FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CR. NO.
Aluli, for Defendant-Appellant.
Richard K. Minatoya, for Plaintiff-Appellee.
GINOZA, CHIEF JUDGE, REIFURTH and CHAN, JJ.
GINOZA, CHIEF JUDGE
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
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); 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) .
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. "
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
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
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.
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.
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.
Standards of Review
Sufficiency of the Charge
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)).
Questions of Law
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
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
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 evidence' 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).
Sufficiency of the Charge in Second Amended
asserts, and the State concedes, that the Second Amended
Complaint was defective because it failed to define the term
"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
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
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.
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 ":
to block or close up by an obstacle : to hinder from
passage, action, or operation: IMPEDE : to cut off from
sight[.]" Obstruct, Merriam-Websters Collegiate
Dictionary (11th ed. 2003) .
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.
Pacguing, 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).
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.
Jury Should Have Been Instructed on Mitigating
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.
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
[CAPTAIN HOLOKAI] No, not at all. No.
[THE STATE] So were they arrested?
[CAPTAIN HOLOKAI] Yes, they were. Yes.
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
[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.
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
line when I walked up to them, I did say that to them."
direct and cross-examination of Kauhane, the jury submitted
the following question to him: "[d]id you hear officer
say that you would be arrested if you didn't move?"
Kauhane responded, "No, I didn't." Neither the
State nor defense ...