APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT WAILUKU DIVISION (Case No. 2P108-02074)
On the briefs:
Jennifer D.K. Ng, Deputy Public Defender, for Defendant-Appellant.
Artemio C. Baxa, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
FOLEY, PRESIDING JUDGE, FUJISE AND REIFURTH, JJ.
Defendant-Appellant Lawrence DeMello, Jr. (DeMello) appeals from the January 5, 2010 Judgment entered by the District Court of the Second Circuit, Wailuku Division (District Court).DeMello was found guilty of Harassment, in violation of Hawaii Revised Statutes (HRS) § 711-1106(1)(a) (Supp. 2012) and Simple Trespass, a violation of HRS § 708-815 (1993).
DeMello's points on appeal are that (1) there was insufficient evidence to convict him of Harassment, (2) his sentence was illegal because the District Court imposed the maximum 30-day term of incarceration and ordered him to attend anger management classes for his Harassment conviction, (3) the District Court abused its discretion by ordering him to pay restitution because (a) the District Court failed to apportion restitution for the victim's medical expenses based on the victim's pre-existing medical condition and because it was not clear that DeMello was the sole cause of the victim's injuries, (b) restitution for lost wages is not permitted by HRS § 706-646, and (c) the evidence in the record did not support the amount of restitution DeMello was ordered to pay, and (4) the District Court failed to enter findings of fact and conclusions of law regarding the manner of restitution payment and the amount that DeMello could reasonably afford to pay.
On July 5, 2008, DeMello was charged with Harassment of Carleen Kelekoma (Carleen) and Simple Trespass upon the premises owned by Carleen. DeMello's one-day, non-jury trial was held on December 14, 2009.
Alex Kelekoma (Alex), testified that he was married to Carleen and lived with his two children, a son, from a previous marriage to Cherilyn Kelekoma (Cherilyn) and a daughter with Carleen. At the time of the events in this case, DeMello was Cherilyn's boyfriend and son's football coach. Alex was the equipment manager for the same team.
Alex and Cherilyn had agreed that, after school on certain days, son would catch the bus from school to the Kelekoma home. On May 9, 2 008, son failed to get off the bus at his regular time; Alex became worried and called Cherilyn. Cherilyn informed Alex that DeMello had picked son up from school.
The next day, Alex told Carleen about the incident. Later that evening, Alex called DeMello and told him that he did not appreciate what happened and that he should have been informed that DeMello would pick son up. DeMello said, "Oh yeah, I went and picked him up from school because we didn't trust him going to your house because your wife took away the cell phone." Both Alex and DeMello. were calm; neither raised their voice.
Carleen took the phone from Alex and also spoke to DeMello because she believed that DeMello was overstepping his boundaries. According to Alex, Carleen was not "yelling or making derogatory comments or anything, " but from a two-to-three-foot distance, Alex could hear DeMello yelling, although he could not hear what was being said. Carleen told DeMello, "Calm down, brother, calm down." Carleen told Alex that DeMello hung up on her.
About a minute later, Cherilyn called Alex's phone and Carleen answered it. Carleen told Cherilyn, "I didn't do anything to him." Five to ten minutes later, Alex saw DeMello pacing back and forth in front of Alex's yard, next to the fence. Alex waived DeMello over; DeMello jumped over the fence instead of using the gate. DeMello came up "pretty fast" and "had a really angry posture[.]" Alex testified that DeMello immediately went up to Carleen with his hand raised, as if he were threatening to hit her, saying, "you don't know who you are messing with, don't talk to me like that[.]" DeMello was toe-to-toe with Carleen. Carleen took a step back and was shocked. Alex stood between them and told DeMello to calm down. Carleen asked DeMello, "What? You going to hit me L.D.?" DeMello responded, "I not going to hit you, but you better watch who you are talking to." Nevertheless, DeMello still had "his backhand raised." Carleen told DeMello to leave.
