text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Keith KAUHANE, Defendant-Appellant
    NO. CAAP-16-0000668
    Intermediate Court of Appeals of Hawai'i.
    NOVEMBER 29, 2018
    On the briefs:
    Hayden Aluli, Wailuku, for Defendant-Appellant.
    Richard K. Minatoya, for Plaintiff-Appellee.
    GINOZA, CHIEF JUDGE, REIFURTH and CHAN, JJ.
   OPINION OF THE COURT BY GINOZA, CHIEF JUDGE

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 ).

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); 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 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).

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 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 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.

"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 line when I walked up to them, I did say that to them."

Following 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 counsel elected to re-examine Kauhane after his answer.

Also at trial, certain video clips were shown to the jury during the questioning of witnesses, which show the police approaching the line of protesters and some of the individuals sitting on the road behind the initial line, including Kauhane. The video includes audio of requests and orders by police, as they approach the initial line of individuals, to "get off" and "move off" the road.

In State v. Kikuta, 125 Hawai'i 78, 95-96, 253 P.3d 639, 656-57 (2011), the Hawai'i Supreme Court held that the trial court committed plain error in failing to instruct the jury on the mitigating defense of mutual affray, which reduced the offense of Assault in the Third Degree under HRS § 707-712 from a misdemeanor to a petty misdemeanor. The supreme court explained that HRS § 701-115(1) provides that "[a] defense is a fact or set of facts which negatives penal liability[,]" that mutual affray was a mitigating defense, and that the trial court must submit a mutual affray instruction to the jury where there is any evidence to support the defense. Id.; see also State v. Adviento, 132 Hawai'i 123, 138, 319 P.3d 1131, 1146 (2014). Further, in Kikuta, the supreme court noted "it is well established that a court must only instruct the jury on defenses which have support in the record, although that evidence may be 'weak, inconclusive, or unsatisfactory[.]' " 125 Hawai'i at 97, 253 P.3d at 658 (quoting State v. Riveira, 59 Haw. 148, 153, 577 P.2d 793, 797 (1978) ).

The supreme court concluded in Kikuta that there was some evidence in the record to support the mutual affray defense, and thus, the jury should have been instructed on that defense. Id. at 97, 253 P.3d at 658. Given the lack of such an instruction, the defendant's conviction was vacated and the case was remanded for retrial. Id. at 97-98, 253 P.3d at 658-59.

Here, there is some evidence that Kauhane may not have heard the requests and orders by police to "get off" and "move off" the road, such that he did not persist in obstructing Crater Road as specified in HRS § 711-1105(1)after a warning by a law enforcement officer. See HRS § 711-1105(5). Because there is some evidence to support the mitigating defense under HRS § 711-1105(5) that reduces the Obstructing offense from a petty misdemeanor to a violation, it was plain error not to instruct the jury on this defense.

C. Sufficiency of the Evidence

Kauhane argues that there was insufficient evidence presented at trial to convict him of Obstructing because: (1) he had a "legal privilege" to gather in the roadway as a member of a peaceful protest pursuant to HRS § 711-1105(4) ; (2) there was no substantial evidence that he actually heard Captain Holokai's or any other warning to move and that he knowingly or recklessly persisted in obstructing the roadway; and (3) "the police's removal of Kauhane from the middle of Crater Road by carrying him to a police van is arguably the exact kind of 'obstruction that can be readily remedied by police control'[,]" citing HRS § 711-1105(3).

1. Defense of Legal Privilege Under HRS § 711-1105(4)

Kauhane argues that he had a legal privilege to engage in the conduct at issue. He asserts he was a member of a peaceful, non-violent protest of about twenty people, who were chanting and standing on the roadway while he was sitting on the road praying, and that his conviction is precluded as a matter of law under the United States Constitution, the Hawai'i Constitution, and HRS § 711-1105(4). Although Kauhane makes reference to provisions in the United States and Hawai'i Constitutions and simply cites to certain cases, his argument addresses "[t]he legislature's recognition of protected constitutional free speech and expressive conduct"

in HRS § 711-1105(4) and the commentary to HRS § 711-1105 generally. We thus focus on the defense under HRS § 711-1105(4).

Both affirmative and non-affirmative defenses place an "initial burden on the defendant to come forward with some credible evidence of facts constituting the defense, unless, of course, those facts are supplied by the prosecution's witnesses." HRS § 701-115 cmt. (2014).

The HRS § 711-1105(4) defense provides that "[a] person is not guilty of violating subsection (1) solely because persons gather to hear the person speak or because the person is a member of such a gathering." (Emphasis added). The commentary to the Obstructing statute provides further, in relevant part:

Although obstructing was formerly covered by the disorderly conduct statute, it raises certain important problems which indicate that it should have separate treatment. Primarily the problems relate to free speech and types of expressive conduct which, under the aegis of free speech, are constitutionally protected. Normally, the act of obstructing a public highway presents a great public inconvenience and serves no useful purpose. However, where the obstruction is caused by a crowd listening to a speaker, or even by a crowd protesting some official action, important goals are served by leaving the group as free from restriction as possible.
....
Subsection (1) defines obstructing as knowing or reckless obstruction of any. highway or public passage. "Obstructs" is defined in § 711-1100 as "renders impassable without unreasonable inconvenience or hazard." This conduct constitutes a violation, and if the defendant fails to heed a warning by a peace officer, it may be treated as a petty misdemeanor. However, subsection (4) makes clear that a person does not violate subsection (1) solely because of the fact that people gather to hear the person speak, or because the person is a member of such a gathering.

HRS § 711-1105 cmt.

Neither the Hawai'i Penal Code nor HRS § 711-1105 specifically designate HRS § 711-1105(4)as an affirmative defense or require that a defendant must prove the defense by a preponderance of the evidence. Thus, the defense under HRS § 711-1105(4) is not an affirmative defense.

In the case of defenses which are not affirmative, the defendant need only raise a reasonable doubt as to the defendant's guilt. The other side of the coin is that the prosecution must prove beyond a reasonable doubt facts negativing the defense. The prosecution in fact does this when the jury believes its case and disbelieves the defense.

HRS § 701-115 cmt.

Given Kauhane's argument on appeal that there was insufficient evidence to convict him because he had a legal privilege under HRS § 711-1105(4), the question before us would typically be whether there is substantial evidence to support a jury determination that the HRS § 711-1105(4) defense did not apply. However, in this case, our review of the record indicates that the jury was not instructed regarding, and did not consider, the HRS § 711-1105(4) defense. Accordingly, the question here is not whether there was sufficient evidence to convict Kauhane, but whether we should notice plain error because there was credible evidence in the record warranting a jury instruction on the HRS § 711-1105(4) defense, such that the jury should have considered the defense. See State v. Taylor, 130 Hawai'i 196, 207, 307 P.3d 1142, 1153 (2013) (holding plain error could be noticed on appeal if the defendant has come forward with credible evidence going to a defense that the jury should have been able to consider); see also State v. Nichols, 111 Hawai'i 327, 337, 141 P.3d 974, 984 (2006) (holding that "once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant's conviction, i.e. , that the erroneous jury instruction was not harmless beyond a reasonable doubt.").

At trial in this case, there was no evidence that Kauhane was on Crater Road at the time in question solely because persons had gathered to hear him speak or because he was a member of a gathering to hear someone speak. According to Captain Holokai, who was in the first vehicle in the convoy transporting parts to the DKIST, when the convoy came near to mile marker 2 on Crater Road, he saw approximately fifteen to twenty people standing shoulder to shoulder blocking the roadway, such that there was no room on either side for the convoy to drive around. The convoy had to stop and Captain Holokai testified he approached the line of people.

