Tuesday, August 31, 2010

An Unprepared Prosecutor does not Warrant Dismissal with Prejudice

State v. Correa (ICA August 27, 2010)

Background. Kyle Correa was charged with abuse of a family or household member. HRS § 709-906. After a few continuances, the family court set trial for April 13, 2009. This was the last continuance absent something "extraordinary." Shortly before trial, Correa filed a motion to continue. The motion was denied. Prior to trial, the family court asked the prosecutor if he was prepared. The prosecutor answered in the affirmative. However, the family court asked if the prosecutor spoke with the Complaintant. The prosecutor did not and asked for a continuance. The request was denied. The family court took a brief recess. After the recess, the family court asked again. The prosecutor said he just spoke with her and was ready to proceed for trial since the continuance was denied. The family court again said that the prosecutor was not prepared and dismissed the case with prejudice.

The Family Court Abused its Discretion in Dismissing the Case. The ICA held that the family court's abused its inherent power to dismiss cases. According to the ICA, the family court dismissed the case without prejudice because the prosecutor did not personally talk to the Complaintant "in detail" prior to trial. The trial court has the inherent power to dismiss a case in order to protect "the integrity of the judicial process and in ensuring fairness to defendants[.]" State v. Moriwake, 65 Haw. 47, 56, 647 P.2d 705, 712 (1982). In exercising this power, the trial court must balance "the interest of the state against fundamental fairness to a defendant with the added ingredient of the orderly functioning of the court system." Id.

Here, the family court dismissed the case because the prosecutor did not speak in detail with the Complaintant prior to trial. According to the ICA, Correa was not previously charged with this crime, there was no allegation that the prosecutor infringed upon Correa's right to a fair trial, and the State has a strong interest in prosecuting crimes involving domestic violence. See State v. Alvey, 67 Haw. 49, 58, 678 P.2d 5, 11 (1984); Coyle v. Compton, 85 Hawai'i 197, 208, 940 P.2d 404, 415 (App. 1997).

Prosecute Anyway you wish. The ICA found fault in the family court's reasoning. Prosecutors, according to the ICA, should be permitted to present their case. "The prosecuting attorney is to be according deference in how to discharge the duties of his or her office . . ., which we conclude includes deference in how the prosecuting attorney prepares a case for trial." There was nothing inherently wrong in not speaking to the Complaintant here. The ICA pointed out that others in the prosecutor's team could have spoken with the Complaintant or if the prosecutor prepared in other ways, like reviewing police reports or interview statements.

There are Other ways to Address an Unprepared Lawyer. The ICA also recognized that courts do not need to let unprepared lawyers go unpunished. Sanctions are available. HRPP Rule 53(b). A dismissal is too harsh when the defendant suffers no prejudice. State v. Dowsett, 10 Haw. App. 491, 495, 878 P.2d 739, 742 (1994).

A Moriwake Bookend? The ICA discussed Moriwake in great detail here. It also discussed Alvey, which expressly stated that the trial judge does not have the "inherent power to dismiss an otherwise valid indictment prior to the defendant's first trial." State v. Alvey, 67 Haw. at 57, 687 P.2d at 10. The ICA, however, did not mention State v. Hinton, 120 Hawai'i 265, 204 P.3d 484 (2009), in which the HSC rejected--if not scolded--the ICA's application of Moriwake. In Hinton, the HSC held that it was not an abuse of discretion for the trial court to dismiss a prosecution after a single mistrial. (Moriwake involved two mistrials). The ICA here expressly stated that Moriwake did not apply and that Alvey did. But Moriwake establishes a framework. Why can't it apply here? The ICA did not really explain. If it does not apply, then it would seem that if there are no mistrials, a dismissal is a per se abuse of discretion. But if there is at least one, then the Moriwake balancing test would apply.

