Saturday, November 28, 2009

Footing the Bill of Particulars

State v. Corder (HSC November 19, 2009)

Background. The family court granted Allison Corder's extension of a protective order against Lawrence Corder. Months later, Corder was charged with two separate counts of violating the order of protection (HRS §§ 586-5.5 and 586-11(a)(1)(A)). In the complaint the counts referred to police report numbers. Those police reports detailed Corder's conduct and noted the allegedly violated section in order of protection. The police reports were provided in discovery. Corder filed a motion to dismiss or, in the alternative, a bill of particulars. The family court denied the motion and a jury found Corder guilty. The ICA concluded that the trial court erred in denying Corder's motion for a bill of particulars.

Requiring a Bill of Particulars. "If the court is of the opinion that the accused . . . has been actually misled and prejudiced in the accused's defense upon the merits of any defect, imperfection, or omission in the indictment, insufficient to warrant the quashing of the indictment, or by any variance, not fatal, between the allegations and the proof, the [State] shall, when so ordered by the court," file and serve the defendant with a bill of particulars "of the matters in regard to which the court finds that the defendant should be informed." HRS § 806-47; see also Hawai'i Rules of Penal Procedure Rule 7(g). Furthermore, "[a] trial court has the discretion to order a bill of particulars, and it must exercise this discretion in consideration of the purpose of a bill of particulars, which is to help the defendant prepare for trial and prevent unfair surprise." State v. Balanza, 93 Hawai'i 279, 286, 1 P.3d 281, 288 (2000). A bill of particulars is not required when the requested information has been provided in some other way. State v. Reed, 77 Hawai'i 72, 78, 881 P.2d 1218, 1224 (1994).

Discovery Did the Trick. Corder argued that the complaint did not specify the alleged acts in violation of the order of protection and did not specify which section in the order had been violated. The HSC, however, agreed with the State that the discovery provided to Corder included detailed police reports that provided the information Corder needed to prepare for trial: the name of the complainant, the time and location of the incidents, and the underlying conduct that constituted the alleged violation of the protection order.

. . . And the Family Court's Analysis was Sound. The HSC also disagreed with the ICA's conclusion that the family court did not consider whether the bill of particulars were necessary for Corder's trial preparation and to prevent unfair surprise. The family court, according to the HSC, was aware of the purpose of the bill of particulars and was aware of the police reports and that they had been disclosed during discovery. The HSC also noted that the family court anticipated unanimity instructions pursuant to State v. Arceo, 84 Hawai'i 1, 32-33, 928 P.2d 843, 874-75 (1996). The HSC further examined the jury instructions and concluded that the family court had complied with Arceo "by instructing the jury on the necessity of reaching a unanimous verdict on the same underlying act." Thus, according to the HSC, the family court did not have to require the State to make an election--be it in a bill of particulars or otherwise--of the specific acts that establish the conduct element.

Justice Acoba's Dissent. "In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation[.]" Haw. Const. Art. I, Section 14. Moreover, an indictment or bill of particulars must provide that "the nature and cause of the accusation can be understood by a person of common understanding." HRS § 806-31. Justice Acoba wrote that the complaint here failed to designate the conduct and sections of the order of protection were violated. That meant, according to Justice Acoba, that "the nature and cause of the accusation [could not] be understood by a person of common understanding from a reading of the Complaint itself." State v. Israel, 78 Hawai'i 66, 71, 890 P.2d 303, 308 (1995). As for the reference in the complaint to the police reports, Justice Acoba found this inadequate. Justice Acoba explained that the State is not bound to prove "all matters in the police reports or to adhere to the [protection order] sections as cited by the police officers[.]" Thus, the complaint did not fairly permit Corder to prepare for trial and was defective.

Justice Acoba further believed that even if the complaint was sufficient, a bill of particulars should been granted. Justice Acoba acknowledged that a bill of particulars is not required if some "other satisfactory form" has been provided. In this case, however, Justice Acoba believed that there was no way for Corder to adequately prepare for trial. A bill of particulars, he wrote, would have clarified "the conduct covered by the charges and would avoid prejudice." "[I]t is fairer to require a bill of particulars to be filed rather than to leave a defendant uncertain as to the particular conduct he or she is alleged to have committed until trial, and it is more efficient to grant a bill of particulars to avoid appeals regarding questions of the kind raised in this case." Chief Justice Moon joined.