[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] So I want to talk about these protesters that went to the left and went to the right. Were any of them arrested?
[CAPTAIN HOLOKAI] No, no. Not at all, no.
[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] Where in the roadway were those two groups sitting?
[CAPTAIN HOLOKAI] Right in the middle of the road on top. If there was -- I'm not sure if there was a yellow marker, but if there was, it would have been right there. Right in the middle of the roadway.
[THE STATE] Do you recall how many protesters were in each group that were seated?
[CAPTAIN HOLOKAI] I believe the first group there was four and the second group there were three.
[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.
[THE STATE] And about how many -- of the seven people who were seated in the two groups, how many of them were arrested?
[CAPTAIN HOLOKAI] All seven. All seven were arrested.
[THE STATE] If any protester from, as a command Captain for the SPEED team with the 25, approximately 25 officers under your command based on your training and experience, if any protester from these two groups had moved off of the roadway in accordance with your warning to move, would you have arrested, have that protester arrested?
[CAPTAIN HOLOKAI] No, not at all.

Captain Holokai further testified that members of the SPEED team had to pry apart the arms of the seven protesters that were arrested and, because they would not walk, these protesters had to be carried to a nearby transport van. Kauhane was among the seven protesters who were arrested and, according to Captain Holokai, Kauhane was chanting and praying as he was being carried off, he did not try to struggle, and he was practicing passive resistance. Regarding passive resistance, Captain Holokai testified that the seven protesters were not actively trying to hurt the police or trying to run away, but were "just pretty much laying there" and the convoy could not continue past them because they were laying in the middle of the road.

Officer Russell Kapahulehua (Officer Kapahulehua ) testified that he was a member of the SPEED team on the night in question and that he recalled Kauhane sitting in the center of the roadway, that there were seven arrests made at that site, and he believed being involved that evening that it was a dangerous situation. According to Officer Kapahulehua, when he arrived on the scene he saw a group of at least thirteen to fifteen people that were shoulder to shoulder across the roadway blocking the whole roadway, and when Captain Holokai asked them to move they moved out of the way. Officer Kapahulehua further testified that just behind that line of people was Kauhane and the other few people he was with, a few feet behind them was a group of three other people also sitting in the middle of the roadway, and there was a lot of chanting. Officer Kapahulehua testified that when Kauhane was taken off the roadway he was chanting in Hawaiian.

Kauhane testified in his defense that on August 20, 2015, he went to Crater Road to "pray," "protest," and raise awareness about the telescope construction. His testimony, in pertinent part, was as follows:

[DEFENSE COUNSEL] Now, on August 20th, 2015, you were on Haleakala, correct?
[KAUHANE] Yes.
[DEFENSE COUNSEL] And you went up there for what reason?
[KAUHANE] I went up there to pray.
[DEFENSE COUNSEL] And did you know you were protesting?
[KAUHANE] Yes.
[DEFENSE COUNSEL] And why were you protesting? What did you want to prevent?
[KAUHANE] The desecration of our mountain, our sacred mountain, Haleakala.
[DEFENSE COUNSEL] And how did it personally affect you? As far as protesting, what were you protesting about when it came to your personal self?
[KAUHANE] To know -- to know that another telescope would be going up that's already been started being -- it's already in the beginning of being built. Putting awareness out there more through protest letting people know that we're here and we are going to -- we will make people aware of that, this is what we need to do.
[DEFENSE COUNSEL] Did you believe you were in imminent harm's way?
[KAUHANE] Imminent harm, I don't understand that question. Imminent harms?
[DEFENSE COUNSEL] Did you believe that you were at -- that because of the construction of the telescope it was going to somehow harm you?
[KAUHANE] Yes.
[DEFENSE COUNSEL] Did you believe it was going to harm other Hawaiians as well?
[KAUHANE] Yes.
[DEFENSE COUNSEL] And why did you think that it was going to harm you and other Hawaiians?
[KAUHANE] Through spirituality, spiritually, mentally. If you're not stable spiritually and mentally, eventually it starts to take a physical form on you.

(Emphasis added).

On cross-examination, Kauhane further testified in pertinent part as follows:

[THE STATE] Now, Mr. Kauhane, you said in your direct examination that you were there on Crater Road on August 20th, 2015; is that right?
[KAUHANE] Yes.
[THE STATE] And you were there to protest?
[KAUHANE] Yes.
[THE STATE] And you were there to stop the transport of telescope material that morning, right?
[KAUHANE] Yes. Did I say yes to that? Did you ask me that?
....
[THE STATE] And you stated that you wanted to raise awareness about this incident; is that right?
[KAUHANE] Yes.
[THE STATE] And so you went up there and you purposefully obstructed the road?
[KAUHANE] Went up there to pray.
[THE STATE] Okay. You went up there to pray?
[KAUHANE] Yes.
[THE STATE] And you knew that by going up there to pray you were obstructing the middle of the road, right?
[KAUHANE] Okay, yes.
[THE STATE] So you were in the very middle of the road when the convoy came, right?
[KAUHANE] Yes.

(Emphasis added).

Given the record, the evidence does not support a defense under HRS § 711-1105(4) that: "[a] person is not guilty of violating subsection (1) solely because persons gather to hear the person speak or because the person is a member of such a gathering." Thus, the lack of a jury instruction by the circuit court on the HRS § 711-1105(4) defense was not plain error.

2. Whether Kauhane heard a warning

As discussed in section III.B. above, the evidence in this case demonstrates ambiguity as to whether Captain Holokai's warning to the front line of protesters was heard by Kauhane. For purposes of a sufficiency of the evidence analysis, we view the evidence in a light most favorable to the State, and thus for purposes of this analysis there is substantial evidence to support a finding that Kauhane did hear Captain Holokai's warning. See Nakamitsu, 140 Hawai'i at 164, 398 P.3d at 753. As such, this issue may be considered in the retrial of this case related to the mitigating defense discussed in section III.B.

3. Police remedy

Kauhane's argument made pursuant to HRS § 711-1105(3) is not pertinent insofar as subsection (3) applies to offenses under HRS § 711-1105(2)(a). Here, Kauhane was charged and convicted under HRS § 711-1105(1)(a).

D. Choice of Evils Defense and Golden-Rule Argument

The golden-rule argument is "[a] jury argument in which a lawyer asks the jurors to reach a verdict by imagining themselves or someone they care about in the place of the injured plaintiff or crime victim."Golden-rule argument , Black's Law Dictionary 807 (10th ed. 2014). "[G]olden-rule arguments ask the jurors to become advocates for the plaintiff or victim and to ignore their obligation to exercise calm and reasonable judgment[.]" Id. Using golden-rule arguments is often considered improper in both civil and criminal cases.

Ditto v. McCurdy, 86 Hawai'i 93, 127, 947 P.2d 961, 995 (App. 1997) (citation omitted), aff'd in part, rev'd on other grounds, 86 Hawai'i 84, 947 P.2d 952 (1997) ; see also State v. Rogan, 91 Hawai'i 405, 414, 984 P.2d 1231, 1240 (1999) (noting a prosecutor's statement that "the incident was 'every mother's nightmare,' ... was a blatantly improper plea to evoke sympathy for the Complainant's mother and represented an implied invitation to the jury to put themselves in her position").

However, in the instant case, the following transpired during defense counsel's closing argument;

[DEFENSE COUNSEL] .... So weigh it out. What's the harm versus what is he being imminently harmed with? What's the difference? You've got to weigh it out, and you as jurors, I hope, will weigh in favor of my client and find that he believed that there was going to be imminent harm.
You know, we all experience -- you know, we all experience pain in various ways. We all experience mental pain and grief and anxiety in various ways. Pain, grief, and anxiety, that equals harm. It's the same thing.
And again, the only way that you can really judge as jurors the vastness of the harm, the grief, the pain, the anxiety is to walk in [Kauhane's] shoes.
[THE STATE] Objection, your Honor. Golden rule.
THE COURT: Sustained.
[THE STATE] Request a curative instruction.
THE COURT: Approach.
[Bench Conference]
(The following was heard in open court.)
THE COURT: You may continue, Counsel.
[DEFENSE COUNSEL] In light of Jury Instruction Number 30,[ ] I'm asking that you find that my client was justified to be on the mountain at that point in time because he believed he was going to be suffering imminent harm from the desecration and the continuing desecration of Haleakala.
....

