State v. Freitas ( 2010 )

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NOT FOR PUBLICATION lN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER
No. 23430
1N THE 1NTERMEDiATE coURT oF APPEALs
oF THE sTATE oF HAwArI
sTATE oF HAwAIT, P1ainciff-Appel1ee,
v.
STEVEN A. FREITAS, Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE FIRST ClRCUIT
KANEOHE DIVISION
(HPD Criminal NO. 6026023MO)
(lP405-Ol655)
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley, Ginoza, JJ.)
Defendant-Appellant Steven A. Freitas (Freitas) appeals
the Notice of Entry of Judgment and/or Order (judgment) filed on
February 2, 2007 in the District Court of the First Circuit,
Kan€ohe Division (district court)1convicting him of the petty
misdemeanor of disorderly conduct2 occurring on November 20,
(HRS) § 711-1101
2005, in violation of Hawaii Revised Statutes
(i993 & supp. 2005).3
1 The Honorable T. David woo presided.
2 Although the district court did not state that the conviction was for a
petty misdemeanor, the district court sentenced Freitas, inter alia, to six
months probation. HRS § 706-623(l)(d) (Supp. 2006), the statute in effect at
the time of sentencing on February 2, 2007, provides for six months probation
"upon conviction of a petty misdemeanor."
3 HRS § 711-1101 states:
§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:
(a) Engages in fighting or threatening, or in violent or
tumultuous behavior; or
(b) Makes unreasonable noise; or
(c) Subjects another person to offensively coarse behavior
or abusive language which is likely to provoke a violent
I``eSpOl'lS€,' O]f
(continued...)
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On appeal, Freitas contends that:
(1) The disorderly conduct charge was defective.
First, he contends the district court erred in denying his
motions to dismiss the charge as a petty misdemeanor because it
lacked the essential elements for a petty misdemeanor. Second,
although raised by Freitas for the first time on appeal, he
contends this court should reverse the conviction because the
alternatives for "unreasonable noise” were charged in the
disjunctive;
(2) The district court erred in convicting Freitas of a
petty misdemeanor rather than a violation; and
(3) There was insufficient evidence that Freitas made
“unreasonable noise” to support either a violation or a petty
misdemeanor.
The State does not contest that the charge was
defective for purposes of charging a petty misdemeanor. However,
the State asserts that the oral charge was adequate to charge
3(...continued)
(d) Creates a hazardous or physically offensive condition by any
act which is not performed under any authorized license or permit;
OI``
(e) Impedes or obstructs, for the purpose of begging or soliciting
alms, any person in any public place or in any place open to the
public.
(2) Noise is unreasonable, within the meaning of subsection
(1)(b), if considering the nature and purpose of the person‘s
conduct and the circumstances known to the person, including the
nature of the location and the time of the day or night, the
person‘s conduct involves a gross deviation from the standard of
conduct that a law-abiding citizen would follow in the same
situation; or the failure to heed the admonition of a police
officer that the noise is unreasonable and should be stopped or
reduced.
The renter, resident, or owner~occupant of the premises who
knowingly or negligently consents to unreasonable noise on the
premises shall be guilty of a noise violation.
, (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. 0therwise
disorderly conduct is a violation.
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disorderly conduct as a violation, and that substantial evidence
existed to support a conviction as a violation.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
vacate the district court's judgment of February 2, 2007 and
remand for the reasons set forth below.
I. Background
This case arises from complaints on November 20, 2005
of loud music coming from a house located at 44-329 Kaneohe Bay
Drive. The complaints were of loud drumming and singing coming
from the house over several hours. ‘ ``
Just prior to the trial on February 2, 2007, the
following oral charge was presented to Freitas:
Mr. Freitas, on or about November 20th, 2005, in the
City and County of Honolulu, State of Hawaii, with the
intent to cause physical inconvenience or alarm by a member
or members of the public, you reckless, or recklessly
creating a risk thereof, you did make unreasonable noise
defined as a gross deviation from law~abiding citizen's
conduct given the nature and purpose of your conduct,
location and time of day, or a failure to heed a peace
officer's warning that the noise is unreasonable and should
be stopped, thereby committing the offense of Disorderly
Conduct in violation of Section 711-1101(1)(b) of the Hawaii
Revised Statutes. . ~
During the trial, the district court heard testimony
from the complaining witness Gordon Uptmor, Police Officer
Theodore Hackbarth, Police Officer Kenneth Tjomsland, and
defendant Freitas, At close of the State's case, Freitas orally
moved for dismissal on grounds that the charge was defective for
failing to assert a petty misdemeanor. The trial court denied
the motion. Freitas reasserted the contention in closing
argument. l
At the conclusion of the trial, the district court made
the following findings and conclusions:
[The] music commenced at about 10 o'clock in the
morning and continued unabated until police officers finally
showed up in response to Mr. Uptmor's call, calls.
