State v. Kauhane.

    *** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER ***

                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                12-NOV-2019
                                                                08:25 AM




             IN THE SUPREME COURT OF THE STATE OF HAWAI I

                                 ---o0o---


                           STATE OF HAWAI I
                    Respondent/Plaintiff-Appellee,

                                     vs.

                             KEITH KAUHANE,
                    Petitioner/Defendant-Appellant.


                             SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-XX-XXXXXXX; CR. NO. 15-1-0808(4))

                            NOVEMBER 12, 2019

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

               OPINION OF THE COURT BY RECKTENWALD, C.J.

             In 2016, Keith Kauhane was convicted of Obstructing

after participating in a demonstration against the construction

of the Daniel K. Inouye Solar Telescope (DKIST) on the summit of

Haleakalā.
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             The Intermediate Court of Appeals (ICA) vacated the

conviction based on an error in the jury instructions, and

remanded for a new trial.       See State v. Kauhane, 144 Hawai i 109,

112, 

 (App. 2018).          Nevertheless, on

certiorari, Kauhane asks this court to further determine: (1)

whether the ICA erred in determining that the State’s complaint

was sufficient, despite its failure to define the statutory term

“obstructs”; and (2) whether the ICA erred in its analysis of a

“golden rule” objection made by the State during Kauhane’s

closing argument.

             We hold that the complaint was defective.          By failing

to include the statutory definition of “obstructs,” the complaint

omitted an essential element of the offense of Obstructing and

did not apprise Kauhane of what he was required to defend

against.    Even under the “liberal construction” standard

applicable to charges challenged for the first time on appeal,

the complaint cannot within reason be construed to charge a

crime.     State v. Motta, 

, 

 (1983); State

v. Wells, 78 Hawai i 373, 

 (1995).

             Additionally, although the ICA correctly concluded that

defense counsel did not make an improper “golden rule” argument,

we disagree with the ICA’s conclusion that the argument was

otherwise improper because it misstated the law.


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            Accordingly, we vacate the ICA’s judgment, and remand

to the Circuit Court of the Second Circuit (circuit court) with

instructions to dismiss the Obstructing charge without prejudice.

                               I.   BACKGROUND

            On August 20, 2015, the Maui Police Department’s

Specialized Emergency Enforcement Detail (SPEED) team, led by

Captain Clyde Holokai (Captain Holokai), was assigned to

accompany construction vehicles and equipment from the Central

Maui Baseyard in Kahului to the DKIST construction site at the

summit of Haleakalā.

            On Crater Road, the convoy encountered fifteen to

twenty protestors blocking the roadway, standing shoulder to

shoulder.    When those protestors eventually cleared, seven more

protestors were revealed, sitting in the middle of the roadway,

chanting and praying.       These seven protestors, including Kauhane,

were arrested.

A.   Circuit Court Proceedings

     1.     The Complaint

            After his arrest, the State charged Kauhane with: (1)

Failure to Disperse, in violation of Hawai i Revised Statutes

(HRS) § 711-1102 (2014); (2) Obstructing, in violation of HRS




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§ 711-1105(1)(a) (2014);1 and (3) Disorderly Conduct, in

violation of HRS § 711-1101(1)(d) (2014).            The complaint set

forth the Obstructing charge as follows:
            Count II: [Obstructing]
            That on or about the 20th day of August, 2015, in the
            County of Maui, State of Hawai i, KEITH KAUHANE,
            whether alone or with others and having no legal
            privilege to do so, did knowingly or recklessly
            persist to obstruct any highway or public passage,
            after a warning by a law enforcement officer to move
            to prevent or to cease such obstruction, thereby
            committing the offense of Obstructing in violation of
            Section 711-1105(1)(a) of the [HRS].

(Emphasis added).

            Notably, the charge did not define “obstructs,” which

is defined in HRS § 711-1100 (Supp. 2015) as “renders impassable

without unreasonable inconvenience or hazard.”

      2.    Evidence

            At trial,2 the State called four witnesses to describe

the protest scene.      Captain Holokai explained that it was “very

dim” when the convoy encountered the line of standing protestors,

and that the road was “very steep and narrow.”             Captain Holokai

further testified that as he approached the line of protestors

with the SPEED team, he and the other officers “repeatedly

ordered [the protestors] to get off the roadway.”



      1
            HRS § 711-1101(1)(a) (Obstructing) provides: “[a] person commits
the offense of obstructing if, whether alone or with others and having no
legal privilege to do so, the person knowingly or recklessly . . . [o]bstructs
any highway or public passage[.]” (Emphasis added).
      2
            The Honorable Richard T. Bissen, Jr. presided.

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          Captain Holokai testified that he first encountered

Kauhane as the line of standing protestors dispersed.              Because of

Kauhane’s position in the middle of the road, and the positions

of the other sitting protestors, Captain Holokai explained that

the convoy could not have continued past them.            Captain Holokai

testified that the SPEED team had to “physically pry” the sitting

protestors apart, and that even after being handcuffed, “they

wouldn’t walk.”    As such, he explained, each of the seven

protestors had to be removed from the roadway by stretcher.