(Emphasis added).

At trial, defense counsel urged the jurors to consider the harm from Kauhane's point of view by walking in his shoes, and the State's objection based on the golden-rule was sustained. The State now concedes on appeal that the golden-rule argument was not applicable. We agree with the State's concession in that the golden-rule argument was not applicable here where the jury was asked to consider the harm to defendant Kauhane from his point of view, rather than the jury being asked to imagine themselves or someone they care about in the place of a crime victim.

However, on appeal, Kauhane argues that the jury was entitled to consider Kauhane's choice of evils defense under HRS § 703-302 (2014) "by weighing the reasonableness of his belief that his obstructing conduct was necessary to avoid an imminent harm or evil to himself or other Hawaiians by 'walking in his shoes.' "

In State v. Maumalanga, 90 Hawai'i 58, 63, 976 P.2d 372, 377 (1998), the Hawai'i Supreme Court held that "all of the elements of the choice of evils defense are contained within the express language of HRS § 703-302 [.]" See also State v. Friedman, 93 Hawai'i 63, 71, 996 P.2d 268, 276 (2000) ("The choice of evils defense is defined entirely by HRS § 703-302 without regard to common law 'considerations.' "). Specifically, the supreme court adopted the reasoning by Associate Judge Acoba (then a member of the Intermediate Court of Appeals) as set forth in parts IV through XI of Judge Acoba's concurring and dissenting opinion in State v. Maumalanga, 90 Hawai'i 96, 109-13, 976 P.2d 410, 423-27 (App. 1998) (Acoba, J., concurring and dissenting). Part of Judge Acoba's analysis adopted by the supreme court was that, under HRS § 703-302, a defendant's belief that the conduct chosen was necessary must be "objectively reasonable." 90 Hawai'i at 112, 976 P.2d at 426. Judge Acoba noted that under HRS § 703-300, "believes" means "reasonably believes", and this definition "was intended by the legislature to incorporate a 'reasonable [person] standard.' " 90 Hawai'i at 112 n.3, 976 P.2d at 426 n.3 (citing the Supplemental Commentary on HRS § 703-300 ).

Under Maumalanga, for purposes of Kauhane's choice of evils defense, his belief that the conduct chosen was necessary must have been "objectively reasonable." Thus, although the circuit court sustained the prosecution's objection during closing argument for an incorrect reason (i.e. , the golden-rule), defense counsel's argument that the only way to judge the vastness of the harm to Kauhane was to "walk in Kauhane's shoes" was -- in any event -- not proper for purposes of a choice of evils defense, because it did not incorporate a reasonable person standard. We note that after the State's objection was sustained, defense counsel was allowed to argue the choice of evils defense "[i]n light of Jury Instruction Number 30," which addressed the choice of evils defense and included language that "defendant reasonably believes such conduct is necessary[.]"

In sum, although the circuit court erred in sustaining the State's objection based on the golden-rule argument, it was harmless error. See Hawai'i Rules of Penal Procedure Rule 52(a) ("[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.").

IV. Conclusion

Based on Kauhane's second point of error, we vacate his conviction for Obstructing set forth in the "Judgment Conviction and Probation Sentence," filed in the Circuit Court of the Second Circuit on September 9, 2016. The case is remanded to the circuit court for further proceedings consistent with this opinion.

      The Honorable Richard T. Bissen, Jr. presided.

      HRS § 711-1105 provides:
      § 711-1105 Obstructing. (1) A person commits the offense of obstructing if, whether alone or with others and having no legal privilege to do so, the person knowingly or recklessly:
      (a) Obstructs any highway or public passage; or
      (b) Provides less than thirty-six inches of space for passage on any paved public sidewalk.
      (2) A person in a gathering commits the offense of obstructing if the person refuses to obey a reasonable request or order by a law enforcement officer:
      (a) To move to prevent or to cease any activity prohibited under subsection (1); or
      (b) To move to maintain public safety by dispersing those gathered in dangerous proximity to a public hazard.
      (3) An order to move under subsection (2)(a), addressed to a person whose speech or other lawful behavior attracts an obstructing audience, is not reasonable if the obstruction can be readily remedied by police control.
      (4) A person is not guilty of violating subsection (1) solely because persons gather to hear the person speak or because the person is a member of such a gathering.
      (5) Obstructing 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.

      It appears Count Two includes the following underlined language, that Kauhane did "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" (emphasis added), in order to address the requirement in HRS § 711-1105(5) that: "[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).

      When the mitigating defense under HRS § 711-1105(5) is submitted to a jury for consideration, the jury should answer a special interrogatory regarding the defense. This would be similar to the mutual affray defense to Assault in the Third Degree, as addressed in Hawai'i Pattern Jury Instructions-Criminal (HAWJIC) No. 9.21A. See State v. Henley, 136 Hawai'i 471, 479-80, 363 P.3d 319, 327-28 (2015) (discussing HAWJIC 9.21A and holding that, given the evidence in that case, the circuit court should have provided the jury with an instruction and special interrogatory on mutual affray).

      Kauhane does not challenge the validity of HRS § 711-1105, but quotes without argument the following from Hague v. Comm. for Indus. Org., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) :
      Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.
      Id. at 515, 59 S.Ct. 954. We note that subsequent to Hague and in addressing a conviction for "obstructing public passages," the United States Supreme Court recognized:
      The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.
      Cox v. State of La., 379 U.S. 536, 554-55, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). See also State v. Jim, 105 Hawai'i 319, 333-334, 97 P.3d 395, 409-10 (App. 2004) (relying on case law quoting Cox and holding that defendant's "continuing physical obstruction of the lawful work by the [Department of Water Supply] on [Hawaiian Home Lands] property constituted conduct clearly outside the scope of any first amendment right to freedom of speech"); State v. Guzman, 89 Hawai'i 27, 36, 968 P.2d 194, 203 (App. 1998) (citing Cox in holding that HRS § 852-1 (1993), regarding "Refusal to provide ingress or egress", did not need to be struck down for chilling free expression, where individuals picketing at the entrance of a hospital were arrested for refusing to provide ingress and egress).

      HRS § 701-115 provides:
      § 701-115 Defenses. (1) A defense is a fact or set of facts which negatives penal liability.
      (2) No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented. If such evidence is presented, then:
      (a) If the defense is not an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in the light of any contrary prosecution evidence, raises a reasonable doubt as to the defendant's guilt; or
      (b) If the defense is an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in light of any contrary prosecution evidence, proves by a preponderance of the evidence the specified fact or facts which negative penal liability.
      (3) A defense is an affirmative defense if:
      (a) It is specifically so designated by the Code or another statute; or
      (b) If the Code or another statute plainly requires the defendant to prove the defense by a preponderance of the evidence.

      Jury Instruction No. 30 addressed the choice of evils defense.

      HRS § 703-302 provides:
      § 703-302 Choice of evils. (1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that:
      (a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;
      (b) Neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
      (c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear.
      (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for the actor's conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
      ....
      (Emphasis added). HRS § 703-300 (2014) provides that " 'Believes' " means reasonably believes."

