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NO. CAAP-18-0000243

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

ANTONIO GIMBERNAT, Defendant-Appellant 

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT

WAILUKU DIVISION

(CASE NO. 2DCW-17-0000982)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)

Defendant-Appellant Antonio Gimbernat (Gimbernat)

appeals from the "Judgment and Notice of Entry of Judgment"

(Judgment) entered by the District Court of the Second Circuit,

Wailuku Division1 on March 22, 2018. For the reasons explained

below, we affirm the Judgment in part, vacate in part, and remand

for resentencing consistent with this summary disposition order.

Gimbernat was charged by amended complaint with one

count of Harassment, in violation of Hawaii Revised Statutes

(HRS) § 711-1106(1)(b) and/or (f),2

 and one count of Disorderly

1 The Honorable Kelsey T. Kawano presided. 

2 HRS § 711-1106 (2014) provides, in relevant part:

§ 711-1106 Harassment. (1) A person commits the

offense of harassment if, with intent to harass, annoy, or

alarm any other person, that person:

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000243

08-APR-2021

07:51 AM

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Conduct in violation of HRS § 711-1101(1)(c),3 based on incidents

that allegedly took place on February 22, 2017, at a McDonald's

restaurant in Pukalani, Maui. Gimbernat pleaded not guilty.

A jury-waived trial began on November 17, 2017. The

parties stipulated State's exhibits 1 and 2 (compact discs

containing video camera footage) into evidence. The teenaged

victims (AM and CK) testified at trial that while they were

waiting for their food order, Gimbernat walked up behind them and

yelled a racial epithet — with his hand raised — in an

aggressive, threatening, angry tone that was loud enough for the

entire restaurant to hear. They both testified that Gimbernat,

an adult, was much larger then either of them. They both feared

that Gimbernat was going to hurt them.

2(...continued) . . . .

(b) Insults, taunts, or challenges another person in

a manner likely to provoke an immediate violent

response or that would cause the other person to

reasonably believe that the actor intends to

cause bodily injury to the recipient or another

or damage to the property of the recipient or

another; [or]

. . . .

(f) Makes a communication using offensively coarse

language that would cause the recipient to

reasonably believe that the actor intends to

cause bodily injury to the recipient or another

or damage to the property of the recipient or

another.

(2) Harassment is a petty misdemeanor.

3 HRS § 711-1101 (2014) provides, in relevant part:

§ 711-1101 Disorderly conduct. (1) A person commits

the offense of disorderly conduct if, with intent to cause

physical inconvenience or alarm by a member or members of

the public, or recklessly creating a risk thereof, the

person:

. . . .

(c) Subjects another person to offensively coarse behavior

or abusive language which is likely to provoke a

violent response[.]

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The McDonald's employee who was working in the drivethru window testified that Gimbernat went over to AM and CK and

said something "in a tone that was sort of angry and loud[.]" 

The employee turned "to see what was going on." Other customers

also turned toward Gimbernat, who "seemed angry, mad, upset about

something." The employee testified she was worried for the

teens' safety "because [Gimbernat's] tone of voice, and just the

way he started walking after he made the loud noise. . . . [H]e

seemed very upset and mad. I was scared." She alerted her

manager that something was going on. A male customer got between

Gimbernat and AM and pushed Gimbernat out of the restaurant. He

did not return.

No other witnesses testified. The district court found

Gimbernat guilty as charged on both counts; the court rejected

Gimbernat's argument that the counts merged. The district court

made the following findings:

This incident occurred on February 22nd, 2017 at about

6:44 in the evening. The victims of alleged harassment were

two teenagers, [AM], age 15 years; and [CK], age 16. [AM]

has brown skin complexion. [CK] has fair skin complexion.

They were, at the time of the incident, in a dating

relationship. The couple entered a fast food restaurant in

Pukalani, Maui. 

Inside they were accosted by defendant, Antonio

Gimbernat, who said to them, I'm sick of you fucking

niggers. He said this in a loud aggressive angry tone. 

[AM] was stunned, shocked, confused, frightened. And

extremely offended. He thought defendant was going to hit

him. [CK] was shocked, scared, threatened and fearful that

the defendant was going to hurt them. 

Defendant's words immediately caused the disturbance

that drew the attention of the two diners within the

restaurant. Causing them to leave their seats and engage

with the defendant.

The restaurant employee manning the drive-thru window

left her work station to enter the dining area to see what

the disturbance was about. Defendant continued his afront

[sic] of the couple saying in the same loud, aggressive,

angry tone, you shouldn't be with that white girl. 

The restaurant clerk . . . was scared for herself. 

Worried that the couple, and perhaps others, would be hit,

was concerned that the restaurant customers who were now

getting involved in the confrontation. 

