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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-MAY-2021
07:47 AM
Dkt. 56 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MARCILINO ALDAYA, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(KONA DIVISION)
(CASE NO. 3DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
The State of Hawai#i (State) charged Defendant-
Appellant Marcilino Aldaya (Aldaya) with disorderly conduct as a
petty misdemeanor offense, in violation of Hawaii Revised
Statutes (HRS) § 711-1101(1)(c) and (3) (2014).1/ After a bench
1/
HRS § 711-1101(1)(c) and (3) provides:
(1) A person commits the offense of disorderly conduct if,
with intent to cause physical inconvenience or alarm by a member
or members of the public, or recklessly creating a risk thereof,
the person:
. . .
(c) Subjects another person to offensively coarse behavior
or abusive language which is likely to provoke a violent
response[.]
. . .
(continued...)
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trial, the District Court of the Third Circuit, Kona Division,
(District Court)2/ found Aldaya guilty as charged.
Aldaya appeals from the District Court's Amended
Judgment and Notice of Entry of Judgment that was filed on April
8, 2019. On appeal, Aldaya argues that the State failed to
present sufficient evidence to prove that he committed disorderly
conduct under HRS § 711-1101(1)(c). He further argues that the
State failed to present sufficient evidence to enhance the
charged HRS § 711-1101(1)(c) offense from a violation to a petty
misdemeanor pursuant to HRS § 711-1101(3).
As explained below, we conclude that the State failed
to present sufficient evidence to prove that Aldaya committed
disorderly conduct under HRS § 711-1101(1)(c). We therefore need
not address Aldaya's claim that there was insufficient evidence
to enhance the charge to a petty misdemeanor. We reverse
Aldaya's conviction and the District Court's Amended Judgment.
DISCUSSION
I.
HRS § 711-1101(1)(c) requires proof that the defendant
"subject[ed] another person to offensively coarse behavior or
abusive language which is likely to provoke a violent response."
In light of the First Amendment implications of punishing speech,
1/
(...continued)
(3) 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.
2/
The Honorable Margaret Masunaga presided.
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we construe the "likely to provoke a violent response"
restriction as applying to both the "offensively coarse behavior"
and "abusive language" provisions of HRS § 711-1101(1)(c). This
interpretation is consistent with State v. Jendrusch, 58 Haw.
279, 567 P.2d 1242 (1977), where the Hawai#i Supreme Court, in
discussing the type of conduct proscribed by HRS §
711-1101(1)(c), stated: "Speech may be punishable only if,
within the meaning of the statute, it is 'likely to provoke a
violent response.'" Id. at 282, 567 P.2d 1245;3/ see also, State
v. Faulkner, 64 Haw. 101, 105, 637 P.2d 770, 774 (1981) ("Coarse
and obscene language directed at a member of the public, which is
likely to provoke a violent response, may also furnish the basis
for a charge under HRS § 711-1101(1)(c)."). It is also
consistent with decisions of the United States Supreme Court and
other courts that either have struck down statutes prohibiting
the use of "offensively coarse" utterances or similar conduct on
First Amendment overbreadth grounds, or have narrowly construed
3/
At the time relevant to the Jendrusch decision, HRS §
711-1101(1)(c) provided:
(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,
he:
. . .
(c) Makes any offensively coarse utterance, gesture, or
display, or addresses abusive language to any person
present, which is likely to provoke a violent response[.]
Jendrusch, 58 Haw. at 280, 567 P.2d at 1243.
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such statutes to prohibit only the "fighting words" category4/ of
unprotected speech to avoid First Amendment concerns. E.g.,
Gooding v. Wilson, 405 U.S. 518, 519-20 (1972) (invalidating
statute as facially unconstitutional); Johnson v. Campbell, 332
F.3d 199, 211-12 (3rd Cir. 2003) (concluding that Delaware has
construed its disorderly conduct statute as prohibiting only
"fighting words"); State v. Hoffman, 387 N.E.2d 239, 242 (Ohio
1979) (narrowing statute to only prohibit "fighting words.");
Hansen v. People, 548 P.2d 1278, 1280 (Col. 1976) (invalidating
statute as facially overbroad).
