly, we will only vacate a defendant’s conviction under
this standard if the defendant can show: (1) that the charge
cannot reasonably be construed to allege a crime; or (2) that the
defendant was prejudiced. Motta, 66 Haw. at 91, 657 P.2d at
1020.
Here, because Kauhane challenged the sufficiency of the
complaint for the first time on appeal, the Motta/Wells rule is
applicable. Although the ICA purported to apply that rule,
8
Although not implicated in this case, we note that in addition to
including all of an offense’s essential elements, a charge must also include
that offense’s requisite state of mind. See State v. Gonzalez, 128 Hawai i
314, 288 P.3d 788 (2012) (citing State v. Nesmith, 127 Hawai i 48, 276 P.3d
617 (2012)). If a charge fails to do so, it will not pass muster under the
Motta/Wells rule. See State v. Apollonio, 130 Hawai i 353, 311 P.3d 676
(2013).
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however, it appears that the ICA instead analyzed the language of
the charge using the principles applicable to timely challenges.
See Kauhane, 144 Hawai i at 113-14, 436 P.3d at 1196-97 (“We
conclude that the term ‘obstructs’ as defined in HRS § 711-1100
comports with its commonly understood definition, and use of that
term in the . . . [c]omplaint is readily comprehensible to
persons of common understanding.”).
As set forth below, we respectfully disagree with that
analysis, and further hold that the charge was deficient even
under the Motta/Wells rule.
2. The Complaint was Defective Under the Standard of
Review for Timely Challenges.
As described above, a charge will only be sufficient
when it “provide[s] the accused with fair notice of the
[offense’s] essential elements.” Mita, 124 Hawai i at 390, 245
P.3d at 463 (citation omitted). A charge’s essential elements
include conduct, attendant circumstances, and results of conduct.
State v. Sprattling, 99 Hawai i 312, 329 n.6, 55 P.3d 276, 293
n.6 (2002) (quoting Merino, 81 Hawai i at 214, 915 P.2d at 688);
HRS § 702-205.
“[W]here [a] statute sets forth with reasonable clarity
all essential elements of the crime intended to be punished, and
fully defines the offense in unmistakable terms readily
comprehensible to persons of common understanding, a charge drawn
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in the language of the statute [will be] sufficient.” State v.
Nesmith, 127 Hawai i 48, 53, 276 P.3d 617, 622 (2012) (citing
Wheeler, 121 Hawai i at 393, 219 P.3d at 1180). However, “[i]n
some cases, [] a charge tracking the language of the statute
defining the offense [will] violate[] an accused’s due process
rights. Id.
This is so because although “some statutes in our
criminal laws so clearly and specifically define the
offense that nothing more is required in a charge than
the adoption of language of the statute, other
statutes fail to sufficiently describe the crime and a
charge couched merely in the language of such a
statute would violate due process.”
Id. (citing State v. Israel, 78 Hawai i 66, 73, 890 P.2d 303, 310
(1995) (emphasis added) (internal quotations and brackets
omitted)).
The charge at issue here falls into this latter
category because it failed to allege all of Obstructing’s
essential elements. By doing so, it also failed to apprise
Kauhane of what he was required to defend against.
Under HRS § 711-1105(1)(a), “[a] person commits the
offense of Obstructing if, whether alone or with others and
having no legal privilege to do so, the person knowingly or
recklessly . . . [o]bstructs any highway or public passage[.]”
(Emphasis added). HRS Chapter 711 defines “obstructs” to mean
“renders impassable without unreasonable inconvenience or
hazard.” HRS § 711-1100.
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Here, the State’s charge tracked the language of the
Obstructing statute, but did not include the statutory definition
of “obstructs” as provided for in HRS § 711-1100. The State was
required to include this definition, however, because “render[ing
a highway or public passage] impassable without unreasonable
inconvenience or hazard” comprised an essential element of the
offense as a result of conduct. See HRS § 711-1100.
Without this element, Kauhane could not have been
sufficiently apprised of what he was required to defend against.
Contrary to the ICA, we do not believe that the statutory meaning
of “obstructs” comports with its common meaning. For example,
Merriam-Webster’s dictionary defines “obstructs” as “to block or
close up by an obstacle[;] to hinder from passage, action, or
operation[;] IMPEDE[ or] to cut off from sight,” while Black’s
Law Dictionary defines “obstructs” as:
1. To block or stop up (a road, passageway, etc.); to
close up or close off, esp. by obstacle . 2. To make difficult or impossible; to keep
from happening; hinder . 3. To cut off a line of vision; to shut
out .
