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NO. CAAP-18-0000702

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

RUSSELL R. MARTIN, Petitioner-Appellee, v.

RICHARD T. KOZUMA, Respondent-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 1SS18-1-00852)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, and Chan and Wadsworth, JJ.)

Respondent-Appellant Richard T. Kozuma (Kozuma) appeals

from an August 8, 2018 Injunction Against Harassment

(Injunction), and an August 16, 2018 order denying Kozuma's

motion for reconsideration, both entered in the District Court of

the First Circuit (District Court).

1/ Following a bench trial,

the District Court enjoined Kozuma and any other person acting on

Kozuma's behalf from contacting, threatening or harassing

Petitioner-Appellee Russell R. Martin (Martin) and entering or

visiting Martin's residence. The District Court later denied

"[Kozuma's] Motion for Reconsideration of Order Granting . . .

Martin's Petition for Injunction Against Harassment Granted

August 8, 2018" (Motion for Reconsideration) on the ground that

it failed to raise issues of law or fact that could not have been

raised at trial. 

On appeal, Kozuma contends that the District Court

erred in: (1) issuing the Injunction based on insufficient

evidence and a clearly erroneous finding that Martin suffered

1/ The Honorable Michael K. Tanigawa presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000702

30-JUN-2020

07:56 AM
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emotional distress, under Hawaii Revised Statutes (HRS) § 604-

10.5 (2016); (2) precluding the introduction of evidence that

would have disproved Martin's allegations of harassment or

impeached his credibility; (3) implying that Kozuma did not deny

some of the material allegations raised in the Petition for Ex

Parte Temporary Restraining Order and for Injunction Against

Harassment (Petition); and (4) ruling that the Motion for

Reconsideration did not raise issues of law or fact that could

not have been raised at trial.2/

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we resolve

Kozuma's points of error as follows and affirm:

A. Sufficiency of the Evidence

Under HRS § 604–10.5(a)(2), the district court "shall"

grant an injunction prohibiting the respondent from harassing the

petitioner if "the court finds by clear and convincing evidence

that" the respondent engaged in an "intentional or knowing course

of conduct directed at [the petitioner] that seriously alarm[ed]

or disturb[ed] consistently or continually bother[ed] the

[petitioner] and serve[d] no legitimate purpose; provided that

such course of conduct would cause a reasonable person to suffer

emotional distress." See Luat v. Cacho, 92 Hawai#i 330, 340–41,

991 P.2d 840, 850–51 (App. 1999). "[T]he type of harassment that

the courts are mandated to restrain or enjoin under paragraph (2)

[of HRS § 604–10.5(a)] involves . . . systematic and continuous

intimidation that stops short of assault or threats[.]" Id. at

342, 991 P.2d at 852.

"The reasonable person standard [to be applied under

HRS § 604–10.5(a)(2)] is an objective one," under which the court

must determine "whether 'a reasonable person, normally

constituted,' would have suffered emotional distress as a result

of a particular course of conduct." Id. at 343, 991 P.2d at 853

(quoting Tabieros v. Clark Equip. Co., 85 Hawai#i 336, 362, 944

2/ Kozuma's points of error have been reordered, restated, and

condensed for clarity.

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P.2d 1279, 1305 (1997)). 

Here, after hearing testimony and argument from both

Martin and Kozuma, the District Court orally ruled as follows:

So I find that there's clear and convincing evidence

of acts of harassment, that Mr. Martin testified credibly

that . . . at least four times after May 2nd, 2018, that Mr.

Kozuma challenged him to fight, called him a . . . fucking

punk, threatened to kick his ass, called him a coward, and

said he was nothing. . . . [Kozuma] never denied calling

him a fucking punk, never denied threatening to kick his

ass, never denied calling him a coward, never denied saying

that he was nothing. So based upon that, I think those are

acts of harassment.

And now the question raised . . . is whether or not

that caused the emotional distress that's required by the

statute. . . . The statute does not require him to use the

exact wording, certainly not everyone calls it emotional

distress, but I think that when conduct . . . results in

something being extremely irritating, I think that satisfies

the statute, and based upon that, I'm granting the

injunction.