II.
We conclude that the State failed to present sufficient
evidence to show that Aldaya "subject[ed] another person to
offensively coarse behavior or abusive language which [was]
likely to provoke a violent response." In reviewing a challenge
to the sufficiency of evidence, we must view the evidence in the
light most favorable to the State. State v. Ildefonso, 72 Haw.
573, 576, 827 P.2d 648, 651 (1992). "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) (citation omitted). Substantial evidence
is "credible evidence which is of sufficient quality and
4/
In Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), the
United States Supreme Court described the "fighting words" category of
unprotected speech as "those [words] which by their very utterance inflict
injury or tend to incite an immediate breach of the peace."
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probative value to enable a person of reasonable caution to
support a conclusion." State v. Pone, 78 Hawai#i 262, 265, 892
P.2d 455, 458 (1995) (brackets and citation omitted).
The backdrop for Aldaya's disorderly conduct charge was
a Kona event in which Ali#i Drive was closed to permit vendors to
set up tents to sell items, with hundreds of people walking the
streets. During this event, Hawai#i County Police Officers
Kamuela Akana and Shawn Mirafuentes were on patrol together, and
they encountered Aldaya on two separate occasions. The State
called Officers Akana and Mirafuentes as witnesses at trial, and
their testimony was the only evidence presented. Officers Akana
and Mirafuentes did not testify to observing any disruptive
behavior on Aldaya's part during the first encounter, and
Aldaya's actions during this encounter did not provide any basis
for establishing disorderly conduct under HRS § 711-1101(1)(c).
With respect to the second encounter, the State
presented the officers' testimonies that they observed Aldaya
lying on a wall, loudly "yelling obscenities, vulgarness,
swearing and stuff like that," "throwing his hands all over the
place, kicking, . . . [and] just causing a disturbance to the
public." This was the extent of the detail provided by the State
on Aldaya's language and behavior pertinent to his disorderly
conduct charge.
However, in order for a trier of fact to determine
whether Aldaya's words and actions subjected another person to
"offensively coarse behavior or abusive language which is likely
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to provoke a violent response," the State was required to provide
some substantial details or particulars regarding Aldaya's words
and actions. This the State failed to do. Aside from Officer
Akana's non-specific characterizations of Aldaya's words as
"obscenities, vulgarness, swearing and stuff like that," the
State did not present evidence of the words that Aldaya actually
used or the substance of what he was saying.5/ Without more
detail about the words Aldaya spoke, it is difficult to see how
the State could demonstrate that what Aldaya said constituted
"offensively coarse behavior" or "abusive language." The State
also did not present any clarifying or explanatory details
regarding Aldaya's actions of "throwing his hands all over the
place [and] kicking," such as whether Aldaya's actions were
directed at anyone, were done in a confrontational manner, or
came close to making physical contact with anyone.
Moreover, the reaction of the person or persons
purportedly subjected to Aldaya's conduct is relevant to whether
such conduct was "likely to provoke a violent response."
Although Officer Akana testified that Aldaya was "yelling at
another male party,"6/ the State failed to present relevant
details regarding that male party's reaction to Aldaya's
5/
Officer Mirafuentes testified that Aldaya was "blurting out
stuff," but Officer Mirafuentes could not remember what Aldaya was saying.
6/
In contrast to Officer Akana, Officer Mirafuentes testified that
he did not think that Aldaya "was talking to any one person," but rather
thought that Aldaya was "just talking out loud." Officer Mirafuentes
testified that while Aldaya was next to someone, Aldaya "didn't have any eye
contact with [that] person."
