CourtListener 10707380

Full text

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-OCT-2025
07:56 AM
Dkt. 55 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v.
JOSEPH R. SMITH, JR., 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 Guidry, JJ.)
Defendant-Appellant Joseph R. Smith (Smith), appeals

from the October 3, 2023 Notice of Entry of Judgment and/or Order

(Judgment) entered against him by the District Court of the First

Circuit, Honolulu Division (District Court).1

Smith raises two points of error on appeal, contending

that: (1) there was insufficient evidence that he possessed the

requisite intent to be convicted of Harassment in violation of

Hawaii Revised Statutes (HRS) § 711-1106(a)(1) (2014), 2 and (2)

1
The Honorable Michelle N. Comeau presided.
2
HRS § 711-1106 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:
(a) Strikes, shoves, kicks, or otherwise touches
another person in an offensive manner or
subjects the other person to offensive physical
contact[.]
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

the District Court plainly erred in admitting the testimony of

Christine Kubota (Kubota) about her emotional state, either

because it was irrelevant or unfairly prejudicial.

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, we resolve Smith's

points of error as follows:

(1) Smith argues there was insufficient evidence of

the mens rea requirement for HRS § 711-1106(1)(a). He contends

that, "even viewed in the light most favorable to the State,"

telling the complaining witness there was a "blow job fee" to

enter the men's bathroom and then pushing her is insufficient to

prove the specific intent to harass, annoy, or alarm. Smith

argues that he pushed Kubota to keep her from entering the men's

bathroom, not to harass, annoy, or alarm her. Similarly, he

contends that he made the blow job fee comment not to harass

Kubota, but to warn her not to enter the bathroom. Because she

did not take his comment seriously and because he did not push

her until she entered the bathroom, Smith contends Kubota's

testimony supports his claim that he acted only to keep her out

of the bathroom.

As noted, "a person commits the offense of harassment

if, with intent to harass, annoy, or alarm any other person, that

person: strikes, shoves, kicks, or otherwise touches another

person in an offensive manner or subjects the other person to

offensive physical contact." HRS § 711-1106(1)(a) (format

altered). To determine whether there was sufficient evidence to

prove a defendant's intent, we "engage in a fact-intensive, case-

2
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

by-case analysis of the defendant's conduct and the totality of

the surrounding circumstances." State v. Calaycay, 145 Hawai i

186, 200, 449 P.3d 1184, 1198 (2019) (citation omitted).

Given the difficulty in proving the mens rea element by

direct evidence, Hawai i appellate courts have "'consistently

held that . . . proof by circumstantial evidence and reasonable

inferences arising from circumstances surrounding the

[defendant's conduct] is sufficient. . . . Thus, the mind of an

alleged offender may be read from his acts, conduct and

inferences fairly drawn from all the circumstances.'" State v.

Batson, 73 Haw. 236, 254, 831 P.2d 924, 934 (1992) (citation

omitted). In conducting this analysis, we will not disturb the

credibility determinations of the trial court. See, e.g., State

v. Yabusaki, 58 Haw. 404, 410, 570 P.2d 844, 848 (1977); State v.

Mitchell, 94 Hawai i 388, 393, 15 P.3d 314, 319 (App. 2000).

The defendant's contact and their surrounding

statements are among the factors the court may consider in

deciding intent. An offensive contact alone is sufficient

evidence from which a trial court may infer the mens rea

requirement in section 711-1106(1)(a). See State v. Stocker, 90

Hawai i 85, 92, 976 P.2d 399, 406 (1999); State v. Hopkins, 60

Haw. 540, 544, 592 P.2d 810, 814 (1979). A defendant can intend

a contact both to harass someone and for a legitimate purpose.

See State v. Dawson, No. CAAP-XX-XXXXXXX, 2017 WL 2364744, *1–2

(Haw. App. May 31, 2017) (SDO) (holding that the defendant

slapped a union member both to warn him he might lose his job and

to "alarm" him).

3
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Viewing the circumstances in the light most favorable

to the State, it was reasonable for the District Court to

conclude that Smith intended to harass, annoy, or alarm Kubota.

Smith's offensive contact alone was sufficient evidence of his

state of mind. It is not determinative that Smith may have also

intended to keep Kubota out of the men's room; as noted above, a

defendant may act with mixed purposes, both legitimate and

harassing.

Smith's comments also evidenced intent. The District

Court expressly credited Kubota's account, and it reasonably

found Smith's statements and conduct probative of an intent to

harass, rather than a legitimate purpose. The complaining

witness's testimony that Smith made a lewd statement and then

pushed her provides substantial additional evidence of Smith's

intent to harass, annoy, or alarm Kubota.

We conclude that there was substantial evidence to

support the District Court's conclusion that Smith committed the

offense of Harassment.

(2) Smith also argues that the District Court plainly

erred in allowing Kubota's testimony about her emotional state

after Smith pushed her because it was inadmissible, either

because it was irrelevant under Hawaii Rules of Evidence (HRE)

Rules 401 and 402, or because its probative value was

substantially outweighed by the risk of unfair prejudice under

HRE 403.

Smith did not object to this testimony either on

relevance grounds or HRE Rule 403 grounds. Upon review, we

conclude that these arguments were waived and do not warrant

4
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

plain error review. See Hawai i Rules of Appellate Procedure

Rule 4(a)(3); see also State v. Libero, 103 Hawai i 490, 506, 83

P.3d 753, 769 (App. 2003), abrogated in part on other grounds, by

State v. Frisbee, 114 Hawai i 76, 84, 156 P.3d 1182, 1190 (2007).

For these reasons, the District Court's October 3, 2023

Judgment is affirmed.

DATED: Honolulu, Hawai i, October 20, 2025.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Noah M. Rodby,
Rockyner Hadley, /s/ Keith K. Hiraoka
Deputy Public Defenders, Associate Judge
for Defendant-Appellant.
/s/ Kimberly T. Guidry
Stephen K. Tsushima, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee.