NO. 22725
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAII
STATE OF HAWAII, Plaintiff-Appellee, v.
EDDIE T. KAUPE, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT,
WAILUKU DIVISION
(CASE NOS. CT1-3 OF 7/21/99)
MEMORANDUM OPINION
(By: Watanabe, Acting C.J., Lim and Foley, JJ.)
Defendant-Appellant Eddie T. Kaupe (Kaupe) appeals the July 21, 1999, district court judgment. Kaupe was found guilty of Simple Trespass (1) (Hawaii Revised Statutes (HRS) § 708-815 (1993)), Harassment (HRS § 711-1106(1)(a) (Supp. 2000)), and Terroristic Threatening in the Second Degree (HRS § 707-717(1) (1993)). Kaupe was sentenced as follows: a $250.00 fine for Simple Trespass; six months of probation, substance abuse evaluation, 30 days of jail, and a $25.00 fee for Harassment; and one year of probation, substance abuse evaluation, 30 days of jail, and a $50.00 fee for Terroristic Threatening in the Second Degree -- all sentences to run concurrently.
Kaupe contends the district court erred in convicting him of Harassment without substantial evidence of intent, of Terroristic Threatening in the Second Degree because his statement was not a true threat, and of Simple Trespass without substantial evidence that he knowingly remained unlawfully on the premises. Kaupe also contends that his terroristic threatening conviction must be vacated because the district court failed to obtain a knowing, intelligent, and voluntary waiver from him of his right to a jury trial. We disagree and affirm the July 21, 1999, district court judgment.
I. BACKGROUND
Lorraine Koyonagi (Koyonagi), one of the State's witnesses, was employed as a waitress at the Ale House in Kahului, Maui, on September 22, 1998. Koyonagi testified that as she was at a computer punching in an order for one of her tables, she turned around and saw Kaupe approach her from the opposite direction. Kaupe touched Koyonagi's front "bottom crotch part" and said, "hey, what's up." Koyonagi responded, "what are you doing, don't do that." Koyonagi went back to her computer, and Kaupe went into the bathroom. When he exited the bathroom, Kaupe returned to Koyonagi and touched her on her buttocks. Over Koyonagi's expressed protest, Kaupe went on to touch Koyonagi a third time. After this touching, Koyonagi went to the manager and told the manager about the incidents. Koyonagi did not know Kaupe and did not give him permission to touch her.
Henry Stant (Stant), also a State's witness, testified that he was employed and working at the Ale House on the evening of September 22, 1998. Stant testified that his duties were to check identification and keep people from becoming disorderly in the restaurant and bar. According to Stant, the manager of the Ale House told Stant, "Henry, we have a problem, there's somebody in the bar, I've already spoken to him, I've asked him to leave, he refuses to leave, he slapped one of our waitresses repeatedly, I've asked him to stop, he won't stop, this guy's being belligerent, we got to cut him off, we got to get him out of the room[.]" Stant then approached this person, who turned out to be Kaupe. Stant identified himself to Kaupe: "hey, bruddah, I work for the bar." Stant was wearing an Ale House hat and a bright white Ale House t-shirt. Stant told Kaupe that the manager had already asked Kaupe to leave the premises, so Kaupe had to go. Stant testified Kaupe's response was that "he didn't do anything wrong, that he works for the government, that he's a prison guard, that he puts people in jail, that I have no right to talk to him like this[.]"
Stant testified that Kaupe refused to leave until he finished his beer. Stant picked up Kaupe's beer, took it to the end of the bar, and asked Kaupe to follow him. Kaupe would not get up or leave; he remained seated at a table with several of his friends. Stant gave Kaupe's beer to the bartender, went over and sat down with Kaupe, and told him that the police had been called. Kaupe told Stant, "fuck you, I'm not leaving, if you want, drag me out of the bar." Kaupe became more agitated while waiting for the police and, at one point, said, "I got to kill this guy." Stant believed Kaupe was referring to him because the only other people at Kaupe's table were Kaupe's friends. Kaupe then challenged Stant to a fight, saying, "come on, right now, let's go, me and you, right now." Stant and Kaupe walked to the exit at the back of the bar. When Kaupe stepped out of the back door, Stant closed the door behind him. Stant then walked toward the front door of the establishment and could see Kaupe running toward the front door. As Stant opened up the front door, a police car drove up and Kaupe "raised his hands, walked calmly to the street and said, 'I didn't do anything.'"