Despite the fact that officers came to defendant's
residence and informed him that the music was loud and to
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turn it down, the defendant continued to persist in playing
loud music with other persons and this resulted in multiple
visits to his house by the police officers.
The Court has observed the demeanor of Mr. Uptmor and
also in light of the fact that the witness is a minister,
the Court has concluded from observing his demeanor and the
manner in which the witness testified that he is not a v
person that is overly sensitive to music and that he was, in
fact, seriously inconvenienced by the loudness of this
mus1c.
The Court finds that Mr. Uptmor has made thirty to
forty calls to 911 requesting the police to assist him in
getting the defendant to tone down the music, and the Court
finds that based on the fact that there were so many
repetitive complaints made, the defendant was well aware of
the fact that playing this loud music was offensive to
neighbors and that he intended to play music at such a
volume.
The Court finds that Officer Hackbarth went to
defendant's house, observed the defendant playing music
there, and in the words of Officer Hackbarth, the music was
extremely loud, it was amplified. The sound pressure of the
music was so loud that you could palpably feel the
percussive sound pressure of this music.
And as the officer testified, it was, 1et's see,
officer testified too that defendant's attitude was totally
defiant, and in the case of Officer Tjoms1and, he gave that
officer the definite impression that the defendant did not
intend to comply with the officer's warnings to quiet the
music down.
Both officers testified that upon exiting their
automobiles the music was so loud that they were able to
hear the music immediately upon getting out of their cars.
In the case of Officer Tjomsland, he said possibly eighty
feet away he could hear that, okay.
Court definitely finds that this was not unamplified
music, When the officers were there talking to defendant,
one guitarist kept playing so loudly that they couldn't
converse with the defendant. Court finds that that is
definitely not an unamplified guitar.
At any rate, the Court finds that this music was
exceedingly loud and it's really loud, unreasonably so and
not, and I would say within the meaning of the statute, it's
unreasonable noise. The Court, therefore, finds that the
State has proven their case beyond the reasonable doubt. I
find the defendant guilty as charged.
II. Sufficiencv 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 HaWaiH.383, 390, 219 P.3d l170, 1177
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(2009) (quoting state v. wells, 73 Hawai‘i 373, 379, 394 P.2d 70,
76 (l995)).
A. The Oral Charge Did Not SufficientlV Charqe
Disorderly Conduct as a Petty Misdemeanor.
As apparently conceded by the State, the oral charge
prior to trial did not charge the disorderly conduct offense as a
petty misdemeanor. The charge failed to cite to the petty
misdemeanor subsection HRS § 711-1101(3). It also failed to
include allegations of Freitas' "intention to cause substantial
harm or serious inconvenience" or allegations of Freitas
"persist[ing] in disorderly conduct after reasonable warning or
request to desist[.]" See State v. Moser, 107 HawaiT_159, 167,
111 P.3d 54, 62 (App. 2005) (footnote omitted) ("The Complaint
did not charge Moser with disorderly conduct as a petty
misdemeanor, nor allege any operative facts that would apprise
Moser that she was being charged with the petty misdemeanor
offense").
'Consequently, the district court erred in denying
Freitas' motion to dismiss on these grounds and in convicting
Freitas of disorderly conduct as a petty misdemeanor.
B. Freitas Raises a Post-Conviction Challenge that
the Charge Asserts Disiunctive Alternative Bases
for "Unreasonable Noise"
During the district court proceedings, Freitas did not
object that the charge was defective on grounds that the
alternatives for “unreasonable noise” were charged in the
disjunctive. Instead, Freitas raises this issue for the first
time on appeal and now takes issue with the part of the charge
that stated:
. . you did make unreasonable noise defined as a gross
deviation from law-abiding citizen's conduct given the
nature and purpose of your conduct, location and time of
day, g; a failure to heed a peace officer's warning that the
noise is unreasonable and should be stopped ...
(Emphasis added). Freitas relies on State v. Jendrusch, 58 Haw.
279, 567 P.2d 1242 (1977), in which the Hawai‘i Supreme Court
noted that where different types of conduct were proscribed under
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different sections of a statute, charging the defendant in the
disjunctive rather than in the conjunctive "left the defendant
uncertain as to which of the acts charged was being relied upon
as the basis for the accusation against him." ld* at 283 n.4,``567
P.2d at 1245 n.4.4 The court thus stated that "[w]here a statute
specifies several ways in which its violation may occur, the
charge may be laid in the conjunctive but not in the
disjunctive." ld4 (citing Territory v. Lii, 39 Haw. 574, 1952
WL 7385 (HaW. Terr. l952)).
we resolve this point of error against Freitas for
several reasons. First, Jendrusch is inapposite because Freitas
was not charged with engaging in conduct proscribed by different
sections of HRS § 711-1101, but was only charged with making
unreasonable noise, in violation of HRS § 711-1101(b).