      Associate Judge Acoba subsequently became a Justice of the Hawai'i Supreme Court.


source: Caselaw Access Project

license: Public Domain

text:
    SPAR MARKETING SERVICES, INC., Appellant-Appellee, v. State of Hawai'i, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, EMPLOYMENT SECURITY APPEALS REFEREES' OFFICE, Appellee-Appellant, and Thad J. Inokuchi, Appellee-Appellee
    NO. CAAP-13-0001140
    Intermediate Court of Appeals of Hawai'i.
    FEBRUARY 22, 2019
    On the briefs: Li-Ann Yamashiro, Deputy Attorney General, for Appellee-Appellant.
    John S. Mackey, Honolulu, for Appellant-Appellee.
   FUJISE, PRESIDING JUDGE, REIFURTH AND HIRAOKA, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

Appellant State of Hawai'i Director of Labor and Industrial Relations (Director ) appeals from the April 29, 2013 Order Reversing Employment Security Appeals Referees' Office Decision 1101663 (Order ) and the Final Judgment (Judgment ) in favor of Appellee Spar Marketing Services, Inc. (Spar ) entered by the Circuit Court of the First Circuit (Circuit Court ) on May 7, 2013. The Director contends that the Circuit Court erred when it reversed the State of Hawai'i Department of Labor and Industrial Relations (DLIR ) Employment Security Appeals Office Decision 1101663 (the Agency Decision ) that held Spar liable for unemployment insurance contributions. We agree that the Circuit Court erred by re-weighing the evidence presented to the DLIR hearings officer. We reverse the Order and the Judgment and affirm the Agency Decision for the reasons set forth below.

I. Procedural History

Spar and Thad Inokuchi (Inokuchi ) were parties to an Independent Merchandiser Agreement (Agreement ). The Agreement states in bold type that "[i]t does NOT create any employer/employee relationship" (capitalization and underscoring in original). Inokuchi accepted the Agreement on October 21, 2010. Inokuchi performed services (restocking and maintaining DVD rental kiosks) for three of Spar's clients at various Safeway and Office Depot stores in Honolulu pursuant to written instructions he received from Spar. Inokuchi was paid by Spar and received an IRS Form 1099-MISC from Spar.

On January 6, 2011, Inokuchi filed a claim for unemployment benefits under the Hawaii Employment Security Law (HRS Chapter 383) with DLIR. On April 26, 2011, DLIR's Employer Services Section determined that Inokuchi was engaged in covered employment and issued a notice of assessment for $29.38 to Spar, representing Spar's unemployment insurance contributions pursuant to HRS Chapter 383, Part III.

By letter dated May 4, 2011, Spar contested DLIR's determination and requested a hearing. An administrative hearing was conducted on January 24, 2012. The hearings officer admitted fourteen exhibits into evidence without objection by any party. The hearings officer heard testimony from Heidi Savage, Director of Human Resources for Spar Marketing Force, a DLIR Unemployment Insurance Division auditor named Jason Hara, and Inokuchi. On May 21, 2012, DLIR issued the Agency Decision which stated, in relevant part:

The Department's decision is affirmed. The services performed by [Inokuchi] for [Spar] constitute employment pursuant to Haw. Rev. Stat. §§ 383-1, 383-2, 383-6, and 383-10.

Spar's application to reopen the agency proceeding was denied. On August 1, 2012, Spar timely appealed to the Circuit Court pursuant to HRS § 91-14 (2012).

The Circuit Court heard oral arguments on February 15, 2013. On April 29, 2013, the Circuit Court entered the Order. The Order did not articulate which standard of review the Circuit Court had applied. It contained eleven findings of fact and concluded:

The Court finds that the reliable, probative, and substantial evidence in the record set forth above warrants a reversal of the Appeals Office Decision. Therefore, Employment Security Appeals Referees' Office Decision 1101663 dated May 21, 2012, and the denial of the Application for Reopening of Appeals Officer's Decision, dated July 3, 2012, are reversed.

The Judgment was entered on May 7, 2013. This appeal followed.

II. Standard of Review

"Review of a decision made by the circuit court upon its review of an agency's decision is a secondary appeal. The standard of review is one in which this court must determine whether the circuit court was right or wrong in its decision, applying the standards set forth in HRS § 91-14 (g) [1993] to the agency's decision." Flores v. Bd. of Land & Nat. Res., 143 Hawai'i 114, 120, 424 P.3d 469, 475 (2018) (brackets in original) (citation omitted).

HRS § 91-14, entitled "Judicial review of contested cases," provides in relevant part:

(g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

"Under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects under subsection (3); findings of fact under subsection (5); and an agency's exercise of discretion under subsection (6)." Del Monte Fresh Produce (Hawaii), Inc. v. Int'l Longshore & Warehouse Union, Local 142, 128 Hawai'i 289, 302, 287 P.3d 190, 203 (2012) (citation omitted).

An agency's conclusions of law are reviewed de novo, while an agency's factual findings are reviewed for clear error. A conclusion of law that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the conclusion is dependent upon the facts and circumstances of the particular case.
As a general matter, a finding of fact or a mixed determination of law and fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding or determination, or (2) despite substantial evidence to support the finding or determination, the appellate court is left with the definite and firm conviction that a mistake has been made. Substantial evidence is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.

Id. (format altered) (citation omitted).

III. Discussion

The statute at issue in this case is the Hawaii Employment Security Law, HRS Chapter 383. "The statute's purpose is to protect workers from the economic insecurity of unemployment. Courts therefore liberally construe the statute and the rules implementing it in order to avoid the unwarranted deprivation of benefits." Int'l Bhd. of Elec. Workers, Local 1357 v. Hawaiian Tel. Co., 68 Haw. 316, 326, 713 P.2d 943, 952 (1986) (citing Camara v. Agsalud, 67 Haw. 212, 216-17, 685 P.2d 794, 797 (1984) ); see also, Berkoff v. Hasegawa, 55 Haw. 22, 27, 514 P.2d 575, 579 (1973) (same) and Bailey's Bakery v. Tax Commissioner, 38 Haw. 16, 28 (1948) (same).

Under the Hawaii Employment Security Law, each employer must pay contributions to an unemployment compensation fund "with respect to wages for employment." HRS § 383-61 (Supp. 1991), et. seq. See, Homes Consultant Co. v. Agsalud, 2 Haw. App. 421, 423, 633 P.2d 564, 567 (1981). "Wages" is defined to include "all remuneration for services from whatever source, including commissions and bonuses[.]" HRS § 383-10 (2015). "Employment" is defined as "service ... performed for wages or under any contract of hire, written or oral, express or implied." HRS § 383-2(a) (2015). In the DLIR proceeding there was no dispute that Spar had paid money to Inokuchi for performing "merchandising-related services projects" for Spar's clients pursuant to the Agreement. Accordingly, for purposes of the Hawaii Employment Security Law, Inokuchi's relationship with Spar is deemed to be "employment" unless Spar proves each of the three elements of HRS § 383-6"to the satisfaction of the [DLIR]." HRS § 383-6 (1985); Homes Consultant Co., 2 Haw. App. at 423-24, 633 P.2d at 567.

HRS § 383-6 provides:

Services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to [the Hawaii Employment Security Law] irrespective of whether the common law relationship of master and servant exists unless and until it is shown to the satisfaction of the department of labor and industrial relations that:
(1) The individual has been and will continue to be free from control or direction over the performance of such service, both under the individual's contract of hire and in fact; and
(2) The service is either outside the usual course of the business for which the service is performed or that the service is performed outside of all the places of business of the enterprise for which the service is performed; and
(3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the contract of service.

Spar agrees that it had the burden "of overcoming the presumption of employment by establishing that its business relationship with Mr. Inokuchi satisfied all three elements of HRS section 383-6." But Spar incorrectly argues that "it bore the burden before the Appeals Office and the Circuit Court." (Emphasis added.) Under HRS § 383-6 Spar had the burden of proving the three elements "to the satisfaction of the [DLIR.]" By contrast, "[a] court reviewing an agency's decision cannot consider the weight of the evidence to ascertain whether it weighs in favor of the administrative findings, or review the agency's findings of fact by passing upon the credibility of witnesses or conflicts in testimony, especially the finding of an expert agency in dealing with a specialized field." Sierra Club v. D.R. Horton-Schuler Homes, LLC, 136 Hawai'i 505, 522, 364 P.3d 213, 230 (2015) (emphasis added) (citation, quotation marks and ellipsis omitted).