          On cross-examination, Captain Holokai explained that it

took about five minutes to remove Kauhane from the roadway.

Although Captain Holokai admitted that he did not specifically

warn Kauhane that he would be arrested if he did not move to the

side of the road, Captain Holokai explained that he had given

this warning multiple times to the protestors standing in front

of Kauhane.

          Sergeant Russell Kapahulehua (Sergeant Kapahulehua)

confirmed the events described by Captain Holokai and stated that

the protestors had created a “dangerous situation.”             Sergeant

Kapahulehua testified that although Captain Holokai might not

have specifically warned Kauhane that he could be arrested, he

recalled that Captain Holokai’s general warnings to the group of

protestors were announced “very loudly” and that the standing and


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sitting protestors “were all pretty close together.”

           Rex Hunter (Hunter), the DKIST’s project manager, as

well as Ervin Pigao (Pigao), an employee with the State’s

Department of Transportation (Department), also testified for the

State.   Hunter, who had accompanied the convoy, testified that

the materials being transported were “extraordinarily wide,” and

that were the materials to fall, they “could kill someone.”                  He

further testified that the convoy had to stop multiple times

because of protestors as it made its way to the summit.              Pigao,

who did not accompany the convoy, added that he had checked the

Department’s records, and could confirm that the Department had

not issued any licenses or permits to block the roadway.

           The defense first called Professor Hokulani Holt-

Padilla (Professor Holt-Padilla) to testify as an expert in the

field of Hawaiian custom, culture, history, and religion.

Professor Holt-Padilla explained that Haleakalā was one of the

“most significant cultural and religious sites on Maui” for

Native Hawaiians.     Construction of the DKIST, she explained, was

not just a “desecration” and an “affront” to the Hawaiian

culture, but would also affect many Native Hawaiians

“emotionally, spiritually, and physically.”

           Kauhane then testified that DKIST’s construction had

caused him “serious emotional harm,” and that as long as the


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telescope continued to be built, he and other Hawaiians would be

harmed.   Kauhane thus testified that he went to Crater Road to

pray and to protest the mountain’s desecration.            He acknowledged

that by going to Crater Road, he had also meant to stop the

transport of the DKIST’s materials, and that while praying, he

was “obstructing” the middle of the road.           Despite this, Kauhane

denied hearing the SPEED team’s warnings that he would be

arrested if he failed to move.

     3.    Jury Instructions

           At the close of evidence, the following instructions,

which were agreed upon by both parties, were read to the jury

with regard to the offense of Obstructing:
           Instruction 17
           In Count Two of the Complaint, the Defendant, KEITH
           KAUHANE, is charged with the offense of Obstructing.
           A person commits the offense of Obstructing if,
           whether alone or with others and having no legal
           privilege to do so, the person knowingly or recklessly
           persists to obstruct any highway or public passage,
           after a warning by a law enforcement officer to move
           to prevent or to cease such obstruction. There are
           three material elements of the offense of Obstructing,
           each of which the prosecution must prove beyond a
           reasonable doubt. These three elements are:

           [(1)]       [T]hat on or about August 20, 2015, in the
                       County of Maui, State of Hawai i, the
                       Defendant, whether alone or with others
                       and having no legal privilege to do so,
                       obstructed any highway or public passage;

           [(2)]       [T]hat the Defendant persisted to obstruct
                       any highway or public passage, after a
                       warning by a law enforcement officer to
                       move to prevent or to cease such
                       obstruction; and

           [(3)]       [T]hat the Defendant did so knowingly or
                       recklessly as to the above elements.

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            . . . .

            Instruction 26
            “Obstructs” means “renders impassable without
            unreasonable inconvenience or hazard.”

            The jury was also given an instruction on the choice-

of-evils defense:3
            Instruction 30
            It is a defense to the offense charged that the
            defendant’s conduct was legally justified. The law
            recognizes the “choice of evils” defense, also
            referred to as the “necessity” defense.

            The “choice of evils” defense justifies the
            defendant’s conduct if the defendant reasonably
            believes such conduct is necessary to avoid an
            imminent harm or evil to himself or another person.
            The conduct is justifiable if the harm or evil sought
            to be avoided by such conduct is greater than that
            sought to be prevented by the law defining the offense
            charged.

            If the prosecution has not proved beyond a reasonable
            doubt that the defendant’s conduct was not legally
            justified by the “choice of evils” defense, then you
            must find the defendant not guilty of each of the
            offenses. If the prosecution has done so, then you
            must find that the “choice of evils” defense does not
            apply.

