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                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   30-JUN-2020
                                                   07:56 AM



                            NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


              RUSSELL R. MARTIN, Petitioner-Appellee, v.
                RICHARD T. KOZUMA, Respondent-Appellant

          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                       (CIVIL NO. 1SS18-1-00852)


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

             Respondent-Appellant Richard T. Kozuma (Kozuma) appeals
from an August 8, 2018 Injunction Against Harassment
(Injunction), and an August 16, 2018 order denying Kozuma's
motion for reconsideration, both entered in the District Court of
the First Circuit (District Court).1/ Following a bench trial,
the District Court enjoined Kozuma and any other person acting on
Kozuma's behalf from contacting, threatening or harassing
Petitioner-Appellee Russell R. Martin (Martin) and entering or
visiting Martin's residence. The District Court later denied
"[Kozuma's] Motion for Reconsideration of Order Granting . . .
Martin's Petition for Injunction Against Harassment Granted
August 8, 2018" (Motion for Reconsideration) on the ground that
it failed to raise issues of law or fact that could not have been
raised at trial.
          On appeal, Kozuma contends that the District Court
erred in: (1) issuing the Injunction based on insufficient
evidence and a clearly erroneous finding that Martin suffered

     1/
             The Honorable Michael K. Tanigawa presided.
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emotional distress, under Hawaii Revised Statutes (HRS) § 604-
10.5 (2016); (2) precluding the introduction of evidence that
would have disproved Martin's allegations of harassment or
impeached his credibility; (3) implying that Kozuma did not deny
some of the material allegations raised in the Petition for Ex
Parte Temporary Restraining Order and for Injunction Against
Harassment (Petition); and (4) ruling that the Motion for
Reconsideration did not raise issues of law or fact that could
not have been raised at trial.2/
          After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Kozuma's points of error as follows and affirm:

            A.    Sufficiency of the Evidence

          Under HRS § 604–10.5(a)(2), the district court "shall"
grant an injunction prohibiting the respondent from harassing the
petitioner if "the court finds by clear and convincing evidence
that" the respondent engaged in an "intentional or knowing course
of conduct directed at [the petitioner] that seriously alarm[ed]
or disturb[ed] consistently or continually bother[ed] the
[petitioner] and serve[d] no legitimate purpose; provided that
such course of conduct would cause a reasonable person to suffer
emotional distress." See Luat v. Cacho, 92 Hawai#i 330, 340–41,
991 P.2d 840, 850–51 (App. 1999). "[T]he type of harassment that
the courts are mandated to restrain or enjoin under paragraph (2)
[of HRS § 604–10.5(a)] involves . . . systematic and continuous
intimidation that stops short of assault or threats[.]" Id. at
342, 991 P.2d at 852.
          "The reasonable person standard [to be applied under
HRS § 604–10.5(a)(2)] is an objective one," under which the court
must determine "whether 'a reasonable person, normally
constituted,' would have suffered emotional distress as a result
of a particular course of conduct." Id. at 343, 991 P.2d at 853
(quoting Tabieros v. Clark Equip. Co., 85 Hawai#i 336, 362, 944

      2/
            Kozuma's points of error have been reordered, restated, and
condensed for clarity.

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P.2d 1279, 1305 (1997)).
          Here, after hearing testimony and argument from both
Martin and Kozuma, the District Court orally ruled as follows:
                  So I find that there's clear and convincing evidence
            of acts of harassment, that Mr. Martin testified credibly
            that . . . at least four times after May 2nd, 2018, that Mr.
            Kozuma challenged him to fight, called him a . . . fucking
            punk, threatened to kick his ass, called him a coward, and
            said he was nothing. . . . [Kozuma] never denied calling
            him a fucking punk, never denied threatening to kick his
            ass, never denied calling him a coward, never denied saying
            that he was nothing. So based upon that, I think those are
            acts of harassment.
                  And now the question raised . . . is whether or not
            that caused the emotional distress that's required by the
            statute. . . . The statute does not require him to use the
            exact wording, certainly not everyone calls it emotional
            distress, but I think that when conduct . . . results in
            something being extremely irritating, I think that satisfies
            the statute, and based upon that, I'm granting the
            injunction.