DLIR's determinations under HRS § 383-6 present mixed questions of fact and law, which are "reviewed under the clearly erroneous standard because the conclusion is dependent upon the facts and circumstances of the particular case." Del Monte Fresh Produce, 128 Hawai'i at 302, 287 P.3d at 203 (emphasis added). Where mixed questions of fact and law are presented, "deference will be given to the agency's expertise and experience in the particular field and the court should not substitute its own judgment for that of the agency." Dole Hawaii Div.-Castle & Cooke, Inc. v. Ramil, 71 Haw. 419, 424, 794 P.2d 1115, 1118 (1990) (emphasis added) (citation omitted). As we explain in more detail below, the Agency Decision was not clearly erroneous and we accordingly reverse the Circuit Court's Order and Judgment.

A. Control or Direction

To pass the first part of the HRS § 383-6 test, Spar had to satisfy DLIR that Inokuchi "has been and will continue to be free from control or direction over the performance of such service [for Spar], both under the [Agreement] and in fact[.]" The application of HRS § 383-6 is a subject of Hawaii Administrative Rules (HAR ) § 12-5-2 (eff. 2006). That rule provides in relevant part:

"Control or direction over the performance of such service" means general control and need not extend to all details of the performance of service. The employer need not actually exercise control; it is sufficient that there is a right to do so.

In addition, we have noted:

On the question of control, our supreme court has stated that in order to satisfy the requirement of HRS § 383-6(1) (1976),
[T]he control reserved to the principal for unemployment compensation purposes need not extend to all the details of the physical performance of the service by the worker that may be essential to the master-servant relationship but may be merely a general one exercisable, directly or indirectly, over the physical activities and time surrendered by the worker.
Bailey's Bakery v. Tax Commissioner, 38 Haw. 16, 50 (1948).

Homes Consultant Co., 2 Haw. App. at 425-26, 633 P.2d at 568 (brackets in original).

Spar contends that the Circuit Court correctly weighed the evidence presented to DLIR and decided in favor of Spar. However, the Circuit Court's function in an agency appeal is not to re-weigh the evidence. Sierra Club, 136 Hawai'i at 522, 364 P.3d at 230. The Circuit Court should have reviewed the evidence presented to the hearings officer not to make its own findings or conclusions, but to determine whether the Agency Decision was clearly erroneous.

The Agency Decision stated:

Pursuant to its contract with its Clients, [Spar] was ultimately responsible for ensuring that its Clients' merchandising needs were met at the retail locations where the Clients' products were sold. [Spar] offered [Inokuchi] the same assignments on an ongoing basis, which is indicative of an employer-employee relationship. [Spar] directed [Inokuchi] by providing him with detailed instructions about each assignment. [Spar] exercised control by requiring [Inokuchi] to conform to a specified standard of behavior and by requiring [Inokuchi] to report his work via forms provided by [Spar]. [Spar] determined [Inokuchi]'s rate of pay based on information it received from its Clients. If [Inokuchi] was unable to complete an assignment, [Spar] was responsible for finding another merchandizer [sic] to complete the work for [Spar]'s Clients. Although [Inokuchi] had a great deal of autonomy in the performance of his duties, this is not sufficient to establish that [Inokuchi] performed his services free from [Spar]'s direction and control. Because [Spar] was obligated to provide merchandising services to its Clients, [Spar] had the inherent right to direct and control [Inokuchi]'s performance of merchandising services. Regardless of whether [Spar] contracted with [Inokuchi] on an independent contractor basis, [Spar] has failed to establish that the first prong of the three-part test is satisfied.

There was substantial evidence in the record to support this determination. It was not clearly erroneous.

The three parts of HRS § 383-6 are cumulative. Because Spar had the burden of proving all three parts to DLIR's satisfaction to overcome the statutory presumption, Homes Consultant Co., 2 Haw. App. at 423-24, 633 P.2d at 567, we need proceed no further. However, in the event of further appellate review, we discuss the other two parts of the HRS § 383-6 test.

B. Service Performed

To pass the second part of the test, Spar had to satisfy DLIR that the service performed by Inokuchi "is either outside the usual course of the business [of Spar] ... or that the service is performed outside of all the places of business of the enterprise [of Spar.]" HAR § 12-5-2(a)(3) provides:

(A) "Outside the usual course of the business" refers to services that do not promote or advance the business of the employer, or services that are merely incidental to, and not an integral part of, that business.
(B) "Outside of all the places of business of the enterprise" refers to places other than the business[']s home office, headquarters or territory in which the business operates[.]

The Agency Decision stated:

[Spar] is in the business of providing merchandising services for its Clients and the merchandising services that [Inokuchi] performed were integral to [Spar]'s business. Further, although [Spar]'s offices are located in Michigan, it has a contractual obligation to provide merchandising services for its Clients at the retail locations in Hawaii where [Inokuchi] performed his services. The retail locations in Hawaii where the Clients' products are sold became extensions of [Spar]'s place of business. [Spar] has failed to establish that [Inokuchi]'s services were outside [Spar]'s usual course of business or outside [Spar]'s place of business.

There was substantial evidence in the record to support the determination that Inokuchi's services promoted and advanced Spar's business, and that Spar's clients' kiosks-which Inokuchi was contracted to restock and maintain-were located in Hawai'i. The hearings officer's determination was not clearly erroneous.

C. Independent Trade, Occupation, Profession or Business

To pass the third part of the test, Spar had to satisfy DLIR that Inokuchi was "customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the [Agreement]." HAR § 12-5-2(a)(4) provides:

"The individual is customarily engaged in an independently established trade, occupation, profession, or business" refers to an individual who is performing services and is established in the business of performing these services independent of whatever connection the individual may have with an employer and that the individual must have a proprietary interest in such business, something in which the individual has a right of continuity, which the individual can sell or give away, and which is not subject to cancellation or destruction upon severance of the relationship with the employer.

The Agency Decision stated:

[Spar] has failed to show that [Inokuchi] has a G.E.T. license or a registered business name as a provider of merchandising services or offers or advertises his services to the general public. [Inokuchi] was performing services for remuneration rather than engaging in a business enterprise. [Spar] has failed to establish that [Inokuchi] was customarily engaged in an independently established business as a provider of merchandising services.

During the agency hearing Inokuchi testified that he had a Hawai'i general excise tax (GET ) license since 2008 or 2009, but that he used it for his mortgage processing work, not for his work for Spar. There was no evidence presented that Inokuchi could not have reported the payments he received from Spar on his GET license. However, Inokuchi also testified that his work assignments from Spar were computer generated and he would have to log in to Spar's system to receive his assignments. There was no evidence presented that Inokuchi could have received assignments directly from Spar's clients, or that Inokuchi could have gone around Spar to contract directly with Spar's clients. Inokuchi was paid by Spar, not by Spar's clients whom Inokuchi serviced. Since Inokuchi was dependent upon Spar for work, could not obtain his assignments directly from Spar's clients, and was paid by Spar rather than by Spar's clients, there was substantial evidence in the record to support the hearings officer's determination that Inokuchi was performing services for Spar for remuneration rather than engaging in his own business enterprise which was "not subject to cancellation or destruction upon severance of" his relationship with Spar. The hearings officer did not clearly err.

IV. Conclusion

The issue before the Circuit Court on Spar's appeal, and before us on this secondary appeal, is not whether the evidence presented to the hearings officer supported Spar's position more than that of the Director. The issue is whether the hearings officer clearly erred because either (1) the record lacked substantial evidence to support the agency's finding or determination, or (2) despite substantial evidence to support the finding or determination, we are left with the definite and firm conviction that a mistake has been made. We conclude that there was substantial evidence in the record supporting the Agency Decision. We are not left with a definite or firm conviction that the hearings officer made a mistake. Accordingly, the Circuit Court's Order and Judgment are reversed, and the Agency Decision is affirmed.

