State v. Calaycay.

449 P.3d 1184, 145 Haw. 186

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 26-AUG-2019 08:02 AM

IN THE SUPREME COURT OF THE STATE OF HAWAII

---o0o---

STATE OF HAWAII, Petitioner/Plaintiff-Appellee,

vs.

BURT CALAYCAY, aka Burt F. Calaycay, Respondent/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 1DCW-XX-XXXXXXX)

AUGUST 26, 2019

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.

This case requires us to consider the circumstances

under which sexually explicit comments can constitute harassment,

pursuant to Hawaii Revised Statutes (HRS) § 711-1106(1)(f)

(2014). Defendant Burt Calaycay was charged with harassment as a *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

result of statements that he allegedly made to Complaining

Witness (CW). At the time of the incidents in question, Calaycay

was serving in a supervisory role at a residential program for

at-risk youth. CW was a 17-year-old participant in the program.

At trial, CW testified that on two separate occasions,

Calaycay made sexually explicit comments to her that caused her

to feel uncomfortable, unsafe, and scared. She did not, however, explicitly state that she believed Calaycay intended to cause her

bodily injury. The District Court of the First Circuit (district

court) found CW’s testimony to be credible, determined that

Calaycay’s statements caused CW to believe that Calaycay intended

to have non-consensual sexual contact with her, and convicted

Calaycay of harassment.1 The Intermediate Court of Appeals (ICA)

concluded that there was no evidence that CW reasonably believed

Calaycay intended to cause her bodily injury - an essential

element of the offense charged - and accordingly, reversed

Calaycay’s conviction.

For the reasons set forth herein, we reverse the ICA’s

Judgment on Appeal and affirm the district court’s Final Judgment

convicting Calaycay of harassment.

I. BACKGROUND

The Youth Challenge Academy (Academy) is a five-month

residential program designed to help at-risk youth earn a General

1 The Honorable Alvin K. Nishimura presided.

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Education Development credential (GED). These youth, referred to

as cadets, are supervised by members of the National Guard,

referred to as cadres. Cadres may discipline cadets for breaking

the Academy’s rules or failing to obey orders by subjecting them

to screaming and requiring them to perform physical exercises,

including push-ups, sit-ups, jumping jacks, and flutter kicks.

In the fall of 2013, Calaycay was a cadre at the Academy and CW was a cadet. Calaycay was 28 years old at the time. CW was 17

years old.

As set forth below, due to allegations arising out of

Calaycay’s interactions with CW “[o]n or about the 25th day of

October, 2013, to and including the 1st day of November, 2013,”

Calaycay was charged by way of complaint with one count of

harassment in violation of HRS § 711-1106(1)(b) and/or HRS § 711-

1106(1)(f).2

2 Harassment is prohibited pursuant to HRS § 711-1106(1), which provides, in pertinent part:

A person commits the offense of harassment if, with intent to harass, annoy, or alarm any other person, that person:

. . . .

(b) Insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response or that would cause the other person to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another;

(f) Makes a communication using offensively coarse (continued...)

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A. Pre-trial Motion to Compel Election or to Dismiss Complaint

Calaycay filed a Motion to Compel Election or to

Dismiss Complaint, arguing that the Complaint improperly charged

him for two separate offenses, under two respective subsections

of HRS § 711-1106(1), in a single count, in violation of Hawaii

Rules of Penal Procedure (HRPP) Rule 8(a).3 Calaycay requested

that the district court order the State of Hawaii to elect which subsection of HRS § 711-1106(1) it wished to proceed under, or in

the alternative, dismiss the Complaint.

The district court determined that the State was

pursuing a single charge, rendering HRPP Rule 8 inapplicable.

Accordingly, it denied Calaycay’s Motion to Compel Election or to

Dismiss Complaint and allowed the case to proceed to trial.

B. Bench Trial

The district court held a bench trial at which CW and

Calaycay testified. No other witnesses were called and no other

2 (...continued) language that would cause the recipient to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another. 3 HRPP Rule 8(a) provides:

Two or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses:

(1) are of the same or similar character, even if not part of a single scheme or plan; or

(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

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evidence was offered.

1. CW’s Testimony

CW testified that in Fall 2013, she was a 17-year-old

cadet at the Academy. At around 6:00 p.m. on October 25, 2013,

CW was in an open exercise field enjoying free time with her

peers when Calaycay asked her to talk to him away from the other

cadets and cadres. CW stated: He [told] me he wanted to have sex with me and he wanted to get me wet and hit me from the back and have me ride him and that his - it will be okay and he’ll take me to the - the third floor and we could have sex in the - in the - where the cadres stay and that his team had his back and that I wouldn’t get in trouble.

CW explained that she thought Calaycay was referring to

all the other cadres when he said “his team had his back.” CW

further testified that Calaycay’s statements made her feel

uncomfortable because she “didn’t know what to do, and it was

just weird.” Calaycay’s statements made her feel unsafe because

she “didn’t have [her] mom there,” and scared because she “didn’t

have anyone.” She also felt sad and depressed.

CW testified that at around 9:30 p.m. on November 1,

2013, she was awoken by Calaycay “calling [her] from the side of

[her] window.” She stated, “he called me out of my bunkers,4 and

he was telling me how beautiful I was and how he wanted to hook

up with me and how he wanted to see me naked.” CW testified that

this made her feel uncomfortable and unsafe.

4 The term “bunkers” refers to the cadets’ dormitory.

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CW stated that during the aforementioned incidents,

Calaycay never physically touched her. He spoke softly, did not

appear angry, and did not threaten her. The following exchange

transpired on cross-examination:

Defense Counsel: When he said he wanted to lick you, okay, what did you understand that to mean, that he wanted to give you dirty lickins and beat you up?

CW: No.

Defense Counsel: What did you believe -

CW: In a sexual way.

Defense Counsel: And what would that be in a sexual way?

CW: With his - licking me with his tongue.

Defense Counsel: I see. And when you indicated that - testified that he wanted to hit you from the back, what did you believe that - what he meant by that?

CW: Fuck me from the back.

Defense Counsel: What’s that?

CW: Fuck me from the back. That’s what he was -

Defense Counsel: Have sex with you from the back?

CW: Yes.

Defense Counsel: Okay. Did he threaten to hurt you physically? Like beat you up?

Defense Counsel: Did you feel like he - when he said he wanted to lick you, did you believe that it was your impression that he was trying to tell you that he was gonna hurt you or have you experience sexual pleasure?

