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NO. CAAP-19-0000331

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

MARCILINO ALDAYA, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT

(KONA DIVISION)

(CASE NO. 3DCW-19-0000427)

SUMMARY DISPOSITION ORDER

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

The State of Hawai#i (State) charged DefendantAppellant Marcilino Aldaya (Aldaya) with disorderly conduct as a

petty misdemeanor offense, in violation of Hawaii Revised

Statutes (HRS) § 711-1101(1)(c) and (3) (2014).1/ After a bench

1/ HRS § 711-1101(1)(c) and (3) provides:

(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[.]

. . .

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000331

27-MAY-2021

07:47 AM

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trial, the District Court of the Third Circuit, Kona Division,

(District Court)

2/ found Aldaya guilty as charged.

Aldaya appeals from the District Court's Amended

Judgment and Notice of Entry of Judgment that was filed on April

8, 2019. On appeal, Aldaya argues that the State failed to

present sufficient evidence to prove that he committed disorderly

conduct under HRS § 711-1101(1)(c). He further argues that the

State failed to present sufficient evidence to enhance the

charged HRS § 711-1101(1)(c) offense from a violation to a petty

misdemeanor pursuant to HRS § 711-1101(3). 

As explained below, we conclude that the State failed

to present sufficient evidence to prove that Aldaya committed

disorderly conduct under HRS § 711-1101(1)(c). We therefore need

not address Aldaya's claim that there was insufficient evidence

to enhance the charge to a petty misdemeanor. We reverse

Aldaya's conviction and the District Court's Amended Judgment.

DISCUSSION

I.

HRS § 711-1101(1)(c) requires proof that the defendant

"subject[ed] another person to offensively coarse behavior or

abusive language which is likely to provoke a violent response." 

In light of the First Amendment implications of punishing speech,

1/(...continued)

(3) 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.

2/ The Honorable Margaret Masunaga presided.

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we construe the "likely to provoke a violent response"

restriction as applying to both the "offensively coarse behavior"

and "abusive language" provisions of HRS § 711-1101(1)(c). This

interpretation is consistent with State v. Jendrusch, 58 Haw.

279, 567 P.2d 1242 (1977), where the Hawai#i Supreme Court, in

discussing the type of conduct proscribed by HRS §

711-1101(1)(c), stated: "Speech may be punishable only if,

within the meaning of the statute, it is 'likely to provoke a

violent response.'" Id. at 282, 567 P.2d 1245;3/ see also, State

v. Faulkner, 64 Haw. 101, 105, 637 P.2d 770, 774 (1981) ("Coarse

and obscene language directed at a member of the public, which is

likely to provoke a violent response, may also furnish the basis

for a charge under HRS § 711-1101(1)(c)."). It is also

consistent with decisions of the United States Supreme Court and

other courts that either have struck down statutes prohibiting

the use of "offensively coarse" utterances or similar conduct on

First Amendment overbreadth grounds, or have narrowly construed

3/ At the time relevant to the Jendrusch decision, HRS §

711-1101(1)(c) provided:

(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,

he:

. . .

(c) Makes any offensively coarse utterance, gesture, or

 display, or addresses abusive language to any person

 present, which is likely to provoke a violent response[.]

Jendrusch, 58 Haw. at 280, 567 P.2d at 1243. 

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such statutes to prohibit only the "fighting words" category4/ of

unprotected speech to avoid First Amendment concerns. E.g., 

Gooding v. Wilson, 405 U.S. 518, 519-20 (1972) (invalidating

statute as facially unconstitutional); Johnson v. Campbell, 332

F.3d 199, 211-12 (3rd Cir. 2003) (concluding that Delaware has

construed its disorderly conduct statute as prohibiting only

"fighting words"); State v. Hoffman, 387 N.E.2d 239, 242 (Ohio

1979) (narrowing statute to only prohibit "fighting words.");

Hansen v. People, 548 P.2d 1278, 1280 (Col. 1976) (invalidating

statute as facially overbroad).