      The Director is deemed to be a party in any proceeding, such as this, arising from the Hawaii Employment Security Law, Hawaii Revised Statutes (HRS ) Chapter 383. HRS §§ 383-41, 383-42 (2015).

      The Honorable Rhonda A. Nishimura presided.

      The Director's May 29, 2014 request that we take judicial notice of the Third Circuit Court's decision in Spar Mktg. Servs., Inc. v. State of Hawai'i Dep't of Labor & Indus. Relations, Civil No. 13-1-0121, is granted but it is not clear why the request was made. The Third Circuit Court's decision is not binding on us in this appeal. Spar's appeal from the Third Circuit Court's decision is currently pending before us in CAAP-14-0000500. No party has moved to consolidate that appeal with this one.

      Savage testified that Spar Marketing Force contracts to provide some administrative services to Spar Marketing Services. She also testified on behalf of Spar in the administrative proceedings underlying Spar Mktg. Serv., Inc. v. New Jersey Dep't of Labor & Workforce Dev., 2013 WL 890071 (N.J. Super. Ct. App. Div. 2013) and Spar Mktg. Servs., Inc. v. Unemployment Ins. Appeal Bd., 2012 WL 1414097 (Del. Super. Ct. 2012).

      The statute provides, in relevant part:
      (a) Any person aggrieved by a final decision and order in a [proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing] is entitled to judicial review thereof under this chapter[.]
      ....
      (f) The review shall be conducted by the appropriate court without a jury and shall be confined to the record[.]

      HRS § 383-1 (2015) defines "employer" to include any organization which had one or more individuals performing services for it within the State of Hawai'i.

      HRS § 383-6 provides that a determination of "employment" subject to the Hawaii Employment Security Law is purely regulatory in nature and independent of the existence of a common law master-servant relationship. We reiterate that neither the Agency Decision nor this opinion establishes that Spar could be vicariously liable for any act or omission by Inokuchi under the tort law doctrine of respondeat superior.


author: OPINION OF THE COURT BY GINOZA, C.J.

text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Suzanne Satomi Chin-Yin OTANI, Defendant-Appellant
    NO. CAAP-17-0000530
    Intermediate Court of Appeals of Hawai'i.
    FEBRUARY 28, 2019
    On the briefs:
    Scot Stuart Brower, Honolulu, for Defendant-Appellant.
    Loren J. Thomas, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
    GINOZA, CHIEF JUDGE, FUJISE and CHAN, JJ.
   OPINION OF THE COURT BY GINOZA, C.J.

Defendant-Appellant Suzanne Satomi Chin-Yin Otani (Otani ) appeals from a June 13, 2017 "Notice of Entry of Judgment and/or Order and Plea/Judgment" (Judgment ), entered by the District Court of the First Circuit, 'Ewa Division (District Court ). The District Court convicted Otani of one count of Operating a Vehicle Under the Influence of an Intoxicant (OVUII ), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1), and sentenced her to, among other things, a forty-eight hour term of imprisonment, pursuant to HRS'§ 291E-61(b)(4).

On appeal, Otani argues the District Court abused its discretion in sentencing her to imprisonment under HRS § 291E-61(b)(4), because the District Court did not also sentence her to imprisonment under HRS § 291E-61(b)(1)(C)(ii).

For the reasons discussed below, we affirm the Judgment.

I. Factual Background

Otani was convicted for OVUII while driving with a passenger under the age of fifteen in the vehicle. The offense occurred on April 7, 2017. It was Otani's first OVUII offense.

HRS § 291E-61(b) (Supp. 2017) provides, in relevant part:

(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced without possibility of probation or suspension of sentence as follows:
(1) For the first offense, or any offense not preceded within a five-year period by a conviction for an offense under this section or section 291E-4(a):
(A) A fourteen-hour minimum substance abuse rehabilitation program, including education and counseling, or other comparable program deemed appropriate by the court;
(B) One-year revocation of license and privilege to operate a vehicle during the revocation period and installation during the revocation period of an ignition interlock device on any vehicle operated by the person;
(C) Any one or more of the following:
(i) Seventy-two hours of community service work;
(ii) Not less than forty-eight hours and not more than five days of imprisonment; or
(iii) A fine of not less than $150 but not more than $1,000;
(D) A surcharge of $25 to be deposited into the neurotrauma special fund; and
(E) A surcharge, if the court so orders, of up to $25 to be deposited into the trauma system special fund;
(2) For an offense that occurs within five years of a prior conviction for an offense under this section-or section 291E-4(a):
...
(3) For an offense that occurs within five years of two prior convictions for offenses under this section or section 291E-4(a):
...
(4) In addition to a sentence imposed under paragraphs (1) through (3), any person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty-eight hours; provided that the total term of imprisonment for a person convicted under this paragraph shall not exceed the maximum term of imprisonment provided in paragraph (1), (2), or (3), as applicable. Notwithstanding paragraphs (1) and (2), the revocation period for a person sentenced under this paragraph shall be not less than two years[.]

(Emphases added).

At sentencing, the District Court and counsel engaged in the following discussion:

[DEFENSE COUNSEL]: ....
Your Honor, as I'm reading the statute 291E-61(4) [sic], it references a ... mandatory sentence of 48 hours. But it says "and in addition to." So my position on that is that unless the Court imposes a sentence of between one and five days under 291E-61(a)(1),[ ] then the mandatory should not come into play because ... the Legislature uses the term "and" or conjunctive. So in other words, there would have to be in - a position [sic] of sentence under (a) - or 291E-61(a) as a first-time offender for jail, and Ms. Otani has never gotten into any trouble in her past. I mean ... she is a first-time ... offender. ... It was an aberration. So we would ask the Court to not impose the mandatory jail because she's not the type of person that would have had an imposition of jail under -- as a first offender under ... 291E-61(a)(1)....
THE COURT: Okay.
[DEFENSE COUNSEL]: ... [W]e would ask that no jail be imposed.
....
[THE STATE]: So, Your Honor, ... I do not interpret the enhanced sentencing to be read that way. I believe that the Court has discretion to impose either the 72 hours of community service, the jail, or a fine, as notated by the "or" in 291E-61(b)(1) through (3). But with regard to (b)(4), it reads "in addition to a sentence imposed under paragraphs (1) through (3).["] So Your Honor has the discretion to impose a sentence under subsections (1) through (3).
And in addition to whatever sentence the Court imposes, the defendant who's convicted of having a person ... 15 years and under shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of 48 hours, just provided that the total term of imprisonment does not exceed a maximum term provided in paragraphs (1), (2), or (3).
... [A]nd I don't think that the Court has discretion with regard to subsection 4.
THE COURT: Okay. [Defense counsel], I beg to disagree with your interpretation. I mean, if I were to follow your interpretation, given the circumstances, I would consider - under subsections paragraphs (1) through (3), give your client ... one or more of the following: either the fine of $1,000, 72 hours' community service, 48 hours' jail up to five days.
That is part of the regular statute; is that correct, [Defense counsel]?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: So, you know, I could give her 48 hours under that provision and then impose the additional [48] hours for the enhanced sentencing for a child under the ... age of 15. So that would still make it under the ... five-day limit. But I'm not sure you want to argue that if you're saying I have to give her jail time in order to also impose a 48-hour mandatory jail time.... [I]f I'm not mistaken, that's what you're arguing. I have to give her jail time, otherwise I cannot impose the mandatory 48 hours' jail.
[DEFENSE COUNSEL]: Well, Your Honor, that's why I was letting the Court know that this individual would ... not be someone that really is appropriate for jail, given her history, ... her background, given that this is a huge aberration.
....
THE COURT: ... [U]nfortunately, the Court having found her guilty as charged, I have no discretion, as I read the statute. It's the Legislature ... that has deemed it mandatory sentence....

(Footnote added).

The District Court entered the Judgment and Otani's sentence included forty-eight hours of imprisonment, a fine, assessment of various fees, and referral to substance abuse assessment.

