Wednesday, May 27, 2009

No Substantive Change in Proposed Action, no Supplemental EIS.

Overruled

United Here! Local 5 v. City and County of Honolulu (ICA May 22, 2009)

Background. In the 1980s Kuilima owned a resort on the north shore of Oahu. Kuilima proposed a project that would expand the existing hotel, build three new hotels, a golf course, condominiums, clubhouse, tennis courts, and an equestrian center. The project also included a number of public improvements like a wastewater treatment plant, new wells, and highway improvements. Kuilima submitted an environmental impact statement for the project in 1985, which included projected studies up to the year 2000. The EIS mentioned the impact on sea turtles, but did not mention any impact on the Hawaiian monk seal. Only certain aspects of the project was completed. In 2005 no major construction for the project had started. However, Kuilima submitted to the county's Department of Planning and Permitting an application for a subdivision for 744 acres of the 804-acre property. The DPP received two letters requesting the DPP to order the preparation of a supplemental EIS for the subdivision. The DPP's position was that because the initial project had no time limitation, a supplemental EIS was unnecessary to address any changed circumstances. The State of Hawai'i Environmental Council took the position that a supplemental EIS should be prepared. The DPP, however, accepted the application without the supplemental EIS. Various plaintiffs filed a lawsuit seeking declaratory and injunctive relief for the failure to order a supplemental EIS. The circuit court granted Kuilima's motion for summary judgment on the grounds that there was no evidence showing a substantive change in conditions that would trigger a supplemental EIS. The plaintiffs appealed.

Only a Substantive Change in the Proposed Action Triggers a Supplemental EIS. An EIS is required before a development project can commence once certain criteria are met. Sierra Club v. Dep't of Transportation, 115 Hawai'i 299, 306, 167 P.3d 292, 299 (2007). Once an EIS has been accepted, "no other statement for the proposed action shall be required." HRS § 343-5(g). The supplemental EIS is a creature of administrative rules, not the Hawai'i Environmental Protection Act (HEPA). A "supplemental" EIS is prepared "for an action for which a statement was previously accepted, but which has since changed substantively in size, scope, intensity, use, location, or timing, among other things." HAR § 11-200-2.

According to the ICA, the supplemental EIS calls for a two-step inquiry: (1) whether the proposed action changed substantively in size, scope, intensity, use, or timing; and (2) if so, whether the change will have a significant effect and result in individual or cumulative impacts that were not originally disclosed in the EIS. HAR § 11-200-26. The ICA explained that a "substantive change" arises when the "proposed action . . . has been modified to the extent that new or different environmental impacts are anticipated." HAR § 11-200-27. The ICA explained that "[n]o other reading of the rules is possible" because the rules must be consistent with the mandate that once the initial EIS has been accepted "no other statement for proposed action shall be required." HRS § 343-5(g); Capua v. Weyerhauser Co., 117 Hawai'i 439, 446, 184 P.3d 191, 198 (2008).

Rejecting Foreign Jurisdictions. The ICA rejected the plaintiffs' argument that a supplemental EIS is required when there are changes in the intensity of environmental impacts or there are new circumstances or evidence. Plaintiffs relied significantly on federal law--NEPA--and California environmental law statutes. The ICA pointed out that these statutes were significantly different than HEPA and its regulations and were not persuasive. Judge Nakamura found support for his position in federal law and in California legislation.

Time was not on Their side. The ICA wrote that the only "substantive change" alleged by the plaintiffs was a matter of "timing" and that there was an increase in traffic. The ICA held that there was no evidence supporting a finding of a substantive change in the project itself from the 1980s and affirmed the circuit court.

Judge Nakamura's Dissent. A supplemental EIS, according to Judge Nakamura, is required when the proposed action becomes "an essentially different action." HAR § 11-200-26. Judge Nakamura pointed out that a supplemental EIS "shall be warranted when . . . new circumstances or evidence have brought to light different or likely increased environmental impacts not previously dealt with." HAR § 11-200-27. Based on this language, Judge Nakamura believed that there can be instances where the changed circumstances or discovery of new evidence create "an essentially different action" even though the proposed design of the project or action remains unchanged. He gave an example. What if, posed Judge Nakamura, a hurricane ravaged the North Shore and changed the conditions surrounding the area and its ability to accommodate more residents and visitors? The design of the proposed action, however, had not changed. In that scenario, Judge Nakamura wrote that the agency would be "powerless to order the preparation of an SEIS even if the discovery of new information or evidence brings to light significant environmental impacts that had not been previously disclosed."