Second, unlike in Jendrusch, the same conduct or action
in this case (i.e. playing loud music) satisfies the alternative
requirements under the statute for "unreasonable noise." ThatA
is, in this case, the single act of playing loud music was both
4 In Jendrusch, the defendant was charged under both subsection 1(b) and
1(c) of the disorderly conduct statute, which then stated in part:
(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:
(b) Makes unreasonable noise; or
(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; . .
HRS § 711-1101 (supp. 1974).
The charge as presented to Jendrusch stated:
You (Jendrusch) are hereby charged that in the City and County of
Honolulu, State of Hawaii, on or about the 14th day of September, 1974,
with intent to cause public inconvenience, annoyance or alarm by members
of the public or recklessly creating a risk thereof, you did make
unreasonable noise or offensively coarse utterance, gesture or display
or address abusive language to any person present, thereby committing
the offense of Disorderly Conduct in violation of Section 1101(1)(b) of
the Hawaii Penal Code. (Emphasis added)
Jendrusch, 58 Haw. at 280, 567 P.2d at 1243-44.
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"a gross deviation from law-abiding citizen's conduct given the
nature and purpose of [defendant's] conduct, location and time of
day" as well as “a failure to heed a peace officer's warning that
the noise is unreasonable and should be stopped." Therefore,
this case is additionally distinguishable from Jendrusch because
the use of the disjunctive alternatives for "unreasonable noise”
did not create "uncertain[ty] as to which of the acts charged was
being relied upon as the basis for the accusation against
[defendant]." 58 Haw. at 283 n.4, 567 P.2d at 1245 n.4.
Third, where an indictment is challenged only after a
conviction, a "flexible rule of liberal construction" applies
under which "we must liberally construe the [charge] in favor of
validity." State v. Motta, 66 HaW. 89, 93, 657 P.2d 1019, 1021
(1983). In these circumstances, the conviction will not be
reversed "unless/the defendant can show prejudice or that the
indictment cannot within reason be construed to charge a crime."
ld; at 91, 657 P.2d at 1020; see also Wheeler, 121 HawaiH at
399, 219 P.3d at 1186.
The charge tracked the language of the statute, §§e
State v. COrdeirO, 99 Hawai‘i 390, 406, 56 P.3d 692, 708 (2002)
(noting that generally, "a charge drawn from the language of the
statute proscribing the offense is not fatally defective“); see
also State v. Silva, 67 Haw. 581, 585, 698 P.2d 293, 296 (1985).
Freitas has made no effort to show that he has been prejudiced by
the charge setting out the alternative bases for "unreasonable
noise” in the disjunctive. In this regard, there is ample
information in the trial record establishing that the conduct at
issue was Freitas' playing music too loudly on the day of the
offense and that by his playing of the loud music he failed to
heed an officer's warning. The record reflects that Freitas
defended against this alleged conduct. Moreover, as set forth
above, because the same conduct or action (i.e. playing loud
music) was the basis for either alternative establishing
"unreasonable noise," no confusion was created and the charge can
reasonably be construed to charge a crime.
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We therefore reject Freitas' argument, raised for the
first time on appeal, that his conviction should be reversed
because the charge stated the alternatives to establish
"unreasonable noise” in the disjunctive.
I1I. There is Sufficient Evidence for a Conviction of
Disorderly Conduct as a Violation.
The HawaFi Supreme Court has often stated the standard
of review for sufficiency of the evidence as follows:
[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. SDrattlinq, 99 HaWai‘i 3l2, 3l7, 55 P.3d 276, 281 (2002)
(quoting State v. Young, 93 HawaiH_224, 230, 999 P.2d 230, 236
(2000)). "'[I]t is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of the evidence; this is the province of the [trier of
fact].'" Sprattling, 99 HawaiH at 317, 55 P.3d at 281 (quoting
state v. sua, 92 Hawai‘i_ 61, 69, 937 P.2d 959~, 967 (1999).
v Because we held above that the charge was defective in
alleging a petty misdemeanor, we review the sufficiency of the
evidence to support a disorderly conduct violation. Based on the
testimony of Uptmor and the two police officers who responded to
the complaints of the loud music, there is more than sufficient
evidence to support a conviction for a disorderly conduct
violation.
Uptmor, the complaining witness and next door neighbor
to Freitas, testified there "was loud drumming, singing coming
from the house next door" that started earlier in the day and
went on until about 4 p.m. when he called policel Uptmor
testified the volume was so loud that "with the doors and windows
closed and the TV on, you can still hear it," that he could "fee1
the pounding of the drums" within his home, and that he could not
get any work or anything done because the music was constant.