           Kozuma argues there was insufficient evidence to
support the District Court's conclusion that Martin suffered
emotional distress. He points out that Martin admitted at trial
that he did not feel physically threatened by Kozuma. Kozuma
also cites Martin's testimony that he followed Kozuma to Windward
Mall,3/ told Kozuma "you're pathetic," and left the mall "cause I
knew he was just talking, he wasn't gonna do anything." Kozuma
further argues that calling a reasonable person "names such as
punk, coward, and a nothing" would not cause the person to suffer
emotional distress.
                  Whether there was substantial evidence to support an
            injunction against an alleged harasser is reviewed under the
            "clearly erroneous standard." Bailey v. Sanchez, 92 Hawai #i
            312, 316 n.6, 990 P.2d 1194, 1198 n.6 (App. 1999). "A
            conclusion of law that presents mixed questions of fact and
            law is reviewed under the clearly erroneous standard because
            the conclusion is dependent upon the facts and circumstances
            of the particular case." Id. (brackets omitted) (quoting
            Booth v. Booth, 90 Hawai#i 413, 416, 978 P.2d 851, 854
            (1999)).

Duarte v. Young, 134 Hawai#i 459, 462, 342 P.3d 878, 881 (App.
2014). We also have stated that "a trial court's determination
regarding whether a reasonable person would suffer emotional

      3/
         Martin testified, in relevant part: "I started backing down the
driveway. I stopped to get -- get the newspaper. Mr. Kozuma rolls up in his
car, rolls down the window, calls me a fucking punk, and again threatening to
kick my ass. And I said what? When? And he goes follow me. Jump in my
truck, I follow him to Windward Mall in front of Macy's."

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distress as a result of a course of conduct is reviewed on appeal
de novo." Luat, 92 Hawai#i at 343, 991 P.2d at 853 (citing
Trainor, 83 Hawai#i at 255, 925 P.2d at 823) .
          Here, the District Court found that Kozuma engaged in
at least four acts of harassment directed at Martin, which Martin
described as "extremely irritating." Based on our review of the
record, we conclude that the District Court's findings were
supported by the substantial, credible evidence presented at
trial and were therefore not clearly erroneous. We further
conclude that the District Court could reasonably have inferred
that Kozuma's actions did not serve a legitimate purpose and
would cause a reasonable person to suffer emotional distress.
See id. at 343, 991 P.2d at 853. Both conclusions are supported
by substantial evidence in the record and are not wrong.
Accordingly, the evidence was sufficient to support issuance of
the Injunction.

          B.   Admission of Evidence

          Testimony Regarding Martin's Vacation Rental
          At trial, on cross-examination, Martin testified that
he has been living next to Mr. Kozuma since 2010 "off and on,"
and that he (Martin) "run[s] a vacation rental" on the property.
Kozuma's counsel asked if the vacation rental was illegal, and
Martin responded that it was "not illegal" but was
"nonconforming." Kozuma's counsel asked, "[t]hat's illegal,
yes?" and the District Court prevented further questioning on the
subject. Counsel stated that she was "laying a foundation for
the photographs," but did not identify the photographs she was
seeking to introduce.
          Kozuma contends that the District Court deprived him of
his constitutional right to freedom of movement and due process
when it precluded him from further questioning Martin about his
vacation rental. Kozuma argues that such evidence "goes to the
'legitimate purpose[,' HRS § 604–10.5(a)(2),] for Mr. Kozuma's
picture-taking, which was to document the illegal vacation rental
being run by [Martin]."



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          We do not decide whether the District Court erred in
precluding further questioning of Martin on this topic, as we
conclude that any such error was harmless.4/ There is no
indication in the record that the District Court granted the
Petition based on Kozuma's picture-taking. Rather, the District
Court concluded that Kozuma engaged in harassment under HRS
§ 604–10.5(a)(2) when he challenged Martin to fight, called him a
"fucking punk," threatened "to kick his ass," called him "a
coward," and said he was "nothing." Given the evidence and the
District Court's ruling, the decision to preclude further
questioning of Martin regarding his vacation rental, even if
erroneous, was harmless.
          Video Recording
          It is undisputed that on May 2, 2018, the parties
attended a hearing on an earlier petition for an injunction
against harassment that was filed by Kozuma against Martin. It
appears that, at that time, the court approved an agreement
between the parties that neither of them would communicate with
the other, and Kozuma would not take pictures of Martin.5/
Martin's Petition alleged that Kozuma had breached the May 2,
2018 agreement on numerous occasions.
          At trial, on cross-examination, Martin testified that
he believed Kozuma was "always the instigator" in the parties'
long-standing dispute. Addressing the court, Kozuma's counsel
stated, "I'd like to show the witness a video to impeach him and
ask him some questions about it, if I may." Counsel described
the video recording as depicting "a confrontation between Mr.
Martin and Mr. Okuda[, Martin's landlord,] and Mr. Kozuma." The
District court asked when the confrontation occurred; counsel
responded that "it was before May 2nd, 2018"; and the District
Court stated, "Then I'm not interested."