            If you find that the defendant was reckless or
            negligent in bringing about the situation requiring a


      3
            The choice-of-evils defense is codified in HRS § 703-302 (2014),
and in relevant part, provides the following:

      (1)   Conduct which the actor believes to be necessary to avoid an
            imminent harm or evil to the actor or to another is justifiable
            provided that:

            (a)   The harm or evil sought to be avoided by such conduct is
                  greater than that sought to be prevented by the law defining
                  the offense charged;

            (b)   Neither the Code nor other law defining the offense provides
                  exceptions or defenses dealing with the specific situation
                  involved; and

            (c)   A legislative purpose to exclude the justification claimed
                  does not otherwise plainly appear.

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          choice of harms or evils or in appraising the
          necessity of his conduct, the justification afforded
          by this defense is unavailable as a defense to the
          offense of Obstructing.

     4.   Closing Arguments

          The State emphasized that the “laws of Hawai i

[existed] for a reason” and that they needed to be followed in

order to protect the community.        Acknowledging that Haleakalā was

undoubtedly a sacred place to many, and that all individuals had

the rights to protest, pray, and exercise their religions, the

State urged the jury to find Kauhane guilty as charged because

Kauhane, unlike many of the other protestors on Crater Road, had

chosen to break the law.

          In response, drawing upon Professor Holt-Padilla’s

testimony about Native Hawaiian beliefs and Kauhane’s testimony

about his belief of harm, the defense urged the jury to find that

the choice-of-evils defense applied, and that Kauhane stayed in

the middle of the road, despite it being unlawful to do so, to

avert an even greater harm to himself and other Native Hawaiians.

The defense argued:
          [W]eigh it out. What’s the harm versus what is he
          being imminently harmed with? What’s the difference?
          You’ve got to weigh it out, and you as jurors, I hope,
          will weigh in favor of my client and find that he
          believed that there was going to be imminent harm.
          You know, we all experience . . . pain in various
          ways. We all experience mental pain and grief and
          anxiety in various ways. Pain, grief, and anxiety,
          that equals harm. It’s the same thing. And again,
          the only way that you can really judge as jurors the
          vastness of the harm, the grief, the pain, the anxiety
          is to walk in Kalei’s [Kauhane’s] shoes.

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(Emphasis added).

            The State objected on the basis of the “golden rule,”

which the circuit court sustained.          The defense then rephrased

its argument, omitting any reference to “walking in [Kauhane’s]

shoes,” as follows:
            In light of Jury Instruction Number 30 [explaining the
            choice-of-evils defense], I’m asking that you find
            that my client was justified to be on the mountain at
            that point in time because he believed he was going to
            be suffering imminent harm from the desecration and
            the continuing desecration of Haleakalā.

      5.    Conviction and Sentence

            The jury acquitted Kauhane of the Failure to Disperse

and Disorderly Conduct charges, but found him guilty of

Obstructing.    The circuit court then sentenced Kauhane to one day

in jail with credit for time served, six months of probation, and

various fines and fees.

B.   ICA Proceedings

            On appeal, Kauhane argued: (1) that the circuit court

erred by failing to instruct the jury on the mitigating defense

to the Obstructing charge, which would have reduced his

conviction from a petty misdemeanor to a violation; 4 (2) that the

      4
            HRS § 711-1105(5) provides that “Obstructing is a petty
misdemeanor if the person persists in the conduct specified in subsection (1)
after a warning by a law enforcement officer; otherwise it is a violation.”
Kauhane argued that the jury should have been instructed on this mitigating
defense, because there was evidence adduced at trial that Kauhane did not hear
a warning by a law enforcement officer to remove himself from the road.
Because the ICA agreed with Kauhane and granted a new trial on that basis,
this opinion does not discuss the parties’ arguments on that issue.

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State’s complaint was defective because it failed to include the

statutory definition of “obstructs”; and (3) that the circuit

court erroneously sustained the State’s “golden rule” objection,

which precluded him from accurately presenting the requirements

of the choice-of-evils defense to the jury. 5

            Kauhane first explained that under HRS § 711-1100,

“obstructs” meant to “render[] impassable without unreasonable

inconvenience or hazard.”        By omitting that definition from the

complaint, Kauhane alleged that the State had not afforded him

sufficient notice of what he was required to defend against and

had violated his right to due process.           Had he known the

definition of “obstructs,” he argued, he could have “adduced

evidence . . . that his conduct did not present a hazardous

situation[,]” or “could have developed a defense that his

conduct[,] at worst[,] created a reasonable inconvenience, given

. . . his rights to peaceably assemble and protest [] official

government action.”      In light of these arguments, Kauhane asked

for the ICA to dismiss the State’s complaint without prejudice.

            Kauhane also alleged that by sustaining the State’s

“golden rule” objection, the circuit court prevented him from

properly explaining to the jury in his closing argument that it

      5
            On appeal, Kauhane also argued that insufficient evidence
supported his conviction. The ICA rejected this argument. Because Kauhane
does not challenge the sufficiency of the evidence on certiorari, we do not
address the issue further.

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could contemplate Kauhane’s choice-of-evils defense by “walking

in [his] shoes.”     Thus, in the alternative, he requested a new

trial on that basis.