CW: Sexual pleasure.

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(Emphases added).

CW admitted that she had been disciplined for sniffing

pills prior to these encounters with Calaycay. CW also testified

that on a previous occasion, another cadre, Cadre Jarvis, had her

take off her clothes so that he could search her with only her

panties on. She reported this incident to her supervising cadre.

Although CW told her friends about Calaycay’s statements, she did not tell her supervising cadre or otherwise

report Calaycay’s behavior. The Deputy Prosecuting Attorney

(DPA) questioned CW as follows:

DPA: Why did you only tell your friends and not anyone else when it first happened?

CW: I was scared.

DPA: Why were you scared?

CW: Because I didn’t know what would happen to me if I wouldn’t be able to graduate or -

DPA: What happens if you don’t graduate?

CW: I don’t get a GED, and I would be in there for nothing.

DPA: Do the cadres have any input as to whether you graduate or not?

DPA: You mentioned when [Defense Counsel] was asking you questions that you thought the defendant intended to, and correct me if I’m misstating, subject you to sexual pleasure?

DPA: And that made you uncomfortable?

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DPA: And that made you scared?

DPA: And that made you feel unsafe?

DPA: And he did so on two occasions between October 25th and November 1st?

2. Motion for Judgment of Acquittal

Following the conclusion of CW’s testimony, Calaycay

made an oral Motion for Judgment of Acquittal on the grounds that

CW’s testimony did not “support the elements that [Calaycay]

insulted, taunted, or challenged [CW] in a manner that . . .

would cause her to reasonably believe [Calaycay] intended to

cause her bodily injury,” and further, that “the allegedly coarse

language that was allegedly used did not cause [CW] to reasonably

believe that [Calaycay’s] acts were intended to cause her bodily

injury.”

The district court denied Calaycay’s motion, as the

language Calaycay allegedly used “could be construed to be

insulting or offensively coarse” and CW “could certainly believe

from that language that [Calaycay] intended to cause bodily

injury to her.” The district court further determined that

“nonconsensual sex can be construed to be causing bodily injury

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to the other person.”

3. Calaycay’s Testimony

Calaycay testified that in 2013, he was a 28-year-old

cadre at the Academy, assigned to supervise the first platoon of

male cadets. Calaycay did not reside on Academy property, but

rather, returned home when he was not working. Prior to serving

as a cadre at the Academy, Calaycay deployed to Iraq for two tours as a member of the National Guard. Calaycay testified that

he had disciplined CW on at least one occasion.

Calaycay stated that, prior to the interactions at

issue, he heard that CW had accused Cadre Jarvis of “touching her

in the [wrong] place.” He also knew CW was one of several cadets

who were caught sniffing pills. Calaycay testified that, prior

to his conversation with CW on the exercise field, he saw Cadre

Jarvis discipline CW and the other cadets by requiring them to do

push-ups, sit-ups, flutter kicks, and jumping jacks. He admitted

that he did not actually see CW sniffing pills and was not

present when Cadre Jarvis searched her, so he did not know for

sure what happened during either incident.

Calaycay stated that he spoke with CW on October 25,

2013, because she looked sad and depressed. He explained:

I . . . took her on the side right where the kids were, I spoke to her asking her what was wrong with her, so she told me about she was sad, that, you know, all that sniffing pills, that she might get kicked out and all that stuff. And then I told her that you know the consequences of sniffing the pills, overdose, you know, maybe get kicked out of the academy, and I told

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her just keep your head up, you know, try not for do that again.

Calaycay denied saying anything of a sexual nature to

CW during this conversation. He did not tell CW that he wanted

to have sex with her, that he wanted to lick her, or that he

wanted to hit her from the back.

Calaycay stated that he knew where CW “was particularly

housed” and stated “her room is like right where the camera is.” Calaycay further testified that he knew which areas were captured

by security cameras and which areas were not.5 He denied going

to CW’s dormitory and calling her outside to talk, and stated

that on November 1, 2013, he “went home” and “never came back.”

4. Conviction and Sentence

The district court found CW’s testimony to be credible.

It also determined that Calaycay intended to harass, annoy, or

alarm CW, and that his statements were insulting under HRS § 711-

1106(1)(b) and constituted offensively coarse language under HRS

§ 711-1106(1)(f). Noting the fact that Calaycay “was in a

supervisory capacity,” or had “some level of control over” CW,

and that CW was “in a setting where she’s not really free to

leave,” the district court further found that CW “reasonably

believed that [Calaycay] intended to cause bodily injury to her.”

Accordingly, the district court found Calaycay guilty

of harassment. The district court postponed sentencing to allow

5 No security camera footage was admitted into evidence.

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defense counsel additional time to file a Motion for

Reconsideration.

a. Motion for Reconsideration

Calaycay filed a Motion for Reconsideration, arguing

that the district court’s verdict was “not in accord with the law

or evidence.” Calaycay explained that “solicitations for

consensual sex” did not constitute an intent to cause bodily injury, and “[CW] testified unequivocally that she believed

[Calaycay’s] solicitations were offers to give her sexual

pleasure, not pain, illness or bodily impairment.” Thus,

Calaycay argued, there was reasonable doubt as to one of the

material elements of harassment under HRS §§ 711-1106(1)(b) and

(f). The district court did not directly rule on Calaycay’s

Motion for Reconsideration, but implicitly denied the motion

through entry of its Findings of Fact, Conclusions of Law, and

Order (FOFs, COLs, and Order), discussed below.

b. Findings of Fact, Conclusions of Law

The district court’s FOFs included the following:

2.d.i: [CW] understood ‘hit you from the back’ to mean that [Calaycay] wanted to subject her to sexual pleasure.

2.d.ii: [CW] testified that Defendant’s remarks made her feel uncomfortable and awkward.

3.b: [The statements that Calaycay made to CW at night, from outside of her balcony,] made [CW] feel awkward, uncomfortable, unsafe, and scared.

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5: The Court found [CW’s] testimony to be credible.

The district court’s COLs included the following:

4.a: Unwelcome and unsolicited sexual advances, given [CW’s] place of inferiority with respect to [Calaycay’s] position of power and control, sufficiently establish the intent element of “to harass, annoy, or alarm.”

