Assault in Pahoa differs from HRS?

[Wao nahele kane]

Local Pahoa officers denied an assault occurred claiming there must be visible traces of injury, etc…
A 59 year old woman was grabbed, shaken, violently pushed and verbally threatened by a trespassing man in his mid 40’s on her private property. The police claim that it isn’t assault.
I wonder if it feels good for a 59 year old woman to be handled that way by a trespasser. Would that be painful to a woman nearing 60?
The police claimed it was only harassment...
What does the HRS say about assault?

" PART I. GENERAL PROVISIONS RELATING TO OFFENSES AGAINST THE PERSON
§707-700 Definitions of terms in this chapter. In this chapter, unless a different meaning plainly is required:
"Bodily injury" means physical pain, illness, or any impairment of physical condition."

vs. ""Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

vs. ""Substantial bodily injury" means bodily injury which causes:

(1) A major avulsion, laceration, or penetration of the skin;

(2) A burn of at least second degree severity;

(3) A bone fracture;

(4) A serious concussion; or

(5) A tearing, rupture, or corrosive damage to the esophagus, viscera, or other internal organs."


Notes:
"Act 314, Session Laws 1986, added the definition of "substantial bodily injury" to account for injuries far more serious than bodily injury--which includes any physical pain, illness, or impairment--but do not approximate the risk of death, permanent loss or disfigurement that constitute "serious bodily injury"."

ASSAULT statutes-

1st degree assault "SERIOUS Bodily Injury" -
http://www.capitol.hawaii.gov/hrscurrent...7-0710.htm

2nd degree assault "SUBSTANTIAL Bodily Injury" -
http://www.capitol.hawaii.gov/hrscurrent...7-0711.htm

3rd degree assault (simple) "Bodily Injury" -
http://www.capitol.hawaii.gov/hrscurrent...7-0712.htm

After reading the HRS, what's your opinion with regard to the appropriate charge within such an incident - harassment or 3rd degree assault?

E ho'a'o no i pau kuhihewa.

[birdmove]

I'm a 58 (will be 59 Nov. 1st) man. I work out at a gym (Aloha Fitness), ride a bicycle frequently (am planning to do a ride from HPP to Hilo and back soon), have great blood pressure and am in pretty decent shape for my age I believe. But many folks my age have health problems that may make that kind of treatment dangerous for them. Also, any injury you get at this age seems to take forever to get better (unlike when you were in your teens and twenties).
I am entitled to my opinion and my common sense tells me that this dude "assaultled" this older lady. A stranger comes onto my property and treats me this way is going to learn a hard lesson.
The police should have been in this dudes face big time.

Jon in Keaau/HPP

[oink]

I don't think I like that statute. By my reading, if she complained that she felt pain it could be the simple assault. If she said he didn't actually hurt her then it's not there. It could be that the prosecutor's office has let the police know that they won't prosecute if there is no physical evidence of the battery. In most places any unlawful touching is a crime. In Fl. the simple unlawful touching is a battery. The threat to do so would be assault. I guess I need to study up on Hawaii's strange laws. I used to be frustrated by incidents where a felony assault (deadly weapon) obviously occurred but the victim trashes the case by his macho insistence that "no, he didn't scare me, I'm not afraid of him". The crime required that the victim be in fear. You can only do so much coaching of the victim without stepping completely over the line.

Pua`a
S. FL
Big Islander to be.

[Rob Tucker]

The state is so burdened with prisoners as it is I would not hold much hope that police will be making arrests except in the most blatant circumstances. As it is they have a history of such poor investigation and evidence collection that some really, really egregious criminals have gone free or had very light sentences.

[Wao nahele kane]

What's sad about the following link is that its based on reported crimes in Pahoa. Many of us know that many of the shown crimes in general are ignored by many people here and those that are reported as we also know are many times disregarded by the police here. So the numbers we see in the following crime demographics would be much higher than shown for Pahoa. My guess - we could perhaps double or triple the shown figures for Pahoa if we want a more acurate picture.

http://www.neighborhoodscout.com/hi/pahoa/crime/

Rob - What are the chances of perhaps adding a new topic section in the forum that adresses crime?

E ho'a'o no i pau kuhihewa.

[Kelena]

One mistake police sometimes make is in interfering withe prosecutorial function. To hold a person for a crime, usually all that is required is a reasonable belief that a crime (ANY CRIME) has been committed and that the person before the court committed it. Judges make what are called "probable cause determinations" and when they do this, they are looking to see if ANY crime has been committed that supports the arrest. It need not be a particular crime.

