Nakama v. Russell ( 2022 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-MAY-2022
07:48 AM
Dkt. 56 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
SHARON SHIZUE NAKAMA, Petititoner-Appellee, v.
JORDAN RUSSELL, Respondent-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DSS-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, and Wadsworth and Nakasone, JJ.)
Respondent-Appellant Jordan Russell (Russell) appeals
from the Order Granting Petition for Injunction Against
Harassment (Injunction), entered on August 10, 2020, in the
District Court of the Second Circuit (District Court), Wailuku
Division.1/ Following an evidentiary hearing, the District Court
enjoined Russell, pursuant to Hawaii Revised Statutes (HRS)
§ 604-10.5 (2016),2/ from contacting, threatening, or harassing
1/
The Honorable Blaine J. Kobayashi presided.
2/
HRS § 604-10.5 provides, in relevant part:
Power to enjoin and temporarily restrain harassment.
(a) For the purposes of this section:
"Course of conduct" means a pattern of conduct
composed of a series of acts over any period of time
evidencing a continuity of purpose.
"Harassment" means:
. . . .
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Petitioner-Appellee Sharon Shizue Nakama (Nakama) and entering or
visiting her residence or workplace.
Russell raises a single point of error on appeal,
contending that the District Court erred in finding by clear and
convincing evidence that harassment occurred.
For the reasons discussed below, we affirm the
Injunction.
I. Background
On June 5, 2020, Nakama filed a Petition for Ex Parte
Temporary Restraining Order and for Injunction Against Harassment
(Petition), pursuant to HRS § 604-10.5. Nakama's attached
declaration stated: Russell was a former school classmate with
whom Nakama had not spoken or had any contact since 2010. On
May 25, 2020, Russell began contacting Nakama via Snapchat and
"[t]ext conversations over SMS." Initial conversations were
"normal" "'catching up' between classmates." However, "[t]he
contact escalated on [Russell's] behalf[,]" and "[h]e made
[Nakama] feel unsafe by pushing [her] to hang out with him
(2) An intentional or knowing course of conduct
directed at an individual that seriously alarms
or disturbs consistently or continually bothers
the individual, and that serves no legitimate
purpose; provided that such course of conduct
would cause a reasonable person to suffer
emotional distress.
(b) The district courts shall have the power to
enjoin, prohibit, or temporarily restrain harassment.
(c) Any person who has been subjected to harassment
may petition the district court of the district in which the
petitioner resides for a temporary restraining order and an
injunction from further harassment.
. . . .
(g) . . . .
. . . .
If the court finds by clear and convincing evidence
. . . that harassment as defined in paragraph (2) of that
definition exists, it shall enjoin for no more than three
years further harassment of the petitioner; provided that
this paragraph shall not prohibit the court from issuing
other injunctions against the named parties even if the time
to which the injunction applies exceeds a total of three
years.
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alone." After receiving "[c]ondescending and [c]ontinuous
[m]essages from Russell, Nakama "blocked him from Snapchat,
phone, and texts[.]" Nevertheless, on May 28, 2020, Russell
"show[ed] up at [Nakama's] workplace uninvited." The same day,
Nakama sent Russell an outgoing text message stating, "Do not
contact me[,]" and another message a minute later stating, "Never
again." Russell continued to send messages to Nakama, including
one stating "I love you[,]" and continued to leave her
voicemails. Russell "[c]laimed in voicemails he loved [Nakama],
was in love with [her], and that he could be someone to help
[her] show [her] feminine side." Russell also sent messages to
Nakama's partner and to one of her friends. Nakama stated in her
declaration: "I fear for my life from the ongoing calls, texts,
and voicemails that are unwelcome[] from . . . Russell. . . . I
fear for my safety and wellbeing. I also am concerned and fear
for the safety of my coworkers, family, and those I have
mentioned in my text messages."
At an evidentiary hearing on August 10, 2020, Nakama
testified that she was "standing by the truthfulness of all of
the statements . . . that [she] made in [the P]etition . . . ."
She also testified about other unwelcome contacts by Russell
after she filed the Petition, including two voicemails on June 7
and nine voicemails on June 8, 2020. Nakama played several of
the voicemails in court without objection. Nakama stated that
she was "fearful for my safety and life" and explained that
"[Russell] and I have no previous relationship except being
classmates in school."
At the August 10, 2020 hearing, Russell testified that
Respondent's Exhibit 1, a picture of his "Snapchat" application,
showed that he had been "friends" with Nakama since June 10,
2020, "and in order for that to happen, you'd have to add me."
However, Nakama testified that she did not physically add Russell
as a "friend" at that time. She further stated: "I don't know
if it's an auto add being on Snaphat, but after that I had
deleted my Snapchat."
Following the presentation of evidence and closing
argument by Russell's counsel, the District Court stated:
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THE COURT: . . . [T]he Court has listened to the
testimony of [Nakama] and [Nakama]'s witness. The Court has
also listened to the testimony of [Russell].
