Background
Teresa Bernice Arcenas Parsons suspected that her husband, Patrick, was having an affair with Maria Regina E. Jacinto, which Jacinto denied. Patrick secretly recorded two conversations in which Parsons said, among other things, that Jacinto would “pay,” that “nothing is off limits,” that Jacinto would be harmed, and that Parsons wanted to go to Jacinto’s workplace immediately and expected to end up in jail. Patrick gave the recordings to Jacinto.
Jacinto petitioned for a temporary restraining order and injunction against harassment. At the hearing, she introduced her transcripts of the recordings over Parsons’s hearsay objections. Although the district court offered three times to continue the proceeding so Parsons could review the evidence or conduct discovery, Parsons’s counsel repeatedly elected to proceed. Relying solely on the recorded threats, the district court found harassment by clear and convincing evidence and entered a three-year injunction.
The Court’s Holding
The Intermediate Court of Appeals affirmed. Viewing the record objectively and in the light most favorable to Jacinto, the court held that substantial evidence supported the finding that Parsons threatened imminent physical harm, bodily injury, or assault under HRS § 604-10.5. Her statements that Jacinto would pay and be harmed, that nothing was off limits, that she wanted to confront Jacinto “now,” and that she would end up in jail collectively communicated an intent to cause imminent physical harm.
The court also held that Parsons waived her objection under the confidential-marital-communications privilege in HRE Rule 505(b) because she objected only on hearsay grounds at trial. The court declined to review the unpreserved issue for plain error: deciding whether the conversations were intended to remain confidential would require additional factual findings, and the issue lacked the required great public importance.
The court rejected Parsons’s contention that the transcripts were surprise evidence or that she lacked an opportunity to invoke the privilege. Parsons knew before admission that the transcripts involved conversations with her husband, made repeated evidentiary objections, and declined each offer of a continuance. The trial court had no duty to assert the waivable privilege on her behalf.
Key Takeaways
- Statements must be assessed collectively and objectively when determining whether they communicate a threat of imminent physical harm under Hawaii’s harassment statute.
- A party waives the confidential-marital-communications privilege by failing to raise it specifically when the evidence is offered; a hearsay objection does not preserve the privilege issue.
- A litigant who declines repeated offers of a continuance cannot later successfully characterize the proceeding as trial by ambush or claim a lack of opportunity to evaluate the evidence.
Why It Matters
The decision shows that indirect threats made to a third party can support a harassment injunction when their words, context, and immediacy objectively communicate impending physical harm. A court need not isolate each statement or require an explicit declaration of an intended assault.
It also underscores the importance of timely, ground-specific evidentiary objections. Even potentially privileged communications may be admitted when counsel invokes only hearsay and chooses to proceed despite opportunities for additional preparation.