Kaupe was charged with Harassment, Criminal Trespass in the Second Degree, and Terroristic Threatening in the Second Degree. Kaupe waived his right to a jury trial, and a bench trial was held on July 21, 1999. The trial court found Kaupe guilty of Harassment, Terroristic Threatening in the Second Degree, and Simple Trespass (an included offense of Criminal Trespass in the Second Degree).
II. STANDARDS OF REVIEW
A. Sufficiency of the Evidence
We review the sufficiency of evidence on appeal as follows:
[E]vidence 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 same standard applies whether the case was before a judge or jury. 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. Quitog, 85 Hawaii 128, 145, 938 P.2d 559, 576 (1997) (quoting State v. Eastman, 81 Hawaii 131, 135, 913 P.2d 57, 61 (1996)) (emphasis 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." Eastman, 81 Hawaii at 135, 913 P.2d at 61.
State v. Richie, 88 Hawaii 19, 33, 960 P.2d 1227, 1241 (1998).
B. Findings of Fact
We review the district court's findings of fact in a pretrial ruling according to the following standard:
Appellate review of factual determinations made by the trial court deciding pretrial motions in a criminal case is governed by the clearly erroneous standard. A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made.
State v. Wilson, 92 Hawaii 45, 48, 987 P.2d 268, 271 (1999) (quoting State v. Okumura, 78 Hawaii 383, 392, 894 P.2d 80, 89 (1995)).
C. Conclusions of Law
We review conclusions of law under the right/wrong standard. Wilson, 92 Hawaii at 48, 987 P.2d at 271.
D. Constitutionally Protected Free Speech
Whether speech is protected by the first amendment to the United States Constitution, as applied to the states through the due process clause of the fourteenth amendment, is a question of law which is freely reviewable on appeal. The same proposition holds true with respect to article I, section 4 of the Hawaii Constitution (1978). Correlatively, "our customary deference to the trial court upon essentially a factual question is qualified by our duty to review the evidence ourselves in cases involving a possible infringement upon the constitutional right of free expression."
In re John Doe, 76 Hawaii 85, 93-94, 869 P.2d 1304, 1312-13 (1994) (internal quotation marks, citations, footnotes, and brackets omitted).
E. Jury Waiver
The adequacy of a jury waiver is a mixed question of fact and law, which a court of appeals reviews de novo. United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997). "[W]here it appears from the record that a defendant has waived a constitutional right, the defendant carries the burden of proof to show otherwise by a preponderance of the evidence." State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993).
III. DISCUSSION
A. There Was Substantial Evidence to Prove Kaupe Intended to Harass, Annoy or Alarm.
Kaupe contends there was not substantial evidence to show he
intended to harass, annoy, or alarm Koyonagi as required under
HRS § 711-1106(1)(a). (2)
In State v. Sadino, 64 Haw. 427, 642
P.2d 534 (1982), the Hawaii Supreme Court held: [S]ince intent can rarely be proved by direct evidence, proof by
circumstantial evidence and reasonable inferences arising from circumstances
surrounding the act is sufficient to establish the requisite intent. Thus,
the mind of an alleged offender may be read from his acts, conduct and
inferences fairly drawn from all the circumstances. Id. at 430, 642 P.2d 536-37 (citations omitted). Kaupe and Koyonagi were strangers. Kaupe touched Koyonagi's
"bottom crotch part" and was told by Koyonagi not to do that.