The ICA majority commented on HAR § 11-200-27. It stated that that language--which was relied upon by both Judge Nakamura and the plaintiffs--does not change the fact that the other rules call for a substantive change in the proposed action before considering the changed circumstances and evidence. Judge Nakamura, however, believed that the rules were at a minimum ambiguous and that reading them so that a supplemental EIS is triggered only when the design of the project is changed would lead to absurd results.

Judge Nakamura also believed that, based on its erroneous reading of the rules, the DPP did not follow proper procedures and failed to take a "hard look" at the evidence before it. Thus, the DPP erred and the circuit court erred in affirming. Price v. Obayashi Hawaii Corp., 81 Hawai'i 171, 182 n. 12, 914 P.2d 1364, 1375 n. 12 (1996); Sierra Club v. Dept. of Transp., 115 Hawai'i at 342, 167 P.3d at 355. Judge Nakamura concluded that the record does not reveal enough evidence to show whether the changed circumstances or the new evidence that has surfaced since the 1985 EIS were so significant that Kuilima's application for the subdivision required a supplemental EIS.

Wednesday, May 13, 2009

New Case, Same Standards, Same Holding

Sierra Club v. DOT (HSC May 13, 2009)

Procedural Background.  After the HSC reversed the circuit court and held that the Act 2 of the special session was unconstitutional because it was a "special law" in violation of Hawai'i Constitution Art. XI § 5, the DOT filed a motion for reconsideration.  The Legislature also filed an amicus brief because it was concerned about the standards for determining "general laws" rather than unconstitutional special legislation.

Reconsideration Denied, Act 2 is still Unconstitutional.  The HSC denied the DOT's motion for reconsideration.  It offered no analysis.  Along with denying reconsideration, the HSC made a few modifications and published a new opinion.  The changes appear to be slight.  A more complete analysis can be found here.

Harmonizing Bulgo.  The first change was the two-step analysis in determining a "general law."  The HSC stated that "general laws" must apply "uniformly throughout all political subdivisions of the State." Bulgo v. County of Maui, 50 Haw. 51, 58, 430 P.2d 321, 326 (1967).  The HSC clarified that a uniformly applying law which applies only to a particular class can still be a constitutional "general law" so long as "(1) the class created is genuine and not logically limited to a class of one and thus illusory, and (2) the class created is reasonable." See People v. Canister, 110 P.3d 380, 383 (Colo. 2005).  The HSC explained that a class is not "illusory" if it can include other members in the future.  Id. at 384.  The actual probability of other members joining the class must also be considered in determining if a class is illusory.  Haman v. Marsh, 467 N.W.2d 836, 849 (Neb. 1991), Republic Inv. Fund I v. Town of Surprise, 800 P.2d 1251, 1259 (Ariz. 1990).  The change appeared to harmonize the two-step analysis with Bulgo.  Bulgo still controls and signifies that a law that applies uniformly is a "general law."  But the HSC clarified that a uniformly-applying law can still apply to particular classes without running afoul with the Hawai'i Constitution.  That's where the Colorado two-step comes in.

No more References to Equal Protection.  The HSC also deleted references to an equal protection analysis.  The final paragraphs in which the HSC compared the "general laws" limitation with the equal protection clause was deleted.  The HSC also added that its "holding is based solely on our 'general law' analysis and does not in any way involve an 'equal protection' analysis, which involves a different standard."  So much for the comparison and the corporate personhood implications from Santa Clara County v. Southern Pac. R. R. Co., 118 U.S. 394 (1886)--a point raised by this site.

Botched Evidence and Interpretation of the Self-Defense Statute Leads to Reversal of Murder Conviction

State v. Kekona (ICA May 11, 2009)

Background.  Kekona was indicted for, among other things, attempted murder in the 2d degree against Ah Loo.  Before trial, the State filed a motion in limine that would prohibit any evidence that Ah Loo physically abused Kekona's girlfriend, Tammy Antonio, before the shooting.  The State argued that the evidence was irrelevant and that Kekona failed to provide adequate notice pursuant to HRE Rule 404(b).  The motion was granted to show Ah Loo's motive for ramming Antonio's car.  At the trial, the State presented evidence showing that when the police arrived at the scene--a parking lot in Waimalu--Antonio was frantic and told the police that Ah Loo was ramming her car and that she shot at him.  The police spoke with Ah Loo and saw that Ah Loo's windshield had a hole that looked like a bullet hole.  The police arrested Antonio and started looking for Kekona.  Days later, they found him, but there was no gun.  After the State rested, Kekona made an offer of proof that Ah Loo's daughters would testify that they saw their father strike Antonio on occasions before the shooting incident.  The circuit court denied Kekona's request such proof.  Kekona testified that Ah Loo punched and chocked Antonio prior to the incident.  Kekona also presented evidence that Antonio picked him up with two others named Kaualoku and Denton.  The four of them were eventually chased by Ah Loo and Ah Loo rammed his van into Antonio's car at the parking lot.  After Ah Loo rammed the car, Kekona stepped out of the car with a gun and faced Ah Loo.  According to Kekona, Ah Loo drove the van towards him and the car.  That was when Kekona fired the gun.