4.b: When [CW] testified that she was concerned for her safety - that she felt scared, unsafe, and uncomfortable - notwithstanding the fact that she understood [Calaycay’s] saying, “I want to hit you from the back,” to mean that he wanted to subject her to sexual pleasure, the fact that she was concerned for her safety is sufficient evidence that [Calaycay] made communication to [CW] containing offensive language. State v. Bush, 98 Hawaii 459, 50 P.3d 428 (2002). Especially where [Calaycay] communicated offensively coarse language at night at [CW’s] place of slumber.

5: [Calaycay’s] interaction with [CW] at the exercise field sufficiently qualifies as an insult.

5a: Although a portion of [HRS § 711-1106(1)(b)] supports more of a scenario where someone intends to provoke a fight, however, the facts in the instant case are sufficient to qualify as insulting.

6: Both the insult and the offensively coarse language caused the recipient in this case to believe that [Calaycay] had some kind of intent to have non-consensual sexual contact with her.

6a: Non-consensual sexual contact can rise to the level of bodily injury.

7: A reasonable seventeen year old Cadet in [CW’s]

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position could reasonably fear that [-] by being propositioned for sexual acts by someone of [Calaycay’s] position of power and control[,] to the point that she felt scared, unsafe, and uncomfortable [-] non-consensual sexual contact, and thus bodily injury, might ensue.6

The district court’s order stated, “the State of

Hawaii has met its burden of proof beyond all reasonable doubt,

and the Defendant, Burt Calaycay, . . . is hereby found guilty of

the offense of Harassment, in violation of Sections 711- 1106(1)(b) and (1)(f) of the Hawaii Revised Statutes.”

c. Final Judgment

Pursuant to its FOFs, COLs, and Order, the district

court entered a Notice of Entry of Judgment and/or Order (Final

Judgment) convicting Calaycay of Harassment and imposing a $100

fine and a $30 criminal injuries compensation fee.

C. ICA Proceedings

Calaycay timely appealed the district court’s Final

Judgment to the ICA. In addition to reiterating his position

that the State’s Complaint improperly charged him, Calaycay

challenged the district court’s denial of his Motion for Judgment

of Acquittal and Motion for Reconsideration on the grounds that

there was insufficient evidence to convict him of harassment

under either HRS § 711-1106(1)(b) or HRS § 711-1106(1)(f).

6 The FOFs, COLs, and Order were proposed by the State and entered by the district court without revision. Calaycay filed written objections to proposed FOF Nos. 2 and 3 as “misleading,” and opposed COL Nos. 4, 5, 6, and 7 as “unclear and erroneous factual conclusions not supported by evidence.”

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Calaycay also argued that FOF Nos. 2.d.ii and 5, and COL Nos. 4a,

4b, 5, 5a, 6, 6a, and 7 “were clearly erroneous and not supported

by the evidence or the law.” Finally, Calaycay claimed his

conviction under HRS § 711-1106(1)(b) and HRS § 711-1106(1)(f)

violated his constitutional right to free speech, because the

statutory provisions were impermissibly vague and overbroad.

The ICA held that the district court did not err by denying Calaycay’s Motion to Compel Election or to Dismiss

Complaint.7 It also determined that there was insufficient

evidence to convict Calaycay of harassment. The ICA explained

that because CW’s testimony showed that she did not believe

Calaycay intended to hurt her, there was no evidence to support

an essential element of the offense of harassment:

When the evidence is viewed in the light most favorable to the prosecution, a reasonable mind could not fairly conclude guilt beyond a reasonable doubt because the State failed to produce evidence of all the elements necessary to convict Calaycay of Harassment. State v. Hicks, 113 Hawaii 60, 69, 148 P.3d 493, 502 (2006). Specifically, the evidence presented failed to demonstrate Calaycay’s statements caused the complainant (CW) to reasonably believe that Calaycay intended to cause her bodily injury. HRS § 711-1106(1)(b) and (f). The State must prove that the victim in fact reasonably believed that the defendant intended to cause her bodily injury. State v. Bush, 98 Hawaii 459, 460, 50 P.3d 428, 429 (2002).

Accordingly, the ICA held that the district court erred

in denying Calaycay’s Motion for Judgment of Acquittal and in

7 Because Calaycay does not challenge this ruling on certiorari, we do not address it here.

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finding Calaycay guilty of harassment.8 The ICA did not address

whether there was substantial evidence in the record supporting

the remaining element of the offense and the requisite state of

mind, nor did it specifically discuss the district court’s FOFs

and COLs or reach Calaycay’s constitutional challenge. The ICA

entered a Judgment on Appeal reversing the district court’s Final

Judgment and vacating Calaycay’s conviction. D. Application for Writ of Certiorari

On certiorari, the State argues that the ICA erred in

applying CW’s “sexual pleasure” comment to all of Calaycay’s

statements. The State contends that, had the ICA properly viewed

the testimony in the light most favorable to the State, it would

have limited its consideration of the comment only to the act of

licking, and afforded greater weight to CW’s testimony that she

felt uncomfortable, scared, and unsafe. In addition, the State

argues that the ICA erroneously substituted its own assessment of

8 The ICA held that “[t]he District Court erred by denying the Motion for Judgment of Acquittal.” However, by presenting evidence in the form of his testimony after his Motion for Judgment of Acquittal was denied, Calaycay waived any error made by the district court in denying the motion. State v. Pudiquet, 82 Hawaii 419, 423, 922 P.2d 1032, 1036 (App. 1996) (“It is well settled that when the defense presents evidence after a motion for judgment of acquittal made at the close of the prosecution’s case, any error by the trial court in the denial of the motion is waived by the defense.”); State v. Rodrigues, 6 Haw. App. 580, 581, 733 P.2d 1222, 1223 (1987) (the defendant lost his right to contest the trial court’s denial of his motion for judgment of acquittal, made at the conclusion of the prosecution’s case-in- chief, by introducing evidence after the motion was denied); State v. Mitsuda, 86 Hawaii 37, 38 n.3, 947 P.2d 349, 350 n.3 (1997) (defendant was not entitled to appellate review of the trial court’s denial of his motion for judgment of acquittal under the plain error doctrine because he waived any error by presenting evidence after denial of the motion). The ICA therefore erred in reviewing the district court’s denial of Calaycay’s Motion for Judgment of Acquittal.

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CW’s testimony for that of the district court by concluding that

CW’s testimony “reflects that she did not believe Calaycay

intended to hurt her,” despite the district court’s conclusion

that, in light of Calaycay’s position of power, a reasonable

person in CW’s situation could reasonably fear that bodily injury

might ensue.