After being specifically told not to touch her, Kaupe
nevertheless went ahead and touched Koyonagi's buttocks. Kaupe
didn't stop at the second touching, but went on to touch Koyonagi
a third time. Although Kaupe claims he was merely attempting to
greet and introduce himself to Koyonagi, the district court found
that Kaupe touched Koyonagi with the intent to "harass, annoy or
alarm her" and that the touching was offensive to Koyonagi. The
district court found Koyonagi's testimony to be credible. There was substantial evidence on the record that Kaupe's
"acts, conduct, and inferences fairly drawn from all the
circumstances" showed he intended to harass, annoy, or alarm
Koyonagi by touching her in an offense manner. B. There Was Substantial Evidence that Kaupe Committed the
Offense of Terroristic Threatening in the Second Degree. Kaupe contends there was not substantial evidence that he
committed Terroristic Threatening in the Second Degree; namely,
that his threat did not constitute a "true threat." Terroristic Threatening is defined, in relevant part, under HRS §
707-715 (1993), as follows: §707-715. Terroristic threatening, defined. A person commits the offense of
terroristic threatening if the person threatens, by word or conduct, to cause
bodily injury to another person . . . : (1) With the intent to terrorize, or in reckless disregard of the risk of
terrorizing, another person[.] Hawaii Revised Statutes § 707-717(1) defines Terroristic
Threatening in the Second Degree as follows: §707-717 Terroristic threatening in the second degree. (1) A person commits
the offense of terroristic threatening in the second degree if the person
commits terroristic threatening other than as provided in section 707-716. (3)
Kaupe cites to State v. Chung, 75 Haw. 398, 862 P.2d 1063 (1993),
in support of the proposition that the threat "I got to kill this
guy" does not possess the attributes of a "true threat" and, as
such, is constitutionally protected free speech under the first
amendment. Chung addressed terroristic threatening and whether a
threat is a true threat or protected speech. Chung set forth the
following standard for determining what constitutes a "true
threat": [P]roof of a "true threat" . . . focus[es] on threats which are so unambiguous
and have such immediacy that they convincingly express an intention of being
carried out. . . . . . . So long as the threat on its face and in the circumstances in which it
is made is so unequivocal, unconditional, immediate and specific as to the
person threatened, as to convey a gravity of purpose and imminent prospect of
execution, the statute may properly be applied. Id. at 416-17, 862 P.2d at 1073 (emphasis in original) (quoting
United States v. Kelner, 534 F.2d 1020, 1026-27 (2d Cir. 1976)). With Stant standing or sitting at Kaupe's table, Kaupe stated "I
got to kill this guy" to his friends so that Stant could hear.
The district court found that this threat was directed at Stant.
Soon thereafter, Kaupe challenged Stant to a fight. The district
court found Stant a credible witness and held that Kaupe did
threaten Stant "with bodily injury and that he was going to kill
him." There was substantial evidence that the threat to "kill"
on its face, coupled with the circumstances (Kaupe's challenge to
fight Stant), rendered the threat unambiguous, unconditional,
immediate, specific, imminent -- in short, a true threat. C. There Was Substantial Evidence that Kaupe Committed Simple
Trespass. Kaupe contends there was no substantial evidence to prove he
committed Simple Trespass. Specifically, Kaupe asserts there was
not the requisite proof that he knowingly remained unlawfully on
the premises. Simple Trespass is defined under HRS § 708-815 as: §708-815 Simple trespass. (1) A person commits the offense of simple
trespass if the person knowingly enters or remains unlawfully in or upon
premises. (2) Simple trespass is a violation. To enter or remain unlawfully has been defined under HRS §
708-800 (1993), in relevant part, as follows: §708-800 Definitions of terms in this chapter. . . . . "Enter or remain unlawfully." A person "enters or remains unlawfully" in or
upon premises when the person is not licensed, invited, or otherwise
privileged to do so. A person who, regardless of the person's intent, enters
or remains in or upon premises which are at the time open to the public does
so with license and privilege unless the person defies a lawful order not to
enter or remain, personally communicated to the person by the owner of the
premises or some other authorized person. Stant testified that the manager of the Ale House, clearly
someone with authority to expel a person from the bar, had
personally communicated to Kaupe a direct request that he exit
the premises: [M]y manager at the time . . . came up to me and said, Henry, we have a
problem, there's somebody in the bar, I've already spoken to him, I've asked
him to leave, he refuses to leave, he slapped one of our waitresses
repeatedly, I've asked him to stop, he won't stop, this guy's being
belligerent[.] [Emphasis added.] Stant also testified that he was employed by the Ale House as a
bouncer and was wearing a bright white Ale House t-shirt and an
Ale House hat the night of the incident, and that his first words
to Kaupe were "hey, bruddah, I work for the bar." Stant said to
Kaupe, "bruddah, you know, the manager said you got to go, you
slapped one of our waitresses, you laid your hands on an
employee, you got to split, you got to get out of here." Kaupe
responded, "I'm not leaving until I'm finished with this beer."
