LAW L!BRAF%`Y
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 2980l
IN THE INTERMEDIATE COURT OF APPEALS
oF THE STATE oF HAWAI‘I
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STATE oF HAWAI‘I, Plainciff-Appellee, v
RYAN KILBORN, Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CR. NO. lPlO8-l348l)
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley, Leonard, JJ.)
appeals from
Defendant-Appellant Ryan Kilborn (Kilborn)
the Judgment filed on April 3, 2009, in the District Court of the
Kilborn was charged with the
in violation of
First Circuit (district court).W
(3) (1993 &
petty misdemeanor offense of disorderly conduct,
§§ 711-110l(l)(a) and
Hawaii Revised Statutes (HRS)
the district court found
Supp. 2OO9).W After a bench trial,
Kilborn guilty as charged and sentenced him to pay a fine and an
assessment totaling $230.
Kilborn challenges the sufficiency of the
On appeal,
evidence to support his conviction. we affirm.
V The Honorable Gerald Kibe presided.
9 HRS §§ 711-1101(1)(a) and (3) provide in relevant part:
(l) 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:
Engages in fighting or threatening, or in violent or
(a)
tumultuous behavior[.]
the
(3) Disorderly conduct is a petty misdemeanor if
defendant persists in disorderly conduct after reasonable warning
Otherwise disorderly conduct is a
or request to desist.
violation.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
I.
when viewed in the light most favorable to the
prosecution, State v. Smith, 106 HawaFi 365, 372, 105 P.3d 242,
249 (App. 2004), the evidence presented at trial showed the
following.
Kilborn had emerged from the 0 Lounge on Kapiolani
Boulevard and was in the parking lot "yelling profanities and
challenging [a group of] four shorter males to fight." It was
around 2:l5 a.m. and people were just leaving the clubs in the
area. The car of Kilborn's companion as well as other cars were
in the parking lot. Kilborn was carrying a forty-ounce beer
bottle that was full, and it appeared to Police Officer Kevin
Takehara, who had been dispatched to the scene, that Kilborn was
threatening to throw the bottle at the four men. Officer
Takehara testified that Kilborn "would bring his hand back as if
he was going to throw the bottle."
Officer Takehara identified himself as a police officer
and commanded Kilborn to stop, back away, and drop the bottle.
Kilborn refused to comply with Officer Takehara's repeated
commands and continued to approach the males, "flailing his arms
around[] and . . . making big body." Officer Takehara eventually
took action and compelled Kilborn to go to the ground.' Officer
Takehara arrested Kilborn and observed that Kilborn had red,
watery eyes and a strong smell of alcohol. About ten to twenty
people had gathered in the parking lot during the incident.
II.
1 To prove the offense of disorderly conduct as set forth
in HRS § 711-ll01(1)(a), the prosecution is required to show that
the defendant, "by his [or her] threatening [or] tumultuous
behavior, recklessly created the risk that a member of the public
would be physically inconvenienced or alarmed." State v. Pauole,
5 HaW. App. l20, l2l, 678 P.Zd ll07, 1108 (1984); (empha_sis
added); HRS § 711?llO1(1)(a). Establishing that a member of the
public was actually physically inconvenienced or alarmed by the
defendant's conduct is not required, and the absence of direct
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
evidence that a member of the public was actually physically
inconvenienced or alarmed is not dispositive. y
Here, there was substantial evidence that Kilborn's
-conduct recklessly created the risk of physical inconvenience or
_Anne K. Clarkin, 1
alarm by a member or members of the public in light of the open
nature of the parking lot; the presence of ten to twenty people;
and Kilborn's yelling of profanity, challenging others to fight,
and threatening to hurl a full forty-ounce beer bottle at others.
Such conduct in a public setting presents the type of danger HRS
§ 711-1101(1)(a) seeks to prevent.
One of the chief uses of a disorderly conduct statute is to
prohibit public brawling. Behav_ior of this sort is
objectionable, inter alia, because it tends to disrupt the 1
peace of the community and to alarm or endanger innocent
bystanders.
Model Penal Code & Commentaries, Part II § 250.2, comment 3 at
330, American Law Institute (1980) (footnote omitted) (referring
to Model Penal Code provision substantially similar to HRS § 711-
1101(1)(a)). There was also substantial evidence that Kilborn
persisted in his disorderly conduct after reasonable warning or
request to desist.
We conclude that there was sufficient evidence to
support Kilborn's conviction.
III.
The Judgment of the district court entered on April 3,
2009, is affirmed.
DATED'= Honolulu, Hawai‘i, May 24, 2010.
On the 'briefs: ` z
Setsuko Regina Gormley Chief Judge
for Defendant-Appellant.
Deputy Prosecuting Attorney,
City and County of Honolulu
for Plantiff-Appellee.