NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-FEB-2024
07:46 AM
Dkt. 75 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI, Plaintiff-Appellee, v.
DAMIAN LOO, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)
Defendant-Appellant Damian Loo appeals from the
Circuit Court of the Fifth Circuit's August 30, 2018 Notice of
Entry of Judgment of Conviction and Sentence, convicting him of
Harassment by Stalking, in violation of Hawai‘i Revised Statutes
(HRS) § 711-1106.5(1) (2014), and Use of a Computer in the
Commission of a Separate Crime Relating to Harassment by
Stalking, in violation of HRS § 708-893(1)(h) (Supp. 2016). 1 The
1 The Honorable Randal G.B. Valenciano presided.
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circuit court sentenced Loo to one-year and four-year terms of
probation, respectively.
On appeal, Loo challenges the constitutionality of the
Harassment by Stalking statute, the sufficiency of the evidence,
and the denial of his motion to dismiss.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve Loo's
points of error as discussed below, and affirm.
(1) Loo first contends the Harassment by Stalking
Statute "is unconstitutionally void for vagueness due to its
failure to specifically define the term 'surveillance.'"
Contrary to Loo's contention, the absence of a
statutory definition for surveillance does not render the
Harassment by Stalking statute vague. HRS § 711-1106.5 provides
in relevant part as follows:
A person commits the offense of harassment by
stalking if, with intent to harass, annoy, or alarm another
person, or in reckless disregard of the risk thereof, that
person engages in a course of conduct involving pursuit,
surveillance, or nonconsensual contact upon the other
person on more than one occasion without legitimate
purpose.
(Emphasis added.) Surveillance is defined in the dictionary as
"close watch kept over someone or something (as by a
detective)." Merriam-Webster, Surveillance Definition &
Meaning, Merriam-Webster Online Dictionary (2024),
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https://www.merriam-webster.com/dictionary/surveillance
[https://perma.cc/GE5N-49TU].
By applying the common meaning of surveillance, a
person of ordinary intelligence would know that he or she is
prohibited from engaging in a course of conduct involving
closely watching over someone "on more than one occasion without
legitimate purpose" "in reckless disregard of the risk" of
harassing, annoying, or alarming that person. HRS § 711-1106.5.
See State v. Alangcas, 134 Hawai‘i 515, 530, 345 P.3d 181, 196
(2015) (explaining the test for determining whether a statute is
vague). Moreover, the same analysis shows "there is no concern
of arbitrary or subjective police enforcement." Id. at 535,
345
P.3d at 201.
Thus, the lack of a statutory definition for the term
"surveillance" does not render HRS § 711-1106.5
unconstitutional.
(2) Loo next contends "[t]here was no substantial
evidence to support [his] conviction for harassment by
stalking."
The charging instrument asserted Loo, "in reckless
disregard of the risk of harassing, annoying, or alarming, [the
female employee], did engage in a course of conduct involving
surveillance upon [the female employee] on more than one
occasion without legitimate purpose[.]"
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Kaua‘i Police Department (KPD) Sergeant Scott
Williamson (Sgt. Williamson) testified the surveillance camera
that feeds Channel 1 monitors "the entrance to the cellblock,
where the vehicles would pull up, the officer would wave their
badge, and it would open the gate for them to pull in with
prisoners." One day, Sgt. Williamson and KPD Sergeant Ginny Pia
(Sgt. Pia) noticed the camera move and focus on a parking stall
assigned to a particular female employee. The Channel 1 camera
focused on the empty parking stall for about eight minutes until
that female employee arrived. Sgts. Williamson and Pia then
observed Loo in real time use the camera to zoom in and track
the female employee as she walked from her car to the entry
door. When she entered the building, the camera was returned to
"its normally assigned position."
Sgt. Williamson then reviewed the available video
footage saved on the system, and determined Loo used the
Channel 1 camera to monitor the same female employee in a
similar manner on eleven separate occasions – March 22, 2017;
March 23, 2017; March 24, 2017; March 28, 2017; March 29, 2017;
March 30, 2017; March 31, 2017; April 4, 2017; April 6, 2017;
April 7, 2017; and April 13, 2017.
Evidence at trial also showed Loo admitted he had no
legitimate purpose in zooming in and watching the female
employee. Loo further admitted that he could understand why the
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female employee would be "alarmed" upon learning his actions.
The female employee testified she felt "shocked," "alarmed," and
"scared" when learning of Loo's actions.
Viewing this evidence in the light most favorable to
the State, there was substantial evidence to support the jury's
conclusion that Loo, "in reckless disregard of the risk of
harassing, annoying, or alarming, [the female employee], did
engage in a course of conduct involving surveillance upon [the
female employee] on more than one occasion without legitimate
purpose[.]" See State v. Kalaola, 124 Hawai‘i 43, 49, 237 P.3d
1109, 1115 (2010) (providing the standard of review for
sufficiency of the evidence); State v. Batson,
73 Haw. 236, 254,
831 P.2d 924, 934 (1992) (explaining that "[g]iven the
difficulty of proving the requisite state of mind by direct
evidence in criminal cases, we have consistently held that proof
by circumstantial evidence and reasonable inferences arising
from circumstances surrounding the defendant's conduct is
sufficient[.]") (cleaned up).
(3) Finally, Loo contends the circuit court erred in
denying his motion to dismiss the Harassment by Stalking charge
as a de minimus infraction under HRS § 702-236(1) (2014).
HRS § 702-236(1) provides:
(1) The court may dismiss a prosecution if, having
regard to the nature of the conduct alleged and the nature
of the attendant circumstances, it finds that the
defendant's conduct:
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(a) Was within a customary license or tolerance,
which was not expressly refused by the person
whose interest was infringed and which is not
inconsistent with the purpose of the law defining
the offense;
(b) Did not actually cause or threaten the harm or
evil sought to be prevented by the law defining
the offense or did so only to an extent too
trivial to warrant the condemnation of conviction;
or
(c) Presents such other extenuations that it cannot
reasonably be regarded as envisaged by the
legislature in forbidding the offense.
Prior to trial, Loo moved to dismiss the charge as a
de minimis infraction, and during a hearing on the motion, Loo
argued in part that "the alleged facts is somebody was walking
by and he watched her on a camera in a public area without her
knowing, never told her." The circuit court denied the motion,
concluding Loo "failed to show why his conduct did not cause or
threaten the harm or evil sought to be prevented by [HRS § ]711-
1106.5" and "failed to present evidence of" the factors in State
v. Rapozo, 123 Hawai‘i 329, 344, 235 P.3d 325, 340 (2010).
During closing arguments, Loo renewed his motion to
dismiss the charge as a de minimus infraction, incorporating his
prior arguments. The circuit court again denied the motion.
That Loo secretly monitored the female employee, or
that it was in an area where other employees parked, did not
render his conduct a de minimis infraction. After reviewing
Loo's arguments to the circuit court and the evidence adduced at
trial, we cannot say that the circuit court "clearly exceeded
the bounds of reason or disregarded rules or principles of law"
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in this case. Rapozo, 123 Hawai‘i at 336, 235 P.3d at 332
(citation omitted).
Based on the foregoing, we affirm the circuit court's
August 30, 2018 Notice of Entry of Judgment of Conviction and
Sentence.
DATED: Honolulu, Hawai‘i, February 28, 2024.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Thomas M. Otake,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Michelle M.L. Puu,
Deputy Attorney General, /s/ Sonja M.P. McCullen
for Plaintiff-Appellee. Associate Judge
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