When Kaupe continued refusing to leave, Stant walked back to
Kaupe's table and told him the police had been called and told
him again that he had to leave. Stant testified that Kaupe
replied, "fuck you, I'm not leaving, if you want, drag me out of
the bar." In its findings, the district court recited the facts as Stant
and the other witnesses presented them. In regards to the charge
of Criminal Trespass in the Second Degree, the court held: I think the state is aware that they have not proven that this is a commercial
premises; further, I haven't heard any testimony regarding an owner or leasee
[sic] of the commercial premises. I guess that would be the manager, but the
manager was not called. And I haven't heard as well that Mr. Stant was an
authorized representative of the Ale House. The court went on, however, to hold that the State had proven its
case for the included charge of Simple Trespass. The district court found that Stant was employed as a bouncer at
the Ale House and was on duty the evening of September 22, 1998.
Kaupe has acknowledged that Stant is a "bouncer." A bouncer is
employed to eject disorderly persons from a bar. (4) The district
court found that Kaupe had been asked to leave the bar at least
two times by Stant. The court stated that Stant was a very
credible, honest witness. There was substantial evidence that Stant was on duty, was a
bouncer, was in proper uniform, did identify himself to Kaupe,
and was an authorized agent of the Ale House who personally
communicated to Kaupe a lawful order to leave the premises, and
that Kaupe knowingly remained unlawfully on the Ale House
premises after its bouncer asked him to leave. D. Kaupe Knowingly, Intelligently, and Voluntarily Waived His
Right to a Jury Trial. The right to a jury trial is guaranteed by the sixth amendment to
the United States Constitution and article I, section 14 of the
Hawaii Constitution. This right may be waived if such waiver is
made knowingly and voluntarily. State v. Swain, 61 Haw. 173,
175, 599 P.2d 282, 284 (1979); see also Hawaii Rules of Penal
Procedure (HRPP) Rule 5(b)(3) and HRS § 806-61 (1993). (5)
In
Swain, the Hawaii Supreme Court held: Although the Sixth Amendment does not require that a judge interrogate the
defendant as to the voluntariness of his waiver of a right to jury trial, it
must at least be shown from the record or from the totality of circumstances
that the defendant was aware of and understood his right and voluntarily
waived it. Id. at 175, 599 P.2d at 284. The waiver of a jury trial must be
made either in writing signed by the defendant or orally in open
court. HRPP 5(b)(3); HRS § 806-61; State v. Young, 73 Haw. 217,
222, 830 P.2d 512, 515 (1992). A colloquy on the record between
the court and the defendant, or the totality of the
circumstances, needs to show that the defendant's waiver was
"knowing and voluntary." Ibuos, 75 Haw. at 121, 857 P.2d at 578;
State v. Sadler, 80 Hawaii 372, 374, 910 P.2d 143, 145 (App.