. . . [T]he Court has also had the opportunity to
review the petition for temporary restraining order, ah,
that was attached to, um, [Nakama]'s, ah, petition that was
filed on June 5th.
. . . Mr. Russell, you know, contrary to what your
attorney has argued to the Court this morning, . . . in the
Court's opinion . . . I don't take this and say this
lightly, but I think you have some serious problems here.
Um, you have some serious psychiatric problems in the
Court's opinion to be honest.
. . . [T]he frequency of your unwanted calls to
[Nakama], the type of messages that you've left on her
voicemail, the fact that you haven't listened to her
repeated request to you to not have any contact with her,
and then you actually even show up at her workplace with
flowers and chocolate.
Um, that tells the Court that you somehow have not
been able to understand and receive messages from somebody
that's telling you that they don't want contact.
. . . I think that's probably the mistake that you're
making in your life right now is you don't listen when
people tell you things.
She doesn't want any contact with you, period. But
yet you continue to call her.
And, you know, when I see things you call her on
June 7, leaving voicemails. You call her again the
following day. You leave multiple voicemails. Who does
that? And who does that as a person that doesn't understand
when somebody says that they don't want any form of contact
with them?
So I -- I think you should get some help, Mr. Russell,
for something that you obviously have not been able to grasp
and understand.
And so the Court does find [Nakama] to be credible.
[Nakama] has proven her claim or her -- her request for the
injunction by clear and convincing evidence.
. . . [A]nd to a certain extent I agree with one
portion of your attorney's argument saying that, you know,
some of these messages in and of themselves are not
threatening or harassing, but that's not what's happening in
this case.
. . . [Nakama] has shown to the Court, um, incidents
over a period of time that reflects to the Court a
continuing course of conduct. And it's an intentional or
knowing course of conduct that direct -- that's directed at
her that does alarm and disturbs her and has no legitimate
purpose. And any reasonable person in her position would be
suffering from emotional distress.
And for those reasons the Court is granting the
injunction in this case. The Court is granting the
injunction for the maximum period allowed by law which is
for a period of three years.
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The District Court entered the Injunction the same day.
This appeal followed.
II. Standards of Proof and Review
The District Court issued the Injunction based on the
conclusions that Russell intentionally engaged in a course of
conduct directed at Nakama that alarmed and disturbed her and had
no legitimate purpose, causing a reasonable person in her
position to suffer emotional distress, i.e., that Russell engaged
in "harassment" as defined by HRS § 604-10.5(a)(2). HRS § 604-
10.5(g) requires that the clear and convincing standard of proof
be applied in determining whether conduct rises to the level of
"harassment." "Clear and convincing evidence" is:
an intermediate standard of proof greater than a
preponderance of the evidence, but less than proof beyond a
reasonable doubt required in criminal cases. It is that
degree of proof which will produce in the mind of the trier
of fact a firm belief or conviction as to the allegations
sought to be established, and requires the existence of a
fact be highly probable.
In re JK, 149 Hawai#i 400, 409, 491 P.3d 1179, 1188 (App. 2021)
(quoting Masaki v. Gen. Motors Corp., 71 Haw. 1, 15, 780 P.2d
566, 574 (1989)).
"Whether there was substantial evidence to support an
injunction against an alleged harasser is reviewed under the
'clearly erroneous standard.'" Duarte v. Young, 134 Hawai#i 459,
462, 342 P.3d 878, 881 (App. 2014) (citing 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. (quoting Bailey, 92 Hawai#i at 316 n.6,
990 P.2d at 1198 n.6). We also have stated that "a trial court's
determination as to whether a reasonable person would suffer
emotional distress as a result of a course of conduct is reviewed
on appeal de novo." Luat v. Cacho, 92 Hawai#i 330, 343, 991 P.2d
840, 853 (App. 1999) (citing State v. Trainor, 83 Hawai#i 250,
255, 925 P.2d 818, 823 (1996)).
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We account for the clear and convincing standard of
proof when addressing a claim that the evidence does not support
the court's findings made under this standard, as follows:
When reviewing a finding that a fact has been proved by
clear and convincing evidence, the question before the
appellate court is whether the record as a whole contains
substantial evidence from which a reasonable factfinder
could have found it highly probable that the fact was true.
In conducting its review, the court must view the record in
the light most favorable to the prevailing party below and
give appropriate deference to how the trier of fact may have
evaluated the credibility of witnesses, resolved conflicts
in the evidence, and drawn reasonable inferences from the
evidence.
JK, 149 Hawai#i at 409-10, 491 P.3d at 1188-89 (quoting
Conservatorship of O.B., 470 P.3d 41, 55 (Cal. 2020)).