Police v. Prosecutor. This case highlights the difference between a charge from the prosecution--in the form of an indictment, complaint, or information--and the allegations made by police officers. The majority's position was that the complaint in this case made reference to police reports that adequately covered the information underlying the charged offenses. These same police reports were provided to the defendant during discovery. This meant that the complaint was not deficient and that a bill of particulars was not required. Justice Acoba and Chief Justice Moon, however, took the position that a complaint referencing police reports is not enough. The dissent correctly points out that the prosecution is not bound to the allegations in a police report. This is because the prosecution, and only the prosecution, can bring formal charges against a defendant. The police investigate alleged offenses and report what they think should be the proper charge. Justice Acoba and the Chief Justice believe that it is a far fairer thing to specifically allege the instances from the prosecuting attorney--the sole party that has the authority to bring formal charges against a person--than to guess from the police reports what conduct will constitute the underlying offense. On the other hand, the majority recognizes that in almost all cases the offenses suspected in police reports is the underlying offense charged by the prosecution.

Tuesday, November 24, 2009

The Hidden Element in OUI

State v. Wheeler (HSC November 17, 2009)

Background. Wheeler was charged with operating a vehicle under the influence of an intoxicant (HRS § 291E-61(a)(1)). The State's charges went like this:

"on or about May 31st, 2001, in the City and County of Honolulu, State of Hawaii, [Wheeler] did operate or assume actual physical control of a motor vehicle while under the influence of alcohol in amounts sufficient to impair [his] normal mental faculties and [his] ability to care for [him]self and guard against casualty[.]"

Wheeler indicated that he did not understand the charge because the term "operate" was a term of art. The State refused to clarify the charge. Wheeler moved to dismiss on the grounds that the charge failed to state an offense. The motion was denied. Wheeler lost at trial. The ICA vacated and remanded. The State appealed.

The Elements of the DUI Statute Include Where the Conduct took Place. The elements of an offense include conduct, attendant circumstances, and the results of that conduct. HRS § 701-205. "Conduct" means "an act or omission[.]" HRS § 701-118(4). An "act" is "bodily movement whether voluntary or involuntary." HRS § 701-118(2). "Attendant circumstances" are circumstances "that exist independently of the [actor's conduct]." State v. Aiwohi, 109 Hawai'i 115, 127, 123 P.3d 1210, 1222 (2005).

The DUI statute requires a person to "operate[]" or "assume[] actual physical control of a vehicle." HRS §291E-61(a). To "operate" means "to drive or assume actual physical control of a vehicle upon a public way, street, road, or highway." HRS § 291E-1. According to the HSC, the act driving or assuming actual physical control of a vehicle is the conduct element of the DUI statute. The HSC then held that this conduct element comes with the attendant circumstance that the conduct occur "upon a public way, street, road, or highway." Thus, the location of the conduct--upon a public way, street, road, or highway--is an essential element of the DUI statute.

A "Potential Ambiguity" Rejected. The HSC acknowledged that the words "assumes physical control of a vehicle" appeared both in the definition of "operate" and in HRS § 291E-61(a) itself. It recognized that the statute could be interpreted so that a person commits the offense if he or she either "operates" a vehicle (thereby driving or assuming physical control of a vehicle on a public way, etc.) or "assumes physical control of a vehicle" no matter where you are. The HSC, nonetheless, rejected this interpretation because such an interpretation would render the words "assumes actual physical control" within the definition of "operate" a nullity, "which is an outcome we must avoid." See Potter v. Hawai'i Newspaper Agency, 89 Hawai'i 411, 422, 974 P.2d 51, 62-63 (1999). Moreover, the requirement that the attendant circumstance of the conduct--be it driving or assuming physical control--be in public is consistent with the legislative history and the rule of lenity. State v. Shimabukuro, 100 Hawai'i 324, 327, 60 P.3d 274, 277 (2002).

Another "Potential Ambiguity"? The rejection of the "potential ambiguity" in the DUI statute is not unlike the prohibitions-involving-minors offense. "No minor shall consume or purchase liquor and no minor shall consume or have liquor in the minor's possession or custody in any public place" etc. HRS § 281-101.5(b). The conduct element appears to be consuming or purchasing of liquor as well as the consuming or possessing of liquor. It also appears to have the attendant circumstance element of the act occurring "in any public place" for at least the consumption and possession of liquor. Applying this case to this statute, it would seem that there is another "potential ambiguity" between the two words "consume." It would imply that consumption has to take place in public in order to prevent one of the "consumes" from becoming a nullity. The rule of lenity would certainly think so.