1996); Swain, 61 Haw. at 175, 599 P.2d at 284; Young, 73 Haw. at
221, 830 P.2d at 514. The Hawaii Supreme Court in State v. Friedman, 93 Hawaii 63, 69,
996 P.2d 268, 274 (2000), expressly declined to adopt a "bright
line rule" regarding the requirements for a valid jury waiver.
In its analysis of a Ninth Circuit decision (United States v.
Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997)), the court in
Friedman specifically discussed four requirements the Ninth
Circuit decided a defendant should be informed of regarding jury
waiver: "(1) twelve members of the community compose a jury, (2)
the defendant may take part in jury selection, (3) a jury verdict
must be unanimous, and (4) the court alone decides guilt or
innocence if the defendant waives a jury trial." Friedman, 93
Hawaii at 69, 996 P.2d at 274 (internal quotation marks
omitted). The Friedman court rejected this four-part test and
noted that Duarte-Higareda does not stand for the proposition
that its suggested colloquy is required in every case. Friedman,
93 Hawaii at 69, 996 P.2d at 274. "Rather than adhering to a
rigid pattern of factual determinations, we have long observed
that the validity of a waiver concerning a fundamental right is
reviewed under the totality of the facts and circumstances of the
particular case." Id. The court in Friedman went on to state: Although the trial court did not inform Friedman of certain aspects of the
right to a jury trial . . . Friedman's mere assertion that he did not possess
a "complete understanding of his jury trial right," by itself, does not
establish that his jury waiver was not voluntary and knowing. Under the
totality of the circumstances, Friedman has not met his burden of
demonstrating that his waiver was involuntary. He has failed to direct us to
any "salient fact" bearing upon his ability to understand his jury waiver that
would have created the need for an extensive colloquy by the trial court, and,
thus, his argument is without merit. See [United States v.] Cochran, 770 F.2d
[850] at 853 [9th Cir. 1985] (holding that the district court's failure to
conduct a colloquy informing the defendant of all aspects of the right to a
trial by jury does not ipso facto constitute reversible error); . . . State v.
Redden, 199 W.Va. 660, 487 S.E.2d 318, 326 (1997) (holding that trial court's
colloquy that only advised the defendant that judge alone decides guilt or
innocence in a bench trial was sufficient for the defendant to knowingly and
voluntarily waive his right to a jury trial under the totality of the
circumstances)[.] Id. at 70, 996 P.2d at 275 (emphasis added and citation omitted). In this case, the following exchange between Kaupe and the trial
court took place on the record: [THE COURT]: Okay, Mr. Kaupe, you have a lawyer? Do you have a lawyer? [KAUPE]: Actually, not right now, Your Honor. THE COURT: Do you want a lawyer? [KAUPE]: Actually, I'm in the process of getting me an outside lawyer. THE COURT: You're going to hire your own lawyer? [KAUPE]: Yes, sir. THE COURT: You understand that if you want to you can apply for the Public
Defender's services? [KAUPE]: Yes, sir. THE COURT: If you qualify the Public Defender will be your lawyer free of
charge; do you understand? [KAUPE]: Yes, sir. THE COURT: Do you want to do that? [KAUPE]: No. THE COURT: You're going to get your own lawyer? [KAUPE]: Yes, sir. THE COURT: And have you had a chance to discuss your case with your lawyer
yet? [KAUPE]: Uh. Actually, he just told me to plead not guilty. THE COURT: Oh, he told you to plead not guilty, okay. Pleas of not guilty
will be entered. [PROSECUTOR]: (Inaudible) right to a jury trial. Count C6. THE CLERK: Pardon me? [PROSECUTOR]: B, terroristic threatening in the second degree. It's a full
misdemeanor. THE COURT: I see. You have a right to a trial by jury. Do you want [a] jury
trial? [KAUPE]: No, sir. THE COURT: You discussed this with your attorney? [KAUPE]: No, sir. I'll just go ahead and dismiss the jury trial. I just
want to go ahead (inaudible). THE COURT: If you plead not guilty you're going to have a trial. [KAUPE]: Yes. THE COURT: You have a right to be tried before a judge and a jury. [KAUPE]: I just want to have a judge there. THE COURT: You just want only a judge? [KAUPE]: Yes, sir. THE COURT: You give up your right to a jury trial? [KAUPE]: Yes, sir. THE COURT: Okay. Then we'll set your case for trial in the Wailuku District
Court. [KAUPE]: Yes, sir. Kaupe was informed he had a right to a jury trial. Kaupe waived
that right orally in open court, affirming five times that he did
not want a jury trial. In response to being told that he had a
right to a trial before a judge and a jury, he expressly stated
twice that he only wanted a judge to be there, indicating he
understood the difference between a jury trial and a bench trial.