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Prior to November 20, 2005, Uptmor had made numerous 911 calls
regarding the loud music.
On November 20, 2005, Officer Hackbarth responded at
approximately 3:0O p.m. to a complaint of loud noise in the area
and testified that "we've had a lotta calls at this address about
loud noise, especially the drumming." As he walked towards the
music, Officer Hackbarth could definitely feel the music as well
as hear it. Officer Hackbarth saw an open garage with a band
playing and saw Freitas playing the drums and another male
playing an amplified guitar. After determining the music was
unreasonably loud, Officer Hackbarth informed them about the
complaint, asked them to turn it down and practice the guitar
without the amplifier. According to Officer Hackbarth, Freitas
"told me he would turn it down, and 1 said okay, fine, just
consider it your first warning, and 1 left." Officer Hackbarth
gave this warning at about 3:10 p.m. He also estimated the
distance from where Freitas was playing to Uptmor's home was
about thirty feet.
Later that day, Officer Tjomsland was sent to the same
location for a loud music complaint. Officer Hackbarth also
responded. When he drove up to the house, and while at the
complainant's house, Officer Hackbarth could hear "same thing,
drumming, electric guitar, real loud." After getting
complainant's statement, Officer Hackbarth and 0fficer Tjomsland
went to Freitas' house. According to Officer Hackbarth, Freitas
"was at a point where" he stated "I've been living here for
years, arrest me" and Freitas' attitude towards the end was "like
defiant."
Officer Tjomsland testified that on the day in question
he was sent twice to 44-329 Kaneohe Bay Drive, once at around
1:40 p.m. and the second time after 5 o'clock. The first call
was by someone who wanted to remain anonymous and upon
responding, Officer Tjomsland did not hear anything and did not
approach Freitas' residence. At approximately 5:45 p.m., Officer
Tjomsland was dispatched and again went to the area. This time,
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as soon as he got out of his car and started walking down the
driveway, he could hear music. Officer Tjomsland testified that
the farthest away he could hear the music was about eighty to
eighty-five feet. Standing outside of complainant's house,
Officer Tjomsland could hear and feel the music, describing it as
"amplified" music. Officer Tjomsland went to Freitas' residence
and informed Freitas that he was there because of the loud noise.
According to Officer Tjomsland, Freitas responded "that he knew
that we had been there before" and that "he's gonna keep playing
it." ``Officer Tjomsland testified that "[Freitas] seemed to have
a defiant conduct" and "[Freitas] told [Officer Tjomsland] he's
been doing this it [sic] for years, he's gonna continue doing
it." Officer Tjomsland issued Freitas a citation for disorderly
conduct. _
Freitas testified that he played unamplified drums for
about twenty minutes around 12 p.m. or 1 p.m. According to
Freitas, the first time he really played was around 3 p.m., when
he played with two other people and it was not amplified. They
played for an hour and "then the officer came down, and we
stopped completely until my brother got there about 5:30, and
that's when we played again." Freitas stated they all shared one
amplifier. According to Freitas, Officer Tjomsland was reluctant
to cite him. Freitas also testified that when Officer Hackbarth
came to Freitas' residence earlier that day, Officer Hackbarth
"didn't say anything about the noise[,]" but said "just maybe
easy on the base." Freitas testified "1 told 'em we're gonna
play later this afternoon, he says no, you better cruise then
now[;] [s]o 1 cruised until my brother came." According to
Freitas, both Officer Hackbarth and Officer Tjomsland's comments
were "more of a praise" and "[c]omplaining about the neighbor,
not the music." 1
viewing the evidence in the strongest light for the
prosecution, the foregoing constitutes substantial evidence of a
disorderly conduct violation under HRS § 711-1101.
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Because the trial court found Freitas guilty of
disorderly conduct as a petty misdemeanor and because the
elements of the included violation are satisfied by substantial
evidence, the case may be remanded for entry of a judgment of
conviction on disorderly conduct as a violation. See State v.
Kekuewa, 114 Hawai‘i 411, 424, 163 P.3d 1148, 1161 (2007) (where
a conviction is reversed because of a defective charge, "an
appellate court may nevertheless remand for entry of judgment of
conviction and resentencing as to any offenses adequately set
forth in the [charge]").
Based on the foregoing,
the judgment filed on
February 2, 2007 convicting Freitas of disorderly conduct as a
petty misdemeanor is vacated. The case is remanded for entry of
a judgment that Freitas committed the offense of disorderly
conduct as a violation.
DATED: Honolulu, Hawai‘i, July 22, 2010.
On the briefs:
Deborah L. Kim
Deputy Public Defender
for Defendant-Appellant
Kathryn Smith
Deputy Prosecuting Attorney
City and County of Honolulu
for Plaintiff-Appellee
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Chief Judge
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Associate Judge
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Associate Jud