Tracking the Statutory Language is not Enough. "It is well settled that an accusation must sufficiently allege all of the essential elements of the offense charged." State v. Merino, 81 Hawai'i 198, 212, 915 P.2d 672, 686 (1996). Generally when "the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient." State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242, 1245 (1977). But "where the definition of an offense . . . includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species . . . [and] descend into particulars." State v. Israel, 78 Hawai'i 66, 73, 890 P.2d 303, 310 (1995).

The HSC made it clear that the charge must allege the elements of the offense, not necessarily the language of the statute. Here, the State failed to allege that Wheeler operated or assumed physical control of a vehicle on a public way, street, road, or highway. The HSC explained that it was not enough to simply state that Wheeler "operated" because the statutory term "operate" contains a very specific location and is a term of art. This, according to the HSC, went beyond the common understanding of the word "operate."

No Notice of the Element Either. The HSC rejected the State's argument that Wheeler had sufficient notice of the attendant circumstance element. According to the HSC, the charge did not indicate where the alleged conduct took place other than within the City and County of Honolulu. The HSC also rejected the State's claim that Wheeler had notice because his license had been revoked by the Administrative Driver's License Revocation Office (ADLRO), a process which requires proof of operating a vehicle while under the influence.

Appellate Courts can look at all Information Available up until time of the Objection. Generally, in determining whether a defendant has been adequately informed of the charges, the appellate court may consider other information in addition to the charge that may have been provided to the defendant up until the time defendant objected to the sufficiency of the charges. See State v. Sprattling, 99 Hawai'i 312, 318-19, 55 P.3d 276, 282-83 (2002); State v. Treat, 67 Haw. 119, 680 P.2d 150 (1984). In this case, the HSC held that Wheeler immediately objected to the sufficiency of the State's charge and that meant that it could "only consider information supplied to Wheeler priuor to his timely, pre-trial objection[.]" Under that analysis, the record does not establish that Wheeler was fully informed of the nature and cause of the accusation against him--regardless of the ADLRO proceedings.

Don't get too Excited. The HSC affirmed the ICA's conclusion that this particular element needed to be pleaded in the complaint. The remedy provided by the ICA was vacating the judgment of conviction and remanding with instructions to dismiss without prejudice. So in the end it means that the State can always fix its pleadings and start the whole thing all over again.

Saturday, November 21, 2009

Conferences with Standby Counsel, Written Transcripts, and Other Rights

State v. Mundon (HSC November 13, 2009)

Background. Mundon was charged with several counts of sex assault in various degrees, kidnapping, terroristic threatening, and assault. Mundon requested to represent himself at trial and requested appointed standby counsel. The circuit court granted those requests. At trial, the complainant that she encountered Mundon one night at Kapa'a Beach. She testified that she was looking for a cheap hotel room. Mundon allowed her to sleep in the back of his truck. As she slept, Mundon began to putting his hands under her underwear and feeling her outer labia. She also testified that he started to kiss and touch her breasts approximately ten to fifteen times. When she tried to get away, Mundon produced a knife and threatened to kill her if she tried to get away. A struggle ensued on the beach and eventually she got away. Testimony from police officers corroborated the complainant's version. Mundon testified and his version of events is significantly different.

The jury found Mundon guilty of one count of attempted sex assault in the first; one count of terroristic threatening in the first; one count of kidnapping; one count of assault in the third degree; and the lesser-included offense of attempted assault in the second degree. Mundon was acquitted of all remaining charges. The circuit court sentenced Mundon for the offenses, some of which were consecutive.

Unanimity Instructions and when you Need them . "[T]he right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this state, is guaranteed by article I, [sections] 5 and 14 of the Hawai'i Constitution." State v. Arceo, 84 Hawai'i 1, 30, 928 P.2d 843, 872 (1996). When separate and distinct culpable acts are within a single count of sexual assault, "the defendant's constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (1) at or before the close of its case-in-chief, the prosecution is required to elect the specific act upon which it is relying to establish the 'conduct' element . . . or (2) the trial court gives the jury a specific unanimity instruction[.]" Id. at 32-33, 928 P.2d at 874-75. The requirement of unanimity instructions applies to other offenses too. State v. Valentine, 93 Hawai'i 199, 208, 998 P.2d 479, 488 (2000).

