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State v. Kauhane

Intermediate Court of Appeals of Hawaii

November 29, 2018

STATE OF HAWAI'I, Plaintiff-Appellee,
KEITH KAUHANE, Defendant-Appellant


          Hayden Aluli, for Defendant-Appellant.

          Richard K. Minatoya, for Plaintiff-Appellee.




         Defendant-Appellant Keith Kauhane (Kauhane) appeals from the "Judgment Conviction and Probation Sentence" (Judgment) filed on September 9, 2016, in the Circuit Court of the Second Circuit (circuit court).[1]

         On June 7, 2016, Kauhane was charged via a Second Amended Complaint with: Failure to Disperse, in violation of Hawaii Revised Statutes (HRS) § 711-1102 (2014); Obstructing, in violation of HRS § 711-1105(1) (a) (2014);[2] and Disorderly Conduct, in violation of HRS § 711-1101(1)(d) (2014). Following a jury trial, Kauhane was found guilty of Obstructing. At sentencing, Kauhane was sentenced for a petty misdemeanor under HRS § 711-1105(5).

         On appeal, Kauhane asserts the following points of error: (1) the Second Amended Complaint is defective for failing to allege an element of Obstructing, specifically the asserted attendant circumstance that Kauhane's conduct had "render[ed] [the road] impassable without unreasonable inconvenience or hazard"; (2) the circuit court erred in failing to instruct the jury on the mitigating defense under HRS § 711-1105(5), which reduces Obstructing from a petty misdemeanor to a violation; (3) his conviction cannot stand because the evidence is insufficient to sustain the offense of Obstructing; and (4) the circuit court erred by sustaining the prosecution's objection during closing argument under the "golden rule" because the jury was entitled to consider Kauhane's choice-of-evils defense by "walking in his shoes."

         We disagree with Kauhane regarding his first, third, and fourth points of error. However, given the evidence in this case, we agree with Kauhane's second point of error that the jury should have been instructed regarding the mitigating defense under HRS § 711-1105(5), which could reduce Obstructing from a petty misdemeanor to a violation. We thus vacate Kauhane's conviction for Obstructing and remand for a new trial.

         I. Background

         On August 20, 2015, the Maui Police Department (MPD) Specialized Emergency Enforcement Detail (SPEED) team was assigned to accompany construction vehicles and equipment en route to the Daniel K. Inouye Solar Telescope (DKIST) construction site at the summit of Haleakala on the island of Maui. At approximately mile marker two on Crater Road, the convoy encountered a number of individuals standing shoulder to shoulder blocking the road, forcing the convoy to stop. MPD Captain Clyde Holokai (Captain Holokai) approached the individuals and asked them to move off the roadway, which they did not do. The SPEED team got into formation and Captain Holokai then re-approached the individuals with the rest of the SPEED team. Captain Holokai and other SPEED team members repeatedly requested and ordered the individuals to get off the road. Many of the individuals dispersed, revealing seven additional people seated in the middle of the roadway with some linking arms, including Kauhane. These remaining individuals, including Kauhane, were subsequently arrested.

         On June 7, 2016, the State of Hawai'i (State) filed its Second Amended Complaint against Kauhane. A jury trial commenced, and the trial took a total of three days.

         On June 29, 2016, the jury returned its verdict and found Kauhane guilty as charged of Obstructing, but not guilty of Failure to Disperse or Disorderly Conduct.

         On September 9, 2016, the circuit court entered its Judgment and sentenced Kauhane to, inter alia, six (6) months probation, a fine of $300, and a one-day jail sentence with credit for time served.

         On October 10, 2016, Kauhane filed a timely notice of appeal.

         II. Standards of Review

         A. Sufficiency of the Charge

         "Whether a charge sets forth all the essential elements of a charged offense is a question of law which we review under the de novo, or right/wrong, standard." State v. Wheeler, 121 Hawai'i 383, 390, 219 P.3d 1170, 1177 (2009) (quoting State v. Wells, 78 Hawai'i 373, 379, 894 P.2d 70, 76 (1995) (internal brackets, citations, ellipses, and quotation marks omitted)).

         B. Questions of Law

         "Questions of law are reviewed upon appeal under the right/wrong standard of review." Cedillos v. Masumoto, 136 Hawai'i 430, 440, 363 P.3d 278, 288 (2015) (quoting Maile Sky Court Co. v. City & Cty. of Honolulu, 85 Hawai'i 36, 39, 936 P.2d 672, 675 (1997)).

