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March 18, 2026 Get Citation Alerts Download PDF Add Note

Pacheco v. Tabion

Hawaii Intermediate Court of Appeals

• Citations: None known

• Docket Number: CAAP-24-0000009

• Opinion

• Authorities (2)

• Cited By (0)

• Summaries (0)

• Similar Cases (16.9K)

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Combined Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-MAR-2026
07:58 AM
Dkt. 31 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

ADELINO SAMUEL PACHECO, Petitioner-Appellee,
v.
DAVIANN TABION, Respondent-Appellant

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
(CASE NO. 2DSS-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Presiding Judge, McCullen and Guidry, JJ.)

This appeal challenges the sufficiency of evidence to
support the district court injunction against harassment. We
reverse.
Self-represented Respondent-Appellant Daviann Tabion
(Tabion) appeals from the December 5, 2023 order denying
Tabion's November 22, 2023 non-hearing motion for
reconsideration (Order Denying Reconsideration) on the November
13, 2023 "Order Granting Petition for Injunction Against
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Harassment" (Injunction Order) filed by the District Court of
the Second Circuit (District Court).1
On appeal, Tabion contends there was insufficient
evidence to grant Petitioner-Appellee Adelino Samuel Pacheco's
(Pacheco) November 1, 2023 "Petition for Ex Parte Temporary
Restraining Order [(TRO)] and for Injunction Against Harassment"
(Petition).
Upon review of the record on appeal and relevant legal
authorities, giving due consideration to the issues raised and
arguments advanced in the Opening Brief,2 we resolve the
contention as follows.
On November 1, 2023, Pacheco filed the Petition
pursuant to Hawaii Revised Statutes (HRS) § 604-10.5.3 Pacheco

1 The Honorable Blaine J. Kobayashi presided.

While Tabion did not identify or attach the Injunction Order in
her Notice of Appeal, the Opening Brief only challenges the Injunction Order
and not the Order Denying Reconsideration. We construe her appeal as
challenging the Injunction Order. See State v. Greybeard, 93 Hawaiʻi 513,
516, 6 P.3d 385, 388 (App. 2000) (construing appellant's notice of appeal to
appeal from judgment not attached to the notice of appeal).
2 Pacheco did not file an Answering Brief.
3 HRS § 604-10.5(b) (2016 & 2023 Supp.), provides the district
courts "the power to enjoin, prohibit, or temporarily restrain harassment."
The court must find "harassment" exists "by clear and convincing evidence" to
grant an injunction. Subsection (a) defines two types of harassment, a
physical harm-based harassment in subsection (a)(1), and a "course of
conduct"-based harassment in subsection (a)(2), as follows:

(1) Physical harm, bodily injury, assault, or the
threat of imminent physical harm, bodily injury, or
assault; or

(2) An intentional or knowing course of conduct
directed at an individual that seriously alarms or
disturbs consistently or continually bothers the
individual and serves no legitimate purpose; provided
that such course of conduct would cause a reasonable
person to suffer emotional distress.

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alleged that Tabion "show[ed] up" at his residence and went
"thr[ough] [his] b[e]longings while [he was] not there"; made
"[r]epeated phone calls with threats of violence"; "sent her son
into [his] y[a]rd to kill [his] [d]og"; and sent a realtor to
"harras[] [sic]" him. Attached to the Petition was a 1998
rental lease for Pacheco's residence.
On November 13, 2023, a hearing was held on the
Petition. Both Tabion and Pacheco, self-represented, were
placed under oath, and the District Court asked if Pacheco stood
"by the truthfulness of all of [his] statements" in the
Petition, to which Pacheco responded, "Yes, sir." Pacheco also
testified that he just got released from prison, and that while
in prison, he had let Tabion stay at his property that he was
renting. When Pacheco was released from prison and returned to
his residence, he testified that the property was a "mess" with
"rubbish all over the place[.]" Pacheco testified that he
talked to Tabion about the mess, and that Tabion stated that
Pacheco was "screwing with the wrong person" and was "going to
go down." Pacheco testified that despite the property having
his "stuff inside," he "tried [to] stay away" from Tabion, and
stayed "on the other side" of the property. Pacheco testified
that a "guy down the road" told him that Tabion was "calling the
cops" on Pacheco, and Pacheco was "scared of the cops[.]"
Lastly, Pacheco requested a "stay away" as follows:
They went go lay black plastic on the ground, so
nighttime get the dew on the ground, so I wake up at
night, get tracks all through my thing, all by my
window and stuff like, you know what I mean. I just
went -- stay away. I like her [(Tabion)] stay away. I no
like bother. I no like go back to jail so I been staying
away from her [(Tabion)].

"Course of conduct" is defined as "a pattern of conduct composed of a
series of acts over any period of time evidencing a continuity of
purpose." HRS § 604-10.5(a).

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The District Court granted the Petition and a three-
year injunction as follows:
THE COURT: Okay. The Court has listened to the
testimony of [Pacheco] and [Tabion]. I'm going to grant the
injunction in this case.

Mr. Pacheco, it can be issued for up to three years.
How long would you --

MS. TABION: Your Honor, I would --

MR. PACHECO: I'd like the three years, please.