             The State agreed with Kauhane that: (1) the circuit

court had erred by failing to instruct the jury on Obstructing’s

mitigating defense; (2) the complaint was defective; and (3) the

circuit court had erred by sustaining the “golden rule”

objection.

             Despite its concession with respect to the complaint’s

deficiency, however, the State noted that because Kauhane did not

object to the charge until his appeal, the Motta/Wells rule

applied.6    Under this post-conviction “liberal construction

rule,” the State contended that Kauhane could not show (1) that

the charge was “so obviously defective that by no reasonable

construction [could] it be said to charge the offense for which

the conviction was had”; or (2) that he was substantially

prejudiced.    The State thus contended that Kauhane’s conviction

could not be vacated on this ground.

             In its published opinion, the ICA vacated the circuit

court’s judgment and remanded the case for a new trial, based on



      6
            The Motta/Wells rule derives from State v. Motta, 

, 

 (1983), and State v. Wells, 78 Hawai i 373, 

 (1995). In
Motta, this court adopted a “liberal construction standard for post-conviction
challenges to indictments,” while in Wells, we limited this standard to
judicial review of charges challenged for the first time on appeal.

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its conclusion that the court had erred by failing to instruct

the jury on the mitigating defense to Obstructing. 7             Kauhane, 144

Hawai i at 112, 114-16, 

.             The ICA

rejected Kauhane’s argument that the State’s complaint was

defective, however, and found that although the circuit court had

erred in sustaining the State’s “golden rule” objection, such

error was harmless.      Id. at 113-14, 120-22, 

.

               To determine the sufficiency of the complaint, which,

as the State pointed out, was challenged for the first time on

appeal, the ICA indicated that it was applying the Motta/Wells

rule.       Id. at 113, 

.     Accordingly, it explained

that it would only vacate Kauhane’s conviction based on the

sufficiency of the charge if he could show: (1) that the

complaint could not within reason be construed to charge a crime;


        7
             The ICA held that the circuit court’s failure to instruct the jury
on the mitigating defense to Obstructing was plain error. Kauhane, 144
Hawai i at 114, 

. The ICA explained that under HRS § 711-
1105(5), Obstructing could be either a petty misdemeanor or a violation,
dependent on whether the individual persisted in blocking a highway or public
passage after a warning by a law enforcement officer. Id.
             Here, the ICA concluded, there was some evidence that Kauhane may
not have received a warning to clear the roadway, and that therefore, his
offense could have qualified as a violation. Id. at 116, 

.
The ICA noted that Captain Holokai did not recall giving Kauhane an individual
warning, that Sergeant Kapahulehua only recalled Captain Holokai speaking
“very loudly” to the general group, and that Kauhane had testified that he did
not hear any warning. 

             The ICA thus concluded that, because evidence existed in the
record to support Kauhane’s contention that he may not have been warned to
move, the circuit court had erred by failing to provide instructions to the
jury on this mitigating defense. 

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or (2) that he was prejudiced.        

            The ICA found that the complaint adequately charged the

offense of Obstructing and that the complaint was sufficient as a

matter of law.    Id. at 113-14, 

.

Specifically, the ICA determined that the statutory definition of

“obstructs” within the Obstructing statute comported with its

common definition, and that the use of the term without its

statutory definition would still be “readily comprehensible to

persons of common understanding.”           

            Further, the ICA explained that Kauhane failed to show

that he was prejudiced by the complaint.          Id. at 114, 

.    Noting that the parties had agreed upon jury instructions

that included the statutory definition of “obstructs,” the ICA

rejected Kauhane’s contentions that he neither had adequate

notice of the State’s burden of proof nor the elements of the

crime.    

            And, although the ICA agreed with Kauhane that the

circuit court erred by sustaining the State’s “golden rule”

objection, it concluded that this error was harmless.              Id. at

122, 

.      Specifically, the ICA explained, Kauhane

was not prejudiced by this error, as the argument he attempted to

make – that the choice-of-evils defense entitled a jury to

consider a defendant’s subjective belief by placing themselves


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“in the [defendant’s] shoes” – was not proper.             Id. at 120-22,

-05 (citing State v. Maumalanga, 90 Hawai i 58,

63, 

 (1988) (explaining that the choice-of-evils

defense assesses a defendant’s belief under a “reasonable” person

standard).    Moreover, “[i]n light of Jury Instruction Number 30,”

which detailed the defense and included language that the

“defendant reasonably believe[d] such conduct [was] necessary,”

the ICA explained that Kauhane was able to properly assert the

choice-of-evils defense, despite his claim otherwise.               Id. at

122, 

.

C.   Supreme Court Proceedings

             On certiorari, Kauhane again argues: (1) that the

State’s complaint was deficient for failing to include the

statutory definition of “obstructs”; and (2) that Kauhane was

prejudiced by the circuit court’s erroneous sustaining of the

State’s “golden rule” objection, in light of the arguments he

sought to present to the jury with respect to his choice-of-evils

defense.