Absent an election by the prosecution a unanimity instruction is required when "(1) at trial, the prosecution adduces proof of two or more separate and distinct culpable acts; and (2) the prosecution seeks to submit to the jury that only one offense was committed." State v. Kassebeer, 118 Hawai'i 493, 508, 193 P.3d 409, 424 (2008). But the unanimity instruction is not required when the offense does not preclude it from being proved as a continuous offense and the prosecution alleges, adduces evidence of, and argues that the defendant's action "constituted a continuous course of conduct." State v. Apao, 95 Hawai'i 440, 447, 24 P.3d 32, 39 (2001).

. . . Not Required for Kidnapping. The HSC first rejected Mundon's argument that a unanimity instruction was required for the kidnapping offense. Kidnapping arises when "the person intentionally or knowingly restrains another person with the intent to . . . [i]nflict bodily injury upon that person or subject that person to a sexual offense[.]" HRS § 707-720(1)(d). According to the HSC, nothing in the kidnapping statute prevents the prosecution from proving that the restraint was "accomplished by a series of acts constituting a continuing course of conduct" and that the prosecution alleged, adduced evidence of, and argued that the defendant's actions were a continuous course of conduct.

. . . But Required for the Attempted Sex Assault in the First. As for the attempted sexual assault in the first degree, the HSC held that the unanimity instruction should have been given. Unlike the kidnapping offense, sexual assault in the first degree cannot be proven with continuous conduct. State v. Arceo, 84 Hawai'i at 21-22, 928 P.2d at 863-64. So even if the prosecution argued that it was a continuing course of conduct, the multiple attempts to penetrate the complainant cannot be a continuing course of conduct, but are separate and distinct acts. It was, according to the HSC, plain error for the trial court to not instruct the jury that they must unanimous in determining the particular conduct for the attempted sexual assault.

. . . And also Required for the Terroristic Threatening. The State argued to the jury that there were "two huge instances" where Mundon threatened the complainant. Mundon was charged with two counts of terroristic threatening in the first degree, but the jury found him guilty of only one. The HSC relied on a line of federal cases. "When it appears . . . that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice" and "the jurors must agree to a particular set of facts." United States v. Echeverry, 719 F.2d 974, 974-75 (9th Cir. 1983). The HSC pointed out that Mundon was charged and tried for two counts of terroristic threatening, but the jury only found him guilty of one count. According to the HSC, there was a genuine possibility that the different jurors agreed to a different set of facts.

A Particular kind of Remedy for the TT1. Double jeopardy protects people from a second prosecution for the same offense after acquittal and a second prosecution for the same offense after a conviction. State v. Higa, 79 Hawai'i 1, 5, 897 P.2d 928, 932 (1995). The HSC concluded that because there was no way to know which specific act served as the basis for the single TT1 conviction, it is possible that a vacation and remand of this offense would be a retrial for an offense of which Mundon had been acquitted. As a result, the HSC reversed the terroristic threatening in the first degree conviction.

Defendant Needn't show Particularized Reason in Exercising the Right to Transcripts of Prior Proceedings for Trial and Appeal. One of Mundon's pretrial motions was a request for written transcripts of prior proceedings. The circuit court denied the request. The ICA concluded that the transcripts should have been provided, but that error was harmless beyond a reasonable doubt.

A criminal defendant has a right to transcripts of prior proceedings. Britt v. North Carolina, 404 U.S. 226, 227 (1971). In Britt, the Supreme Court of the United States examined whether an indigent defendant was entitled to written transcripts even though there was no showing of a specific need for them. Id. Two factors are relevant in resolving this issue: (1) the value of the transcript to the defendant in connection with the appeal or trial" and (2) the availability of alternative devices that would fulfill the same functions as a transcript.

The HSC pointed out that the Britt court held that there is never a need for the defendant to show a specific need for transcripts. They have an "innate value." Id. at 228. The HSC then examined "the availability of alternative devices that would fulfill the same functions as a transcript." Here, Mundon was provided with electronic versions of the transcript, but it was clear from the record that he did not have the means to access those electronic versions until the first day of trial. That meant that Mundon could only review the transcripts during breaks in the trial itself. This, according to the HSC, was not an adequate alternative device. It was not harmless error.

No Access to Trial Materials . . . The State filed various pretrial motions in limine. Four days prior to trial at the hearing on these motions, Mundon informed the circuit court that it could not adequately respond to the motions because his trial materials were left behind on Oahu (the trial was held in Kauai). On appeal, Mundon argued that due process required him access to his trial materials.

Due process "is flexible and calls for such procedural protections as the particular situation demands. The basic elements of procedural due process of law require notice and an opportunity to be heard at a meaningful time and in a meaningful manner." State v. Adam, 97 Hawai'i 475, 482, 40 P.3d 877, 884 (2002).