See Obstruct, Merriam-Webster Collegiate Dictionary (11th ed.
2003); see also Obstruct, Black’s Law Dictionary 1246 (10th ed.
2014).
Under these common definitions, any blockage of passage
is sufficient to constitute obstruction. This is not the case
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under HRS § 711-1100, however, which is more protective of
freedom of speech and assembly and provides that conduct
constitutes obstruction only if it poses “unreasonable
inconvenience or hazard.” (Emphasis added).
This more protective approach is confirmed by HRS
§ 711-1105's commentary, as well as by the commentary on Model
Penal Code (MPC) § 250.7, the model statute from which HRS § 711-
1105 was substantially derived. See State v. Aiwohi, 109 Hawai i
115, 126 n.13, 123 P.3d 1210, 1221 n.13 (2005) (explaining that
the MPC as adopted in 1962 was used by the Judicial Council of
Hawai i as the guide for the Hawai i Penal Code) (citing State v.
Gaylord, 78 Hawai i 127, 140 n.22, 890 P.2d 1167, 1180 n.22
(1995) (citation omitted)).
Specifically, the commentary to HRS § 711-1105 states
that:
Normally, the act of obstructing a public highway
presents a great public inconvenience and serves no
useful purpose. However, where the obstruction is
caused by a crowd listening to a speaker, or even by a
crowd protesting some official action, important goals
are served by leaving the group as free from
restriction as possible.
HRS § 711-1105 cmt.
The commentary on MPC § 250.7 also explains that the
MPC’s definition of “obstructs” – “to render impassable without
unreasonable hazard or delay” – played a “crucial role” in
confining the reach of the Obstructing statute “within acceptable
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limits.” ALI Model Penal Code and Commentaries Part II, § 250.7,
at 403 (1980) (emphases added). And, it further explains that
the MPC adopted such a “precise” definition of “obstructs”
because “[n]ot every incidental impact on access to streets and
highways” warranted a “restriction on speech and assembly.” Id.
(explaining that an individual’s “presence in an obstructive
gathering” was not criminal “so long as . . . the public [could]
go on their way with reasonable safety and convenience”). This
definition of “obstructs,” the commentary notes, would therefore
“preclude[] the suppression of otherwise lawful activity on the
ground of some trivial inconvenience to [a] passerby,” and
furthermore, “give the widest possible scope to picketing,
protest, and other lawful assembly, consistent with the need to
protect reasonable public access to highways and other public
passages.” Id. at 403-04.
It is thus clear, from examining Hawai i’s Obstructing
statute and its commentary, as well as the commentary of MPC
§ 250.7, that the statutory definition of “obstructs” does not
reflect the term as commonly understood. Rather, the statutory
definition of “obstructs” includes a limitation of
“unreasonableness” for the specific purpose of protecting freedom
of speech and freedom of association. We do not believe that a
person of common understanding would be aware of this additional
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meaning.
This analysis is confirmed by an examination of State
v. Wheeler, 121 Hawai i 383, 219 P.3d 1170 (2009), and State v.
Pacquing, 139 Hawai i 302, 389 P.3d 897 (2016). In Wheeler, this
court held that a charge for Operating a Vehicle Under the
Influence of an Intoxicant (OVUII) was fatally defective because
it failed to include the statutory definition of “operates.” 121
Hawai i at 393, 219 P.3d at 1180. Under the statutory
definition, the term “operates” meant to “drive or assume actual
physical control of a vehicle upon a public way, street, road, or
highway[.]” Id. at 391, 219 P.3d at 1178 (emphasis added). In
contrast, the commonly understood definition of the term meant
“to perform a function or operation, or [to] produce an
effect[,]” regardless of where that took place. Id. at 394, 219
P.3d at 1181 (citing Black’s Law Dictionary 1091 (6th ed. 1990)).
This court concluded that the statutory definition of
“operates,” which included the attendant circumstance of
location, did “not comport with its commonly understood
definition,” was “not readily comprehensible to persons of common
understanding,” and did not provide the defendant with adequate
notice of what he was required to defend against. Id.
Accordingly, we held that an OVUII charge would not be sufficient
unless it alleged that the offense had occurred on a public
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roadway. Id. at 396, 219 P.3d at 1183.