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And in the span of a few seconds, between the first

and second comments, [AM] had recovered from his initial

shock and angrily approached the defendant causing one of

the two customers to step in between to avert a physical

fight. 

This customer turned defendant around and escorted him

out of the restaurant door while [CK] pulled her boyfriend

[AM] back away from the defendant.

(Underscoring added.)

The district court sentenced Gimbernat to 30 days in

jail on each count, to run concurrently, with credit for time

served. This appeal followed.

Gimbernat raises three points of error:

1. there was insufficient evidence to convict

him of harassment;

2. there was insufficient evidence to convict

him of petty misdemeanor disorderly conduct; and

3. even if there was sufficient evidence to

sustain both convictions, the harassment and

disorderly conduct offenses merged.

1. The evidence was sufficient to 

support a conviction for harassment.

When an appellate court reviews the sufficiency of

evidence on appeal:

[E]vidence adduced in the trial court must be considered in

the strongest light for the prosecution when the appellate

court passes on the legal sufficiency of such evidence to

support a conviction; the same standard applies whether the

case was before a judge or jury. The test on appeal is not

whether guilt is established beyond a reasonable doubt, but

whether there was substantial evidence to support the

conclusion of the trier of fact.

State v. Richie, 88 Hawai#i 19, 33, 960 P.2d 1227, 1241 (1998)

(citations omitted).

Gimbernat argues that his conduct could not reasonably

have caused AM and CK to believe that he intended to cause bodily

injury to them or to anyone else, or to cause property damage. 

The evidence presented at trial, viewed in the strongest light

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for the prosecution, established that AM and CK reasonably

believed that Gimbernat intended to cause them bodily injury. 

Gimbernat's first point of error is without merit.

2. The district court did not find facts

sufficient to support a conviction for

petty misdemeanor disorderly conduct. 

Gimbernat concedes that the district court "found that

Gimbernat's use of offensively coarse language inconvenienced

several customers and restaurant employees in addition to [AM]

and [CK]." He argues there was no evidence he intended to cause

substantial harm or serious inconvenience, which is an element of

petty misdemeanor (as opposed to violation) disorderly conduct.

HRS § 707-1101(3) provides:

Disorderly conduct is a petty misdemeanor if it is the

defendant's intention to cause substantial harm or serious

inconvenience, or if the defendant persists in disorderly

conduct after reasonable warning or request to desist. 

Otherwise disorderly conduct is a violation.

The district court stated, when announcing its decision

on the disorderly conduct count:

Defendant's language was offensively coarse. The

public was affected. There were four other persons

subjected to this language besides the primary target of

defendant's racist (inaudible) language, being [AM].

Also present were [CK], the two customers in the

restaurant, and the employee of the restaurant. All of whom

were present. All of whom were drawn into this

confrontation. Which did result in inconvenience or alarm

by them.

[CK]'s date was spoiled. The customer's meals were

interrupted. The employees [sic] work duties were

interfered with. The language was likely and did provoke a

violence -- violent response from [AM]. And defendant was

fully aware of this situation and consciously disregarded

the risk that his language would be offensive.

The Court finds the defendant guilty on count two.

The district court made no finding that Gimbernat "intended to

cause substantial harm or serious inconvenience." Such a finding

was necessary for Gimbernat to be convicted of a petty

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misdemeanor. Accordingly, it was error for the district court to

sentence Gimbernat to 30 days for the petty misdemeanor

disorderly conduct offense; Gimbernat should have been sentenced

for a violation.

3. The district court's finding that the 

harassment and disorderly conduct offenses 

did not merge was supported by substantial

evidence. 

Gimbernat argues he cannot be convicted of both harassment and disorderly conduct because the offenses merged under

HRS § 701-109(1)(e). That statute provides, in relevant part:

§ 701-109 Method of prosecution when conduct

establishes an element of more than one offense. (1) When

the same conduct of a defendant may establish an element of

more than one offense, the defendant may be prosecuted for

each offense of which such conduct is an element. The

defendant may not, however, be convicted of more than one

offense if:

. . . .

(e) The offense is defined as a continuing course of

conduct and the defendant's course of conduct

was uninterrupted, unless the law provides the

specific periods of conduct constitute separate

offenses.

Gimbernat claims to have committed only one crime because he

"engaged in only one continuous and uninterrupted course of

criminal conduct directed at one criminal goal, i.e. to harass

one specific individual [AM] by making offensive racially charged

remarks."

The district court stated, while addressing Gimbernat's

merger argument:

The Court is considering where this is a situation of

defendant's conduct was, as the cases note, one continuing

course of conduct, in which the Court would have to say that

there was but one intention, one general impulse, one plan. 

And the Court will have the record reflect that in its view

the evidence indicated that that was not the situation. 

