State v. Viglielmo

Citation105 Haw. 197,95 P.3d 952
Decision Date11 August 2004
Docket NumberNo. 24132.,24132.
PartiesSTATE of Hawai'i, Plaintiff-Appellant, v. Frances VIGLIELMO, Defendant-Appellee.
CourtSupreme Court of Hawai'i

R. Steven Geshell, Honolulu, on the briefs, for the defendant-appellant Frances Viglielmo.

Alexa D.M. Fujise, deputy prosecuting attorney, on the briefs, for the plaintiff-appellant State of Hawai'i.

MOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ., and ACOBA, J., Dissenting.

Opinion of the Court by LEVINSON, J.

The defendant-appellant Frances E. Viglielmo appeals from the judgment and sentence of the district court of the first circuit, the Honorable Barbara P. Richardson presiding, filed on October 9, 2003,1 convicting her of and sentencing her for the offense of trespass in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 708-814(1)(b) (1993 & Supp.2003).2 On appeal, Viglielmo contends that the district court erred (1) in denying her motions to dismiss and (2) in finding her guilty, inasmuch as HRS § 708-814(1)(b) is unconstitutional on its face and as applied to her, in violation of article I, sections 2, 4, and 5 of the Hawai'i Constitution (1978)3 and the first and fourteenth amendments to the United States Constitution,4 given the facts that she was (a) exercising her constitutional right to free speech and thus not unlawfully present on the Ala Moana Shopping Center's premises and (b) a "business invitee" of the shopping center and invited to use the center as a "public place."

We hold that the district court did not err, on first amendment grounds, in denying Viglielmo's motions to dismiss or in finding her guilty, inasmuch as (1) the district court's decisions did not run afoul of federal constitutional case law and (2) Viglielmo's expressive conduct on the premises of Ala Moana Shopping Center was not protected under the first amendment to the United States Constitution. Additionally, we hold that article I, section 4 of the Hawai'i Constitution affords Viglielmo no greater free speech protection than the first amendment to the United States Constitution and that she is therefore not insulated from criminal liability under HRS § 708-814(1)(b).


The present matter arises out of an incident that occurred on December 15, 2000, in which Viglielmo was peaceably protesting the sale of military toys to children in front of Kay-Bee Toys, located in the Ala Moana Shopping Center (Ala Moana), in the City and County of Honolulu. The prosecution adduced the following testimony at Viglielmo's bench trial, which the district court conducted on February 13, 2001.

At approximately 11:30 a.m., Viglielmo was standing on a sidewalk in front of Kay-Bee Toys holding a sign that read: "Stop selling war hero toys to kids. Adults who plant mines, drop bombs, fire missiles, kill kids. Boycott Kay-Bee till military figures are sold only to adults!" Viglielmo was also handing out pamphlets. Viglielmo was not shouting, creating a public disturbance, or impeding people from entering Kay-Bee Toys.

John Alves was a safety and security officer employed by Ala Moana on December 15, 2000. Alves saw Viglielmo with her sign and observed her distributing pamphlets, at which time he waited for his supervisor, and together they approached Viglielmo. Alves and his supervisor, acting as representatives of Ala Moana, informed Viglielmo that she could neither picket nor distribute pamphlets on Ala Moana's premises, which was private property. Viglielmo refused to leave, stating that Ala Moana was a public facility. Ala Moana's assistant director of security also arrived to inform Viglielmo that she could not picket or distribute pamphlets on Ala Moana's premises. Viglielmo again refused to leave. Alves then requested police assistance. Honolulu Police Department (HPD) Officer Antonio Bustamante was sent by police dispatch to Ala Moana. Upon Officer Bustamante's arrival, he first spoke to Alves and his supervisor and then to Viglielmo, explaining to her that she could protest on the public street, but not on Ala Moana's private property. Viglielmo again refused to leave. Alves and his supervisor issued Viglielmo a written trespass warning, which stated in relevant part:

This is a trespass warning issued to you as provided in the Hawaii Revised Statutes. I am Johnnual Alves, an authorized agent representing GGP Ala Moana L.L.C., the owner of this property, situated at 1450 Ala Moana Blvd. You are hereby warned that your presence is not welcome on or within the above premises, including, but not limited to, any commercial establishment, parking area, common area, and structure. You are directed to immediately leave and not return to this property or premises for a period of one (1) year.
Failure to comply with this warning is in direct violation of Section 708-814 of the Hawaii Penal Code and may subject you to arrest and criminal prosecution which may result in a fine or incarceration, or both.
"A person commits the offense of criminal trespass in the second degree if ...
(b) He/she enters or remains unlawfully in or upon commercial premises after the reasonable warning or request to leave by the owner or lessee of the commercial premises or his authorized agent or police officer ..."
On 12-15-00, at 1145 hours, the above notice was read and a copy presented to [Viglielmo]....

