holding that, inasmuch as the intentional state of mind is prescribed by a harassment statute and "no contrary purpose `plainly appears' on the face of the statute," the intentional state of mind "is the requisite state of mind for each of the elements set forth in [the statute]" (quoting HRS 702-207)
How later courts described this case
- holding that, inasmuch as the intentional state of mind is prescribed by a harassment statute and "no contrary purpose `plainly appears' on the face of the statute," the intentional state of mind "is the requisite state of mind for each of the elements set forth in [the statute]" (quoting HRS 702-207)
- finding no causal relationship between Minor’s statement, “Hey, if you like go, take your badge off,” and the disturbance sought to be prevented by HRS § 711- 1106(1)(b) - provoking the recipient police officer to a violent response
- holding that challenging a police officer to a fight and using abusive and profane language was not sufficient to support a conviction for Harassment under HRS § 711-1106(1)(b)
- “When possible, we interpret enactments of the [[legislature contained in the criminal code so as to uphold their constitutionality.” (citations omitted)
Written by the judges who cited it.
The opinion
KLEIN, Justice, concurring,
with whom MOON, C.J., joins.
The majority correctly reverses the Minor’s conviction for the offense of harassment in violation of HRS § 711—1106(1)(b) (Supp.1992). I concur separately, solely because there is insubstantial evidence in the record from which a reasonable fact finder could conclude, beyond a reasonable doubt, that the Minor’s challenge to Office Mariani was issued “in a manner likely to provoke a violent response.” If the Minor’s contentions on appeal are that the evidence fails to prove his guilt beyond a reasonable doubt and, at any rate, that the criminal statute unconstitutionally infringes upon the Minor’s rights of free speech, ordinary analysis only requires that we assess the substantiality of the evidence in the case. State v. Kam, 68 Haw. 631, 635 , 726 P.2d 263, 266 (1986).
*101 I find, the balance of the majority’s thorough analysis of the constitutional implications of criminalizing speech interesting reading yet somewhat inconclusive with respect to the constitutionality of HRS § 711-1106(l)(b) either facially or as applied to the actions of the Minor.
In addition, I disagree with the majority’s assessment that the
district family court’s own FOF [show] that Officer Mariani arrested the Minor for harassment solely in “reaction” to the Minor’s “sarcastic, disrespectful, and vulgar” conversation with the Minor’s mother and the Minor’s unresponsiveness to Officer Mariani’s admonition to the Minor “that he should not speak to his mother in that fashion.” FOF Nos. 9 and 10.
Majority at 1319 (emphasis in original). If this were true, the Minor would have been arrested at the point of Officer Mariani’s admonishment. That the Minor was not arrested, and that he could not have been arrested at that point because he had committed no illegal act, belies the notion that Officer Mariani effectuated the Minor’s arrest solely to enforce a breach of etiquette. If that had been the basis for the arrest, we would not be writing today.
Next, the majority presumes that it was the mother-son argument that Officer Maria-ni was referring to when he testified that he arrested the Minor “in order to avoid further confrontation”. Majority at 1319. More plausible, however, is the view that Officer Mariani arrested the Minor to avoid any further confrontation between Officer Maria-ni and the Minor that might have escalated into a violent response by either. Because it was the challenge to Officer Mariani that established the elements of the offense of harassment, the majority ought to have concluded that it was the Minor’s challenge that led to his arrest.
The majority utilizes its reasoning to bolster the conclusion that “the evidence contained in the record before us fails, as a matter of law, to establish a causal relationship between the Minor’s speech at issue and the disturbance sought to be prevented by HRS § 711—1106(1)(b)—the likelihood of provoking Officer Mariani to a violent response. Majority at 1319 (emphasis added).
Unlike the crime of Disorderly Conduct as set forth in HRS § 711-1101(1)(c) (1985), harassment does not require proof of a causal link between conduct and response. Compare HRS § 711-1101(1)(c) with HRS § 711—1106(1)(b). Be that as it may, there is still no evidence to prove, and much to disprove, that the Minor’s challenge was likely to provoke a violent response from Officer Mariani. Therefore, the Minor’s conviction is properly reversed.