State v. Abdali

478 P.3d 296, 148 Haw. 471

• Court: Hawaii Intermediate Court of Appeals
• Decided: December 18, 2020
• Docket: CAAP-19-0000543
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-DEC-2020 07:50 AM Dkt. 74 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v. SOFIA ABDALI, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (HONOLULU DIVISION) (CASE NO. 1DCW-XX-XXXXXXX)

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

Defendant-Appellant Sofia Abdali (Abdali) appeals from

the Notice of Entry of Judgment and/or Order (Judgment), entered

on June 27, 2019, in the District Court of the First Circuit,

Honolulu Division (District Court).1 After a bench trial, the

District Court convicted Abdali of one count of Harassment, in

violation of Hawaii Revised Statutes (HRS) § 711-1106(1)(a)

(2014).2

1 The Honorable Russel S. Nagata presided. 2 HRS § 711-1106(1) provides, in relevant part: § 711-1106 Harassment. (1) A person commits the offense of harassment if, with intent to harass, annoy, or alarm any other person, that person: (continued...) NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Abdali raises two points of error on appeal, contending

that there was insufficient evidence to convict her because (1)

spitting on a shopping mall security guard (Security Guard) is

not sufficient to support a conviction for Harassment, and (2)

Abdali was provoked by the Security Guard.

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

resolve Abdali's points of error as follows: (1) Abdali admitted spitting, but not in the direction

of the Security Guard. The District Court found, inter alia,

that the Security Guard was more credible than Abdali and that

Abdali spit in the face of the Security Guard. Abdali

acknowledges that, ordinarily, spitting upon another person is

"offensive physical contact."

Abdali contends that when the "victim" is a law

enforcement officer, the court should consider whether the

physical contact was offensive in light of the officer's presumed

training and professional standard of restrained behavior.

Notwithstanding authority for the proposition that, without more,

insults, taunts and abusive language directed at a law

2 (...continued) (a) Strikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact;

(b) Insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response[.] (Emphasis added).

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enforcement officer may not be sufficient to support a conviction

for Harassment pursuant to HRS § 711-1106(1)(b), we conclude that

spitting into the face of any person, including a law enforcement

officer, is "offensive physical contact" under HRS § 711-

1106(1)(a). Cf. In re Doe, 76 Hawai#i 85, 869 P.2d 1304 (1994)

(holding that challenging a police officer to a fight and using

abusive and profane language was not sufficient to support a

conviction for Harassment under HRS § 711-1106(1)(b)).

Therefore, Abdali's first point of error is without merit. (2) Abdali argues that she was provoked by the

Security Guard's abuse of her authority. Abdali submits that the

Security Guard began the incident with a "rude and crude demand"

that Abdali put her shirt on over her bikini top, which Abdali

viewed as inconsistent with her having seen other women at Ala

Moana Shopping Center wearing bikini tops. Abdali testified

that, when Abdali said that she did not believe that there was a

mall policy requiring her to wear a shirt, and demanded to see

the written policy, and asked what will happen if she does not

comply, the Security Guard said that if she did not do it, Abdali

would be asked to leave the mall. Abdali felt insulted and

offended and initially stayed where she was. The Security Guard

told Abdali she had to leave or the police would be called, but

the Security Guard did not call the police as Abdali now

requested her to do. Abdali got up and headed through the food

court to get to the parking lot and the Security Guard closely

followed her. Near the food court vendors, near the parking lot,

Abdali felt frustrated and harassed and spit; [Id.] although the

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testimony as to the direction of the spit conflicted, the

District Court found that Abdali spit in the Security Guard's

face. The Security Guard then physically restrained Abdali,

while getting backup from her supervisor and calling the police.

We conclude that, viewing the entire record in the

light most favorable to the prosecution, the District Court did

not clearly err in rejecting Abdali's argument that she should

not be convicted of Harassment because of the Security Guard's

provocative abuse of her authority. For these reasons, the District Court's June 27, 2019

Judgment is affirmed.

DATED: Honolulu, Hawai#i, December 18, 2020.

On the briefs: /s/ Katherine G. Leonard Presiding Judge Walter R. Schoettle, for Defendant-Appellant. /s/ Keith K. Hiraoka Associate Judge Loren J. Thomas, Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth City and County of Honolulu, Associate Judge for Plaintiff-Appellee.