This court came to a similar conclusion in Pacquing,
holding that any charge for the unauthorized possession of
confidential personal information (UPCPI) would have to include
the statutory definition of “confidential personal information”
in order to be sufficient. 139 Hawai i 302, 308, 389 P.3d 897,
903 (2016). As provided by statute, the term “confidential
personal information” meant “information in which an individual
[had] a significant privacy interest, including but not limited
to a driver’s license number, a social security number, an
identifying number of a depository account, a bank account
number, [or] a password[.]” Id. This definition, we concluded,
did not comport with its common meaning of “secret or private
knowledge belonging or relating to a particular person or
designed for use by that person.” Id. Because the phrase
“‘confidential personal information’ [did] not convey the extent
or limits of the statutory definition[,]” we held that the UPCPI
charge did not “sufficiently apprise” the defendant of what he
was required to defend against. Id.
Here, as in Wheeler and Pacquing, the State’s charge
against Kauhane failed to “convey the extent or limits of the
statutory definition” and failed to apprise Kauhane of what he
was required to defend against. Kauhane would not have
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“obstructed” Crater Road in violation of HRS § 711-1105 had he
merely blocked it; he only would have “obstructed” the road for
the purposes of the statute had he blocked it by causing an
unreasonable inconvenience or hazard. Because the State was
required to include the definition of “obstructs” in its charge
as an essential element of the offense, and ultimately, prove
beyond a reasonable doubt that Kauhane’s conduct would have
prevented the convoy’s passage without unreasonable inconvenience
or hazard, the charge was fatally defective and did not provide
Kauhane with adequate notice.
3. The Complaint was Insufficient Under the Motta/Wells
Rule.
As set forth above, although the ICA purported to apply
the Motta/Wells rule, it actually applied the standard of review
for an issue raised at the trial level. We hold, however, that
even under the Motta/Wells rule, the complaint was insufficient
and must be dismissed.
In State v. Sprattling, 99 Hawai i 312, 317, 55 P.3d
276, 281 (2002), the defendant argued that an Assault in the
Third Degree charge was fatally defective because, by alleging
“injury” instead of “bodily injury,” the State failed to include
one of the charge’s essential elements. This court rejected that
argument, and instead held that it was sufficient under the
Motta/Wells rule. Id. at 321, 55 P.3d at 285.
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As an initial matter, this court explained that the
charge could still “be reasonably construed to charge assault in
the third degree.” Id. at 320, 55 P.3d at 284. Although the
charge failed to include the word “bodily,” we concluded that
this omission was not a fatal defect because the term “bodily”
merely served as a modifier to the word “injury,” and did not, on
its own, constitute an essential element of the offense. Id. at
319, 55 P.3d at 283. This court also concluded that this
omission did not “alter the nature and cause of the accusation
such that a person of common understanding would fail to
comprehend it.” Id. Even without the term “bodily,” a defendant
could still comprehend the charge to include “bodily injury”
because “bodily injury” was inherent in the common definition of
“assault.”9 Id. For this reason, and because the defendant did
not allege that he was prejudiced, this court held that the
State’s charge passed muster under the Motta/Wells rule.
In contrast to the State’s charge in Sprattling, which
imperfectly stated an element of the offense, here, the State’s
failure to include the statutory definition of “obstructs”
amounted to an omission of an entire element of the offense.
9
Specifically, we held that “[t]he word ‘assault’ by definition
implie[d] bodily injury[, as] it [was] defined as ‘any intentional display of
force such as would give the victim reason to fear or expect bodily harm[.]”
Sprattling, 99 Hawai i at 319, 55 P.3d at 283 (emphasis and omission in
original) (citing Black’s Law Dictionary 114-15 (6th ed. 1990)).
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Thus, unlike the charge in Sprattling, the charge here cannot
reasonably be construed to charge an offense because the common
definition of “obstructs” did not comport with its statutory
definition. As a result, even under the more liberal Motta/Wells
rule, the charge was insufficient, and accordingly, must be
dismissed. See Wheeler, 121 Hawai i at 386, 400, 219 P.3d at
1173, 1187 (affirming the ICA’s judgment, which vacated and
remanded the case with instructions to dismiss without prejudice,
because the charge was deficient). 10
B. The State’s “Golden Rule” Objection Was Incorrect.
In addition to challenging the sufficiency of the
complaint, Kauhane also argued to the ICA that the circuit court
erred by sustaining the State’s “golden rule” objection during
his closing argument, which precluded him from informing the
jurors that they could consider Kauhane’s belief, for the
purposes of the choice-of-evils defense, by “walking in his
shoes.” Although the ICA agreed with Kauhane that the argument
was not improper under the “golden rule,” it further held that it
was improper because it misstated the law on the choice-of-evils
defense.