This person should have been arrested (if he wasn't) and the charging of the crime should have been left to the prosecutor.

At common law, no form of injury is required for an assault to have been committed. All that is required is that a person be placed in fear of harm. However, Hawaii appears to reserve the term "assault" for situations in which there has been an injury in some degree. At minimum. there must be "bodily injury" which includes physical pain. It is hard to imagine that grabbing and shaking an elderly woman would not cause physical pain, and, although I haven't researched it. it probably does not matter that this pain is transient.

As a prosecutor, I would research the degree of injury she suffered, including physical pain. And that is the important thing: this is a PROSECUTORIAL DECISION. The police do a disservice to justice when they decide in the field that a PARTICULAR crime has not been committed and that, as a result, the perpetrator cannot be arreated. That isn't how it works. If a crime has been committed, the person is arrested and then the prosecutor makes a good faith determination as to what crime has been committed. And, ultimately, a judge or jury determines whether the accused has committed a given crime beyond a reasonable doubt.

Assault is not the ONLY crime which could be charged here.

The notes to sections 707-712 make that clear:

"Previous Hawaii law defined assault in terms of attempt to injure another.[4] Also included was the placing of another in apprehension of being injured.[5] The Code handles this latter case in the sections on Reckless Endangering (§§707-713 and 714) and Terroristic Threatening (§707-715)."

And so, you could also charge such a person with reckless endangerment or terrorist threatening, and then leave it to a jury to determine whether bodily injury occurred (and thus an assault) or a lesser crime such as reckless endangerment occurred.

This is not a determination made in the field. It is made by a PROSECUTOR. A judge or a jury may not agree, but based on the facts above, it does appear that a crime was committed. I would arrest him, and then leave it to a prosecutor to charge the crime. As a proseuctor, I would throw the book at him and charge any crime that I in good faith believe a jury could find that he committed it. The police would deprive me of that discretion if they attempted to make that determination in the field.

[Wao nahele kane]

Kelena,
There's far more to the incident and aside from trespassing, assault etc. (the persons were told several times in the past that they were not allowed on the property) which the police said there were no signs posted thus trespassing did not occur (I believe that a direct verbal request to stay off ones property is just as good and perhaps better than posted signs). There were actually two middle aged men involved, only one did the grabbing pushing, etc and the other made verbal threats to burn down the victim’s house, etc. Atop that, the driveway gate had been ripped off the hinges and knocked to ground between the time a witness entered the premises and locked the gate behind him and within minutes after the incident the gate was found broken down (The police said since there was no witness to who broke the gate, the suspects could not be charged with it). Only one of the men was taken into to custody and I have also learned that he had outstanding warrants for his arrest atop all of this.
It really seems odd to me that both men weren't taken into custody and that the police appeared to do everything they could to casually dismiss each event.

Here's the kicker... according to the police, if they had not had a witness (which at first, two of the officers did not think there was a witness and were saying they could do nothing. Yet the third officer was questioning the witness alone which later allowed them to arrest one of the men for the grabbing shaking and pushing etc of the victim) they would not have arrested either man and only recommended that the victim file for a TRO on Monday when the courts open. There's something very seriously wrong with this situation and it's something that needs to be taken before the prosecutor’s office. If the victim had no witness… she would have been left high and dry by the police with only the recourse to file a TRO when the courts open.

E ho'a'o no i pau kuhihewa.

[Kelena]

My point is simply that the police should arrest a person if it appears that a crime for which you can be jailed has been committed and that the person in question committed it. But I don't intend to comment on a particular situation, but just to address the issue of police interfering with prosecutorial discretion in the field.
If a person is on probation or parole, the arrest often takes care of the situation, as a standard condition of both probation and parole is "to obey all laws". If you don't, probation or parole is (or can be) revoked.

[Wao nahele kane]

Kelena,
I agree with your point and was blown away by seeing so much simply dismissed and not added to the possible charges. IMO these things are for a prosecutor, judge and or jury to decide. I don’t know… maybe the officers didn’t like dealing with paperwork. I guess frontier justice is always an option. :p


E ho'a'o no i pau kuhihewa.

[Cagary]

We are only hearing what went on during the actual incident.

What is the "back story" here, anyone know? Some of the posts seem to indicate that the assailant knew the victim.