MS. TABION: Your Honor, why are you granting it? He
didn't show that I harassed --

THE COURT: Because I'm finding --

MS. TABION: I didn't kill his dog.

THE COURT: I'm finding that --

MS. TABION: -- that's what --

THE COURT: -- his testimony is more credible than
yours.

MS. TABION: Really?

THE COURT: So for a period of three years --

MS. TABION: That's fine.

The District Court's Injunction Order stated: "[t]he parties
presented evidence and the [District] Court found the
allegations of the Petition proved by clear and convincing
evidence." Tabion was ordered to refrain from "[c]ontacting,
threatening or harassing [Pacheco]" and "[e]ntering or visiting"
Pacheco's residence or workplace.
On November 22, 2023, Tabion filed a non-hearing
motion to reconsider the Injunction Order, arguing there was
insufficient evidence to support the Petition and that Pacheco
did not "present evidence to support his claim[s]." On December
5, 2023, the District Court filed the Order Denying
Reconsideration, from which Tabion timely appealed.

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Tabion argues there "was insufficient evidence to
grant the [P]etition[,]" where Pacheco had the "burden of
proving by clear and convincing evidence that a protective order
should be issued." Tabion claims the record is "devoid of any
evidence of harassment," and that Pacheco did not testify or
prove at the November 13, 2023 hearing that any harassment
occurred. Tabion's argument has merit.
HRS § 604-10.5 requires a court to find "clear and
convincing evidence" that "harassment" as defined in subsection
(a)(1) or (a)(2) "exists[.]" "Clear and convincing evidence" is
"that degree of proof which will produce in the mind of the trier

of fact a firm belief or conviction as to the allegations sought
to be established, and requires the existence of a fact be
highly probable." Matter of JK, 149 Hawaiʻi 400, 409, 491 P.3d
1179, 1188 (App. 2021) (citation omitted). "Clear and
convincing evidence" is "an intermediate standard of proof
greater than a preponderance of the evidence, but less than
proof beyond a reasonable doubt required in criminal cases."
Id. (citation omitted). When reviewing whether a fact has been
proved by clear and convincing evidence, an appellate court
considers "whether the record as a whole contains substantial
evidence from which a reasonable factfinder could have found it
highly probable that the fact was true." Id. at 409-10, 491 P.3d
at 1188-89 (citation and emphases omitted).
Here, the record as a whole does not reflect
substantial evidence from which a reasonable factfinder could
have found it highly probable that facts comprising either type
of harassment were true. See id. The District Court's oral
ruling granting the Petition relied on Pacheco's testimony at
the hearing, which it found was "more credible" than Tabion's.
The District Court's written Injunction Order found "the

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allegations of the Petition proved by clear and convincing
evidence." (Emphasis added.) Pacheco's allegations in the
Petition and Pacheco's testimony at the hearing described
different sets of vague allegations against Tabion. The
Petition did not contain dates or times, and alleged that when
Pacheco was "not there" at his residence, Tabion "show[ed] up,"
went through Pacheco's belongings, and made "[r]epeated phone
calls with threats of violence." Pacheco also alleged that "one
[d]ay" he "c[a]me [h]ome" and found his "[d]og" "dead" because
Tabion "sent her son" into Pacheco's yard "to kill" it; and
Tabion sent a realtor to "[h]arras[] [sic]" Pacheco. Pacheco's
testimony at the hearing also did not provide dates and times,
and claimed that: Pacheco's place was a "mess" after he let
Tabion stay there while Pacheco was in prison; when Pacheco
later confronted Tabion about the mess, Tabion told Pacheco that
Pacheco was "screwing with the wrong person" and was "going to
go down"; and that a "guy down the road" claimed that Tabion was
"calling the cops" resulting in Pacheco "staying on the other
side" of the property because Pacheco did not want to "talk to
the cops or go to jail."
We conclude the District Court's finding in the
Injunction Order that the Petition's allegations were "proved by
clear and convincing evidence" was erroneous, because the
Petition's allegations were not supported by the evidence at the
hearing. The District Court did not explain what actions it was
relying on to constitute "harassment," and the District Court
did not specify whether it found physical-harm-based harassment
under HRS § 604-10.5 subsection (a)(1), or course-of-conduct-
based harassment under subsection (a)(2). On this record, the
District Court clearly erred when it found that there was
substantial evidence to support an injunction against Tabion.

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Duarte v. Young, 134 Hawaiʻi 459, 462, 342 P.3d 878, 881 (App.
2014) ("Whether there was substantial evidence to support an
injunction against an alleged harasser is reviewed under the
'clearly erroneous standard.'" (citation omitted)).
For the foregoing reasons, we reverse the November 13,
2025 Injunction Order, filed by the District Court of the Second
Circuit.
DATED: Honolulu, Hawai‘i, March 18, 2026.
On the brief:
/s/ Karen T. Nakasone
Daviann Tabion,
Presiding Judge
Self-represented Respondent-
Appellant.
/s/ Sonja M.P. McCullen
Associate Judge

/s/ Kimberly T. Guidry
Associate Judge

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