Thursday, November 12, 2009

Abuse of Incompetent Persons Statute Not Unconstitutional

State v. Billam-Walker (ICA August 11, 2009)

Background. Walker was charged with endangering the welfare of an incompetent person. HRS § 709-905. This was initially a summary disposition order. The ICA granted the state's motion for publication. The ICA presented no background facts.

No Abuse of Discretion in Denying Continuance. The ICA rejected Walker's argument that the family court erred in denying his motion to continue trial. "An attorney cannot reasonably expect a court to alter its calendar, and disrupt a scheduled trial to which witnesses have been subpoenaed and to which the adverse party is ready, simply by the filing by counsel of a last minute motion for continuance." State v. Lee, 9 Haw. App. 600, 603-04, 856 P.2d 1279, 1281-82 (1993). Here, the ICA noted that the motion for continuance was requested one week prior to trial. According to the ICA, the defense had adequate time and resources to prepare for trial. The ICA also noted that there was no abuse of discretion because even if certain defense witnesses were not available, those particular witnesses had no "direct bearing on the issue of guilt." See State v. Lee, 9 Haw. App. at 605, 856 P.2d at 1282 (denied continuance not error because testimonies went to complaintant's credibility).

Sufficient Evidence to Support Conviction. In a prosecution for endangering the welfare of an incompetent person, the State must prove beyond a reasonable doubt that the defendant knowingly acted in a way "likely to be injurious to the physical or mental welfare of a person who is unable to care for himself [or herself] because of physical or mental disease, disorder, or defect." HRS § 709-905. The ICA noted that at trial, the State presented expert testimony that the complaintant was unable to care for himself because of permanent mental disabilities and severely limited communication skills. There was further testimony that Walker was aware of the complaintant's disabilities. There was also evidence that Walker grabbed the complaintant and yelled at him. According to the ICA this, viewed in the light most favorable to the State, was sufficient evidence.

Statute not Unconstitutionally Vague. HRS § 709-905 requires conduct that is "likely to be injurious" to an incompetent person. The ICA rejected Walker's argument that this language from HRS § 709-905 is unconstitutionally vague and overbroad. The ICA first held that the statute is not vague because the statute "is reasonable clear and provides sufficient notice to a person of ordinary intelligence that knowingly engaging in conduct that would probably cause harm to an incompetent person's welfare is prohibited." The ICA then held that the statute is not overbroad. It patently rejected Walker's contention that the statute prohibits caregivers from scolding, lecturing, or "verbally redirecting an incompetent person[.]" According to the ICA, HRS § 709-905 requires the defendant to knowingly engage in conduct that would likely cause harm to the incompetent's welfare, "which is the antithesis of an intentional act that may injure but is performed in the [incompetent's] best interest." State v. McKee, 392 N.W.2d 493, 495 (Iowa 1986).

The Caregiver Defense? HRS § 709-905 requires that the defendant knowingly engage in conduct which is likely to be injurious. The ICA--in holding that the statute is not unconstitutionally overbroad--held that the mens rea element distinguishes criminal conduct from a caretaker's conduct that is intended to be for the purpose of providing care. But does the plain language of the statute recognize this distinction? The statute criminalizes conduct that the person knows is "likely to be injurious." Does this mean that when the caregiver engages in conduct that is likely to be injurious, but does so for the purpose of treating a patient, it is not within the ambit of the statute? In other words, is it a defense to show that the conduct was performed in the incompetent's best interest? Perhaps.

Nexus for Probation Conditions met here. The sentencing court may impose conditions of probation at its discretion. HRS § 706-624(2). "In order for there to be a rational exercise of discretion some factual basis for imposing such probationary conditions must inhere in the record." State v. Kahawai, 103 Hawai'i 462, 466, 83 P.3d 725, 729 (2004). According to the ICA, Walker was charged and convicted of endangering the welfare of an incompetent person. The family court imposed as a condition of his probation that he attend domestic violence classes. The ICA held that "the family court had the discretion to sentence Walker to whatever 'correctional treatment' the court deemed most effective" and that it was not an abuse of that discretion to order domestic violence classes.

Other Issues. The ICA affirmed the conviction. It found no merit in Walker's claims of the improper admission of evidence, prosecutorial misconduct, and erroneous jury instructions.

Judge Leonard's Concurrence. Judge Leonard concurred in the result and did not file a separate opinion.

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