Carleen continued to converse with DeMello, and Cherilyn arrived about five minutes after DeMello did. Cherilyn also appeared angry and immediately approached Carleen, saying, "What's your problem, you know? What did you do?" The conversation then became more heated. Carleen was backing up and Cherilyn was gradually getting closer as the argument progressed, until "she finally went for Carleen." Alex immediately got between the women and, facing Carleen, pinned her back against their clothesline. As Cherilyn tried to go over Alex's shoulder towards Carleen, Alex picked Carleen up and started walking off the patio towards the yard. Cherilyn came over Alex's back, causing all three to fall across the lawn. Alex then saw DeMello, using both hands, grab Carleen's hair on either side of her head and drag her across the lawn about 10 feet, with enough force to lift her legs off the ground. Alex immediately got up and shoved DeMello away. DeMello started yelling at Alex, telling him, "Don't put your hands on me. You know, like I will knock you out." Alex told DeMello, "Brother, I am just protecting my wife." When DeMello continued to threaten Alex, Alex told DeMello, "You know what, Brother, you guys got to go. Leave already." However, DeMello and Cherilyn did not leave and DeMello "was bouncing around like with his hands up, you know, like he wanted to fight."
Carleen testified that after she fell on the lawn with Alex and Cherilyn, she "felt excruciating pain on both sides . . . left and right, like my hair was [being] pulled" and then "felt [her] neck crunch back and  heard it crack and then black." After she awoke, Carleen saw that she was ten feet away, under her lemon tree, felt excruciating pain on her head and neck, had a hard time breathing, and was dizzy. She then told DeMello and Cherilyn to get off her property but they did not immediately leave. When Carleen repeated that DeMello and Cherilyn should go, Cherilyn responded, "I can't stop him, you can't stop him, nobody can, so get out of the way or you are going to get hurt." At that point, Carleen went into the house to call the police. Aggravated, Cherilyn said, "You know what, call the cops. I will take your asses to court and I'll take my son away and you know they will give him to me because I am the mother."
About five minutes after they were called, the police arrived; DeMello was still engaged in yelling at the Kelekomas and did not notice their arrival until one of the officers tapped him on his shoulder. DeMello left the property without being arrested but was later served a summons and complaint for Harassment and Simple Trespass.
Cherilyn and DeMello described the incident somewhat differently. Cherilyn claimed that Carleen attacked her first and attacked her again after Alex intervened. It was DeMello that told Carleen to let go of Cherilyn's hair. After Cherilyn, Carleen, and Alex fell on the ground Cherilyn believed that DeMello grabbed Carleen's hair to make her let go of her own hair but did not actually see DeMello grab Carleen's hair. In response to Alex's inquiry as to why DeMello did that to Carleen, DeMello stated that he was defending Cherilyn. Cherilyn denied that Carleen or Alex asked her or DeMello to leave the premises.
DeMello testified that Alex invited him onto the property so he jumped over the fence as he had done on previous occasions. DeMello claimed that Carleen came up to him aggressively and invaded his "comfort zone" so he put up both of his hands. He explained that he tried to calm Carleen down. Carleen calmed down but then began to argue with Cherilyn after she arrived. Alex was holding Carleen back and he was holding Cherilyn back when Carleen reached over and grabbed Cherilyn's hair. According to DeMello, only Carleen and Cherilyn fell down while Alex went off to a corner. He tried to grab Carleen's hand but he got tangled in Carleen's hair because she was pulling and punching. He told Carleen to let go. DeMello admitted to pulling Carleen's hair but only because he was attempting to protect Cherilyn.
The District Court found DeMello guilty as charged and specifically rejected his defense-of-others justification under HRS § 703-305 (1993) .
Under the circumstances, neither Cherilyn nor the defendant would have been justified in using the kind of force that was used in this case, to wit, the pulling of the defendant by the hair across the lawn for that distance. Under the circumstances, this conduct was not necessary to achieve the protection of the other person.
The facts in this case indicate that at the time of defendant's conduct in pulling the defendant [sic] by her hair across the lawn, that Cherilyn was already the aggressor in this altercation, Carleen was already on her back with her husband lying on top of her, and Cherilyn on top of this pile. And, therefore, the facts and ' circumstances of this case do not allow this Court to contemplate this defense of the use of force for the protection of other persons, which is rejected.
