State v. Kwon ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-DEC-2021
08:15 AM
Dkt. 53 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MARIO K. KWON, also known as Mario Kai Kwon,
Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
WAHIAWÂ DIVISION
(CASE NO. 1DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Mario K. Kwon, also known as Mario
Kai Kwon (Kwon), appeals from the Notice of Entry of
Judgment/Order (Judgment), entered on October 2, 2018, in the
District Court of the First Circuit, Wahiawâ Division (District
Court).1/ Following a bench trial, Kwon was convicted of
harassment, in violation of Hawaii Revised Statutes (HRS) § 711-
1106(1)(a) (2014).2/
On appeal, Kwon contends that: (1) the District Court
erred in not applying the proof-beyond-a-reasonable doubt
1/
The Honorable Darolyn Lendio presided.
2/
HRS § 711-1106(1)(a) provides:
(1) A person commits the offense of harassment if,
with intent to harass, annoy, or alarm any other person,
that person:
(a) Strikes, shoves, kicks, or otherwise touches
another person in an offensive manner or
subjects the other person to offensive physical
contact[.]
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standard and instead considering the evidence "in the strongest
light for the prosecution"; and (2) there was insufficient
evidence to support the harassment conviction, i.e., that Kwon
(a) touched the complaining witness (CW) in an offensive manner
or subjected her to offensive contact, or (b) acted with the
intent to harass, annoy, or alarm CW.
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
Kwon's contentions as follows and vacate the Judgment.
(1) Due process requires the State to prove each
element of the offense beyond a reasonable doubt. See State v.
Austin, 143 Hawai#i 18, 40, 422 P.3d 18, 40 (2018) (quoting State
v. Cuevas, 53 Haw. 110, 113, 488 P.2d 322, 324 (1971); State v.
Hauge, 103 Hawai#i 38, 55-56, 79 P.3d 131, 148-49 (2003)). Here,
rather than applying the proof-beyond-a-reasonable doubt standard
in finding Kwon guilty of harassment, the District Court made the
following statement at the conclusion of Kwon's trial: "I
believe the evidence is to be considered in the strongest light
for the prosecution under State v[.] Matavale, 115 Haw[ai#i] 149,
[166 P.3d 322 (]2007[)], and I'm going to find you guilty of
harassment." The District Court's application of this standard
was error.3/
Although Kwon failed to raise this issue in the
District Court, we may notice a trial court's plain error
affecting substantial rights. See State v. Miller, 122 Hawai#i
92, 100, 223 P.3d 157, 165 (2010) (quoting State v. Sanchez, 82
Hawai#i 517, 524-25, 923 P.2d 934, 941-42 (App. 1996)); see also
State v. Sawyer, 88 Hawai#i 325, 330, 966 P.2d 637, 642 (1998)
(the appellate court "will apply the plain error standard of
review to correct errors which seriously affect the fairness,
integrity, or public reputation of judicial proceedings, to serve
the ends of justice, and to prevent the denial of fundamental
rights." (citing State v. Fox, 70 Haw. 45, 56, 760 P.2d 670, 676
3/
Matavale states the applicable standard of review "when the
appellate court passes on the legal sufficiency of [the] evidence to support a
conviction[.]" 115 Hawai#i at 157, 166 P.3d at 330.
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(1988))); Hawai#i Rules of Penal Procedure Rule 52(b). Here, the
District Court's error affected Kwon's right to have each element
of the offense proven beyond a reasonable doubt – a right
protected by statute, see HRS § 701-114 (2014), and by the due
process clauses of the state and federal constitutions, see U.S.
Const. amend. XIV; Haw. Const. art. I, § 5. See State v. Murray,
116 Hawai#i 3, 10, 169 P.3d 955, 962 (2007) (citing State v.
Maelega, 80 Hawai#i 172, 178, 907 P.2d 758, 764 (1995)).
Accordingly, we conclude that the District Court's error affected
substantial rights and Kwon's conviction must, at a minimum, be
set aside.
(2) Kwon also contends that there was insufficient
evidence to support the harassment conviction.