In response, Calaycay contends that the State should be judicially estopped from arguing that CW’s “sexual pleasure”

comment applied only to Calaycay’s statement that he wanted to

lick her, due to “the State’s own . . . Finding of Fact No.

2d.i,” which is “completely opposite from the argument the State

seeks to assert now on appeal.”9 Should this court disagree with

the ICA’s determination that there was insufficient evidence

supporting the “reasonable belief” element of the offense,

Calaycay also requests that we consider the following arguments,

which were raised on appeal, but not addressed by the ICA:

1) There was insufficient evidence that the Defendant acted with the requisite intent to harass, annoy or alarm.

2) There was insufficient evidence that Defendant’s words and/or conduct constituted an “insult, taunt or

9 We note that the State is not judicially estopped from arguing that CW’s “sexual pleasure” response referred only to the act of licking. Although the State proposed FOF No. 2.d.i, which states, “[CW] understood ‘hit you from the back’ to mean that the Defendant wanted to subject her to sexual pleasure,” the FOFs and COLs are properly attributed to the district court and should not be construed as a position “taken by the prosecutor at trial.” Furthermore, the State drafted the proposed FOFs and COLs at the direction of the district court and the record reflects the State’s intent to draft the proposed FOFs and COLs so that they reflected statements made by the district court at trial.

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challenge.”10

3) There was insufficient evidence that Defendant’s words and/or conduct constituted “offensively coarse language.”

4) Defendant’s conviction for harassment violated his right to Freedom of Speech under both the United States and Hawaii State Constitutions.

II. STANDARDS OF REVIEW

A. Sufficiency of the Evidence

We have long held that evidence 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 a 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. Indeed, even if it could be said in a bench trial that the conviction is against the weight of the evidence, as long as there is substantial evidence to support the requisite findings for conviction, the trial court will be affirmed.

“Substantial evidence” as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a [person] of reasonable caution to support a conclusion. And as trier of fact, the trial judge is free to make all reasonable and rational inferences under the facts in evidence, including circumstantial evidence.

State v. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (1992)

(citations omitted).

10 Because we resolve the case under HRS § 711-1106(1)(f), we need not address whether there was substantial evidence adduced at trial that Calaycay insulted, taunted, or challenged CW for purposes of HRS § 711- 1106(1)(b). See infra note 11, at 20.

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B. Constitutional Challenges - Vagueness and Overbreadth

When confronted with a constitutional challenge of a penal statute on the grounds of vagueness or overbreadth, we apply a number of principles on appeal.

First, [t]he constitutionality of a statute is a question of law which is reviewable under the right/wrong standard. Additionally, where it is alleged that the legislature has acted unconstitutionally, this court has consistently held that every enactment of the legislature is presumptively constitutional, and a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt. The infraction should be plain, clear, manifest, and unmistakable.

Second, we construe penal statutes narrowly, considering them in the light of precedent, legislative history, and common sense.

Third, where possible, we will read a penal statute in such a manner as to preserve its constitutionality.

Put differently, a statute will not be held unconstitutional by reason of uncertainty if any sensible construction embracing the legislative purpose may be given it. Mere difficulty in ascertaining its meaning, or the fact that it is susceptible to interpretation will not render it nugatory.

State v. Gaylord, 78 Hawaii 127, 137-38, 890 P.2d 1167, 1177-78

(1995) (citations and internal quotation marks omitted).

III. DISCUSSION

In order to convict Calaycay of harassment, it was the

State’s burden to prove all elements of the offense, as well as

the requisite state of mind, beyond a reasonable doubt. HRS

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§§ 701-114(1)(a)-(b) (2014). As applied to the instant case, the

elements of harassment under HRS § 711-1106(1)(f) are: 1)

Calaycay’s statements to CW constituted a communication using

offensively coarse language; and 2) Calaycay’s statements caused

CW to reasonably believe that Calaycay intended to cause her

bodily injury. HRS § 702-205(a) (2014) (“The elements of an

offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as . . . [a]re specified by the

definition of the offense[.]”); Bush, 98 Hawaii at 460, 50 P.3d

at 429 (holding that in order to satisfy the second element of

harassment under HRS § 711-1106(1)(f), the State was required to

prove that the recipient of Bush’s communication, in fact,

reasonably believed Bush intended to cause bodily injury to the

recipient or another, or damage to the property of the recipient

or another). The requisite state of mind is the specific “intent

to harass, annoy, or alarm.” HRS § 711-1106(1).

On appeal, the ICA determined that “CW’s testimony,

even taken in the light most favorable to the prosecution . . .

does not furnish substantial evidence” of the second element of

harassment. As such, the ICA held that the district court erred

in denying Calaycay’s Motion for Judgment of Acquittal and in

convicting Calaycay of harassment. The ICA vacated Calaycay’s

conviction accordingly. We disagree.

As set forth below, there was substantial evidence to

support Calaycay’s harassment conviction under HRS § 711-

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1106(1)(f).11 Furthermore, HRS § 711-1106(1)(f) is not

unconstitutionally vague or overbroad, and Calaycay’s harassment

conviction did not violate his First Amendment right to the

freedom of speech. We therefore reverse the ICA’s Judgment on

Appeal and affirm the district court’s Final Judgment convicting

Calaycay of harassment.

A. Calaycay’s Conviction Was Supported by Substantial Evidence Adduced at Trial

We review the entire evidentiary record of the trial to

determine whether, when considered in the strongest light for the

prosecution, there was substantial evidence to support the

conviction. Batson, 73 Haw. at 248-49, 831 P.2d at 931. As set

forth below, there was substantial evidence adduced at trial to

support both elements of harassment and the requisite state of

mind, pursuant to HRS § 711-1106(1)(f).

1. The First Element - the Conduct

To satisfy the first element of harassment under HRS

§ 711-1106(1)(f), it was the State’s burden to prove beyond a

reasonable doubt that Calaycay “made a communication using

offensively coarse language.” The district court concluded that

11 Because we conclude that substantial evidence was adduced at trial to support Calaycay’s conviction under HRS § 711-1106(1)(f), we need not determine whether there was substantial evidence to support Calaycay’s conviction under HRS § 711-1106(1)(b). State v. Nesmith, 127 Hawaii 48, 61, 276 P.3d 617, 630 (affirming OVUII conviction under HRS § 291E-61(a)(3) where defendant was charged under HRS §§ 291E-61(a)(1) and/or 291E-61(a)(3)).