II. Standards of Review

A. Sentencing

Sentencing decisions are reviewed under the abuse of discretion standard. A sentencing judge generally has broad discretion in imposing a sentence. Generally, to constitute an abuse of discretion, it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.

State v. Sanney, 141 Hawai'i 14, 19, 404 P.3d 280, 285 (2017) (citing State v. Hussein, 122 Hawai'i 495, 503, 229 P.3d 313, 321 (2010) ).

B. Statutory Interpretation

"The interpretation of a statute is a question of law reviewable de novo ." State v. Arceo, 84 Hawai'i 1, 10, 928 P.2d 843, 852 (1996) (internal quotation marks and citation omitted).

This court's construction of statutes is guided by established rules:
First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.
When there is ambiguity in a statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent, such as legislative history, or the reason and spirit of the law.

State v. Wheeler, 121 Hawai'i 383, 390, 219 P.3d 1170, 1177 (2009) (internal quotation marks and citation omitted).

The Hawai'i Supreme Court has further noted that:

the plain language rule of statutory construction does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review. Were this not the case, a court may be unable to adequately discern the underlying policy which the legislature seeks to promulgate and, thus, would be unable to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute.
We must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

Shipley v. Ala Moana Hotel, 83 Hawai'i 361, 364-65, 926 P.2d 1284, 1287-88 (1996) (brackets and citations omitted).

III. Discussion

HRS § 291E-61(b)(4) provides, in relevant part:

In addition to a sentence imposed under paragraphs (1) through (3), any person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty-eight hours[.]

(Emphases added).

Otani argues that in light of the phrase "[i]n addition to" in HRS § 291E-61(b)(4), the District Court was prohibited from sentencing her to forty-eight hours of imprisonment because the court did not sentence her to any imprisonment under HRS § 291E-61(b)(1)(C)(ii).

According to the plain language of HRS § 291E-61(b)(4), when a person eighteen years of age or older commits OVUII with a passenger under fifteen years of age in or on the vehicle, in addition to "a" sentence under subsection HRS § 291E-61(b)(1), (2), or (3), the trial court must sentence the defendant to a forty-eight hour term of imprisonment. Contrary to Otani's argument, we do not interpret the "[i]n addition to" wording as indicating a legislative intent to limit the imposition of the prison sentence under subsection (b)(4) to situations in which the trial court has also sentenced the defendant to imprisonment under subsections (1), (2), or (3). Cf. State v. Ruggiero, 114 Hawai'i 227, 238, 160 P.3d 703, 714 (2007) (noting a new aggravating factor under HRS § 291E-61(b)(4) (Supp. 2003), which imposed "additional punishments beyond those provided for in HRS § 291E-61(b)(1) to (3), for any adult convicted of operating a vehicle while under the influence and with a passenger under the age of fifteen years in or on the vehicle[.]").

The only part of HRS § 291E-61(b)(4) that arguably is ambiguous are the words "an additional" just before "mandatory term of imprisonment of forty-eight hours." However, there is no other mandatory term of imprisonment of forty-eight hours anywhere within HRS § 291E-61(b). Moreover, when we consider the legislative history for HRS § 291E-61(b)(4), it is apparent that the Legislature intended the forty-eight hours of imprisonment in this subsection to be mandatory and in addition to any sentence imposed in subsections (1), (2), or (3).

The subject provision was first adopted in 1999, when the Legislature enacted Act 78, which, inter alia , amended HRS § 291-4 (the predecessor statute to HRS § 291E-61 ). 1999 Haw. Sess. Laws Act 78, §§ 2, 6 at 131-32. This new subsection stated:

Any person eighteen years of age or older, who is convicted under this section and who operated or assumed actual physical control of a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500, and an additional mandatory term of imprisonment of forty-eight hours; provided, however, that the total term of imprisonment for a person convicted under this section shall not exceed thirty days.

Id. at 132; HRS § 291-4(b)(4) (Supp. 1999).

The conference committee report on House Bill 212, which became Act 78, indicates the bill proposed imposing a mandatory fine of $500 when the triggering conditions were met. Conf. Comm. Rep. No. 77, in 1999 House Journal, at 943, 1999 Senate Journal, at 872. However, the conference committee amended the bill so that it would also include "as an additional penalty, a mandatory term of imprisonment of forty-eight hours[.]" Conf. Comm: Rep. No. 77, in 1999 House Journal, at 943, 1999 Senate Journal, at 873. Notably, the report does not indicate that the forty-eight hours prison sentence was only applicable if a prison sentence was also imposed under HRS § 291-4(b)(1), (2), or (3).

The Legislature explained the purpose of Act 78:

The legislature finds that serious motor vehicle collisions involving child passengers are on the increase. Many of these collisions have involved a driver who consumed intoxicating liquor and then operated a motor vehicle. In several recent incidents, child passengers of vehicles driven by such drivers have been killed or severely injured. Therefore, the legislature finds that stronger penalties are needed to deter persons who would endanger their child passengers by "drinking and driving."
Accordingly, it is the purpose of this Act to impose an additional, stiffer fine (in addition to the existing penalties for driving under the influence of intoxicating liquor) on any person age eighteen years or over convicted of driving under the influence of intoxicating liquor while having in the vehicle a passenger younger than fifteen years of age.

1999 Haw. Sess. Laws Act 78, § 1 at 131 (emphasis added). The Legislature's intent was to require additional penalties for driving under the influence of an intoxicant that endangers a passenger under the age of fifteen.

The provision for enhanced sentences in HRS § 291-4(b)(4) was recodified as part of the Legislature's repeal of HRS § 291-4 and the enactment of HRS chapter 291E. See 2000 Haw. Sess. Laws Act 189, §§ 23 and 30 at 425-27, 432. Within chapter 291E, the enhanced sentencing provision was originally set forth in § 291E-61(b) (5), effective January 1, 2002. See 2000 Haw. Sess. Laws Act 189, §§ 23 and 41, at 425-27, 433; HRS § 291E-61(b)(5) (Supp. 2000).

After further revisions by the Legislature, the provision was subsequently recodified to the current provision in HRS § 291E-61(b)(4). See 2001 Haw. Sess. Laws Act 157, § 25 at 397-98; 2003 Haw. Sess. Laws Act 71, § 3 at 124-26; 2005 Haw. Sess. Laws Act 33, § 1 at 68-69; 2006 Haw. Sess. Laws Act 201, § 7 at 868-69; 2007 Haw. Sess. Laws Act 198, § 4 at 391-92; 2008 Haw. Sess. Laws Act 171, § 8 at 618-20; 2009 Haw. Sess. Laws Act 88, § 6 at 216-18; 2010 Haw. Sess. Laws Act 166, § 19 at 408-09.

The "[i]n addition to" language that now appears at the beginning of subsection (b)(4) was adopted effective as of January 1, 2011, as part of HRS § 291E-61(b)(4) :

In addition to a sentence imposed under paragraphs (1) through (3), any person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty-eight hours; provided that the total term of imprisonment for a person convicted under this paragraph shall not exceed the maximum term of imprisonment provided in paragraph (1), (2), or (3), as applicable....

HRS § 291E-61(b)(4) (Supp. 2011) (emphasis added).

Nothing in the legislative history of HRS § 291E-61 explains why the "[i]n addition to" language was added. From our reading of the statutes and legislative history, it appears this language was adopted to reinforce the underlying purpose of subsection (b)(4) and the notion that the enhanced prison sentence was to be imposed in addition to a sentence under one of the prior subsections of HRS § 291E-61(b).

Here, although the District Court decided not to sentence Otani to imprisonment under HRS § 291E-61(b)(1)(C)(ii), the District Court correctly imposed the imprisonment term set forth in HRS § 291E-61(b)(4), because the court did impose a sentence against Otani under subsection (b)(1) and the other requirements of subsection (b)(4) were met.