     4/
        It   also appears that Kozuma did not make a clear and specific offer
of proof.    See Hawai#i Rules of Evidence (HRE) Rule 103(a); State v.
Kelekolio,   74 Haw. 479, 523, 849 P.2d 58, 78 (1993) (holding that "[i]n the
absence of   an offer of proof, the trial court committed no reversible error").
     5/
          A copy of the agreement is not part of the record on appeal.

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          Kozuma contends that the District Court deprived him of
his right to due process by refusing to admit the video recording
into evidence, because it allegedly showed Martin calling him "a
child molester, pervert, and harborer of child pornography,"
tacitly threatening and using profanity against him, and
instigating conflict with him, and, thus, was relevant to
Kozuma's "unclean hands" defense. Kozuma further contends that
the video was admissible to impeach Martin's credibility, given
his testimony that he had never called Kozuma a child molester,
and that Kozuma was always the instigator in the parties' long-
standing dispute.6/
          However, it does not appear that Kozuma made a clear
and specific offer of proof at trial regarding the substance of
the video. See HRE Rule 103(a); Kelekolio, 74 Haw. at 523, 849
P.2d at 78. In the absence of an adequate offer of proof, the
District Court committed no reversible error.
          History of Confrontations
          At trial, Kozuma's counsel asked Martin, "the beginning
of the end of this relationship [with Kozuma], was it related to
the ongoing construction at Mr. Okuda's house?" Martin
responded, "Not that I know. He was upset at Mr. Wong." At that
point, the District Court said, "[Counsel], this early history is
not important to me." Counsel responded, "Okay."
          Kozuma contends that the District Court erred in
precluding him from continuing this line of questioning and
introducing evidence regarding prior confrontations between the
parties. Kozuma argues that such evidence was relevant to
whether: (1) Martin was "seriously alarmed, consistently
disturbed, or continually bothered"; (2) a reasonable person
would have suffered emotional distress; and (3) Martin had
unclean hands.
          Again, it does not appear that Kozuma made a clear and
specific offer of proof at trial regarding the substance of the
anticipated testimony. See HRE Rule 103(a); Kelekolio, 74 Haw.

      6/
            Kozuma also argues that the video would have undermined Martin's
testimony that he felt harassed by Kozuma's language, because it showed that
Martin's statements to Kozuma had been more inflammatory than Kozuma's alleged
remarks to Martin.

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at 523, 849 P.2d at 78. In the absence of an adequate offer of
proof, the District Court committed no reversible error.

          C.     Remaining Points of Error

           Kozuma makes no discernable argument in support of his
contentions that the District Court erred in: (1) implying that
Kozuma did not deny some of the material allegations raised in
the Petition; and (2) denying the Motion for Reconsideration. We
therefore disregard these alleged points of error. See Hawai#i
Rules of Appellate Procedure Rule 28(b)(7); Kakinami v. Kakinami,
127 Hawai#i 126, 144 n.16, 276 P.3d 695, 713 n.16 (2012) (citing
In re Guardianship of Carlsmith, 113 Hawai#i 236, 246, 151 P.3d
717, 727 (2007) ("noting that this court may 'disregard a
particular contention if the appellant makes no discernible
argument in support of that position'")).

          D.     Conclusion

          For these reasons, IT IS HEREBY ORDERED that the
August 8, 2018 Injunction Against Harassment, and the August 16,
2018 order denying Kozuma's Motion for Reconsideration, both
entered in the District Court of the First Circuit, are affirmed.

          DATED:   Honolulu, Hawai#i, June 30, 2020.


On the briefs:
                                      /s/ Katherine G. Leonard
James V. Myhre,                       Presiding Judge
Samantha Storm, and
Jason K. Adaniya
(Myhre, Tsuchida, Richards &          /s/ Derrick H.M. Chan
Storm)                                Associate Judge
for Respondent-Appellant.

Russell R. Martin,                    /s/ Clyde J. Wadsworth
Pro Se Petitioner-Appellee.           Associate Judge




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