Kaupe is an adult corrections officer who would be familiar with
the judicial system. (6) We take into account the totality of facts and circumstances
surrounding the case, including the defendant's background,
experience, and conduct. Friedman, 93 Hawaii at 70, 996 P.2d at
275. Kaupe does not "direct us to any 'salient fact' bearing
upon his ability to understand his jury waiver that would have
created the need for an extensive colloquy by the trial court,
and, thus, his argument is without merit." Id. Accordingly, we conclude that Kaupe knowingly and intelligently
waived his right to a jury trial. IV. CONCLUSION The July 21, 1999, judgment of the district court is affirmed. DATED: Honolulu, Hawaii, February 26, 2001. On the briefs: Jon N. Ikenaga, Deputy Public Defender, for defendant-appellant. Richard K. Minatoya, Deputy Prosecuting Attorney, County of Maui, for plaintiff-appellee. §711-1106 Harassment. (1) A person commits the offense of harassment if,
with intent to harass, annoy, or alarm any other person, that person: (a) Strikes, shoves, kicks, or otherwise touches another person in an
offensive manner or subjects the other person to offensive physical contact[.] §707-716 Terroristic threatening in the first degree. (1) A person commits
the offense of terroristic threatening in the first degree if the person
commits terroristic threatening: (a) By threatening another person on more than one occasion for the same or a
similar purpose; or (b) By threats made in a common scheme against different persons; or (c) Against a public servant, including but not limited to an educational
worker, who for the purposes of this section shall mean an administrator,
specialist, counselor, teacher, or other employee of the department of
education, or a volunteer as defined by section 90-1, in a school program,
activity, or function that is established, sanctioned, or approved by the
department of education, or a person hired by the department of education on a
contractual basis and engaged in carrying out an educational function; or (d) With the use of a dangerous instrument. (2) Terroristic threatening in the first degree is a class C felony.
Kaupe was charged with Criminal Trespass in the Second Degree (HRS § 708-814(1)(b) (Supp. 2000)), but was found guilty of the included offense of
Simple Trespass.
HRS § 711-1106(1)(a) defines Harassment as follows:
bouncer n. Slang. A person employed to expel disorderly persons from a pubic place, esp. a bar.
The Oxford American Dictionary 96 (1980) defines "bouncer" as:
bouncer n. . . . 2. a man employed to eject undesirable customers from a club etc. HRPP Rule 5(b)(3) states in relevant part:
Rule 5. Proceedings Before the District Court.
. . . .
(b) Offenses Other Than Felony.
. . . .
(3) Jury Trial Election. In appropriate cases, the defendant shall be tried by jury in the circuit court unless the defendant waives in writing or orally in open court the right to trial by jury.
HRS § 806-61 states:
§806-61 Waiver of jury. The defendant in any criminal case may, with the consent of the court, waive the right to a trial by jury either by written consent filed in court or by oral consent in open court entered on the minutes. Any case in which a trial by jury is waived may be tried by the court without a jury both as to the facts and the law, and when the trial has been had there shall be no further trial upon the facts, except upon the granting of a new trial according to law.
6. Stant testified Kaupe taunted that he worked for the government, that he was a prison guard, and that he put people in jail.