20 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Calaycay’s interaction with CW at the exercise field, and his

interaction with her outside her sleeping quarters, both

constituted communications using offensively coarse language,

satisfying the first element of HRS § 711-1106(1)(f).

CW testified that on October 25, 2013, in the Academy’s

exercise field, Calaycay told her that he wanted to have sex with

her, get her wet, hit her from the back, and have her ride him.

CW further testified that seven days later, on November 1, 2013,

she was awoken by Calaycay calling to her. He told her that he

wanted to see her naked and hook up with her. In addition, CW

alleged that Calaycay told her that he wanted to lick her, which

she understood as a sexual comment. It is unclear when Calaycay

made this statement.

As observed by the district court, In reviewing whether [] words or conduct constituted harassment, the relevant test is objective, not subjective. State v. Taliferro, 77 Hawaii 196, 881 P.2d 1264 (1994). But the fact that this standard is objective does not mean it is uniform in all situations, and often the issue of criminal liability will turn on the matter of context. In [Interest of] Doe, 76 Hawaii 85, 869 P.2d 1304 (1994).

It is undisputed that Calaycay’s statements to CW

constitute “communications” for purposes of HRS § 711-1106(1)(f).

However, Calaycay contends that the language he allegedly used

“did not rise to the level of offensively coarse language[;]”

rather, he was merely “using local teenage slang with a local

teenage girl.” To the contrary, we conclude that there was 21 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

substantial evidence adduced at trial to establish that the

statements that Calaycay made to CW on October 25, 2013 and on

November 1, 2013, constituted communications using offensively

coarse language.

The language contained in Calaycay’s statements is

“offensively coarse” due to its graphic, sexual, and intensely

personal nature. Bush, 98 Hawaii at 460-61, 50 P.3d at 429-30

(holding that the defendant’s statements to the complainant that

“[her] nipples look really good,” that he “wants to suck on [her]

nipples ‘cause he likes [her] nipples,” and “Bitch, you wait . .

. I’m gonna do something to you,” constituted communication using

offensively coarse language for purposes of HRS § 711-

1106(1)(f)). Thus, CW’s testimony, when considered in the

strongest light for the prosecution, established that Calaycay’s

statements constituted communications using offensively coarse

language, satisfying the first element of harassment, pursuant to

HRS § 711-1106(1)(f).

2. The Second Element - the Result of the Conduct

To satisfy the second element under HRS § 711-

1106(1)(f), it was the State’s burden to prove beyond a

reasonable doubt that, as a result of Calaycay’s statements, CW

reasonably believed that Calaycay intended to cause her bodily

injury. Bush, 98 Hawaii at 460, 50 P.3d at 429. The district

22 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

court concluded that Calaycay’s statements “caused [CW] to

believe that [Calaycay] had some kind of intent to have non-

consensual sexual contact with her,” and that “[n]on-consensual

sexual contact can rise to the level of bodily injury.” The

district court further concluded that “[a] reasonable seventeen

year old Cadet in [CW’s] position could reasonably fear that [-]

by being propositioned for sexual acts by someone of [Calaycay’s]

position of power and control[,] to the point that she felt

scared, unsafe, and uncomfortable [-] non-consensual sexual

contact, and thus bodily injury, might ensue.” The district

court thus determined that this element was satisfied.

In contrast, the ICA concluded that “the evidence

presented failed to demonstrate Calaycay’s statements caused [CW]

to reasonably believe that Calaycay intended to cause her bodily

injury.” It therefore reversed the district Court’s Final

Judgment convicting Calaycay of harassment. As set forth below,

we conclude that, when considered in the light most favorable to

the prosecution, CW’s testimony constitutes substantial evidence

that Calaycay’s statements caused her to reasonably believe that

he intended to cause her bodily injury.

CW testified that the statements Calaycay made to her

on the exercise field regarding the sexual acts that “he wanted

to do to [her]” made her feel uncomfortable, unsafe, and scared.

23 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Despite the fact that CW did not solicit or welcome his advances,

CW further testified that Calaycay approached her again seven

days later, as she slept. The statements that Calaycay made to

CW from outside her window made her once again feel

uncomfortable, unsafe, and scared.

CW’s testimony indicates that she felt threatened by

Calaycay and believed that he intended to subject her to non-

consensual sexual contact. CW’s testimony that she felt scared

and unsafe further indicates that Calaycay’s statements put her

in apprehension of bodily injury. CW’s testimony thus provided

substantial evidence that, as a result of Calaycay’s statements,

CW believed that Calaycay intended to cause her bodily injury.12

There was also substantial evidence adduced at trial

that CW’s belief was reasonable. CW and Calaycay both testified

that, as a cadre at the Academy, Calaycay had supervisory and

disciplinary authority over CW. CW further testified that

Calaycay isolated her from the other cadets and cadres before

making unsolicited and unwelcome sexually explicit statements to

12 The ICA erred by applying CW’s “sexual pleasure” comment to the entirety of Calaycay’s statements and concluding that “CW’s testimony . . . reflects that she did not believe Calaycay intended to hurt her.” CW made this comment in response to the question, “when [Calaycay] said he wanted to lick you, did you believe that . . . he was trying to tell you that he was gonna hurt you or have you experience sexual pleasure?” (Emphasis added). The scope of the question, and therefore the application of CW’s response, is limited only to Calaycay’s statement that he wanted to lick her. Thus, contrary to the ICA’s determination, CW’s “sexual pleasure” comment did not limit or modify her testimony that Calaycay’s other statements made her feel uncomfortable, unsafe, and scared. 24 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

her on the exercise field. Despite Calaycay’s testimony that he

did not live at the Academy and he was not assigned to supervise

the female cadets, CW testified that Calaycay awoke her seven

days later by calling to her from outside her dormitory window.

Calaycay then made additional sexually explicit statements to

her.

CW’s testimony regarding the context in which Calaycay

made his statements to her and the power dynamic at play

constitutes substantial evidence that CW’s belief that Calaycay

intended to cause her bodily injury was reasonable. Doe, 76

Hawaii at 95, 869 P.2d at 1314 (stating the issue of criminal

liability will often turn on a matter of context). Thus, there

was substantial evidence adduced at trial to establish that

Calaycay’s statements caused CW to reasonably believe that he

intended to cause her bodily injury, the second element of

harassment, pursuant to HRS § 711-1106(1)(f).13

13 It is important to note that Hawaii law recognizes and accounts for the power dynamic present here. Under HRS § 707-733(1)(d) (Supp. 2018), a person commits the offense of Sexual Assault in the Fourth Degree if:

The person knowingly engages in or causes sexual contact with a minor who is at least sixteen years old and the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor; provided that:

(i) The person is not less than five years older than the minor; and

(ii) The person is not legally married to the minor.