II.

We conclude that the State failed to present sufficient

evidence to show that Aldaya "subject[ed] another person to

offensively coarse behavior or abusive language which [was]

likely to provoke a violent response." In reviewing a challenge

to the sufficiency of evidence, we must view the evidence in the

light most favorable to the State. State v. Ildefonso, 72 Haw.

573, 576, 827 P.2d 648, 651 (1992). "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) (citation omitted). Substantial evidence

is "credible evidence which is of sufficient quality and

4/ In Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), the

United States Supreme Court described the "fighting words" category of

unprotected speech as "those [words] which by their very utterance inflict

injury or tend to incite an immediate breach of the peace."

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probative value to enable a person of reasonable caution to

support a conclusion." State v. Pone, 78 Hawai#i 262, 265, 892

P.2d 455, 458 (1995) (brackets and citation omitted).

The backdrop for Aldaya's disorderly conduct charge was

a Kona event in which Ali#i Drive was closed to permit vendors to

set up tents to sell items, with hundreds of people walking the

streets. During this event, Hawai#i County Police Officers

Kamuela Akana and Shawn Mirafuentes were on patrol together, and

they encountered Aldaya on two separate occasions. The State

called Officers Akana and Mirafuentes as witnesses at trial, and

their testimony was the only evidence presented. Officers Akana

and Mirafuentes did not testify to observing any disruptive

behavior on Aldaya's part during the first encounter, and

Aldaya's actions during this encounter did not provide any basis

for establishing disorderly conduct under HRS § 711-1101(1)(c).

With respect to the second encounter, the State

presented the officers' testimonies that they observed Aldaya

lying on a wall, loudly "yelling obscenities, vulgarness,

swearing and stuff like that," "throwing his hands all over the

place, kicking, . . . [and] just causing a disturbance to the

public." This was the extent of the detail provided by the State

on Aldaya's language and behavior pertinent to his disorderly

conduct charge.

However, in order for a trier of fact to determine

whether Aldaya's words and actions subjected another person to

"offensively coarse behavior or abusive language which is likely

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to provoke a violent response," the State was required to provide

some substantial details or particulars regarding Aldaya's words

and actions. This the State failed to do. Aside from Officer

Akana's non-specific characterizations of Aldaya's words as

"obscenities, vulgarness, swearing and stuff like that," the

State did not present evidence of the words that Aldaya actually

used or the substance of what he was saying.5/ Without more

detail about the words Aldaya spoke, it is difficult to see how

the State could demonstrate that what Aldaya said constituted

"offensively coarse behavior" or "abusive language." The State

also did not present any clarifying or explanatory details

regarding Aldaya's actions of "throwing his hands all over the

place [and] kicking," such as whether Aldaya's actions were

directed at anyone, were done in a confrontational manner, or

came close to making physical contact with anyone. 

 Moreover, the reaction of the person or persons

purportedly subjected to Aldaya's conduct is relevant to whether

such conduct was "likely to provoke a violent response." 

Although Officer Akana testified that Aldaya was "yelling at

another male party,"6/ the State failed to present relevant

details regarding that male party's reaction to Aldaya's

5/ Officer Mirafuentes testified that Aldaya was "blurting out

stuff," but Officer Mirafuentes could not remember what Aldaya was saying.

6/ In contrast to Officer Akana, Officer Mirafuentes testified that

he did not think that Aldaya "was talking to any one person," but rather

thought that Aldaya was "just talking out loud." Officer Mirafuentes

testified that while Aldaya was next to someone, Aldaya "didn't have any eye

contact with [that] person."