In the State's closing argument, the prosecutor told the jury that no evidence supported Kekona's assertion that Ah Loo beat Antonio.  Kekona moved for mistrial, which was denied.  The prosecutor also suggested that Kekona's defense of others could not stand because because Kaualoku and Denton did not exist.  Again Kekona moved for mistrial and again the motion was denied.  As for self-defense, the prosecutor told the jury that self-defense required Kekona to admit that he or she committed the crime and intended to do it, but had an excuse.  The prosecutor urged the jurors that self-defense did not apply because Kekona admitted that he was not trying to kill anyone.  Kekona objected that the prosecutor's statement was a misstatement of the law.  The objection was overruled.  The prosecutor then argued that if this was a case of self-defense, then Kekona would not have needed to run away, hide himself and the gun, and have Antonio lie for him.  Kekona objected that there was no evidence supporting the argument that Antonio lied.  On rebuttal, the prosecutor pointed out that Kekona failed to confront Ah Loo that he purportedly abused Antonio.  Kekona was found guilty as charged.

Evidence of the Victim's Character was Admissible to show that he was the Initial Aggressor.  Relevant evidence is any evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  HRE Rule 401.  Furthermore, evidence "of a pertinent trait of character of the victim of the crime offered by an accused" is admissible.  HRE Rule 404(a)(2).  According to the ICA, it was unclear whether Kekona knew about Ah Loo's abuse of Antonio when he shot at Ah Loo's van.  There was also conflicting evidence as to whether Ah Loo was the initial aggressor in the parking lot.  The ICA concluded that Ah Loo's prior abuse was circumstantial evidence of the likelihood that Ah Loo was the initial aggressor and was relevant evidence.

404(b) Notice is not a bar.  "In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial . . . of the date, location, and general nature of any such evidence it intends to introduce at trial." HRE Rule 404(b).   The purpose of HRE Rule 404(b) notice "is to reduce surprise and promote early resolution of admissibility questions."  State v. Pond, 117 Hawai'i 336, 350, 181 P.3d 415, 429 (App. 2007), vacated on other grounds by State v. Pond, 118 Hawai'i 452, 193 P.3d 368 (2008).  The sufficiency of "reasonable notice" is evaluated on a case-by-case basis.  Id. at 349-50, 181 P.3d at 428-29.  The ICA did not find HRE Rule 404(b) notice as a bar to the admission of the evidence.  The circuit court did not rely on the failure to comply with the notice requirement as a basis for granting the State's motion.  Furthermore, the State's motion in limine met the purpose of HRE Rule 404(b) notice by seeking to resolve the admissibility of the evidence at issue.  The ICA also noted that the State already had notice that Kekona intended to introduce the evidence by filing the motion.

Self-Defense Claims do not Require the Underlying Criminal Intent.  There was no question that Kekona's use of the gun was deadly force.  HRS § 703-300.  But Kekona raised self defense.  The State argued that because Kekona used deadly force, he must first have the intent to kill before he can rely on the self-defense claim.  According to the ICA, that argument was "a bit circular and confusing, and incorrect."  Self defense is not an affirmative one so the State must "disprove the facts that have been introduced or . . . prove facts" negating the defense beyond a reasonable doubt.  State v. Van Dyke, 101 Hawai'i 377, 386, 69 P.3d 88, 97 (2003).

The ICA held that there were three crucial issues for the jury to determine: (1) whether the victim used "unlawful force";  (2) whether the defendant believed that the use of deadly force was "immediately necessary for the purpose of protecting himself against the use of unlawful force"; and (3) whether the defendant reasonably believed that deadly force was necessary to protect himself or herself against death or serious bodily injury.  See HRS § 703-304.  According to the ICA, the fact that Kekona did not intend to kill had nothing to do with the applicability of the self-defense claim.