Kozuma argues there was insufficient evidence to

support the District Court's conclusion that Martin suffered

emotional distress. He points out that Martin admitted at trial

that he did not feel physically threatened by Kozuma. Kozuma

also cites Martin's testimony that he followed Kozuma to Windward

Mall,3/ told Kozuma "you're pathetic," and left the mall "cause I

knew he was just talking, he wasn't gonna do anything." Kozuma

further argues that calling a reasonable person "names such as

punk, coward, and a nothing" would not cause the person to suffer

emotional distress.

Whether there was substantial evidence to support an

injunction against an alleged harasser is reviewed under the

"clearly erroneous standard." Bailey v. Sanchez, 92 Hawai#i

312, 316 n.6, 990 P.2d 1194, 1198 n.6 (App. 1999). "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." Id. (brackets omitted) (quoting

Booth v. Booth, 90 Hawai#i 413, 416, 978 P.2d 851, 854

(1999)).

Duarte v. Young, 134 Hawai#i 459, 462, 342 P.3d 878, 881 (App.

2014). We also have stated that "a trial court's determination 

regarding whether a reasonable person would suffer emotional

3/ Martin testified, in relevant part: "I started backing down the

driveway. I stopped to get -- get the newspaper. Mr. Kozuma rolls up in his

car, rolls down the window, calls me a fucking punk, and again threatening to

kick my ass. And I said what? When? And he goes follow me. Jump in my

truck, I follow him to Windward Mall in front of Macy's."

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distress as a result of a course of conduct is reviewed on appeal

de novo." Luat, 92 Hawai#i at 343, 991 P.2d at 853 (citing

Trainor, 83 Hawai#i at 255, 925 P.2d at 823) . 

Here, the District Court found that Kozuma engaged in

at least four acts of harassment directed at Martin, which Martin

described as "extremely irritating." Based on our review of the

record, we conclude that the District Court's findings were

supported by the substantial, credible evidence presented at

trial and were therefore not clearly erroneous. We further

conclude that the District Court could reasonably have inferred

that Kozuma's actions did not serve a legitimate purpose and

would cause a reasonable person to suffer emotional distress. 

See id. at 343, 991 P.2d at 853. Both conclusions are supported

by substantial evidence in the record and are not wrong. 

Accordingly, the evidence was sufficient to support issuance of

the Injunction.

B. Admission of Evidence

Testimony Regarding Martin's Vacation Rental

At trial, on cross-examination, Martin testified that

he has been living next to Mr. Kozuma since 2010 "off and on,"

and that he (Martin) "run[s] a vacation rental" on the property. 

Kozuma's counsel asked if the vacation rental was illegal, and

Martin responded that it was "not illegal" but was

"nonconforming." Kozuma's counsel asked, "[t]hat's illegal,

yes?" and the District Court prevented further questioning on the

subject. Counsel stated that she was "laying a foundation for

the photographs," but did not identify the photographs she was

seeking to introduce. 

Kozuma contends that the District Court deprived him of

his constitutional right to freedom of movement and due process

when it precluded him from further questioning Martin about his

vacation rental. Kozuma argues that such evidence "goes to the

'legitimate purpose[,' HRS § 604–10.5(a)(2),] for Mr. Kozuma's

picture-taking, which was to document the illegal vacation rental

being run by [Martin]." 

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We do not decide whether the District Court erred in

precluding further questioning of Martin on this topic, as we

conclude that any such error was harmless.4/ There is no

indication in the record that the District Court granted the

Petition based on Kozuma's picture-taking. Rather, the District

Court concluded that Kozuma engaged in harassment under HRS

§ 604–10.5(a)(2) when he challenged Martin to fight, called him a

"fucking punk," threatened "to kick his ass," called him "a

coward," and said he was "nothing." Given the evidence and the

District Court's ruling, the decision to preclude further

questioning of Martin regarding his vacation rental, even if

erroneous, was harmless.

Video Recording

It is undisputed that on May 2, 2018, the parties

attended a hearing on an earlier petition for an injunction

against harassment that was filed by Kozuma against Martin. It

appears that, at that time, the court approved an agreement

between the parties that neither of them would communicate with

the other, and Kozuma would not take pictures of Martin.5/

Martin's Petition alleged that Kozuma had breached the May 2,

2018 agreement on numerous occasions. 