(continued...) 25 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

3. The Requisite State of Mind

The requisite state of mind under HRS § 711-1106(1)(f)

is the specific “intent to harass, annoy, or alarm” CW. The

district court concluded that Calaycay’s “[u]nwelcome and

unsolicited sexual advances, given [CW’s] place of inferiority

with respect to [Calaycay’s] position of power and control,

sufficiently establish[ed] the intent element of ‘to harass,

annoy, or alarm.’” The law recognizes the difficulty by which intent is proved in criminal cases. We have consistently held that since intent can rarely be proved by direct evidence, proof of circumstantial evidence and reasonable inferences arising from circumstances surrounding the act is sufficient to establish the requisite intent. Thus, the mind of an alleged offender may be read from his acts, conduct, and inferences fairly drawn from all of the circumstances.

State v. Kiese, 126 Hawaii 494, 502-03, 273 P.3d 1180, 1188-89

(2012) (quoting State v. Sadino, 64 Haw. 427, 430, 642 P.2d 534,

536-37 (1982)).

To determine whether sufficient evidence was adduced at

trial to support the requisite state of mind for harassment under

HRS § 711-1106, courts in this jurisdiction engage in a fact-

intensive, case-by-case analysis of the defendant’s conduct and

the totality of the surrounding circumstances. See e.g., Kiese,

(...continued) At the time of the interactions in question, CW was 17 years old and Calaycay was 28 years old. The two were not married and as a cadre, Calaycay was acting in a professional capacity to instruct, advise, or supervise CW.

26 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

126 Hawaii at 504, 273 P.3d at 1190 (holding that the

defendant’s choice to repeatedly strike the minor complainant

with a bamboo stick, leaving visible welts, despite his testimony

that a spanking with his hand probably would have corrected the

minor complainant’s misbehavior, constituted substantial evidence

that he intended to harass, annoy, or alarm the minor

complainant); State v. Graybeard, 93 Hawaii 513, 6 P.3d 385

(App. 2000) (holding that testimony that the defendant came up

behind the complainant unexpectedly, threatened him, and publicly

denigrated him for ten minutes without provocation or

justification constituted substantial evidence that the defendant

acted with the intent to harass, annoy or alarm the complainant);

Taliferro, 77 Hawaii at 200, 881 P.2d at 1268 (holding that the

defendant’s testimony that he was angry because dog feces were

left in his yard, and that he picked up the feces and walked to

the complainant’s property in order to return them, was

sufficient evidence to prove that the defendant intended to annoy

the complainant); State v. Hopkins, 60 Haw. 540, 592 P.2d 810

(1979) (holding that testimony that the defendants approached the

complainants from behind, grabbed and pulled them, and that one

of the defendants put her hand into the back pocket of one of the

complainants, while the complainants resisted, constituted

substantial evidence that the defendants acted with the intent to

27 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

harass, annoy, or alarm the complainants).

We conclude that CW’s testimony constitutes substantial

evidence to support the requisite state of mind with regard to

Calaycay’s conduct. CW’s testimony regarding the statements that

Calaycay made to her on the exercise field indicates that

Calaycay’s initial advances were unwelcome. Yet, Calaycay

continued to pursue CW and made additional unsolicited, sexually

explicit statements to her seven days later. On this occassion,

Calaycay chose to approach CW’s dormitory in the middle of the

night, and to awaken her by calling to her from outside her

dormitory window. The repeated, coercive, and intrusive nature

of Calaycay’s conduct indicates an intent to harass CW.

Furthermore, CW’s testimony that Calaycay’s statements

made her feel scared and unsafe demonstrates that Calaycay’s

uninvited and unwelcomed conduct created an intimidating

situation for CW that gave her a perception of imminent danger

and put her in fear. Thus, when considered in the strongest

light for the prosecution, CW’s testimony regarding the nature of

Calaycay’s statements and the isolating and intrusive

circumstances under which he chose to make them, despite the fact

that CW rebuffed Calaycay’s sexual advances just one week prior,

constitutes substantial evidence that Calaycay acted with the

requisite state of mind of harassment, pursuant to HRS § 711-

28 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

1106(1)(f). Because both elements of harassment and the

requisite state of mind under HRS § 711-1106(1)(f) were supported

by evidence adduced at trial, the district court did not err in

B. Calaycay’s Constitutional Challenges are Without Merit

Calaycay argues that HRS § 711-1106(1)(f) is

unconstitutionally overbroad as applied to him. He also argues

that the statute is facially vague and overbroad.

Under the applicable case law, HRS § 711-1106(1)(f) has

a presumption of constitutionality. Gaylord, 78 Hawaii at 137,

890 P.2d at 1177. It is Calaycay’s burden to show

unconstitutionality beyond a reasonable doubt. Id. As set forth

below, he has failed to meet this burden.

1. HRS § 711-1106(1)(f) is Not Overbroad as Applied to Calaycay

Calaycay contends that, because his harassment

conviction criminalized his alleged statements, which

“[constituted] clearly protected speech,” HRS § 711-1106(1)(f)

was unconstitutionally overbroad as applied to him. Contrary to

his contentions, however, Calaycay’s statements do not constitute

protected speech and therefore, his as-applied challenge is

without merit.

“The First Amendment [of the United States

Constitution] and article I, § 4 of the Hawaii Constitution 29 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

prohibit the enactment of any law that abridges freedom of

speech.” State v. Alangcas, 134 Hawaii 515, 528, 345 P.3d 181,

194 (2015). However, the Supreme Court of the United States “has

carved out some limited categories of unprotected speech,

including . . . speech integral to criminal conduct.” United

States v. Osinger, 753 F.3d 939, 946 (9th Cir. 2014). This court

has similarly held that speech employed to promote or facilitate

the commission of a crime is unprotected by the Hawaii

constitution. State v. Manzo, 58 Haw. 440, 444, 573 P.2d 945,

949 (1977); Alangcas, 134 Hawaii at 529, 345 P.3d at 195.

Calaycay’s statements fall within this exception to the

constitutionally protected freedom of expression.

