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                                                     Electronically Filed
                                                     Intermediate Court of Appeals
                                                     CAAP-XX-XXXXXXX
                                                     08-JUN-2020
                                                     07:47 AM



                           NO. CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


                STATE OF HAWAI#I, Plaintiff-Appellee,
                                  v.
             CHRISTOPHER L. BUTLER, Defendant-Appellant


         APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
                           HAMAKUA DIVISION
                      (CASE NO. 3DCW-XX-XXXXXXX)


                      SUMMARY DISPOSITION ORDER
          (By: Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

            Defendant-Appellant Christopher L. Butler (Butler)
appeals from the Judgment and Notice of Entry of Judgment
(Judgment), entered by the District Court of the Third Circuit,
Hamakua Division (District Court)1 on September 20, 2018.                The
District Court convicted Butler of Harassment, in violation of
Hawaii Revised Statutes (HRS) § 711-1106(1)(b) (2014).2


     1
            The Honorable Mahilani Hiatt presided.
     2
            HRS § 711-1106(1)(b) states:

            § 711-1106 Harassment.
            (1) 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
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


            On appeal, Butler argues that (1) there was
insufficient evidence to convict him, and (2) the District Court
applied the incorrect state of mind requirement under HRS § 711-
1106(1)(b).
            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 by the parties, we
resolve Butler's point of error as follows:
            (1)   When the evidence adduced at trial is considered
in the strongest light for the prosecution, State v. Matavale,
115 Hawai#i 149, 157–58, 166 P.3d 322, 330–31 (2007) (Matavale),
there was sufficient evidence to support Butler's conviction for
Harassment.    Based on the complaining witness's testimony, which
the District Court found to be credible, it appears Butler
insulted, taunted, or challenged the complaining witness in a
manner that would cause the complaining witness to reasonably
believe that Butler intended to cause bodily injury to others or
property damage.     After the complaining witness and another
worker informed Butler that the senior citizen center was closed,
the complaining witness escorted Butler out, at which time Butler
turned and said, "You keep being closed like this you'll get
shot."3   The complaining witness testified that she was shaken by
the incident and concerned about the safety of senior citizens
whom the center serves.
            In criminal cases, "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


            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[.]
      3
            The other worker at the senior center also testified that she
overheard Butler's statement.

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circumstances."    State v. Calaycay, 145 Hawai#i 186, 200, 449
P.3d 1184, 1198 (2019) (citation omitted).         When viewed in the
light most favorable to the prosecution, Matavale, 115 Hawai#i at
157–58, 166 P.3d at 330–31, the evidence adduced at trial
supports the inference that Butler acted with the "intent to
harass, annoy, or alarm" the complaining witness.           HRS § 711-
1106(1).   As such, we hold there was sufficient evidence to
support Butler's conviction.
           (2)   However, it appears the District Court applied the
wrong state of mind test to Butler's Harassment conviction.                The
express mens rea requirement of HRS § 711-1106(1)(b) is the
"intent to harass, annoy, or alarm any other person[.]"               In
stating its findings, the District Court commented, in relevant
part:
                 Um, I agree that a statement like that, uh, is
           intended to, uh, if not to taunt, certainly to challenge,
           and that's how the Court finds that, uh, that statement was
           made. I -- I -- I don't think just saying "you're -- you're
           gonna be shot", uh, I don't think you need to say, "I'm
           going to shoot you" or "the neighbor's going to shoot you",
           uh, in order for the statement to then cause a reasonably be
           -- have the person reasonably believe that there's going to
           be, uh, some type of damage or bodily injury.

                 So with respect to, uh, the 711-1106(b), the Court
           does, uh, find you guilty, sir.

(Emphasis added.)
           The District Court's reference that Butler's statement
was "intended to" taunt or challenge misstates the statute's mens
rea requirement.    While the prohibited conduct under the statute
includes "insults, taunts, or challenges," such conduct must also
be made with the "intent to harass, annoy or alarm."            HRS § 711-
1106(1)(b).   The record does not contain any further statements
otherwise indicating that the District Court applied the correct
statutory mens rea requirement.       It thus appears the District
Court misapplied the law in assessing Butler's state of mind.
           As the District Court did not make any definitive
finding that Butler did not act with the necessary mens rea, and
because there was sufficient evidence at trial to sustain the

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charge, the appropriate remedy is a new trial.     See State v.
Pesentheiner, 95 Hawai#i 290, 301, 22 P.3d 86, 97 (App. 2001).
          Therefore,
          IT IS HEREBY ORDERED that the Judgment entered by the
District Court on September 20, 2018 is vacated and the case is
remanded for a new trial.
          DATED:   Honolulu, Hawai#i, June 8, 2020.



On the briefs:                        /s/ Lisa M. Ginoza
                                      Chief Judge
Leneigha S. Downs,
Deputy Prosecuting Attorney,
County of Hawai#i,                    /s/ Derrick H. M. Chan
for Plaintiff-Appellee.               Associate Judge

Teal Takayama,
Deputy Public Defender,               /s/ Keith K. Hiraoka
for Defendant-Appellant.              Associate Judge




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