In applying this standard of review, we also recognize
the following caution:
[A]s in criminal appeals involving a challenge to the
sufficiency of the evidence, an appellate court reviewing a
finding made pursuant to the clear and convincing standard
does not reweigh the evidence itself. In assessing how the
evidence reasonably could have been evaluated by the trier
of fact, an appellate court reviewing such a finding is to
view the record in the light most favorable to the judgment
below; it must indulge reasonable inferences that the trier
of fact might have drawn from the evidence; it must accept
the factfinder's resolution of conflicting evidence; and it
may not insert its own views regarding the credibility of
witnesses in place of the assessments conveyed by the
judgment. . . . [T]he question before a court reviewing a
finding that a fact has been proved by clear and convincing
evidence is not whether the appellate court itself regards
the evidence as clear and convincing; it is whether a
reasonable trier of fact could have regarded the evidence as
satisfying this standard of proof.
Id. at 410, 491 P.3d at 1189 (quoting O.B., 470 P.3d at 53).
III. Discussion
Under HRS § 604–10.5, the district court "shall" grant
an injunction prohibiting the respondent from harassing the
petitioner "[i]f the court finds by clear and convincing evidence
that" the respondent engaged in "[a]n 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, 92 Hawai#i at
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340–41, 991 P.2d at 850–51. "[T]he type of harassment that the
courts are mandated to restrain or enjoin under [HRS §
604–10.5(a)(2)] 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 P.2d 1279, 1305 (1997)).
Initially, Russell challenges the Injunction because
"[t]he court's ruling was, in part, based on its own
unsubstantiated psychiatric diagnosis." His argument lacks
merit. Following the presentation of evidence, the District
Court stated in part: "Mr. Russell, . . . I don't take this and
say this lightly, but I think you have some serious problems
here. Um, you have some serious psychiatric problems in the
Court's opinion to be honest." Viewing this statement in the
context of the District Court's entire oral ruling, however, we
conclude that the District Court did not base its decision to
grant the Petition, in whole or in part, on this observation.
Rather, it appears that the District Court was attempting to
emphasize the serious nature of Russell's conduct. The court
went on to discuss the evidence presented at the hearing,
including "the frequency of [Russell's] unwanted calls to
[Nakama], the type of messages that [Russell] left on her
voicemail, the fact that [Russell] ha[d]n't listened to
[Nakama's] repeated request to [Russell] to not have any contact
with her," and that Russell then "show[ed] up at [Nakama's]
workplace with flowers and chocolate." Based on these findings,
none of which Russell disputes, the court concluded that Russell
had engaged in harassment. On this record, we conclude that any
error in characterizing Russell's conduct in psychiatric terms
was harmless. See Martin v. Kozuma, No. CAAP-XX-XXXXXXX, 2020 WL
3542155, at *2 (Haw. App. June 30, 2020) (SDO) (concluding that
any error in precluding certain questioning was harmless, where
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"[t]here [was] no indication in the record that the District
Court granted the [HRS § 604-10.5] Petition based on
[respondent's] picture-taking").
Russell further contends that his conduct did not
constitute "harassment" under HRS § 604-10.5(a)(2) for two
reasons. First, he argues that "a reasonable person, normally
constituted[,] would not have suffered emotional distress as a
result of [Russell's] course of conduct." Relatedly, he asserts
that "the messages Nakama identified as those that made her
uncomfortable were innocuous and her reaction to them overblown."
Second, Russell contends that his conduct "serve[d] the
legitimate purpose of asking Nakama to go out with him."
Russell's argument focuses on the content of isolated
statements made in individual text messages, while ignoring the
District Court's reliance on other evidence in concluding that
Nakama had established harassment by clear and convincing
evidence. This evidence included the frequency of the unwanted
calls to Nakama, the type of messages that Russell left on her
voicemail, the fact that he did not listen to her requests for no
contact, and the fact that Russell showed up at her workplace
uninvited. The District Court also found that after Nakama had
told Russell not to contact her again, Russell left multiple
voicemails for her on June 7 and 8, 2020. These findings, none
of which Russell challenges, are binding on this court. See
State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435
(2019).
Based on these findings, the District Court concluded
in part that Russell intentionally engaged in a course of conduct
directed at Nakama, which alarmed and disturbed her. Based on
our review of the record, we conclude that the District Court's
findings were supported by substantial evidence from which a
reasonable factfinder could have found it highly probable that
such facts were true; the court's findings were thus not clearly
erroneous. We further conclude that the District Court could
reasonably have inferred that Russell's actions did not serve a
legitimate purpose and would cause a reasonable person to suffer
emotional distress. See Luat, 92 Hawai#i at 343, 991 P.2d at
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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.
For these reasons, the Order Granting Petition for
Injunction Against Harassment, entered on August 10, 2020, in the
District Court of the Second Circuit, Wailuku Division, is
affirmed.
DATED: Honolulu, Hawai#i, May 25, 2022.
On the brief:
/s/ Katherine G. Leonard
Alen M. Kaneshiro, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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