HRS § 711-1106(1)(f) was not unconstitutionally applied

to Calaycay because Calaycay employed the speech at issue to

promote or facilitate the commission of a crime. Calaycay argues

that “all the State’s evidence showed was a solicitation to have

a sexual encounter.” However, under the circumstances of this

case, such a solicitation is criminalized pursuant to HRS § 707-

733(1)(d). See supra, note 14, at 27. “[S]peech is not

protected when it is merely the vehicle through which a

[criminal] ensnares the victim.” Alangcas, 134 Hawaii at 528,

345 P.3d at 194. As such, Calaycay’s statements do not

constitute protected speech, and were properly criminalized under

30 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Furthermore, “state free speech provisions are not

generally violated by criminal statutes that, properly drawn, are

aimed at the injurious effects of a threatening communication

rather than the communication itself.” Doe, 76 Hawaii at 93

n.16, 869 P.2d at 1312 n.16 (internal quotation marks and

brackets omitted) (quoting J. Friesen, State Constitutional Law:

Litigating Individual Rights, Claims and Defenses § 5.04[3] at 5-

20 to 5-20.1). We have stated that, for speech to be punishable

under the harassment statute, “there must be a causal

relationship between the speech at issue and the disturbance

sought to be prevented. . . . Establishing such a causal

relationship obviously requires an examination of the totality of

the circumstances, or, put differently, the context in which the

speech is uttered.” Id. at 96, 869 P.2d at 1312 (emphasis

added).

HRS § 711-1106(1)(f) is aimed at preventing the

injurious effect on the recipient, only criminalizing statements

made “with intent to harass, annoy, or alarm any other person,”

using “offensively coarse language,” that “cause the recipient to

reasonably believe that the [speaker] intends to cause bodily

injury to the [recipient] or another.” Under the totality of the

circumstances, the evidence contained in the record sufficiently

31 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

establishes a causal relationship between Calaycay’s unsolicited,

repeated, and sexually explicit statements, and the disturbance

sought to be prevented by HRS § 711-1106(1)(f): CW’s reasonable

belief that Calaycay intended to cause her bodily injury. Cf.

Id. at 100, 869 P.2d at 1319 (finding no causal relationship

between Minor’s statement, “Hey, if you like go, take your badge

off,” and the disturbance sought to be prevented by HRS § 711-

1106(1)(b) - provoking the recipient police officer to a violent

response). A person who, with the intent to harass, annoy, or

alarm another, makes a communication using offensively coarse

language, thereby causing the recipient to reasonably believe the

person intends to inflict bodily injury, will not find shelter

behind the First Amendment. Cf. State v. Burkert, 174 A.3d 987,

1002 (N.J. 2017). Calaycay’s constitutional right to the freedom

of expression was not violated by the criminalization of his

statements under HRS § 711-1106(1)(f).

2. HRS § 711-1106(1)(f) is Not Facially Unconstitutional

In Pacquing, this court discussed overbreadth

challenges as follows: An overbreadth challenge is typically available only to individuals who “assert that [their] constitutionally protected conduct is being prosecuted by the State.” Id. In instances where it is contended that the challenged statute affects constitutionally protected freedom of expression or “reaches a substantial amount of constitutionally protected conduct,” then an individual may initiate a facial challenge to the statute as overbroad on these grounds. Id. at 528, 345 P.3d at 194 (quoting Vill. 32 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)).

State v. Pacquing, 139 Hawaii 302, 309, 389 P.3d 897, 904 (2016)

Similarly, in Alangcas, this court discussed vagueness

challenges as follows: This court has recognized that a statute may be found void for vagueness on its face or as applied. See State v. Bates, 84 Hawaii 211, 222, 933 P.2d 48, 59 (1997) (observing that where a case does not involve any first amendment issues, a “defendant has standing to raise a vagueness challenge only insofar as the statute is vague as applied to his or her specific conduct”)[.]

In order for a defendant to succeed on an as-applied challenge, the defendant must demonstrate that the disputed statute is vague with respect to his or her conduct. However, when a statute burdens a significant constitutional right, such as the freedom of expression, a defendant whose rights are not violated may raise the constitutional rights of others. See [State v. Beltran, 116 Hawaii 146, 151 n.4, 172 P.3d 458, 463 n.4 (2007)].

Alangcas, 134 Hawaii at 531, 345 P.3d at 197 (emphasis added)

(some citations omitted).

Because Calaycay contends that HRS § 711-1106(1)(f)

burdens the constitutionally protected right to free speech, and

we have previously acknowledged that HRS chapter 711 “normally

involves first amendment issues,” Calaycay may initiate facial

challenges to the statute despite our conclusion that his as-

applied overbreadth challenge is without merit. Doe, 76 Hawaii

at 94, 869 P.2d at 1313. We therefore resolve Calaycay’s facial

overbreadth and vagueness challenges, below.

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a. Scope of Prohibited Conduct

When confronted with a constitutional challenge of a

penal statute on the grounds of overbreadth and vagueness, “a

court’s first task is to determine whether the enactment reaches

a substantial amount of constitutionally protected conduct.”

Alangcas, 134 Hawaii at 525, 345 P.3d at 191 (internal quotation

marks and citations omitted). “In determining whether a

substantial amount of protected activity was affected, . . . the

scope of the prohibited conduct requires determination.” Id.

(citing United States v. Williams, 553 U.S. 285, 293 (2008)).

The conduct prohibited by HRS § 711-1106(1)(f) is as

follows: (1) A person . . . with intent to harass, annoy, or alarm any other person[:]

(f) Makes a communication using offensively coarse language that would cause the recipient to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another.

As noted above, HRS § 711-1106(1)(f) contains two

conduct elements: (1) a communication; (2) using offensively

coarse language. The statute also contains a result of conduct

element: the actor’s communication actually causes the recipient

to reasonably believe that the actor intends to cause bodily

injury to the recipient or another, or damage to the property of

34 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

the recipient or another. Bush, 98 Hawaii at 460, 50 P.3d at

429 (under HRS § 711-1106(1)(f), the State must show that the

recipient of the defendant’s communication, in fact, reasonably

believed the defendant intended to cause bodily injury to the

recipient or another, or damage to the property of the recipient

or another). The requisite state of mind of the actor is the

specific “intent to harass, annoy, or alarm.” HRS § 711-1106(1).

b. HRS § 711-1106(1)(f) is Not Facially Overbroad

Calaycay contends that HRS § 711-1106(1)(f) is

unconstitutionally overbroad because it “sweep[s] up

constitutionally protected speech[.]” “When the scienter

requirement of a statute sufficiently limits criminal culpability

to reach only conduct outside the protection of the First

Amendment, legitimate speech is not endangered.” Alangcas, 134

Hawaii at 528, 345 P.3d at 194 (citing United States v. Dhingra,

371 F.3d 557, 561 (9th Cir. 2004). However, a specific intent

requirement, such as the one employed by HRS § 711-1106(1),

“fails to eliminate overbreadth concerns whenever the ‘effect’

(e.g., to harass, to annoy, to alarm, etc.) associated with the

intent provision is broad enough to encompass a substantial

amount of protected activity.” People v. Smith, 862 P.2d 939,

942 (Colo. 1993).

