When the dog Bites . . .

State v. Bereday (ICA May 7, 2009)

Background.  On May 8, Mariko Bereday went to the beach in Kahala with her Rottweiler.  Tomooka met Bereday.  Tomooka's son tried to pet the Rottweiler, but Bereday told him to stop.  The boy did.  Bereday tried to leave, but the Rottweiler would not move.  After several minutes, she got her dog to leave.  The Tomookas tried to leave the beach about fifteen minutes later but a Rottweiler came out of the bushes and attacked the Tomooka boy.  The boy rolled into the water and the dog followed him.  Bereday yelled at the Rottweiler, but it took a beachgoer to punch it four or five times in the face for it to let go.  The police responded and a witness said that a woman named "Mari" frequented the beach with an unleashed Rottweiler.  The police went to Bereday's house and saw a wet Rottweiler covered in sand running around the yard.

On May 13, Hamataki took his two kids to the same beach.  Hamataki saw Bereday lying on the beach with two dogs--one being a Rottweiler.  The Hamataki kids went into the water.  His daughter was in about two and a half feet of water when a large Rottweiler ran into the water and bit the Hamataki girl.  Hamataki intervened and Bereday called out to the dog.  According to Hamataki, Bereday yelled a name like "Bobo."  The police and humane society investigated.  Bereday licensed her Rottweiler named Bobo.  Several years before the two incidents took place, Bereday had a run-in with another woman and her dogs.  Bereday told the woman that her dogs were not friendly.

Bereday was charged with two counts of negligent failure to control a dangerous dog--Revised Ordinances of Honolulu § 7-7.2.  After a bench trial, Bereday was found guilty of both counts.  For the May 8th offense, the district court sentenced Bereday to six months probation, 100 hours community service, and ordered her to pay a $2,000 fine.  For the May 13th offense, the district court sentenced Bereday to six months probation with conditions including five days jail, 200 hours community service, and a $2,000 fine.  The district court also ordered to put down her dog.

The Scene of the Crime.  The ICA rejected Bereday's argument that the offenses took place outside the territorial limitations of the City and County of Honolulu.  Each county has the "power to enact ordinances deemed necessary to protect health, life, and property[.]"  HRS § 46-1.5(13).  Counties also have the "power to make and enforce within the limits of the county all necessary ordinances covering: all local police matters[.]"  HRS § 46-1.5(14).  As for the territorial limits of the City and County, the ICA noted that the island of Oahu is divided into districts.  These districts include "archipelagic waters and smaller islands adjacent thereto."  HRS § 4-3.  The Revised Charter of the City and County of Honolulu also marks the end of its territory to the island of Oahu and "waters adjacent thereto."  Rev. Charter § 1-102.  The ICA held that because the two dog attacks were in "shallow water, very close to the shoreline of an Oahu beach, the attacks clearly took place within the waters and archipelagic waters adjacent to the island of Oahu[.]"  Thus, the district court had jurisdiction.

No State Preemption onto County Prosecutions.  The Dept. of Land and Natural Resources controls "ocean waters."  HRS § 171-3.  "Ocean waters" means "all waters seaward of the shoreline within the jurisdiction of the State."  HRS § 200-1.  Bereday argued that the City could not prosecute within this area because it was the exclusive jurisdiction of the DLNR.  The ICA disagreed.  County ordinances cannot be "inconsistent with, or tending to defeat, the intent of any state statute[.]"  HRS § 46-1.5(13).  A municipal ordinance is preempted when (1) it covers the same subject "embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law."  Richardson v. City & County of Honolulu, 76 Hawai'i 46, 62, 868 P.2d 1193, 1209 (1994).  According to the ICA, the protection of the public from dangerous dogs "is not aimed at regulating activities or managing resources within ocean waters."  The ICA also noted that Bereday failed to identify a single DLNR statute or rule that regulates "the conduct of owners of dangerous dogs in ocean waters through criminal sanctions."  The ICA thus held that there was no preemption.

Severance and Waiver.  At the outset, the ICA held that "Bereday waived her claim that the district court erred in denying her pre-trial motion for severance by not renewing the motion during trial."  See State v. Balanza, 93 Hawai'i 279, 288, 1 P.3d 281, 290 (2000) (to preserve a severance claim for appeal, the motion must be renewed at trial.).  But waiver aside, the ICA held there was no merit in Bereday's severance claim.

Charges are joined when they are "of the same or similar character[.]"  HRPP Rule 8(a)(1).  The trial court has the discretion to sever charges when "it appears that a defendant . . . is prejudiced by a joinder of offenses[.]"  HRPP Rule 14.  In deciding whether severance is appropriate, the court must "weigh the possible prejudice to the defendant against the public interest in judicial economy."  Balanza, 93 Hawai'i at 289, 1 P.3d at 291.  According to the ICA, the judicial economy supported joinder of the offenses.  The evidence that Bereday's dog attacked the Tomooka boy was relevant to show that her dog attacked the Hamataki girl.  Moreover, the ICA held that risk of potential prejudice from the joint trial is diminished because this was a bench trial.  In a bench trial, it is "presume[d] that the judge was not influenced by incompetent evidence."  State v. Lioen, 106 Hawai'i 123, 133, 102 P.3d 367, 377 (App. 2004).

An Illegal Sentence.  The ICA held that the district court erred in sentencing Bereday to six months probation and five days jail as a condition of probation.  Bereday was, thus, subject to a period of imprisonment of "up to 30 days, or in lieu of imprisonment, a period of probation of not more than six months[.]"  ROH § 7-7.2.  These offenses were petty misdemeanors because they carried a maximum offense of 30 days imprisonment.  According to the ICA, the sentencing court could have imposed a term of probation of up to six months or a term of imprisonment up to 30 days, but not both.  HRS §§ 706-623(1)(d), 706-624(2)(a), and 706-663.  The ICA, however, noted that HRS § 706-624(2)(a) was amended in 2006 to allow courts to impose five days jail as a condition of probation for petty misdemeanors.  That amendment did not take effect until June 22, 2006, which was lucky for Bereday.

Other Issues.  The ICA held that there was substantial evidence to support Bereday's convictions and that the statute was not unconstitutionally vague and ambiguous as it applied to her.