IV. Conclusion

The June 13, 2017 "Notice of Entry of Judgment and/or Order and Plea/Judgment" entered by the District Court of the First Circuit, 'Ewa Division, is affirmed.

      The Honorable Randal I. Shintani presided.

      HRS § 291E-61(a)(1) (Supp. 2017) provides:
      § 291E-61 Operating a vehicle under the influence of an intoxicant. (a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:
      (1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty[.]

      It appears defense counsel's reference to HRS § 291E-61(a)(1) was incorrect, as that provision does not address sentencing. Further, the applicable provision, HRS § 291E-61(b)(1)(C)(ii), does not provide for imprisonment of between one and five days, but rather allows sentencing to include "[n]ot less than forty-eight hours and not more than five days of imprisonment[.]"

      HRS § 291E-61(b)(1) applies because Otani is a first-time offender. The provision in subsection (b)(1) providing for imprisonment is subsection (b)(1)(C)(ii).

      There were amendments to the enhanced sentencing provision that are not material to this opinion and thus are not discussed.

      The "[i]n addition to" language was originally adopted by the Legislature in the 2008 Hawai'i Session Laws, to go into effect on July 1, 2010. 2008 Haw. Sess. Laws Act 171, §§ 8 and 20, at 618-20, 628. However, after further revisions by the Legislature in 2009, the "[i]n addition to" language was made effective as of January 1, 2011. 2009 Haw. Sess. Laws Act 88, §§ 6 and 17, at 216-18, 222.


text:
    STATE of Hawai'i, Plaintiff-Appellee/Cross-Appellant, v. Steve WESTERMAN, Defendant-Appellant/Cross-Appellee
    NO. CAAP-16-0000427
    Intermediate Court of Appeals of Hawai'i.
    March 18, 2019
    MEMORANDUM OPINION
    Affirmed.


text:
    KONA'S BEST NATURAL COFFEE LLC, a Hawai'i limited liability company, Plaintiff/Counterclaim-Defendant/Appellant/Cross-Appellee, v. MOUNTAIN THUNDER COFFEE PLANTATION INT'L INC., a Hawai'i corporation, Trent Bateman and Lisa Bateman, Defendants/Counterclaimants/Appellees/Cross-Appellants, and Naturescape Holdings Group Int'l Inc., Defendant/Appellee/Cross-Appellant, and John Does 1-10, Jane Does 1-10, Doe Partnerships 1-10, Doe Defendants 1-50, Doe Entities 1-50, Defendants.
    Mountain Thunder Coffee Plantation Int'l Inc., A Hawai'i corporation, Trent Bateman; Lisa Bateman, Third-Party Plaintiffs/Appellees/Cross-Appellees, v. Michael Roberts and Brent Hight, Third-Party Defendants/Appellants/Cross-Appellees, and Marin Artukovich, Koa Coffee Company, LLC; John Does 1-10; Jane Does 1-10; Doe Corporations 1-50; Doe Entities 1-50, Third-Party Defendants.
    NO. CAAP-12-0000593
    Intermediate Court of Appeals of Hawai'i.
    March 19, 2019
    SUMMARY DISPOSITION ORDER
    Vacate. Remand.
    Affirm.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Jonathan P. BAYRON, Defendant-Appellant
    NO. CAAP-17-0000670
    Intermediate Court of Appeals of Hawai'i.
    March 18, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Catherine I. CASTRO, Appellant-Appellant, v. State of Hawaii, EMPLOYEES' RETIREMENT SYSTEM; Diana Y. Nham, Appellees-Appellees
    NO. CAAP-13-0002772
    Intermediate Court of Appeals of Hawai'i.
    March 20, 2019 As Corrected March 27, 2019
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Yoko KATO, Defendant-Appellant
    NO. CAAP-15-0000329
    Intermediate Court of Appeals of Hawai'i.
    March 19, 2019
    MEMORANDUM OPINION
    Affirmed.


text:
    BAYVIEW LOAN SERVICING, LLC, Plaintiff-Appellee, v. Valerie R. WOODS; Valerie R. Woods, Trustee of the Valerie R. Woods Trust Dated February 1, 2001, Defendant-Appellant and John Does 1-50; Jane Does 1-50; Doe Partnerships 1-50; Doe Corporations 1-50; Doe Entities 1-50; and Doe Governmental Units 1-50, Defendants
    NO. CAAP-18-0000298
    Intermediate Court of Appeals of Hawai'i.
    March 19, 2019
    SUMMARY DISPOSITION ORDER
    Vacated. Remanded.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Philip BROWN, Defendant-Appellant
    NO. CAAP-18-0000542
    Intermediate Court of Appeals of Hawai'i.
    March 25, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    In the MATTER OF the Application of Trustees Under the Will of the ESTATE OF James CAMPBELL, Deceased
    NO. CAAP-15-0000316
    Intermediate Court of Appeals of Hawai'i.
    March 21, 2019
    SUMMARY DISPOSITION ORDER
    Vacate. Remanded.


text:
    In the INTEREST OF AG
    NO. CAAP-18-0000541
    Intermediate Court of Appeals of Hawai'i.
    March 20, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    Ivan W.K. AUYOUNG and Beverly A. AuYoung, Appellants-Appellees, v. DEPARTMENT OF BUDGET AND FISCAL SERVICES, CITY AND COUNTY OF HONOLULU, Appellee-Appellant
    NO. CAAP-17-0000559
    Intermediate Court of Appeals of Hawai'i.
    March 20, 2019
    MEMORANDUM OPINION
    Reversed.


text:
    FIRST HAWAIIAN BANK, Plaintiff-Appellee, v. ASSOCIATION OF APARTMENT OWNERS OF PALM VILLAS II, BY its BOARD OF DIRECTORS, Defendant-Appellant, and Kimberly J.L. Kaohi; Ewa By Gentry Community Association, a Hawaii nonprofit corporation; Onemain Financial (HI), Inc., a Hawaii corporation, Defendants-Appellees, and John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Doe Entities 1-10; Doe Governmental Units 1-10, Defendants
    NO. CAAP-16-0000318
    Intermediate Court of Appeals of Hawai'i.
    March 28, 2019
    SUMMARY DISPOSITION ORDER
    Affirm.


text:
    Joy P. LEONG and Stephen B. Lindsey, III, Plaintiffs-Appellants/Cross-Appellees, v. HONOLULU FORD, INC., Defendant-Appellee/Cross-Appellant
    NO. CAAP-15-0000684
    Intermediate Court of Appeals of Hawai'i.
    March 28, 2019
    MEMORANDUM OPINION
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Cassie L. SHIGETANI, Defendant-Appellant
    NO. CAAP-17-0000441
    Intermediate Court of Appeals of Hawai'i.
    March 28, 2019.
    SUMMARY DISPOSITION ORDER
    AFFIRMED.


text:
    Garen B. WINHAM, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF THE COURTS, State of Hawai'i, Respondent-Appellee
    NO. CAAP-17-0000029
    Intermediate Court of Appeals of Hawai'i.
    March 28, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    CAMBRIDGE MANAGEMENT INC., managing agent, Plaintiff-Appellee, v. Nicole JADAN, Defendant-Appellant
    NO. CAAP-17-0000176
    Intermediate Court of Appeals of Hawai'i.
    March 28, 2019.
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    HAWAI'I CENTRAL FEDERAL CREDIT UNION, Plaintiff-Appellee, v. Scott Michael LARSON; Association of Apartment Owners of the Villa on Eaton Square, by its Board of Directors, Defendants-Appellees, and The Shopping Center Sub-Association of the Merchant's Association of the Villa on Eaton Square, by its Board of Directors, Defendant-Appellant, and John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Doe Entities 1-10; Doe Governmental Units 1-10, Defendants
    NO. CAAP-17-0000902
    Intermediate Court of Appeals of Hawai'i.
    March 28, 2019.
    SUMMARY DISPOSITION ORDER
    Affirm.