State v. Loo

1

STATE OF HAWAI'I, Plaintiff-Appellee, v. DAMIAN LOO, Defendant-Appellant.

No. CAAP-18-0000730

Intermediate Court of Appeals of Hawaii

February 28, 2024

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NO 5CPC-17-0000312)

Thomas M. Otake, for Defendant-Appellant.

Michelle M.L. Puu, Deputy Attorney General, for Plaintiff-Appellee.

(By Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

SUMMARY DISPOSITION ORDER

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 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), 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[.]"

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 2 9, 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 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...