         C. Sufficiency of the Evidence

Evidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction.... 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. Nakamitsu, 140 Hawai'i 157, 164, 398 P.3d 746, 753 (2017) (quoting State v. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998)) (internal brackets omitted). '"Substantial evidence1 as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Richie, 88 Hawai'i at 33, 960 P.2d at 1241 (citation omitted).

         III. Discussion

         A. Sufficiency of the Charge in Second Amended Complaint

         Kauhane asserts, and the State concedes, that the Second Amended Complaint was defective because it failed to define the terra "obstructs." Notwithstanding the State's concession, we "must still determine whether the error was properly preserved, was prejudicial . . . and is supported by the record." State v. Hoang, 93 Hawai'i 333, 336, 3 P.3d 499, 502 (2000). Kauhane also argues he was prejudiced by the Second Amended Complaint's failure to include the definition of "obstructs" because it failed to provide notice of the State's burden to prove his conduct rendered Crater Road "impassable without unreasonable inconvenience or hazard." As to this argument, the State argues Kauhane did not object to the charge until the instant appeal and, under the Motta/Wells rule, has failed to prove he was prejudiced by the allegedly defective complaint because the definition of "obstructs" was given as a jury instruction and Kauhane was thus aware of the definition at trial.

         The Supreme Court of Hawai'i has adopted the' "Motta/Wells post-conviction liberal construction rule" for cases in which the sufficiency of a charge is challenged for the first time on appeal. Wheeler, 121 Hawai'i at 399, 219 P.3d at 1186; see also State v. Merino, 81 Hawai'i 198, 212, 915 P.2d 672, 686 (1996); State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019-20 (1983); Wells, 78 Hawai'i at 381, 894 P.2d at 78.

Under this approach, there is a "presumption of validity[]" for charges challenged subsequent to a conviction. In those circumstances, [the supreme court] will not reverse a conviction based upon a defective indictment or complaint unless the defendant can show prejudice or that the indictment or complaint cannot within reason be construed to charge a crime.

Wheeler, 121 Hawai'i at 399-400, 219 P.3d at 1186-87 (citations, some internal quotation marks and some brackets omitted).

         Given that Kauhane is challenging the sufficiency of the Second Amended Complaint for the first time on appeal, we apply the Motta/Wells rule. The Second Amended Complaint charged the offense of Obstructing in Count Two as follows:

COUNT TWO: (15-033234-002)
That on or about the 20th day of August, 2015, in the County of Maui, State of Hawaii, 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 Hawaii Revised Statutes.[3]

         "Obstructs" is defined in HRS § 711-1100 (2014) as "renders impassable without unreasonable inconvenience or hazard." By comparison, the definition of "obstruct" in Black's Law Dictionary states:

1. To block or stop up (a road, passageway, etc.); to close up or close off/ esp. by obstacle <obstruct the runway>. 2. To make difficult or impossible; to keep from happening; hinder <to obstruct the peace process>. 3. To cut off a line of vision; to shut out <the new construction obstructs our view of the road>.

Obstruct, Black's Law Dictionary 1246 (10th ed. 2014). The definition of "obstruct" set out in Merriam-Webster's Collegiate Dictionary states "[1]: to block or close up by an obstacle [2]: to hinder from passage, action, or operation: IMPEDE [3]: to cut off from sight[.]" Obstruct, Merriam-Websters Collegiate Dictionary (11th ed. 2003).

         We disagree with Kauhane's claim, and the State's concession, that the Second Amended Complaint was defective for failing to define "obstructs." 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 Second Amended Complaint is readily comprehensible to persons of common understanding. See State v. Mita, 124 Hawai'i 385, 390-93, 245 P.3d 458, 463-66 (2010) (holding that the definition of "animal nuisance" in a City and County of Honolulu ordinance was consistent with that term's commonly understood meaning and thus the charge, which did not include the definition, provided the defendant with fair notice of the offense charged); State v. Tsujimura, 140 Hawai'i 299, 308-09, 400 P.3d 500, 509-10 (2017) (holding it was not necessary to include the statutory definition of "alcohol" in the complaint because "the statutory definition 'comport[s] with [the] commonly understood definition' of alcohol");-State v. Fujiyoshi, No. CAAP-15-0000916, 2018 WL 4178859 (Hawai'i App. Aug. 31, 2018) (mem. op.); Cf. State v. Pacquing, 139 Hawai'i 302, 308-09, 389 P.3d 897, 903-04 (2016) (holding that "because the statutory definition of 'confidential personal information' does not comport with its commonly understood definition, it is neither unmistakable nor readily comprehensible to persons of common understanding[, ]" and thus the complaint was defective for not including the statutory definition) (some internal quotation marks omitted); Wheeler, 121 Hawai'i at 394-96, 219 P.3d'at 1181-83 (holding that the term "operate" has been statutorily defined in a manner that 'does not comport with its commonly understood definition, thereby rendering the underlying oral charge, which did not define the term, insufficient).

