IN THE SUPREME COURT OF THE STATE OF HAWAI`I
vs.
STATE OF HAWAI`I, Respondent-Appellee.
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT COURT
(CASE NO. CTR-1 OF 10/6/94)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama,
Ramil, and Acoba, JJ.)
The petitioner-appellant Daniel Cunningham appeals from the order of the district court of the first circuit, the Honorable Karen S.S. Ahn presiding, denying his second petition to vacate, set aside, or correct the judgment convicting him of and sentencing him for harassment, in violation of Hawai`i Revised Statutes (HRS) § 711-1106(1)(a) (1993).
Upon carefully reviewing the record and the briefs submitted by the
parties and having given due consideration to the arguments advanced and
the issues raised by the parties, we affirm the order of the district court
denying Cunningham's petition. Assuming, arguendo, that Cunningham
is not procedurally barred from raising the arguments he advances in the
present appeal and has not otherwise waived his right to raise them, his
arguments are without merit because they are based on an erroneous reading
of In re John Doe, Born on January 5, 1976, 76 Hawai`i 85, 869 P.2d
1304 (1994). In Doe, we noted that police officers are trained to
remain calm in the face of verbal harassment and therefore held that the
prosecution had failed to prove that the verbal harassment for which the
minor in that case was charged with violating HRS § 711-1106(1)(b)
(1985) was likely to provoke a violent response in a police officer. Doe,
76 Hawai`i at 100, 869 P.2d at 1319. In the present matter, however, the
district court convicted Cunningham on the basis of conduct that constituted
a violation of HRS
§ 711-1106(1)(a), specifically, his offensive physical contact
with a police officer. Doe is therefore inapposite to this case
and there is no merit to Cunningham's argument that a police officer is
not a proper complainant pursuant to HRS § 711-1106(1)(a). See,
e.g., Commentary on HRS § 711-1101 (1993) at 291 n.1 ("[a]n
individual police officer may . . . be the object of harassment under §
711-1106"). Consequently, the district court correctly denied appellant's
HRPP Rule 40 petition. Therefore,
IT IS HEREBY ORDERED that the district court's order from which the appeal is taken is affirmed.
DATED: Honolulu, Hawai`i, September 20, 2001.
On the briefs:
Daniel Cunningham,
petitioner-appellant,
pro se
James M. Anderson, Deputy
Prosecuting Attorney, for
the respondent-appellee
State of Hawai`i