Viglielmo refused to sign the trespass warning, and Alves issued her a copy.

Officer Bustamante called his sergeant over to explain to Viglielmo that she was required to leave, after which the Ala Moana security officers and the HPD officers renewed their request to Viglielmo that she leave the premises. Officer Bustamante then placed Viglielmo under arrest for failing to comply with the officers' requests to leave Ala Moana property.

On January 11, 2001, Viglielmo filed a pretrial motion to dismiss, pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 12(b) (2001),5 wherein she argued that HRS § 708-814(1)(b), see supra note 2, was unconstitutional on its face and as applied to her, in violation of article I, sections 2, 4, and 5 of the Hawai'i Constitution and the first and fourteenth amendments to the United States Constitution, inasmuch as prosecuting her pursuant to HRS § 708-814(1)(b) prevented her from exercising her constitutional right to free speech and deprived her of her enjoyment of life, liberty, and the pursuit of happiness.

On February 13, 2001, the district court conducted a pretrial hearing on Viglielmo's motion to dismiss and proceeded to arraign Viglielmo on the charge of criminal trespass in the second degree, see supra note 2. The district court denied Viglielmo's motion to dismiss, stating that "the [c]ourt does find that the statute is not unconstitutional and therefore the [c]ourt will deny the motion to dismiss." That same morning, the district court conducted a bench trial on the charged offense. At Viglielmo's bench trial, Officer Bustamante and Alves testified to the foregoing summary of events. In addition to Officer Bustamante's and Alves's testimony, the prosecution introduced into evidence, and the defense stipulated to, the pamphlet that Viglielmo was distributing and the written trespass warning issued to Viglielmo.

At the close of the prosecution's case-in-chief, Viglielmo again moved to dismiss the charge, during which the following colloquy occurred:

[DEFENSE COUNSEL]: I'd like ... [to] make a motion to dismiss again for the reason that the constitutional rights of my client have been violated by this [p]rosecution as previously asserted in the motion to dismiss.
Secondly, the State has failed to prove that my client was not invited, which is an element of the offense. The State has also failed to prove the state of mind required to violate this statute[,] to wit: that she acted intentionally or knowingly and recklessly or negligently to violate the statute with the state of mind required and, therefore, this Court should find her not guilty and dismiss at this time.
THE COURT: [Deputy prosecuting attorney (DPA)]?
[DPA]: [T]he State has proven at least by a prima facie case that all the elements have been met; not invited is not an element. All that is required by the statute is that she was asked to leave by the owner and that she refused to leave. And we had testimony by Mr. Alves that he was an authorized representative of Ala Moana at the time; so he meets the requirements that she was asked to leave by an agent or an owner as well as she was asked to leave by a police officer. So we feel those elements have all been met. State of mind can be inferred by [Viglielmo] refusing over four times by many different people to leave the area. State has at least put on a prima facie case, Your Honor.
THE COURT: Taking the evidence in the light most favorable to the State, the Court finds that there has been a prima facie case presented to the Court and therefore the Court will deny the motion.

Viglielmo testified on her own behalf at trial. She stated that she had never seen any signs in Ala Moana shopping center prohibiting her from leafleting or picketing, that she was not creating a disturbance, and that she considered the common areas of Ala Moana to be "free speech and free assembly turf." In addition to Viglielmo's own testimony, through Defendant's Exhibits A through D, stipulated into evidence by the prosecution, she adduced the following information regarding Ala Moana at trial. Ala Moana is situated on fifty acres, hosts over two million people each month, houses more than two hundred retail stores, holds nearly 550 performances each year, includes a central bus transfer station that averages 2,100 buses per day, and has 8,500 parking spaces, a United States Post Office, and a Honolulu satellite city hall.

After the defense rested, Viglielmo renewed her motion to dismiss on the same constitutional grounds raised previously. The district court heard final...

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