Martinez, Jr. v. Muller

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUN-2022
07:49 AM
Dkt. 37 SO

NO. CAAP-XX-XXXXXXX

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

EDWARD EARL MARTINEZ, JR., on behalf of minor
RM born 2005, Petitioner-Appellee,
v.
SETH MULLER, Respondent-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CIVIL NO. 3DSS-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)

Respondent-Appellant Seth Muller (Muller) appeals from
the July 8, 2020 Order Granting Petition for Injunction Against
Harassment, filed by the District Court of the Third Circuit,
Kona Division (District Court).1
On appeal, Muller contends the District Court erred by
granting the Petition for Injunction Against Harassment because
there was not clear and convincing evidence he committed
"Physical harm, bodily injury, assault, or the threat of imminent
physical harm, bodily injury, or assault," that constitutes
harassment under Hawaii Revised Statutes (HRS) § 604-10.5.2

1
The Honorable Joseph P. Florendo, Jr. presided.
2
HRS § 604-10.5 (2016), entitled "Power to enjoin and temporarily
restrain harassment," states in part:
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Upon careful review of the record and the brief3
submitted and having given due consideration to the arguments
advanced and the issues raised, we resolve Muller's point of
error as follows, and affirm.
"Whether there was substantial evidence to support an
injunction" under HRS § 604-10.5 "is reviewed under the clearly
erroneous standard." Duarte v. Young, 134 Hawai#i 459, 462, 342
P.3d 878, 881 (App. 2014) (internal quotation marks omitted). A
clear and convincing standard of proof applies to establish
"harassment" warranting an injunction. HRS § 604-10.5(g).

2
(...continued)
(a) For the purposes of this section:
"Course of conduct" means a pattern of conduct
composed of a series of acts over any period of
time evidencing a continuity of purpose.
"Harassment" means:

(1) Physical harm, bodily injury, assault, or
the threat of imminent physical harm, bodily
injury, or assault; or

(2) An intentional or knowing course of conduct
directed at an individual that seriously alarms
or disturbs consistently or continually bothers
the individual and serves no legitimate purpose;
provided that such course of conduct would cause
a reasonable person to suffer emotional
distress.

(b) The district courts shall have the power to enjoin,
prohibit, or temporarily restrain harassment.
. . . .

(g) . . . . If the court finds by clear and convincing
evidence that harassment as defined in paragraph (1) of that
definition exists, it may enjoin for no more than three
years further harassment of the petitioner, or that
harassment as defined in paragraph (2) of that definition
exists, it shall enjoin for no more than three years further
harassment of the petitioner, including, in the case where
any party is enjoined from harassing a minor, for a period
extending to a date after the minor has reached eighteen
years of age; provided that this subsection shall not
prohibit the court from issuing other injunctions against
the named parties even if the time to which the injunction
applies exceeds a total of three years.
3
Petitioner-Appellee Edward Earl Martinez, Jr. on Behalf of Minor
RM Born 2006 (Martinez), did not file an Answering Brief.

2
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When reviewing a finding that a fact has been proved by
clear and convincing evidence, the question before the
appellate court is whether the record as a whole contains
substantial evidence from which a reasonable factfinder
could have found it highly probable that the fact was true.
In conducting its review, the court must view the record in
the light most favorable to the prevailing party below and
give appropriate deference to how the trier of fact may have
evaluated the credibility of witnesses, resolved conflicts
in the evidence, and drawn reasonable inferences from the
evidence.
Matter of JK, 149 Hawai#i 400, 409-10, 491 P.3d 1179, 1188-89
(App. 2021) (quoting Conservatorship of O.B., 470 P.3d 41, 55
(Cal. 2020)) (bolding and italics omitted).
Here, Muller testified that on April 16, 2020, while
having an argument with RM, the 14-year-old son of Muller's
girlfriend for whom Muller was providing homework assistance,
Muller gave RM a "bear hug" and moved RM about one or two feet
from where RM was going, back to a kitchen table. It was clear
to Muller that RM wanted to leave, and Muller was trying to
redirect him. Muller admitted holding RM against his will to
redirect him. RM testified that as RM attempted to go to his
room, Muller grabbed his hand, and it was "sore" when RM was
grabbed by the arm.
"In general, it is for the trial judge as fact-finder
to assess the credibility of witnesses and to resolve all
questions of fact; the judge may accept or reject any witness's
testimony in whole or in part." Duarte, 134 Hawai#i at 464, 342
P.3d at 883 (internal quotation marks, brackets, and citation
omitted). The District Court found that Muller's conduct of
grabbing RM to place RM in a bear hug during the course of an
argument about RM's homework performance "caus[ed] pain to R.M.'s
arm," and established harassment by "physical harm or bodily
injury" under its definition in HRS § 604-10.5(a).4 RM's

4
The District Court ruled as follows:
But I do find this, based upon the facts, that
harassment as defined in Subsection 604-10.5 A-1 [sic],
specifically physical harm or bodily injury. And that is
that in response to a disagreement regarding the performance
-- the method of performance of homework by the minor, R.M.,
(continued...)