         Additionally, as to Kauhane's alternative argument, he has not shown he was prejudiced under the Motta/Wells rule in this case (even if we had determined the Second Amended Complaint was deficient). Because Kauhane did not challenge the sufficiency of the Second Amended Complaint in the trial court, and only raised it on appeal, we may consider information in the record below. State v. Hitchcock, 123 Hawai'i 369, 379, 235 P.3d 365, 375 (2010). Here, the statutory definition of "obstructs" was given to the jury, by the agreement of the parties, in Jury Instruction 26. Thus, Kauhane knew the definition of "obstructs" during the trial in the circuit court and we agree with the State to the extent that, even if we had determined the Second Amended Complaint was defective for not defining "obstructs", Kauhane was not prejudiced in these circumstances.

         B. Jury Should Have Been Instructed on Mitigating Defense

         Kauhane argues that the circuit court committed plain error by not instructing the jury on the mitigating defense under HRS § 711-1105(5), which provides: "[o]bstructing 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." (Emphasis added). The State concedes that, because there is some evidence to support Kauhane's assertion that he did not hear an order to leave the roadway, the circuit court plainly erred in not instructing the jury regarding the mitigating defense. Based on our independent review of this issue, we agree with Kauhane and the concession by the State.

         At trial on direct examination, Captain Holokai testified as follows regarding the circumstances once he and the SPEED team reached the protesters at mile marker two and the warnings that were given:

[CAPTAIN HOLOKAI] I ordered my team to get out of our vans. I walked up towards the line, and there was a gentleman in the red shirt, in a red shirt standing on the side of the road. Now, in the past, these are the people that claim to be their legal advisors, so I approached him and I asked him, "Are your people going to get off the road? Because we need to pass." He refused to answer me.
[THE STATE] So after that contact, what did you and your SPEED team do?
[Captain Holokai] I approached the line myself. And I asked them if they were going to be moving off the roadway if we could come through. There was no answer. I did that twice. There was no answer. So I walked back and we got our SPEED team into formation and we started approaching the line itself. As we were walking, repeatedly myself and other officers on the team repeatedly ordered them to get off the roadway. And at first they didn't move. But once we got closer, they just disbursed breaking up. Half of the line went to the left, and half went to the right.
[THE STATE] After the first line of protesters moved, what, if anything, did you observe?
[Captain Holokai] There were two groups seated facing each other almost forming a circle linked arm by arm.
[THE STATE] Did these protesters move off the roadway on their own?
[CAPTAIN HOLOKAI] No, not at all. No.
[THE STATE] So were they arrested?
[CAPTAIN HOLOKAI] Yes, they were. Yes.

(Emphasis added.)

         On cross-examination, Captain Holokai further testified:

[DEFENSE COUNSEL] Now, when you walked to the front of the line when you initially got to the area where the protesters were sitting down in the road, how many minutes did it take for your officers to carry away my client and put him in the van?
[CAPTAIN HOLOKAI] Specifically five minutes or so.
[DEFENSE COUNSEL] Five minutes?
[CAPTAIN HOLOKAI] Yeah, it wasn't that long. He was passively resisting, so -
[DEFENSE COUNSEL] And so when I looked at it, it looked like it took maybe about a minute.
[CAPTAIN HOLOKAI] No, it took a little longer than that. I had to walk up to him. There was the commands being given. Then we had to pry his arms off, put him on the -- put him on the Mega Mover and then carry him off.

(Emphasis added.)

         Pursuant to a question from the jury, the circuit court asked Captain Holokai if he told the seated protesters, including Kauhane, that "they would be arrested if they didn't move[.]" Captain Holokai replied, "Yes. The initial ...

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