                         II.   STANDARD OF REVIEW

             “Whether [a charge] sets forth all the essential

elements of [a charged] offense . . . is a question of law[,]

which [this court reviews] under the de novo, or right/wrong,

standard.”    State v. Wheeler, 121 Hawai i 383, 390, 

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1170, 1177 (2009) (internal quotation marks omitted) (quoting

State v. Wells, 78 Hawai i 373, 379, 

 (1995)

(citations omitted)).

                              III.   DISCUSSION

           As set forth below, we conclude that the ICA erred by

failing to properly apply the Motta/Wells rule and by holding

that the State’s complaint was sufficient.            We also conclude that

defense counsel’s argument on the choice-of-evils defense was not

improper, and that defense counsel should have been able to ask

the jury to consider Kauhane’s subjective belief of harm.

A.   The State’s Complaint Was Insufficient.

     1.    The ICA Erred by Failing to Apply the Motta/Wells Rule.

           As an initial matter, we note that the ICA erred by

misapplying the Motta/Wells rule.          When a criminal defendant

challenges the sufficiency of a charge in a timely manner, an

appellate court will uphold that charge if: (1) it contains the

elements of the offense; and (2) it sufficiently apprises the

defendant of what the defendant must be prepared to meet.                State

v. Mita, 124 Hawai i 385, 390, 

 (2010); State v.

Jendrusch, 

, 

 (1977).               In

other words, “[t]he relevant inquiry . . . is whether or not the

charge [has] provided the accused with fair notice of the




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[offense’s] essential elements.” 8         Mita, 124 Hawai i at 390, 

 (citation omitted).

            However, when a defendant challenges the sufficiency of

a charge for the first time on appeal, an appellate court will

apply a more liberal standard of review, called the Motta/Wells

rule.    See, e.g., State v. Merino, 81 Hawai i 198, 213, 

 (1996) (explaining that the Motta/Wells rule applies to

challenges to oral charges, informations, and complaints raised

for the first time on appeal).         Under the Motta/Wells rule,

charges challenged for the first time on appeal are presumed

valid.    Wheeler, 121 Hawai i at 399-400, 

.

Accordingly, we will only vacate a defendant’s conviction under

this standard if the defendant can show: (1) that the charge

cannot reasonably be construed to allege a crime; or (2) that the

defendant was prejudiced.        Motta, 

, 

.

            Here, because Kauhane challenged the sufficiency of the

complaint for the first time on appeal, the Motta/Wells rule is

applicable.    Although the ICA purported to apply that rule,



      8
            Although not implicated in this case, we note that in addition to
including all of an offense’s essential elements, a charge must also include
that offense’s requisite state of mind. See State v. Gonzalez, 128 Hawai i
314, 

 (2012) (citing State v. Nesmith, 127 Hawai i 48, 

 (2012)). If a charge fails to do so, it will not pass muster under the
Motta/Wells rule. See State v. Apollonio, 130 Hawai i 353, 

(2013).

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however, it appears that the ICA instead analyzed the language of

the charge using the principles applicable to timely challenges.

See Kauhane, 144 Hawai i at 113-14, 

 (“We

conclude that the term ‘obstructs’ as defined in HRS § 711-1100

comports with its commonly understood definition, and use of that

term in the . . . [c]omplaint is readily comprehensible to

persons of common understanding.”).

          As set forth below, we respectfully disagree with that

analysis, and further hold that the charge was deficient even

under the Motta/Wells rule.

     2.   The Complaint was Defective Under the Standard of
          Review for Timely Challenges.

          As described above, a charge will only be sufficient

when it “provide[s] the accused with fair notice of the

[offense’s] essential elements.”          Mita, 124 Hawai i at 390, 

 (citation omitted).        A charge’s essential elements

include conduct, attendant circumstances, and results of conduct.

State v. Sprattling, 99 Hawai i 312, 329 n.6, 

, 293

n.6 (2002) (quoting Merino, 81 Hawai i at 214, 

);

HRS § 702-205.

          “[W]here [a] statute sets forth with reasonable clarity

all essential elements of the crime intended to be punished, and

fully defines the offense in unmistakable terms readily

comprehensible to persons of common understanding, a charge drawn

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in the language of the statute [will be] sufficient.”              State v.

Nesmith, 127 Hawai i 48, 53, 

 (2012) (citing

Wheeler, 121 Hawai i at 393, 

).            However, “[i]n

some cases, [] a charge tracking the language of the statute

defining the offense [will] violate[] an accused’s due process

rights.    

             This is so because although “some statutes in our
             criminal laws so clearly and specifically define the
             offense that nothing more is required in a charge than
             the adoption of language of the statute, other
             statutes fail to sufficiently describe the crime and a
             charge couched merely in the language of such a
             statute would violate due process.”

 (citing State v. Israel, 78 Hawai i 66, 73, 

(1995) (emphasis added) (internal quotations and brackets

omitted)).

