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State v. Pesentheiner3/5/2001
Following a bench trial in the district court of the first circuit, Defendant-Appellant Armand Pesentheiner was convicted of harassment, in violation of Hawaii Revised Statutes (HRS) § 711-1106(1)(a), and sentenced to pay a $100 fine. The fine was deducted from bail returned to him.
HRS § 711-1106(1)(a) (Supp. 2000) provides that " person commits the offense of harassment if, with intent to harass, annoy, or alarm any other person, that person . . . trikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact[.]"
On appeal, Pesentheiner first argues that the district court erred in finding him guilty because there was insufficient evidence to establish that, in knocking a police officer's hat off, he "touch another person in an offensive manner or subject the other person to offensive physical contact[,]" as required for conviction under HRS § 711-1106(1)(a).
Pesentheiner also contends there was insufficient evidence to establish that he acted with the "intent to harass, annoy, or alarm" the police officer. With respect to this issue, Pesentheiner makes two contentions: (1) that his conduct was accidental, and (2) that the district court found his actions to be merely "reckless." Both contentions are at odds with the statute's express requirement that an intentional state of mind be proved. Agreeing with the latter contention, we vacate the judgment of the district court and remand the case for retrial.
I. Background.
On February 7, 1999, Pesentheiner was a spectator at the "Pro Bowl," a post-season professional football game held at Aloha Stadium featuring stellar National Football League players. Pesentheiner arrived at the stadium parking lot between 9 a.m. and 10 a.m., where he mingled with other fans and consumed about five or six beers before entering the stadium at noon to view the game. Pesentheiner testified that because " t was a hot sunny day" and he "hadn't eaten breakfast[,]" he was "a little intoxicated[.]"
At about 2 p.m., near the end of the first quarter of play, Pesentheiner hopped a fence and made his way onto the playing field, ostensibly to obtain an autograph. Pesentheiner walked on the sideline to about the twenty-yard marker at the south end of the stadium before being spotted by security personnel.
Officer Kyle Takahashi, a uniformed Honolulu police officer, was the first to confront Pesentheiner. He noticed that Pesentheiner was holding "a plastic cup with yellowish liquid," which he assumed was beer. Pesentheiner grew disgruntled when Officer Takahashi denied his request to "go jump back up and . . . go back to my seat" and instead told him that he had "to leave the premises of the stadium and that's the rules of the stadium[.]"
Officer Takahashi testified that he positioned himself to Pesentheiner's right, placing one hand on Pesentheiner's right arm and the other against Pesentheiner's lower back. He then attempted to escort Pesentheiner from the stadium via the south end zone exit. As they approached the end zone, Pesentheiner started yelling, raising his hands and waving at the crowd. As Pesentheiner himself described it, he was "hamming it up" in an effort to "steal the show."
At that point there was a break in the game, and Officer Takahashi noticed that the crowd's attention had focused upon them. Pesentheiner's gesticulations had noticeably excited the spectators. Seeing that Pesentheiner was agitating the crowd, and fearing for the welfare of the officers patrolling the stands, Officer Takahashi pulled Pesentheiner towards the exit with greater force, telling him, "let's go."
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