Jampa v. McInerney

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-NOV-2023
08:11 AM
Dkt. 99 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MANA JAMPA, Petitioner-Appellee,
v.
ANDREW McINERNEY, Respondent-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5DSS-XX-XXXXXXX)

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

Self-represented Respondent-Appellant Andrew McInerney
appeals from the Injunction Against Harassment entered on
January 24, 2020, by the District Court of the Fifth Circuit.1
We affirm.
Self-represented Petitioner-Appellee Mana Jampa filed a
petition for a temporary restraining order and injunction against
McInerney on November 29, 2019. The petition alleged: On
November 29, 2019, Jampa took his Child to the house of Child's
Mother. Mother felt Jampa was late dropping off Child. Mother
and McInerney blocked the dirt road that led to the driveway of
Mother's house. Jampa got out of his car, let Child out of the
back seat, and got back into the driver's seat. McInerney
prevented Jampa from closing the driver's door "with his arm and

1
The Honorable Joe P. Moss presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

body." McInerney threatened Jampa "physically and extremely
aggressively verbally" until Jampa was "physically trembling and
fearing [McInerney's] physical abuse would escalate." The
petition stated "I am lucky that there was a witness in my car or
I may have been physically harmed."
The district court conducted an evidentiary hearing on
January 24, 2020. The district court's minutes show it heard
testimony from Jampa, Mirishae McDonald, McInerney, and Mother.
A video recording made by Mother was admitted into evidence. The
district court ruled:

So the Court finds the petitioner and the respondent
were present. The parties presented evidence. I found the
allegations proved by clear and convincing evidence.

The district court entered the Injunction against McInerney.
Hawaii Revised Statutes (HRS) § 604-10.5 empowers the
district courts to enjoin harassment. "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.

HRS § 604-10.5(a) (2016) (emphasis added).
McInerney contends that "The Single 11/29/19 Incident
Cited By The Court Was Insufficient Evidence To Support Granting
Of The Injunction Order." A single incident of "the threat of
imminent physical harm, bodily injury, or assault" is sufficient
to constitute harassment under HRS § 604-10.5(a)(1); the course
of conduct element applies only to the HRS § 604-10.5(a)(2)
alternative definition.
McInerney "cites as error the court's granting of the
Injunction Order based on a lack of Substantial Evidence."

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The burden is upon appellant in an appeal to show
error by reference to matters in the record, and he has the
responsibility of providing an adequate transcript.
Moreover, if the appellant wishes to urge that a finding or
conclusion is unsupported by the evidence, he must include a
transcript of all the evidence relevant to such finding or
conclusion. . . . An appellant may not pick and choose what
he would like to see, but he has the burden to designate all
the evidence, good and bad, material to the point he wishes
to raise.

The law is clear in this jurisdiction that the
appellant has the burden of furnishing the appellate court
with a sufficient record to positively show the alleged
error. An appellant must include in the record all of the
evidence on which the lower court might have based its
findings and if this is not done, the lower court must be
affirmed.

Union Bldg. Materials Corp. v. Kakaako Corp., 5 Haw. App. 146,
151–52, 682 P.2d 82, 87 (1984) (citations omitted). McInerney
ordered only partial transcripts of the evidentiary hearing.
They include some of the district court's comments and its
ruling, but almost none of the testimony of the parties and no
testimony from McDonald or Mother. We are unable to review
McInerney's claim of lack of substantial evidence because of the
incomplete record before us.
McInerney contends that "The Procedure Used By the
District Court In The Conduct Of The Trial Was Flawed And
Deprived Respondent-Appellant Of His Right to Due Process Under
The US [sic] and Hawai#i Constitutions." McInerney has not
provided transcripts of the evidentiary hearing to support his
contention. We are unable to review McInerney's claim that the
district court conducted the evidentiary hearing in a way that
deprived him of due process because of the incomplete record
before us.
McInerney contends that "The Ruling of the Court Was
Based on Excessive Personal Bias Rather Than By Applying the
Standards of Law And Thus Does Not Meet the Burden of Proof[.]"
He correctly argues that the applicable standard of proof is
"clear and convincing evidence." See HRS § 604-10.5(g). But he
hasn't provided complete transcripts of the evidentiary hearing,
which are necessary for us to evaluate whether the district

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court's findings of fact — that the allegations of the petition
were proven — were supported by clear and convincing evidence.
For example, McInerney argues that the district court's decision
was "based on the Court's personal feelings about violence,
rather than the legal definition of what constitutes harassment."
The district court stated:

I'm just so much an anti physical violence guy, I just don't
even want to see this inkling of it. Right? Even just to
be in a confrontational situation like I saw on this film,
it just didn't need to exist.