             The charge at issue here falls into this latter

category because it failed to allege all of Obstructing’s

essential elements.       By doing so, it also failed to apprise

Kauhane of what he was required to defend against.

             Under HRS § 711-1105(1)(a), “[a] person commits the

offense of Obstructing if, whether alone or with others and

having no legal privilege to do so, the person knowingly or

recklessly . . . [o]bstructs any highway or public passage[.]”

(Emphasis added).      HRS Chapter 711 defines “obstructs” to mean

“renders impassable without unreasonable inconvenience or

hazard.”     HRS § 711-1100.

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          Here, the State’s charge tracked the language of the

Obstructing statute, but did not include the statutory definition

of “obstructs” as provided for in HRS § 711-1100.             The State was

required to include this definition, however, because “render[ing

a highway or public passage] impassable without unreasonable

inconvenience or hazard” comprised an essential element of the

offense as a result of conduct.        See HRS § 711-1100.

          Without this element, Kauhane could not have been

sufficiently apprised of what he was required to defend against.

Contrary to the ICA, we do not believe that the statutory meaning

of “obstructs” comports with its common meaning.            For example,

Merriam-Webster’s dictionary defines “obstructs” as “to block or

close up by an obstacle[;] to hinder from passage, action, or

operation[;] IMPEDE[ or] to cut off from sight,” while Black’s

Law Dictionary defines “obstructs” as:
          1. To block or stop up (a road, passageway, etc.); to
          close up or close off, esp. by obstacle <obstruct the
          runway>. 2. To make difficult or impossible; to keep
          from happening; hinder <to obstruct the peace
          process>. 3. To cut off a line of vision; to shut
          out <the new construction obstructs our view of the
          road>.

See Obstruct, Merriam-Webster Collegiate Dictionary (11th ed.

2003); see also Obstruct, Black’s Law Dictionary 1246 (10th ed.

2014).

          Under these common definitions, any blockage of passage

is sufficient to constitute obstruction.          This is not the case

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under HRS § 711-1100, however, which is more protective of

freedom of speech and assembly and provides that conduct

constitutes obstruction only if it poses “unreasonable

inconvenience or hazard.”       (Emphasis added).

          This more protective approach is confirmed by HRS

§ 711-1105's commentary, as well as by the commentary on Model

Penal Code (MPC) § 250.7, the model statute from which HRS § 711-

1105 was substantially derived.        See State v. Aiwohi, 109 Hawai i

115, 126 n.13, 

, 1221 n.13 (2005) (explaining that

the MPC as adopted in 1962 was used by the Judicial Council of

Hawai i as the guide for the Hawai i Penal Code) (citing State v.

Gaylord, 78 Hawai i 127, 140 n.22, 

, 1180 n.22

(1995) (citation omitted)).

          Specifically, the commentary to HRS § 711-1105 states

that:
          Normally, the act of obstructing a public highway
          presents a great public inconvenience and serves no
          useful purpose. However, where the obstruction is
          caused by a crowd listening to a speaker, or even by a
          crowd protesting some official action, important goals
          are served by leaving the group as free from
          restriction as possible.

HRS § 711-1105 cmt.

          The commentary on MPC § 250.7 also explains that the

MPC’s definition of “obstructs” – “to render impassable without

unreasonable hazard or delay” – played a “crucial role” in

confining the reach of the Obstructing statute “within acceptable

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limits.”     ALI Model Penal Code and Commentaries Part II, § 250.7,

at 403 (1980) (emphases added).        And, it further explains that

the MPC adopted such a “precise” definition of “obstructs”

because “[n]ot every incidental impact on access to streets and

highways” warranted a “restriction on speech and assembly.”                  Id.

(explaining that an individual’s “presence in an obstructive

gathering” was not criminal “so long as . . . the public [could]

go on their way with reasonable safety and convenience”).               This

definition of “obstructs,” the commentary notes, would therefore

“preclude[] the suppression of otherwise lawful activity on the

ground of some trivial inconvenience to [a] passerby,” and

furthermore, “give the widest possible scope to picketing,

protest, and other lawful assembly, consistent with the need to

protect reasonable public access to highways and other public

passages.”    Id. at 403-04.

             It is thus clear, from examining Hawai i’s Obstructing

statute and its commentary, as well as the commentary of MPC

§ 250.7, that the statutory definition of “obstructs” does not

reflect the term as commonly understood.          Rather, the statutory

definition of “obstructs” includes a limitation of

“unreasonableness” for the specific purpose of protecting freedom

of speech and freedom of association.          We do not believe that a

person of common understanding would be aware of this additional


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meaning.

           This analysis is confirmed by an examination of State

v. Wheeler, 121 Hawai i 383, 

 (2009), and State v.