Under HRS § 711–1106(1)(a), a person with the
requisite "intent to harass, annoy, or alarm any other person"
commits the offense of harassment if that person (1) "[s]trikes,
shoves, kicks, or otherwise touches another person in an
offensive manner[,]" or (2) "subjects the other person to
offensive physical contact." "'[O]ffensive physical contact'
encompasses . . . offensive contact that, while separate and
apart from the various forms of actual bodily touching,
nevertheless involves contact with an item physically appurtenant
to the body." State v. Pesentheiner, 95 Hawai#i 290, 295, 22
P.3d 86, 91 (App. 2001) (holding that the defendant's act of
knocking a police officer's hat off his head was "offensive
physical contact" under HRS § 711–1106(1)(a)).
Here, the April 6, 2017 Complaint alleged in relevant
part that Kwon, "with intent to harass, annoy, or alarm [CW], did
strike, shove, or otherwise touch [CW] in an offensive manner,
thereby committing the offense of Harassment, in violation of
[HRS §] 711-1106(1)(a)[.]" The Complaint did not allege that
Kwon subjected CW to "offensive physical contact." Cf. State v.
Codiamat, 131 Hawai#i 220, 223, 317 P.3d 664, 667 (2013) (holding
that a complaint for harassment that disjunctively charged the
defendant with touching the complainant in an offensive manner
"or" subjecting the complainant to offensive physical contact was
sufficient to meet due process requirements). At trial, the
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State prosecuted Kwon on the charge that he touched CW in an
offensive manner with the requisite intent. Thus, the issue
before us is whether there is substantial evidence to support the
harassment conviction based on the charge that Kwon touched CW in
an offensive manner with the requisite intent. See State v.
Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34 (App. 2005)
(sufficient evidence to support a conviction requires substantial
evidence as to every material element of the offense charged)
(quoting State v. Ferrer, 95 Hawai#i 409, 422, 23 P.3d 744, 757
(App. 2001)).
At trial, CW testified to the following: She and Kwon
had an "altercation" in their shared residence on March 9, 2017.
They had ended their relationship a month earlier but were still
living together. CW had printed an application for housing, Kwon
asked what it was, CW told him "it was just personal documents,"
and Kwon then "snatched" the application out of her hands and
walked out the door. CW followed Kwon, but he held the
application over his head so she could not reach it; after Kwon
lowered his arms, CW took back the application, went to the
bedroom, placed the application on the bed, and sat on it. Kwon
"came to [CW's] face while [she] was on the bed, pushed [her] to
the side to grab the application again, and he ripped it in front
of [her]." Kwon then took CW's cell phone, which was "right next
to [her]" on the bed, tried to break the phone in his hands, and
then threw it to the ground and stepped on it. CW tried to get
her phone back; she followed Kwon to the bathroom area, where he
struck her in the chest with his palm hard enough that she went
to the ground. "[T]he phone was in both of [their] hands," but
Kwon was able to take it from CW, and put the phone in the
toilet. CW retrieved the phone and put it in rice, and Kwon
left.
Kwon, on the other hand, testified to the following:
On March 9, 2017, CW had printed about 30-50 pages of paper;
Kwon was frustrated, so he grabbed the papers and told CW she
would have to refill the printing supplies she had been using.
CW said that she did not have to get supplies, it was her
printer, and she was going to take it with her. Instead of
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saying anything else, Kwon just ripped the papers; then CW
slapped him in the face. Kwon then grabbed CW's phone, she
struggled to get it back, and Kwon threw it in the toilet. From
there, CW threw herself on the ground and began hitting herself
in the face and chest, screaming "stop hitting me." Kwon stared
at CW in disbelief for about 20 seconds and then got ready for
work. Kwon did not push, shove or strike CW. When asked
whether he touched CW at any point during the argument, Kwon
testified: "Just her hand[,] . . . . [b]ecause we were, I guess,
struggling for the phone." Kwon further testified that he bought
the printer for both of them to use, and he ripped up what CW had
printed only because she refused to buy printing supplies. He
took CW's phone and threw it in the toilet because she slapped
him in the face and "if anything, she could get another one;
insurance would cover it."
Following testimony4/ and closing arguments, the
District Court made the following findings and ruling:
There is a vast divide between credibility between
yourself [Kwon] and [CW], and I acknowledge that. There
seems to be one version under her and another version under
you. However, as I indicated to . . . counsel, there seems
to be some commonality. There was some consistency between
her testimony and your testimony with regards to the paper
taking and with regards to the ripping. Now, when it
occurred, you have both different stories. And with regards
to taking of the phone and putting it in the toilet, I think
those were all common things that both she and you testified
to.