Harassment statutes that criminalize “offensively

35 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

coarse” communications and contain a specific intent requirement

generally withstand facial overbreadth challenges where they

contain other limiting restrictions. Compare State v. Koetting,

616 S.W.2D 827 (Mo. 1981) (Missouri’s harassment statute was not

overbroad because it applied “only to protect the privacy of

persons within their own homes”) and Burkert, 174 A.3d 987 (New

Jersey’s harassment statute was not facially overbroad because

the statute impliedly limited the prohibited conduct to repeated

communications directed at a person that reasonably put that

person in fear for his safety or security, or that intolerably

interfere with that person’s reasonable expectation of privacy)

with Smith, 862 P.2d 939 (Colorado’s harassment statute was

overbroad on its face where there were no limiting constrictions

that would render the statute constitutional).

Because HRS § 711-1106(1)(f) only criminalizes speech

when it is employed with the specific “intent to harass, annoy,

or alarm,” when it involves “offensively coarse language,” and

when it causes the recipient to reasonably believe the speaker

intends to cause bodily injury or property damage, criminal

culpability under the statutory provision is sufficiently limited

to reach only unprotected speech.14 Thus, Calaycay’s overbreadth

14 Several states have upheld similar statutes based on their determination that harassment is not protected speech:

(continued...) 36 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

challenge is without merit.

c. HRS § 711-1106(1)(f) is Not Facially Vague

“A penal statute is void for vagueness if it does not

define a criminal offense with sufficient definiteness so that

ordinary people can understand what conduct is prohibited and in

a manner that does not encourage arbitrary and discriminatory

enforcement.” Pacquing, 139 Hawaii at 314, 389 P.3d at 909

(citations, internal quotation marks, and brackets omitted). As

such, we resolve a facial challenge to a criminal statute for

vagueness by determining if the statute: “(1) is internally

inconsistent and incomprehensible to a person of ordinary

intelligence[;] or (2) invites delegation of basic policy matters

to police for resolution on an ad hoc and subjective basis.”

Alangcas, 134 Hawaii at 532, 345 P.3d at 198 (citing Beltran,

116 Hawaii at 153, 172 P.3d at 465).

Calaycay makes no argument that HRS § 711-1106(1)(f) is

internally inconsistent and, from a plain reading of the statute,

14 (...continued) Prohibiting harassment is not prohibiting speech, because harassment is not a protected speech. Harassment is not communication, although it may take the form of speech. . . . It has never been deemed an abridgment of freedom of speech . . . to make a course of conduct illegal merely because the conduct was in part . . . carried out by means of language, either spoken, written, or printed.

State v. Thorne, 333 S.E.2d 817, 820, 820 n.5 (W.Va. 1985)(West Virginia’s statute proscribing phone calls made with the intent to harass was not overbroad because the statute did not prohibit communicative speech). 37 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

a person of ordinary intelligence would comprehend that it only

criminalizes a subset of speech that: (1) utilizes offensively

coarse language; (2) is uttered with the intent to harass, annoy,

or alarm; and (3) actually causes the recipient to reasonably

believe the speaker intends to cause bodily injury or property

damage. Although the statute fails to define “harass,” “annoy,”

or “alarm,” these terms have commonly understood definitions that

provide adequate notice to the public and sufficient guidance for

enforcement. See e.g., Galloway v. State, 781 A.2d 851, 868 (Md.

2001) (“the terms ‘annoy,’ ‘alarm,’ and ‘harass’ are commonly

understood by ordinary people and, as such, provide fair notice

to potential offenders and adequate guidance for enforcement”).

unconstitutionally vague because the term “‘offensively coarse

language’ is open to too many subjective interpretations[.]”

However, while the term “offensively coarse language” may be

vague in isolation, when read within the context of the statute,

it is unlikely that the public will misunderstand this term given

the clear statutory definition of the scope of prohibited

conduct. State v. Mortimer, 641 A.2d 257, 266 (N.J. 1994)

(holding that New Jersey’s harassment statute was not

unconstitutionally vague, although the phrase “offensively coarse

language” may be vague in isolation, because the imposition of a

38 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

specific intent requirement sufficiently clarified the proscribed

conduct); cf. Alangcas, 134 Hawaii at 535, 345 P.3d at 201 (the

likelihood that anyone would not understand the word

“communicates” is quite remote where clear requirements of the

statute defined the prohibited conduct).

Moreover, HRS § 711-1106(1)(f) imposes a reasonable

person standard by requiring the recipient of the communication

injury to the recipient or another, or damage to the property of

the recipient or another. Employing a reasonable person standard

further ameliorates the concern that a statute is

unconstitutionally vague. Galloway, 781 A.2d at 871-72 (reading

a reasonable person standard into Maryland’s harassment statute

to narrow the statute’s construction and provide an appropriate

guide to conduct); People v. Ewing, 90 Cal.App.4th 199, 208-09

(Cal. Ct. App. 1999) (reading a reasonable person standard into

the definition of harassment in determining that California’s

stalking statute was not void for vagueness).

Calaycay makes no argument that the statute invites

delegation of basic policy matters to police for resolution on a

subjective basis. Calaycay’s vagueness challenge is therefore

39 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

IV. CONCLUSION

Calaycay’s harassment conviction was supported by

substantial evidence and his constitutional challenges are

without merit. We therefore reverse the ICA’s Judgment on

Appeal. The district court’s Final Judgment convicting Calaycay

of harassment, pursuant to HRS § 711-1106(1)(f), is affirmed.

Sonja P. McCullen /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Dwight C.H. Lum for respondent /s/ Sabrina S. McKenna

Kimberly Tsumoto Guidry /s/ Richard W. Pollack for amicus curiae /s/ Michael D. Wilson