Pacquing, 139 Hawai i 302, 

 (2016).           In Wheeler, this

court held that a charge for Operating a Vehicle Under the

Influence of an Intoxicant (OVUII) was fatally defective because

it failed to include the statutory definition of “operates.”                 121

Hawai i at 393, 219 P.3d at 1180.         Under the statutory

definition, the term “operates” meant to “drive or assume actual

physical control of a vehicle upon a public way, street, road, or

highway[.]”   Id. at 391, 219 P.3d at 1178 (emphasis added).                 In

contrast, the commonly understood definition of the term meant

“to perform a function or operation, or [to] produce an

effect[,]” regardless of where that took place.            Id. at 394, 219

P.3d at 1181 (citing Black’s Law Dictionary 1091 (6th ed. 1990)).

           This court concluded that the statutory definition of

“operates,” which included the attendant circumstance of

location, did “not comport with its commonly understood

definition,” was “not readily comprehensible to persons of common

understanding,” and did not provide the defendant with adequate

notice of what he was required to defend against.             Id.

Accordingly, we held that an OVUII charge would not be sufficient

unless it alleged that the offense had occurred on a public


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roadway.   Id. at 396, 219 P.3d at 1183.

           This court came to a similar conclusion in Pacquing,

holding that any charge for the unauthorized possession of

confidential personal information (UPCPI) would have to include

the statutory definition of “confidential personal information”

in order to be sufficient.       139 Hawai i 302, 308, 

 (2016).   As provided by statute, the term “confidential

personal information” meant “information in which an individual

[had] a significant privacy interest, including but not limited

to a driver’s license number, a social security number, an

identifying number of a depository account, a bank account

number, [or] a password[.]”       

     This definition, we concluded,

did not comport with its common meaning of “secret or private

knowledge belonging or relating to a particular person or

designed for use by that person.”         

   Because the phrase

“‘confidential personal information’ [did] not convey the extent

or limits of the statutory definition[,]” we held that the UPCPI

charge did not “sufficiently apprise” the defendant of what he

was required to defend against.         

           Here, as in Wheeler and Pacquing, the State’s charge

against Kauhane failed to “convey the extent or limits of the

statutory definition” and failed to apprise Kauhane of what he

was required to defend against.         Kauhane would not have


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“obstructed” Crater Road in violation of HRS § 711-1105 had he

merely blocked it; he only would have “obstructed” the road for

the purposes of the statute had he blocked it by causing an

unreasonable inconvenience or hazard.          Because the State was

required to include the definition of “obstructs” in its charge

as an essential element of the offense, and ultimately, prove

beyond a reasonable doubt that Kauhane’s conduct would have

prevented the convoy’s passage without unreasonable inconvenience

or hazard, the charge was fatally defective and did not provide

Kauhane with adequate notice.

     3.   The Complaint was Insufficient Under the Motta/Wells
          Rule.

          As set forth above, although the ICA purported to apply

the Motta/Wells rule, it actually applied the standard of review

for an issue raised at the trial level.          We hold, however, that

even under the Motta/Wells rule, the complaint was insufficient

and must be dismissed.

          In State v. Sprattling, 99 Hawai i 312, 317, 

 (2002), the defendant argued that an Assault in the

Third Degree charge was fatally defective because, by alleging

“injury” instead of “bodily injury,” the State failed to include

one of the charge’s essential elements.          This court rejected that

argument, and instead held that it was sufficient under the

Motta/Wells rule.     

, 

.

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            As an initial matter, this court explained that the

charge could still “be reasonably construed to charge assault in

the third degree.”         

, 

.      Although the

charge failed to include the word “bodily,” we concluded that

this omission was not a fatal defect because the term “bodily”

merely served as a modifier to the word “injury,” and did not, on

its own, constitute an essential element of the offense.               

, 

.        This court also concluded that this

omission did not “alter the nature and cause of the accusation

such that a person of common understanding would fail to

comprehend it.”      

     Even without the term “bodily,” a defendant

could still comprehend the charge to include “bodily injury”

because “bodily injury” was inherent in the common definition of

“assault.”9    

   For this reason, and because the defendant did

not allege that he was prejudiced, this court held that the

State’s charge passed muster under the Motta/Wells rule.

            In contrast to the State’s charge in Sprattling, which

imperfectly stated an element of the offense, here, the State’s

failure to include the statutory definition of “obstructs”

amounted to an omission of an entire element of the offense.



      9
            Specifically, we held that “[t]he word ‘assault’ by definition
implie[d] bodily injury[, as] it [was] defined as ‘any intentional display of
force such as would give the victim reason to fear or expect bodily harm[.]”
Sprattling, 99 Hawai i at 319, 

 (emphasis and omission in
original) (citing Black’s Law Dictionary 114-15 (6th ed. 1990)).