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yelling.7/ As to the reaction of other members of the public,

Officer Akana testified that people walking in the area "were

like trying to go around," had a "visible reaction," and "looked

pretty disturbed by what was happening." Officer Mirafuentes

testified that the "facial expressions [of members of the public]

seemed concerning," and he could hear people say, "'What is this

guy doing?'" However, evidence that people were "trying to go

around," "looked pretty disturbed," "seemed concern[ed]," or

questioned what Aldaya was doing does not demonstrate that

Aldaya's words and actions were likely to provoke a violent

response. This is especially true given the lack of detail in

the State's evidence regarding Aldaya's words and actions. We

conclude that the evidence presented, even when viewed in the

light most favorable to the State, was not "of sufficient quality

and probative value to enable a person of reasonable caution" to

conclude that Aldaya subjected another person to "offensively

coarse behavior or abusive language which [was] likely to provoke

a violent response." See Pone, 78 Hawai#i at 265, 892 P.2d at

458.

We note that Officers Akana and Mirafuentes testified

that after they admonished Aldaya about his behavior during the

7/ Officer Akana testified that he told Aldaya that the officers

were contacting him again because "we're getting another call, disturbing

behavior. You guys are yelling and just, you know, swearing and, you know,

cursing and everything." It is not clear whether Officer Akana's reference to

"[y]ou guys are yelling[,] . . . swearing[,] . . . [and] cursing" is what he

heard in the call from dispatch or is what he personally observed. Even if

Officer Akana was referring to what he personally observed, he did not provide

details on the other "guy's" demeanor or the substance of what that person was

saying.

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second encounter, Aldaya directed his attention at the officers

and began arguing with them. The officers testified that Aldaya

swore at them and challenged the officers to arrest him, and that

Aldaya was then placed under arrest. The officers' testimony

included details of the words used by Aldaya in arguing with

them.8/

However, HRS § 711-1101(1)(c) requires proof that the

defendant acted "with intent to cause physical inconvenience or

alarm by a member or members of the public, or recklessly

creating a risk thereof." (Emphasis added). The Commentary to

HRS § 711-1101 and relevant Hawai#i case law makes clear that as

a general rule, police officers are not considered "members of

the public" for purposes of the disorderly conduct statute. 

Commentary to HRS § 711-1101;9/ State v. Leung, 79 Hawai#i 538,

542-45, 904 P.2d 552, 556-59 (App. 1995) ("Arguments with the

police, without more, do not fall within the ambit of the

disorderly conduct statute[.]"); State v. Nakasone, 1 Haw. App.

8/ Officer Akana testified that Aldaya told the officers, "Ef you

guys . . . I'm not . . . afraid to go to jail . . . stop bothering me . . .

I'm not scared . . . Effin arrest me." Officer Mirafuentes testified that

Aldaya said, "Fuck you guys. Uh, I no need move. Arrest me if you guys

like."

9/ The Commentary to HRS § 711-1101 provides in relevant part:

A person may not be arrested for disorderly conduct as a

result of activity which annoys only the police . . . . 

Police officers are trained and employed to bear the burden

of hazardous situations, and it is not infrequent that

private citizens have arguments with them. Short of conduct

which causes "physical inconvenience or alarm to a member or

members of the public" arguments with the police are merely

hazards of the trade, which do not warrant criminal

penalties.

(Footnote omitted).

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10, 11-12, 612 P.2d 123, 124-25 (1980) (concluding that evidence

that the defendant argued with a police officer was insufficient

to prove disorderly conduct). We conclude that Aldaya's conduct

in arguing with the officers did not provide a basis for the HRS

§ 711-1101(1)(c) charge. See id.

CONCLUSION

Based on the foregoing analysis, we reverse the

District Court's April 8, 2019 Amended Judgment.

DATED: Honolulu, Hawai#i, May 27, 2021.

On the briefs:

/s/ Katherine G. Leonard

Jon N. Ikenaga, Presiding Judge

Deputy Public Defender,

for Defendant-Appellant. /s/ Keith K. Hiraoka

Associate Judge

Sara B. Vargas,

Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth

County of Hawai#i, Associate Judge

for Plaintiff-Appellee.

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