3
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testimony that it was "sore" when Muller grabbed RM constitutes
substantial evidence from which the District Court could find
that it was "highly probable" that the fact that RM felt pain was
true. JK, 149 Hawai#i at 409, 491 P.3d at 1188. The District
Court, as the factfinder, evaluated the credibility of Muller and
RM, resolved the questions of fact, and drew reasonable
inferences from the evidence to support its conclusion that the
standard to issue the injunction had been met. See id. at 410,
491 P.3d at 1189; Duarte, 134 Hawai#i at 462, 342 P.3d at 881.
Viewed in the light most favorable to Martinez, the prevailing
party, there was substantial evidence to support the District
Court's issuance of an injunction against harassment by Muller
for grabbing or performing a "bear hug" on RM, which constituted
physical harm or bodily injury under the definition of
"harassment" in HRS § 604-10.5(a). See JK, 149 Hawai#i at 409-
10, 491 P.3d at 1188-89.
Relying on Duarte, Muller claims there must be evidence
that he intended to cause physical harm, bodily injury, or
assault and that there was no clear and convincing evidence he
intended to harm RM. In Duarte, this court considered, inter
alia, whether in a dispute between neighbors, the respondent's
act of yelling the insult "Fuck you, Hawaiian bitch" to the
petitioner, constituted a "threat of imminent physical harm,
bodily injury, or assault" under the paragraph (1) definition of
"harassment" in HRS § 604-10.5(a). 134 Hawai#i at 462-64, 342
P.3d at 881-83. Noting that this definition of "harassment" did
not define "threat of imminent physical harm, bodily injury, or
assault," this court utilized the ordinary meaning of threat as
"[a] communicated intent to inflict harm or loss on another[.]"
Id. at 464, 342 P.3d at 883 (emphasis added). The definition of
"threat" is inapplicable here, as this case involves a finding of
physical harm or bodily injury, instead of a threat.

4
(...continued)
the respondent grabbed him in a bear hug after pulling him
back and causing pain to R.M.'s arm.

4
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Based on Duarte, Muller also urges an application of an
objective reasonable person standard to determine "harassment"
under HRS § 604-10.5(a) involving physical harm, bodily injury,
or assault. The plain language of HRS § 604-10.5 requires the
trial court to find "harassment" by clear and convincing evidence
-- not an objective standard. HRS § 604-10.5(g). The "objective
test" from Duarte only applies to determine whether a threat was
communicated.5 134 Hawai#i at 464-65, 342 P.3d at 883-84. This
case did not involve a threat.
Muller also cites the lack of obvious or lingering
physical injury such as swelling, bruising, lumps, cuts or
lacerations, redness or marks, and a complaint of pain either at
the time of the incident or thereafter, and notes that RM was
merely "sore," which the District Court equated with pain.
"Harassment" means "[p]hysical harm, bodily injury . . . ." HRS
§ 604-10.5(a) (emphasis added). A witness's testimony of feeling
"sore" after being grabbed is sufficient to establish physical
pain, and thus, the element of "bodily injury" in harassment.
Cf. In the Interest of Doe, 79 Hawai#i 265, 279, 900 P.2d 1332,
1346 (App. 1995) (holding in a juvenile proceeding that a
witness's testimony of feeling "'sore' after being struck by the
Appellant was sufficient to establish 'physical pain' and thus,
the element of 'bodily injury' in a charge of assault."). We
conclude that the District Court did not err by finding that RM's

5
Because the word "threat" was not defined in HRS § 604-10.5, this
court looked at legislative history and extrinsic aids such as dictionaries to
determine its meaning, to conclude that:
Therefore, a "threat of imminent physical harm, bodily
injury, or assault" means that an alleged harasser's conduct
expressly or impliedly communicates an intent to physically
harm, cause bodily injury, or assault another person
imminently. This is an objective test. Under this
objective standard, we are required to determine whether a
reasonable person would believe the conduct of Young
communicated an intent to physically harm, cause bodily
injury, or assault Duarte imminently so as to meet the
definition of harassment under paragraph (1).

Duarte, 135 Hawai#i at 464-65, 342 P.3d at 883-84 (internal citation and
citation omitted).

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testimony that he felt "sore" constituted pain. See Doe, 79
Hawai#i at 279, 900 P.2d at 1346.
For the foregoing reasons, the July 8, 2020 Order
Granting Petition for Injunction Against Harassment, filed by the
District Court of the Third Circuit, Kona Division, is affirmed.
DATED: Honolulu, Hawai#i, June 27, 2022.
On the brief:
/s/ Lisa M. Ginoza
Daniel S. Peters, Chief Judge
for Respondent-Appellant.
/s/ Clyde J. Wadsworth
Associate Judge

/s/ Karen T. Nakasone
Associate Judge

6