The HSC noted that in California, the pro se criminal defendant has a constitutional right to adequate time to prepare his or her defense. People v. Maddox, 433 P.2d 163, 168 (Cal. 1967). Moreover, the denial of "a proper request for a continuance to prepare a defense" is a denial of due process. People v. Cruz, 83 Cal. App. 3d 308, 325 (Cal. App. 1978). In this case, Mundon was unexpectedly transported from Halawa on Oahu to the jail on Kauai without his trial materials. The transfer was completely out of his control. The trial court could have continued the trial in order for Mundon to consult his materials. The HSC held that the denial of access to his trial materials constituted a violation of his due process rights.

Getting Around the Abuse-of-Discretion Standard? In a footnote, the HSC pointed out that the ICA erred in applying the standard of review. The ICA applied the abuse-of-discretion standard of review and concluded that there was no such abuse. The abuse of discretion standard defers to the lower court or tribunal. The HSC, however, noted that Mundon asserted a violation of his constitutional rights--which is reviewed de novo. Normally, the denial of a continuance is reviewed for an abuse of a discretion. However, since the denial of a continuance--as argued by Mundon--was characterized as a violation of his due process rights, the HSC reviewed the issue de novo and did not defer to the lower court.

A Right to Standby Counsel. Mundon was cross-examined by the State. During a routine break in the trial, Mundon wanted to speak to his standby counsel. Under the federal constitution, a court's order prohibiting a criminal defendant from conferring with his or her standby counsel during an overnight break violates the Sixth Amendment. Geders v. United States, 425 U.S. 80, 91 (1976). However, in Perry v. Leeke, 488 U.S. 272 (1989), the defendant argued that the trial court's order barring him from conferring with standby counsel during a 15-minute break violated the Sixth Amendment. The SCOTUS distinguished Geders and held that the federal constitution "does not compel every trial judge to allow the defendant to consult with his [or her] lawyer while his [or her] testimony is in progress merely because the judge decides to call a recess during the trial for a few minutes." Perry, 488 U.S. at 284-85. The Perry court emphasized the need for preserving the truth-seeking function at trial and explained that the defendant does not have a right to "regroup and regain a poise and sense of strategy" not available to other witnesses. Id. at 282-83.

Justice Thurgood Marshall dissented in Perry. He was joined by Justices Brennan and Blackmun. The dissent saw no distinction and noted that conferring with counsel "enhances the discovery of truth because it better enables the defendant to put the [prosecution] to its proof." Id. at 291 (emphasis in original). Justice Marshall wrote that "the Sixth Amendment forbids any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial." Id. at 285-86 (emphasis in original).

The HSC held that under the federal constitution, Mundon is in the same situation as Perry and, thus, the Sixth Amendment was not violated by the circuit court's order prohibiting him from conferring with standby counsel.

The Hawai'i Constitution, However, is a Different Matter. The Hawai'i Supreme Court is the "ultimate judicial tribunal with the final, unreviewable authority to interpret and enforce the Hawai'i Constitution" and is "free to give broader protection under the Hawai'i Constitution than that given by the federal constitution." State v. Arceo, 84 Hawai'i at 28, 928 P.2d at 870. HSC adopted Justice Marshall's formulation that "any order barring communication between a defendant and his [or her] attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial," violates the defendant's state constitutional right to counsel. Thus, the HSC held that the circuit court's order prohibiting conference with counsel during the routine break violated the Hawai'i Constitution. Nonetheless, the HSC held that the error was harmless beyond a reasonable doubt because there was no reasonable possibility that the error contributed to the conviction. State v. Balisbisana, 83 Hawai'i 109, 114, 924 P.2d 1215, 1230 (1996).

Justice Acoba's Concurrence and Dissent. Justice Acoba agreed with the result, but disagreed on the majority's analysis on the circuit court's order prohibiting conference with standby counsel. In sum, Justice Acoba believed that the circuit court's order violated Mundon's right to counsel, the attorney-client privilege, and Mundon's right against self-incrimination. Justice Duffy joined.

Other Issues. The HSC held that Mundon's right to speedy trial was not violated when more time was permitted to accommodate the withdrawal of one standby counsel and the appointment of another. The HSC also rejected Mundon's contention that the consecutive sentencing violated his right to a jury trial ala Apprendi v. New Jersey, 530 U.S. 466 (2000).

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.