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yelling.7/ As to the reaction of other members of the public,
Officer Akana testified that people walking in the area "were
like trying to go around," had a "visible reaction," and "looked
pretty disturbed by what was happening." Officer Mirafuentes
testified that the "facial expressions [of members of the public]
seemed concerning," and he could hear people say, "'What is this
guy doing?'" However, evidence that people were "trying to go
around," "looked pretty disturbed," "seemed concern[ed]," or
questioned what Aldaya was doing does not demonstrate that
Aldaya's words and actions were likely to provoke a violent
response. This is especially true given the lack of detail in
the State's evidence regarding Aldaya's words and actions. We
conclude that the evidence presented, even when viewed in the
light most favorable to the State, was not "of sufficient quality
and probative value to enable a person of reasonable caution" to
conclude that Aldaya subjected another person to "offensively
coarse behavior or abusive language which [was] likely to provoke
a violent response." See Pone, 78 Hawai#i at 265, 892 P.2d at
458.
We note that Officers Akana and Mirafuentes testified
that after they admonished Aldaya about his behavior during the
7/
Officer Akana testified that he told Aldaya that the officers
were contacting him again because "we're getting another call, disturbing
behavior. You guys are yelling and just, you know, swearing and, you know,
cursing and everything." It is not clear whether Officer Akana's reference to
"[y]ou guys are yelling[,] . . . swearing[,] . . . [and] cursing" is what he
heard in the call from dispatch or is what he personally observed. Even if
Officer Akana was referring to what he personally observed, he did not provide
details on the other "guy's" demeanor or the substance of what that person was
saying.
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second encounter, Aldaya directed his attention at the officers
and began arguing with them. The officers testified that Aldaya
swore at them and challenged the officers to arrest him, and that
Aldaya was then placed under arrest. The officers' testimony
included details of the words used by Aldaya in arguing with
them.8/
However, HRS § 711-1101(1)(c) requires proof that the
defendant acted "with intent to cause physical inconvenience or
alarm by a member or members of the public, or recklessly
creating a risk thereof." (Emphasis added). The Commentary to
HRS § 711-1101 and relevant Hawai#i case law makes clear that as
a general rule, police officers are not considered "members of
the public" for purposes of the disorderly conduct statute.
Commentary to HRS § 711-1101;9/ State v. Leung, 79 Hawai#i 538,
542-45, 904 P.2d 552, 556-59 (App. 1995) ("Arguments with the
police, without more, do not fall within the ambit of the
disorderly conduct statute[.]"); State v. Nakasone, 1 Haw. App.
8/
Officer Akana testified that Aldaya told the officers, "Ef you
guys . . . I'm not . . . afraid to go to jail . . . stop bothering me . . .
I'm not scared . . . Effin arrest me." Officer Mirafuentes testified that
Aldaya said, "Fuck you guys. Uh, I no need move. Arrest me if you guys
like."
9/
The Commentary to HRS § 711-1101 provides in relevant part:
A person may not be arrested for disorderly conduct as a
result of activity which annoys only the police . . . .
Police officers are trained and employed to bear the burden
of hazardous situations, and it is not infrequent that
private citizens have arguments with them. Short of conduct
which causes "physical inconvenience or alarm to a member or
members of the public" arguments with the police are merely
hazards of the trade, which do not warrant criminal
penalties.
(Footnote omitted).
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10, 11-12, 612 P.2d 123, 124-25 (1980) (concluding that evidence
that the defendant argued with a police officer was insufficient
to prove disorderly conduct). We conclude that Aldaya's conduct
in arguing with the officers did not provide a basis for the HRS
§ 711-1101(1)(c) charge. See id.
CONCLUSION
Based on the foregoing analysis, we reverse the
District Court's April 8, 2019 Amended Judgment.
DATED: Honolulu, Hawai#i, May 27, 2021.
On the briefs:
/s/ Katherine G. Leonard
Jon N. Ikenaga, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Sara B. Vargas,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
County of Hawai#i, Associate Judge
for Plaintiff-Appellee.
9