Applying the Self-Defense Statute.  According to the ICA, the application of the statute did not depend on the underlying offense.  As the ICA explained, the burden still remains on the State to show beyond a reasonable doubt that the defendant's use of force--in this case deadly force--was not justified.  HRS § 703-304 can apply to a number of different offenses.  The ICA stuck to the language of the statute and did not require an additional element of proof--that the actor must first have the requisite intent for the underlying offense.

But is it Reversible Error?  Yes.  When the prosecutor misstates the law at closing, the appellate court reviews the error under the harmless-beyond-a-reasonable-doubt standard.  State v. Espiritu, 117 Hawai'i 127, 140, 176 P.3d 885, 898 (2008).  Under that standard, the issue is "whether there is a reasonable possibility that the error complained of might have contributed to the conviction."  Id. at 141, 176 P.3d at 899.  According to the ICA, the prosecutor clearly misstated the law of self defense by requiring that the defendant must have the intent to kill in order for self defense to apply.  The misstatement was not corrected by the circuit court.  The ICA held that the misstatement of the law was not harmless error.

Tuesday, May 12, 2009

Murder, Media, Maugaotega, and the Rules of Professional Conduct

The HSC Affirmed This Case in a Published Opinion.

State v. Mark (ICA May 8, 2009)

Background. There was an arrest warrant out for Mark for allegedly shooting Paikai and firing shots at Piko. Police responded to a tip that Mark would be at the Baskin-Robbins in Kapolei. Officers responded. They were not in uniform. Officers Gaspar and Sung tried to arrest Mark, but there was a struggle. Mark fired three shots. Officer Gaspar was killed. Two indictments were returned against Mark. The first alleged, among other things, attempted murder in the 2d for Piko and Pakai. The second indictment alleged murder in the 1st for Officer Gaspar and attempted murder in the 1st for Officer Sung. Mark subpoenaed the records of certain police officers involved in the case. The circuit court granted the motion in part and allowed only certain documents to be disclosed. A jury found Mark guilty of murder in the 2d for Officer Gaspar and guilty of attempted murder in the 2d for Pakai, but was hung on the charges related to Piko and Officer Sung.

Before the 2d trial, Mark's attorney--a public defender--learned that a fellow public defender represented Piko in his revocation of probation and resentencing to another term of probation. The public defender filed a motion to withdraw on the grounds that there was a conflict. The circuit court denied the motion. After the 2d trial, the jury found Mark guilty of attempted murder in the 1st for Officer Sung, but was still hung with the charges related to Piko. At sentencing, the State moved for extended terms of imprisonment. The circuit court found that Mark was a persistent and multiple offender and that extended terms were necessary for the protection of the public. Mark was sentenced to life imprisonment without parole.

Media Coverage did not Result in a "Circus" Court. Mark argued that the circuit court erred in refusing to continue his trial until the media coverage died down. When determining whether publicity has rendered a trial presumptively unfair, courts must consider the "amount and timing of" the media coverage, whether the coverage was "primarily factual" and "whether the media accounts contained inflammatory, prejudicial information that was not admissible at trial." State v. Pauline, 100 Hawai'i 356, 366, 367, 60 P.3d 306, 316, 317 (2002). Furthermore, appellate courts consider the thoroughness of the voir dire to determine if presumptive prejudice existed. Id. at 367-68, 60 P.3d at 317-18. According to the ICA, the circuit court questioned jurors about their knowledge of the case from the media. None of the jurors indicated that they were aware of the coverage. The ICA also concluded that the media coverage was primarily factual, and not "passing judgment" or "denouncing and demonizing." Id. at 367, 60 P.3d at 317. And while the media coverage did include inadmissible evidence--like Mark's drug use--the ICA concluded that the record did not establish a "barrage of inflammatory publicity immediately prior to trial amounting to a huge . . . wave of public passion[,]" id. at 366, 60 P.3d at 316, that resulted in "a trial atmosphere that had been utterly corrupted by press coverage." State v. Graham, 70 Haw. 627, 637, 780 P.2d 1103, 1109 (1989).

The Motion to Withdraw: Which Rule of Professional Conduct Applies? The ICA reviewed the denial of Mark's motion to withdraw. The ICA first noted that the office of the public defender in this case was "firm" analogous to any private law firm. The threshold question then was which rule of the Hawai'i Rules of Professional Conduct applied. A lawyer generally cannot concurrently represent two clients who have adverse interests. HRPC Rule 1.7. On the other hand, a lawyer "who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client." HRPC Rule 1.9(a). HRPC Rule 1.9 allows lawyers who have formerly represented a client to represent another with adverse interests so long as the two cases are not the same or substantially related. The ICA concluded that the public defender's representation of Piko and Mark did not involve the same or substantially-related matter, and, thus, the public defender could continue representing Mark so long as Piko was a "former client" at the time of Mark's 2d trial.