So in reading the . . . statute, I don't know if the
legislature actually contemplated taking somebody's cell
phone to be considered harassment, but I am going to
interpret this as a cell phone being taken to be harassment
. . . and I am going to find that you did have the intent to
harass, annoy, or alarm by taking [CW]'s phone and throwing
it into the toilet.
So I am going to be finding you guilty. I believe the
evidence is to be considered in the strongest light for the
prosecution under State v[.] Matavale, . . ., and I'm going
to find you guilty of harassment.
Thus, in convicting Kwon of harassment, the District
Court relied on CW and Kwon's consistent testimony that Kwon took
CW's phone and threw it in the toilet. Kwon was charged,
4/
Those testifying at trial included CW, the police officer who
responded to her March 9, 2017 call, three character witnesses for Kwon, and
Kwon.
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however, with having "str[uck], shove[d], or otherwise touch[ed]
[CW] in an offensive manner[.]" In Pesentheiner, this court
construed the phrase "[s]trikes, shoves, kicks, or otherwise
touches another person" to mean "actual bodily contact, whether
directly or indirectly through the clothing or other material
intended to cover the body." 95 Hawai#i at 294, 22 P.3d at 90.
In contrast, we construed "offensive physical contact" as
encompassing offensive contact that is "separate and apart from
the various forms of actual bodily touching," but which
"nevertheless involves contact with an item physically
appurtenant to the body." Id. at 295, 22 P.3d at 91; see State
v. Mokiau, No. CAAP-XX-XXXXXXX, 2012 WL 603971, at *2 (Haw. App.
Feb. 24, 2012) (SDO) ("Because 'offensive physical contact' has
an independent and separate meaning from 'touches another person
in an offensive manner,' the terms are not synonymous and the
former is not inclusive of the latter." (footnote omitted)).
Here, the District Court did not explicitly find that Kwon
actually touched CW in an offensive manner and did not otherwise
expressly rely on evidence of such conduct.
However, in these circumstances, we review the
sufficiency of the evidence in light of all the evidence adduced
at trial. See State v. Fitzwater, 122 Hawai#i 354, 378, 227 P.3d
520, 544 (2010). Here, Kwon testified that he touched CW's hand
in the struggle over her cell phone, and CW testified that Kwon
struck her in the chest when CW tried to get her phone back.5/
Viewing the evidence in the strongest light for the prosecution,
see Matavale, 115 Hawai#i at 157, 166 P.3d at 330, we conclude
there was substantial evidence that Kwon struck, shoved, or
otherwise touched CW in an offensive manner.
We further conclude there was substantial evidence that
Kwon acted with intent to harass, annoy, or alarm CW. Because
proving the requisite state of mind by direct evidence in a
criminal case is difficult, "proof by circumstantial evidence and
reasonable inferences arising from circumstances surrounding the
5/
We also note that, although the District Court recognized "a vast
divide between [Kwon and CW's] credibility," the court did not find that CW's
testimony was not credible.
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defendant's conduct is sufficient." State v. Stocker, 90 Hawai#i
85, 92, 976 P.2d 399, 406 (1999) (quoting State v. Mitsuda, 86
Hawai#i 37, 44, 947 P.2d 349, 356 (1997)) (brackets omitted).
"Thus, the mind of an alleged offender may be read from his acts,
conduct and inferences fairly drawn from all the circumstances."
Id. (quoting Mitsuda, 86 Hawai#i at 44, 947 P.2d at 356). Here,
Kwon testified that he grabbed CW's phone, she struggled to get
it back, and Kwon threw it in the toilet. Kwon also admitted
that he grabbed CW's phone out of frustration and to get back at
her for slapping him. Viewing the evidence in the light most
favorable to the State, substantial evidence supports the
reasonable inference that Kwon acted with intent to harass,
annoy, or alarm CW when he touched her in an offensive manner
during the struggle over her phone. Accordingly, the evidence
was sufficient to support Kwon's conviction for harassment.
For the reasons discussed above, we vacate the Notice
of Entry of Judgment/Order, entered on October 2, 2018, in the
District Court of the First Circuit, Wahiawâ Division. The case
is remanded to the District Court for a new trial.
DATED: Honolulu, Hawai#i, December 9, 2021.
On the briefs:
/s/ Katherine G. Leonard
Min Tsui, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Loren J. Thomas, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge
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