This decision is published in table format in the Pacific and Hawai'i reporter
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT WAILUKU DIVISION. DC TRO NO. 12-1-0020.
On the briefs: Shawn A. Luiz, for Respondent-Appellant.
Deborah K. Wright and Keith D. Kirschbraun (Wright & Kirschbraun), for Petitioner-Appellee.
By: Leonard, Presiding Judge, and Reifurth and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Respondent-Appellant Nicanor E. Casumpang, Jr. (" Casumpang" ) appeals from the Injunction Against Harassment, filed on January 30, 2012 in the District Court of the Second Circuit (" District Court" ).
On appeal, Casumpang claims that the District Court erred when it imposed a three-year injunction against him for harassment. Specifically, Casumpang contends that the District Court erred in using a subjective reasonable-person test and that his former co-worker, Petitioner-Appellee May Lynn Maukele (" Maukele" ), failed to establish by clear and convincing evidence that Casumpang's conduct would cause a reasonable person to suffer emotional distress under Hawaii Revised Statutes (" HRS" ) § 604-10.5(a)(2) (Supp. 2013).
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments that they advance and the issues that they raise, we resolve Casumpang's point of error as follows and affirm:
Casumpang contends that Maukele failed to demonstrate that Casumpang's conduct would cause a reasonable person emotional distress, as required under HRS § 604-10.5(a)(2). Casumpang does not challenge Maukele's claim that his conduct was an " intentional or knowing course of conduct directed at [Maukele] that seriously alarm[ed,] or disturb[ed] consistently[,] or continually bother[ed her] and serve[d] no legitimate purpose [,] " Haw. Rev. Stat. § 604-10.5(a) (2). Thus, the only issues on appeal are whether Casumpang's conduct " would cause a reasonable person to suffer emotional distress[,]" id., and whether the court applied the correct standard in making its determination.
We review the question of whether Casumpang's conduct would cause emotional distress to a reasonable person de novo. Luat v. Cacho, 92 Hawai'i 330, 343, 991 P.2d 840, 853 (App. 1999) (citing State v. Trainor, 83 Hawai'i 250, 255, 925 P.2d 818, 823 (1996)). We conclude that Maukele's testimony sufficiently provided clear and convincing evidence, which the District Court determined to be credible, that Casumpang's conduct would cause a reasonable person emotional distress. Maukele told the court that Casumpang told her that " I can be your boyfriend" and made sexual comments on a daily basis about the work tools (e.g. in response to her request for a particular tool, " he would say . . . Oh, I got the big one here" ). Maukele further described an incident when she was walking through the motor shop and Casumpang purposefully bumped into her and brushed his arm against her " top."
Furthermore, Casumpang does not establish, and the record does not support the assertion, that the District Court applied a subjective standard in determining that Casumpang's conduct caused emotional distress. Cf. Luat, 92 Hawai'i at 344-45, 991 P.2d at 854-55 (reversing the trial court where the court's language reflected a misapprehension of the clear and convincing standard of proof and where the court stated that " you have to take the petitioner as you find her or him." ) Instead, the ...