Current v. Former Clients. The ICA held that at the start of Mark's 2d trial, Piko was a "former client" and thus, HRPC Rule 1.9 applied instead of HRPC Rule 1.7. According to the ICA, the words "former client" are undefined and it was unclear when a client becomes a "former client." Here, the ICA held that Piko was a "former client" and, thus, the public defender could represent Mark. The ICA explained that Piko's revocation and resentencing occurred three months prior to Marks' trial. Nothing was pending in Piko's case at the time of Mark's trial and Piko's file was closed by the internal system at the public defender's office and that it would not be reopened, "absent some unforeseen future event." According to the ICA, "[t]he mere possibility that such a[n] event could occur is insufficient to convert what would otherwise be former representation into concurrent representation for the purposes of the HRPC."

So when is a Case Pau? A Hypothetical. Piko was resentenced to another term of probation. This, according to the ICA, meant that his case was closed. Of course, at any time during the probationary period, Piko could return to court to modify the terms of probation or to defend against allegations of a violation of the probation conditions. It would seem that while the public defender's office "closed" its file, Piko could easily find himself in court in need of representation again. But these all appear to be "unforeseen future events." If such an unforeseen event were to occur, what happens then? What if Piko is revoked and resentenced again? The tables had turned and the court would have to examine whether Mark was a "former client." So what if Mark's trial had ended and he was represented by appellate counsel? That is a question for the future.

After-the-fact Representation is Irrelevant . . . at Least here. The ICA rejected Marks' contention that while he was waiting for his 2d trial and while Piko awaited his revocation and resentencing, there was concurrent representation which warranted withdrawal. The ICA explained that the public defender's office had no idea there was concurrent representation, and it could not have had an effect on the dual representation. Thus, HRPC Rules 1.7 and 1.9 "do not require after-the-fact representation." In a footnote, the ICA cautioned that its holding was not intended to suggest "that a lawyer will always avoid disqualification in circumstances where the lawyer was unaware of a potential conflict." The ICA also emphasized the "importance of having effective procedures in place to timely identify potential conflicts before the representation is undertaken."

Still a Troubling Situation. It seems that the ICA recognized that there was a period of time when there was in fact concurrent representation. That meant that if the office of the public defender knew about the concurrent representation and if it brought the motion at that time, HRPC Rule 1.7 would have applied and the motion would have undergone a different analysis. Does this boil down to a question of timing? Perhaps so. But that did not have an effect on the ICA's analysis here. The ICA noted on one hand that because the lawyer's office did not discover the conflict, there could be no prejudicial effect. On the other hand, the ICA cautioned that its reasoning should not be used to encourage lawyers to avoid checking for conflicts. It is unclear what it means at this point. A lawyer's office is not going to be held to answer to after-the-fact representation, but it should be encouraged to scrutinize potential clients to avoid conflicts. The best path, thus, lies some place in between.

State Concedes to Unconstitutional Sentence. After two trials and a potpourri of issues, the ICA vacated Mark's sentence. The circuit court sentenced Mark pursuant to the extended sentencing laws at the time. The circuit court made express findings that Mark was a "persistent" and "multiple" offender and that it was "necessary for the protection of the public" to impose the extended sentence. HRS § 706-662. Mark argued--and the State conceded--that in making these findings, the circuit court violated his constitutional rights. The findings pursuant to HRS § 706-662 must be found by a jury. State v. Maugaotega, 115 Hawai'i 432, 437, 168 P.3d 562, 567 (2007). The ICA held that the findings made by the circuit court were unconstitutional. Accordingly, the ICA vacated the judgment and remanded for sentencing. The ICA noted that after Maugaotega, the Legislature amended the sentencing laws to allow a jury to make these findings. The amendments apply retroactively and allow prosecutors to request a resentencing when the extended sentence is set aside pursuant to Maugaotega. So on remand, the State has a choice to either seek extended sentencing with a jury or sentencing without the extended sentencing laws.

Several Other Issues. This case is 62 pages long. Mark raised a number of issues. The ICA rejected all of Mark's claims and found no reversible errors throughout the course of the two trials. The issues concern a motion to quash, the admission of certain evidence, the appearance of possible prejudice concerning a sheriff's escort in front of the venire, the jury instructions relating to the defense of others, prosecutorial misconduct, and other prejudicial issues. These issues are varied, but the analyses are relatively short. I have not provided them here.

Sunday, May 10, 2009

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.