At trial, on cross-examination, Martin testified that

he believed Kozuma was "always the instigator" in the parties'

long-standing dispute. Addressing the court, Kozuma's counsel

stated, "I'd like to show the witness a video to impeach him and

ask him some questions about it, if I may." Counsel described

the video recording as depicting "a confrontation between Mr.

Martin and Mr. Okuda[, Martin's landlord,] and Mr. Kozuma." The

District court asked when the confrontation occurred; counsel

responded that "it was before May 2nd, 2018"; and the District

Court stated, "Then I'm not interested." 

4/ It also appears that Kozuma did not make a clear and specific offer

of proof. See Hawai#i Rules of Evidence (HRE) Rule 103(a); State v.

Kelekolio, 74 Haw. 479, 523, 849 P.2d 58, 78 (1993) (holding that "[i]n the

absence of an offer of proof, the trial court committed no reversible error").

5/ A copy of the agreement is not part of the record on appeal.

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Kozuma contends that the District Court deprived him of

his right to due process by refusing to admit the video recording

into evidence, because it allegedly showed Martin calling him "a

child molester, pervert, and harborer of child pornography,"

tacitly threatening and using profanity against him, and

instigating conflict with him, and, thus, was relevant to

Kozuma's "unclean hands" defense. Kozuma further contends that

the video was admissible to impeach Martin's credibility, given

his testimony that he had never called Kozuma a child molester,

and that Kozuma was always the instigator in the parties' longstanding dispute.6/

However, it does not appear that Kozuma made a clear

and specific offer of proof at trial regarding the substance of

the video. See HRE Rule 103(a); Kelekolio, 74 Haw. at 523, 849

P.2d at 78. In the absence of an adequate offer of proof, the

District Court committed no reversible error.

History of Confrontations

At trial, Kozuma's counsel asked Martin, "the beginning

of the end of this relationship [with Kozuma], was it related to

the ongoing construction at Mr. Okuda's house?" Martin

responded, "Not that I know. He was upset at Mr. Wong." At that

point, the District Court said, "[Counsel], this early history is

not important to me." Counsel responded, "Okay." 

Kozuma contends that the District Court erred in

precluding him from continuing this line of questioning and

introducing evidence regarding prior confrontations between the

parties. Kozuma argues that such evidence was relevant to

whether: (1) Martin was "seriously alarmed, consistently

disturbed, or continually bothered"; (2) a reasonable person

would have suffered emotional distress; and (3) Martin had

unclean hands.

Again, it does not appear that Kozuma made a clear and

specific offer of proof at trial regarding the substance of the

anticipated testimony. See HRE Rule 103(a); Kelekolio, 74 Haw.

6/ Kozuma also argues that the video would have undermined Martin's

testimony that he felt harassed by Kozuma's language, because it showed that

Martin's statements to Kozuma had been more inflammatory than Kozuma's alleged

remarks to Martin.

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at 523, 849 P.2d at 78. In the absence of an adequate offer of

proof, the District Court committed no reversible error. 

C. Remaining Points of Error

Kozuma makes no discernable argument in support of his

contentions that the District Court erred in: (1) implying that

Kozuma did not deny some of the material allegations raised in

the Petition; and (2) denying the Motion for Reconsideration. We

therefore disregard these alleged points of error. See Hawai#i

Rules of Appellate Procedure Rule 28(b)(7); Kakinami v. Kakinami,

127 Hawai#i 126, 144 n.16, 276 P.3d 695, 713 n.16 (2012) (citing

In re Guardianship of Carlsmith, 113 Hawai#i 236, 246, 151 P.3d

717, 727 (2007) ("noting that this court may 'disregard a

particular contention if the appellant makes no discernible

argument in support of that position'")).

D. Conclusion

For these reasons, IT IS HEREBY ORDERED that the

August 8, 2018 Injunction Against Harassment, and the August 16,

2018 order denying Kozuma's Motion for Reconsideration, both

entered in the District Court of the First Circuit, are affirmed.

DATED: Honolulu, Hawai#i, June 30, 2020.

On the briefs:

James V. Myhre,

Samantha Storm, and

Jason K. Adaniya

(Myhre, Tsuchida, Richards &

Storm)

for Respondent-Appellant.

Russell R. Martin,

Pro Se Petitioner-Appellee.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Derrick H.M. Chan

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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