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Thus, unlike the charge in Sprattling, the charge here cannot

reasonably be construed to charge an offense because the common

definition of “obstructs” did not comport with its statutory

definition.    As a result, even under the more liberal Motta/Wells

rule, the charge was insufficient, and accordingly, must be

dismissed.    See Wheeler, 121 Hawai i at 386, 400, 219 P.3d at

1173, 1187 (affirming the ICA’s judgment, which vacated and

remanded the case with instructions to dismiss without prejudice,

because the charge was deficient). 10

B.   The State’s “Golden Rule” Objection Was Incorrect.

             In addition to challenging the sufficiency of the

complaint, Kauhane also argued to the ICA that the circuit court

erred by sustaining the State’s “golden rule” objection during

his closing argument, which precluded him from informing the

jurors that they could consider Kauhane’s belief, for the

purposes of the choice-of-evils defense, by “walking in his

shoes.”    Although the ICA agreed with Kauhane that the argument

was not improper under the “golden rule,” it further held that it

was improper because it misstated the law on the choice-of-evils

defense.




      10
            In light of our determination, we do not address whether Kauhane
was prejudiced.

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     1.     The “Golden Rule” Argument Did Not Apply.

            As the ICA concluded, the circuit court incorrectly

sustained the State’s objection.          Under a typical “golden rule”

argument, “a lawyer asks the jurors to reach a verdict by

imagining themselves or someone they care about in the place of

the injured plaintiff or crime victim.”          Golden-rule argument,

Black’s Law Dictionary 807 (10th ed. 2014).           These arguments are

widely condemned in both civil and criminal cases because they

“ask the jurors to become advocates for the plaintiff or victim

and to ignore their obligation to exercise calm and reasonable

judgment[.]”      Kauhane, 144 Hawai i at 121, 

(citing Ditto v. McCurdy, 86 Hawai i 93, 127, 

(App. 1997) (citation omitted), aff’d in part, rev’d on other

grounds, 86 Hawai i 84, 

 (1997)).           As the ICA noted,

unlike a typical “golden rule” argument, the defense’s argument

in the instant case did not attempt to inflame the passions of

the jury.   

     Furthermore, the “golden rule” argument did not

apply because Kauhane, who asked the jury to “walk in [his]

shoes” for the purposes of the choice-of-evils defense, was a

defendant, rather than a civil plaintiff or victim.             Id. at 122,

.      Accordingly, we agree with the ICA that it was

error for the circuit court to sustain the State’s objection when

it was based on that ground.


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        2.   A Defendant’s Subjective Belief of Harm is Relevant For
             the Purposes of the Choice-of-Evils Defense.

             Although the ICA correctly concluded that the circuit

court erred in sustaining the State’s objection, we disagree with

its analysis of whether that error was harmless.             Specifically,

the ICA concluded that defense counsel’s statement to the jury –

that “the only way to judge the vastness of the harm to Kauhane

was to walk in [his] shoes” – was improper for the purposes of

the choice-of-evils defense because it failed to incorporate a

reasonable person standard.11        Kauhane, 144 Hawai i at 122, 

 (citing Maumalanga, 90 Hawai i at 58, 

).

             Thus, it appears the ICA was suggesting that defense

counsel was misstating the law by not referring to the

reasonableness of Kauhane’s belief.          However, although Kauhane’s

belief had to be objectively reasonable, it was also necessary

that Kauhane, in fact, subjectively held such a belief.               Thus, it

       11
             In Maumalanga, 90 Hawai i at 58, 

, this court held
that “all of the elements of the choice of evils defense [were] contained
within the express language of HRS § 703-302[,]” and further, that any “common
law formulations . . . [were] superseded by the adoption of the Hawai i Penal
Code.” See id.; see also State v. Friedman, 93 Hawai i 63, 71, 

 (2000). This court based its ruling on the concurring and dissenting
opinion of then-Judge Acoba, who acknowledged in the ICA that “[t]he term
‘believes’ in HRS § 703-302 meant ‘reasonably believes[,]’” and further, that
“this definition [of belief] . . . was intended by the legislature to
incorporate a ‘reasonable [person] standard.’” See State v. Maumalanga, 90
Hawai i 96, 112 n.3, 

, 426 n.3 (App. 1998); HRS § 703-300 (“In
this chapter, unless a different meaning is plainly required: ‘Believes’ means
reasonably believes”); HRS § 703-302 supp. cmt. (explaining that the
legislature adopted a reasonable person standard for the choice-of-evils
defense).

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was proper for Kauhane’s counsel to address Kauhane’s subjective

belief in his closing argument.        Moreover, we do not interpret

Kauhane’s argument as suggesting that the jury improperly

disregard the requirement that the belief be reasonable.              Thus,

the ICA incorrectly concluded that defense counsel’s argument was

improper.

                             IV.   CONCLUSION

            For the reasons set forth above, we vacate the ICA’s

January 2, 2019 Judgment on Appeal and the circuit court’s

September 9, 2016 Judgment of Conviction and Probation, and

remand the case to the circuit court with instructions to dismiss

without prejudice.

Hayden Aluli                          /s/ Mark E. Recktenwald
for petitioner
                                      /s/ Paula A. Nakayama
Gerald K. Enriques
(Richard K. Minatoya                  /s/ Sabrina S. McKenna
on the brief)
for respondent                        /s/ Richard W. Pollack

                                      /s/ Michael D. Wilson




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