While we have a single episode here of conduct, there were

separate intentions. There were separate acts.

We had the initial harassment of the male minor. And

we had a second incident which occurred across the room,

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bringing into the fray a restaurant employee who was nervous

and scared. The defendant was yelling at such a volume that

she had to come out from her drive-thru window to see what

was going on.

The customers in the restaurant were alarmed, so much

so that they stood up from the table and had to intercede.

So, there were separate things going on. Separate

proofs, separate offenses, that did not merge here.

(Underscoring added.)

The district court's findings are supported by State's

Exhibit 1 (the McDonald's security video). The video (which does

not have audio) shows Gimbernat seated in the restaurant, eating

his food. He appears to be watching AM and CK, who are standing

together waiting for their food order. Gimbernat stands, picking

up his food tray. He does not walk toward the trash receptacle,

which is to his right and across the room from where AM and CK

are standing. Instead, he walks to his left, behind another

table and around a woman standing nearby. He is holding his food

tray in his right hand. He approaches AM and CK from behind. He

appears to be yelling at the teens. The teens turn to look at

him. He raises his left arm and hand. CK takes a step back.

Gimbernat then turns his back on AM and CK. He takes 8

or 9 steps across the restaurant to the trash receptacle. He is

facing the security camera and does not appear to be speaking as

he is walking toward the trash receptacle. He throws away his

trash. At this time the video shows Gimbernat, AM, CK, the woman

standing, and four other people seated, in the restaurant.

After Gimbernat throws his trash in the receptacle, he

turns to face AM and CK, who are still standing in the same spot. 

He raises his right hand and arm. He appears to be yelling

across the restaurant. He makes a sweeping gesture with his

right arm and hand. At that point, a man in a red shirt and a

woman in a black outfit stand up; they appear to be speaking to

Gimbernat, who turns toward them. They both begin to step toward

Gimbernat and point toward the door, apparently urging that

Gimbernat leave the restaurant.

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AM then begins walking toward Gimbernat, holding his

phone as if he is filming (in fact State's Exhibit 2 is video

from AM's phone). As Gimbernat turns to face AM, the man in the

red shirt steps between Gimbernat and AM. CK pulls AM back

toward her. The man in the red shirt puts his hand on

Gimbernat's shoulder. Gimbernat does not resist as the man

guides Gimbernat toward the door, away from AM.

The district court's finding that Gimbernat committed

acts independently violative of the harassment statute and the

disorderly conduct statute is supported by substantial evidence

and is not clearly erroneous. Under those facts, HRS § 701-

109(1)(e) does not prohibit convictions under both the harassment

and disorderly conduct statutes. State v. Arceo, 84 Hawai#i 1,

21, 928 P.2d 843, 863 (1996) (noting that HRS § 701-109(1)(e)

"does not apply where [the defendant's] actions constitute

separate offenses under the law.") (quoting State v. Hoopii, 68

Haw. 246, 251, 710 P.2d 1193, 1197 (1985)); State v. Freeman, 70

Haw. 434, 441, 774 P.2d 888, 893 (1989) (holding that "[i]n the

course of [the defendant's] criminal transaction, he committed

acts independently violative of both statutes and therefore, HRS

§ 701–109(1)(e) does not prohibit multiple convictions for the

separate and distinct offenses[.]")

Moreover, the Hawai#i Supreme Court has held:

Whether a course of conduct gives rise to more than

one crime depends in part on the intent and objective of the

defendant. The test to determine whether the defendant

intended to commit more than one offense is whether the

evidence discloses one general intent or discloses separate

and distinct intents. Where there is one intention, one

general impulse, and one plan, there is but one offense. 

All factual issues involved in this determination must be

decided by the trier of fact.

State v. Alston, 75 Haw. 517, 531, 865 P.2d 157, 165 (1994)

(underscoring added) (citations omitted). The district court did

not err when it denied Gimbernat's motion to merge the harassment

and disorderly conduct counts.

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CONCLUSION

For the foregoing reasons, the Judgment entered by the

district court on March 22, 2018, is affirmed with respect to

Gimbernat's conviction for harassment. With respect to

Gimbernat's conviction for disorderly conduct, his sentence for a

petty misdemeanor is vacated and this matter is remanded to the

district court for resentencing consistent with this summary

disposition order.

DATED: Honolulu, Hawai#i, April 8, 2021.

On the briefs:

/s/ Lisa M. Ginoza

Peter A. Hanano, Chief Judge

Deputy Prosecuting Attorney,

County of Maui, /s/ Keith K. Hiraoka

for Plaintiff-Appellee. Associate Judge

Matthew K. Ka#aihue, /s/ Karen T. Nakasone

Deputy Public Defender, Associate Judge

for Defendant-Appellant.

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