For his Harassment conviction, DeMello was sentenced to 3 0 days incarceration and was ordered to participate in anger management classes. DeMello was fined $100 for Simple Trespass. On request of the State, a hearing to determine restitution was set for March 30, 2010. Judgment dated January 5, 2010, noted a 30 day jail term, participation in anger management class, a $100 fine, and that "deft to sign a free standing order of restitution granted." DeMello filed a Notice of Appeal on February 2, 2010. At the status conference held on February 8, 2010, the District Court noted that DeMello had filed his notice of appeal and entered a stay of sentence pending the appeal.
On March 8, 2010, Carleen's claim for restitution was filed, claiming $2051.27 in medical costs and $1, 155.12 in lost wages. Attached to the claim was a detailed breakdown of medical and therapeutic services received by Carleen and a list of Carleen's clients with the respective fees she would have earned, between May 13, and May 23, 2008. In addition, letters from Carleen's treating physician and therapists attesting that the charges indicated were for treatment of Carleen for injuries sustained on May 10, 2008. At the March 30, 2010 hearing, the District Court continued the proceedings pending the resolution of DeMello's appeal.
On May 4, 2010, this court dismissed. DeMello's appeal for lack of jurisdiction because the judgment did not contain the amount of restitution determined by the District Court.
On August 2 and September 20, 2010, the District Court held a hearing to determine the amount of restitution (restitution hearing). During the restitution hearing, Carleen admitted that she had a pre-existing neck injury from a dirt bike accident ten years prior. However, Carleen claimed that she was dragged by her hair ten feet, - lifted off the ground, knocked out, had hair ripped out of her head, had bruising on her shoulder, and a cut on her back from the incident on May 9, 2008. Carleen testified about the amount of co-payments she paid for medical services that were not reimbursed by insurance. She stated that she reviewed cancelled checks for each of the medical bills she testified about. However, the District Court sustained DeMello's foundation objection to the admission of documents regarding Carleen's medical expenses. Carleen testified that her visits to medical providers was due to the incident involving DeMello. Carleen stated that the reason she sought medical treatment was for neck pain from the incident but also admitted that she was being treated for neck pain prior to the incident. Prior to the incident, her neck pain did not keep her in bed. She knew the visits after the incident stemmed from the incident because the pain was a lot worse. After the incident, Carleen stated that the pain was so bad that she could not get out of bed. Prior to the incident, on a scale of one to ten with ten being the worst, Carleen indicated that most days it was between two and six. After the incident, she rated the pain level at a ten for about fourteen days.
Carleen testified that she is a hairdresser who rents a chair in a salon for a flat fee, manages her own clients and money, and does not earn any money if she does not have any clients. The parties stipulated that the names on Carleen's business ledger that were scratched out represented lost income that totaled $1, 155.12.
DeMello argued that the amount of restitution should be apportioned because Carleen had a pre-existing neck injury which was being treated at the time of the incident. DeMello also argued that responsibility should be apportioned due to three altercations between Carleen and Cherilyn on the same night which also involved hair pulling. DeMello also contended that HRS § 706-646 did not allow restitution for lost wages. Finally, DeMello argued that Carleen's testimony as to her medical records was not credible.
On October 25, 2010, the District Court entered an "Order on Restitution Hearing" which stated in relevant part:
Findings of Fact:
1. Karlene Kelikoma [sic], the victim of the offense of harassment committed against her by the Defendant on May 10, 2 0 09, (hereinafter "the incident") is claiming restitution for medical expenses incurred to treat injuries sustained in the incident and for lost income resulting from the Victim being unable to work as a result of the incident.
2. In the course of the incident, the Defendant grabbed the Victim by her hair and dragged her by her hair for a distance of about 10 feet. The Victim experienced a sensation that her neck cracked. She felt immediate excruciating pain and then she "blacked out". Subsequent symptoms included dizziness, pain in the back of her skull, shooting pain in her neck and shoulder area, tingling feet, and headache. The Victim sustained a cut to the back of her left shoulder, and bruises on her body and arms. Hair was ripped out of her head.
3. Another person involved in the incident, Sherelyn Kelikoma [sic], also assaulted the Victim by punching the Victim and pulling her hair but there is no evidence upon which this court may attribute any of the Victim's losses to Sherelyn Kelikoma [sic].
4. As a direct result of the incident, the Victim required medical treatment and was unable to engage in normal employment activity as a self employed hairdresser. The direct losses consisting of medical ...