10
In light of our determination, we do not address whether Kauhane
was prejudiced.
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1. The “Golden Rule” Argument Did Not Apply.
As the ICA concluded, the circuit court incorrectly
sustained the State’s objection. Under a typical “golden rule”
argument, “a lawyer asks the jurors to reach a verdict by
imagining themselves or someone they care about in the place of
the injured plaintiff or crime victim.” Golden-rule argument,
Black’s Law Dictionary 807 (10th ed. 2014). These arguments are
widely condemned in both civil and criminal cases because they
“ask the jurors to become advocates for the plaintiff or victim
and to ignore their obligation to exercise calm and reasonable
judgment[.]” Kauhane, 144 Hawai i at 121, 436 P.3d at 1204
(citing Ditto v. McCurdy, 86 Hawai i 93, 127, 947 P.2d 961, 995
(App. 1997) (citation omitted), aff’d in part, rev’d on other
grounds, 86 Hawai i 84, 947 P.2d 952 (1997)). As the ICA noted,
unlike a typical “golden rule” argument, the defense’s argument
in the instant case did not attempt to inflame the passions of
the jury. Id. Furthermore, the “golden rule” argument did not
apply because Kauhane, who asked the jury to “walk in [his]
shoes” for the purposes of the choice-of-evils defense, was a
defendant, rather than a civil plaintiff or victim. Id. at 122,
436 P.3d at 1205. Accordingly, we agree with the ICA that it was
error for the circuit court to sustain the State’s objection when
it was based on that ground.
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2. A Defendant’s Subjective Belief of Harm is Relevant For
the Purposes of the Choice-of-Evils Defense.
Although the ICA correctly concluded that the circuit
court erred in sustaining the State’s objection, we disagree with
its analysis of whether that error was harmless. Specifically,
the ICA concluded that defense counsel’s statement to the jury –
that “the only way to judge the vastness of the harm to Kauhane
was to walk in [his] shoes” – was improper for the purposes of
the choice-of-evils defense because it failed to incorporate a
reasonable person standard.11 Kauhane, 144 Hawai i at 122, 436
P.3d at 1205 (citing Maumalanga, 90 Hawai i at 58, 976 P.2d at
372).
Thus, it appears the ICA was suggesting that defense
counsel was misstating the law by not referring to the
reasonableness of Kauhane’s belief. However, although Kauhane’s
belief had to be objectively reasonable, it was also necessary
that Kauhane, in fact, subjectively held such a belief. Thus, it
11
In Maumalanga, 90 Hawai i at 58, 976 P.2d at 372, this court held
that “all of the elements of the choice of evils defense [were] contained
within the express language of HRS § 703-302[,]” and further, that any “common
law formulations . . . [were] superseded by the adoption of the Hawai i Penal
Code.” See id.; see also State v. Friedman, 93 Hawai i 63, 71, 996 P.2d 268,
276 (2000). This court based its ruling on the concurring and dissenting
opinion of then-Judge Acoba, who acknowledged in the ICA that “[t]he term
‘believes’ in HRS § 703-302 meant ‘reasonably believes[,]’” and further, that
“this definition [of belief] . . . was intended by the legislature to
incorporate a ‘reasonable [person] standard.’” See State v. Maumalanga, 90
Hawai i 96, 112 n.3, 976 P.2d 410, 426 n.3 (App. 1998); HRS § 703-300 (“In
this chapter, unless a different meaning is plainly required: ‘Believes’ means
reasonably believes”); HRS § 703-302 supp. cmt. (explaining that the
legislature adopted a reasonable person standard for the choice-of-evils
defense).
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was proper for Kauhane’s counsel to address Kauhane’s subjective
belief in his closing argument. Moreover, we do not interpret
Kauhane’s argument as suggesting that the jury improperly
disregard the requirement that the belief be reasonable. Thus,
the ICA incorrectly concluded that defense counsel’s argument was
improper.
IV. CONCLUSION
For the reasons set forth above, we vacate the ICA’s
January 2, 2019 Judgment on Appeal and the circuit court’s
September 9, 2016 Judgment of Conviction and Probation, and
remand the case to the circuit court with instructions to dismiss
without prejudice.
Hayden Aluli /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Gerald K. Enriques
(Richard K. Minatoya /s/ Sabrina S. McKenna
on the brief)
for respondent /s/ Richard W. Pollack
/s/ Michael D. Wilson
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