Without transcripts of the evidence — testimony by the parties
and witnesses about what happened — we have no basis to review
whether the district court was presented with clear and
convincing evidence that McInerney threatened Jampa with imminent
physical harm, bodily injury, or assault.
McInerney notes that the district court said, after he
asked how long the Injunction would stay on his record, "It's not
on your record. You don't have to worry about that. We're not
finding that you broke any law or any criminal thing at all.
This is totally what we call civil." McInerney argues:

Thus, the Court effectively implies that the Court found no
evidence of "physical harm, bodily injury, assault, or the
threat of the threat of [sic] imminent physical harm, bodily
injury, or assault" which would otherwise be at minimum a
criminal misdemeanor under [HRS] §[]707-717.

We disagree. First, the district court was correct
that the Injunction, being entered in a civil case under HRS
§ 604-10.5, would not appear on McInerney's criminal record.
Second, the burden of proof in a criminal case is
"beyond a reasonable doubt," a higher standard than "clear and
convincing evidence." Evidence that does not establish a threat
of imminent physical harm, bodily injury, or assault beyond a
reasonable doubt could still support such a finding based on
clear and convincing evidence. See Masaki v. Gen. Motors Corp.,
71 Haw. 1, 15, 780 P.2d 566, 574 (1989) (noting that "'clear and
convincing' evidence may be defined as an intermediate standard

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of proof greater than a preponderance of the evidence, but less
than proof beyond a reasonable doubt required in criminal
cases").
Third, even if the evidence had established that
McInerney committed terroristic threatening in the second degree
in violation of HRS § 707-717, the district court could not have
convicted him of a crime because he was not being prosecuted by
the State of Hawai#i.
McInerney notes that the district court said "this was
really, really, really close in my mind. Really close." He
argues that "reflects a misapprehension of the clear and
convincing standard of proof[.]" It could also reflect the
difference between "clear and convincing" and "preponderance of
the evidence." But we need not speculate because the district
court recited the correct standard of proof twice, in announcing
its decision and in the Injunction. The record is clear that the
district court applied the correct standard of proof.
McInerney contends that "The Court Abused Its
Discretion" by misinterpreting the video evidence. We cannot
decide whether the district court clearly erred based on the
contents of the video alone.2 McInerney failed to sustain his
burden of including in the record all of the evidence on which
the district court might have based its findings. Since that was
not done, the district court "must be affirmed." Union Bldg.
Materials, 5 Haw. App. at 152, 682 P.2d at 87.
Finally, McInerney contends that "A Reasonable Person
Would Not Suffer Emotional Distress As a Result of the Course of
Conduct by [McInerney.]" The cause-a-reasonable-person-to-
suffer-emotional-distress requirement applies only to the course
of conduct element of HRS § 604-10.5(a)(2). Jampa did not have
to prove, and the district court did not have to find, that
McInerney's conduct would cause a reasonable person to suffer

2
The compact disc on file with the district court that was supposed
to have contained the video was blank.

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emotional distress in order to properly enter an injunction for
harassment as defined by HRS § 604-10.5(a)(1).
The Injunction Against Harassment entered by the
district court on January 24, 2020, is affirmed.
DATED: Honolulu, Hawai#i, November 16, 2023.

On the briefs:
/s/ Katherine G. Leonard
Andrew McInerney, Presiding Judge
Self-represented
Respondent-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Mana Jampa,
Self-represented /s/ Clyde J. Wadsworth
Petitioner-Appellee. Associate Judge

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