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State v. Pesentheiner3/5/2001
he peace and secure the peace.
And at this point, the defendant elects to showboat to the crowd and starts waving his arms, or one of his arms. And the defendant, if at that point rather than knock the hat off this officer had accidentally scratched him with a fingernail or grazed him to an extent to open a wound with a wristwatch as he swung that hand, he'd be here for assault, and he'd be here for assault on a police officer performing his duties. And if he was found guilty of that, he'd be in jail for thirty days, mandatory.
But, he didn't, you know, cause injury to that officer, he knocked his hat off. Not injury in terms of a (indiscernible), but we know what kind of an injury (indiscernible) probably. But he knocked his hat off and that's what the harassment statute is focused on preventing. Preventing people from getting disorderly on a one-on-one contact rather than disorderly in terms of a crowd. And when you elect to wave your hands when you're being escorted off, you're as reckless as you would be in an assault case, and as far as this Court's concerned, intentional, whether it's specific intent or just general intent.
Consequently, the Prosecutor's met it's burden and I am gonna find that you're guilty of the charge for getting into a situation like that and conducting yourself like that. And I'm gonna impose a fine of a hundred dollars and that's it. It can come out of the bail.
The court's ruling raises genuine concern as to whether it properly applied the intent standard of HRS § 711-1106(1)(a) to the case below. Though the court referred to Pesentheiner's conduct as "intentional," we hesitate to place too great a weight on a singular, isolated utterance, when other language in the court's ruling clearly indicates an erroneous understanding of the requisite mens rea.
As Pesentheiner amply notes, most confounding in the court's analysis of his state of mind is its reasoning that "when you elect to wave your hands when you're being escorted off, you're as reckless as you would be in an assault case, and as far as this Court's concerned, intentional, whether it's specific intent or just general intent."
We agree with Pesentheiner that the court's use of the term "reckless" to describe his conduct puts his conviction in grave tension with the intent element of HRS § 711-1106(1)(a). While we acknowledge (as the court appeared to) that a reckless state of mind is minimally sufficient for an assault conviction, nothing less than the "intent to harass, annoy, or alarm" specified in the harassment statute could suffice in this case.
Moreover, the court appeared to equate recklessness, willy-nilly, with both "specific intent" and "general intent" in reaching its conclusion of culpably intentional conduct. But again, a generally culpable state of mind simply does not comprehend the specific "intent to harass, annoy, or alarm any other person" specified in the harassment statute. The court's indiscriminate allusion to both terms is therefore at odds with the very statutory language that it was responsible for applying in the proceedings below.
Moreover, while the court appeared to consider Pesentheiner's drinking, arm waving and showboating to the crowd as relevant to its determination of his state of mind, its ruling is devoid of any mention of the role Officer Takahashi's description of the actus reus may have played in its analysis, if any. Officer Takahashi's testimony that Pesentheiner turned away from the crowd, took a step towards him and swung his arm to knock his hat off is the critical evidence of intentional conduct in this case. Absent this brief testimonial vignette, the remainder of the eviden
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