Intersecting Hearsay with the Confrontation Clause

State v. Delos Santos (HSC August 19, 2010)

Background. Kenneth Delos Santos was charged with abuse of a family or household member. HRS § 709-906. The prosecution alleged that Delos Santos slapped his girlfriend's face and stomped on her thigh in their Waikiki apartment. Officer Jason Kubo testified that he responded to a domestic disturbance in Waikiki. A hearing was held to determine the admissibility of a statement reported from Officer Kubo. At the hearing, Officer Kubo testified that upon arriving to the scene, he spoke to the girlfriend. Officer Kubo testified that girlfriend said, "my boyfriend beat me up." She also said that she argued with Delos Santos, Delos Santo hit her in the jaw hard enough to make her fall to the ground, and that when she was on the ground Delos Santos stomped on her thigh several times causing pain. The family court concluded that the entire statement was an excited utterance and, thus, admissible. Officer Kubo repeated the statement at trial. At trial, the Complaintant testified and on cross-examination, she could not remember her statements to Officer Kubo. The jury found Delos Santos guilty as charged. Delos Santos appealed. The ICA reversed on the grounds that the statement was not an excited utterance and it should not have been admitted. Judge Fujise dissented. The State petitioned for certiorari.

Excited Utterances. Out-of-court statements made by a declarant are not admissible. Hawai'i Rules of Evidence (HRE) Rule 801 and Rule 802. However, a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not excluded by the hearsay rule. HRE Rule 803(b)(2). The proponent of the statement must, therefore, prove "(1) a startling event or condition existed; (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement relates to the startling event or condition." State v. Machado, 109 Hawai'i 445, 451, 127 P.3d 941, 947 (2006). According to the HSC, there is no question that the startling event was the altercation between Delos Santos and the Complaintant. The sole issue is whether the statements were made under the stress of excitement caused by that event.

In determining the second Machado prong, the court must examine "whether the statement was the result of reflective thought or whether it was rather a spontaneous reaction to the exciting event." Id. at 451, 127 P.3d at 947. To assess that, the HSC turned to various factors, including the time span between the event and the statement, "the nature of the event, the age of the declarant, the mental and physical condition of the declarant, the influences of intervening occurrences, and the nature and circumstances of the statement itself." Id.

The Prosecution Failed to lay Adequate Foundation for the 2d "Statement" . . . The HSC broke down the Complaintant's statements into two parts. The first was the statement, "my boyfriend beat me up." And the 2d statement was an account of what happened. This 2d statement was not, according to the HSC, an excited utterance. The HSC weighed the Machado factors.

First, the nature of the event was violent and supported an excited utterance. Second, the mental and physical state of the declarant also supported an excited utterance. She was really shaken, crying, and very emotional. It suggests that it is not the product of reflective thought. The time span, however, weighed against admission. The prosecutor never established when the 2d statement was given to Officer Kubo. Officer Kubo testified that he had met with the Complaintant for about 30 minutes. It is impossible to know when that statement took place. It is also possible that the 2d statement was not a statement at all but a summary of responses to Officer Kubo's questions.

As for the nature and circumstances of the statement, the HSC held that the 2d statement was probably not an excited utterance because it was made in response to police questioning and it is unclear whether the statement was a "disjointed" or "spontaneous" outburst or a recitation of what happened. A recitation or any other "lengthy, narrative statements are not admissible as excited utterances." Id. at 451, 127 P.3d at 947.

The age of the declarant had no bearing in this analysis. Typically, "child victims of sex abuse are generally allowed more time between the event and the statement[.]" Boyd v. City of Oakland, 458 F.Supp.2d 1015, 1026 (N.D. Cal. 2006). That does not apply here. As for the influence of intervening occurrences, the HSC held that it was essentially a push. Nothing, according to the HSC, intervened between the statement and the event that could have "dulled" the Complaintant's excitement.

So based on these factors and the totality of the circumstances, State v. Clark, 83 Hawai'i 289, 297, 926 P.2d 194, 202 (1996), the 2d statement should not have been admitted as an excited utterance because the prosecution laid no foundation for it.

. . . But There was Enough for the First. The first statement--"my boyfriend beat me up"--was an excited utterance. Again, the HSC turned to the factors outlined in Machado. Essentially, the majority weighed in favor of admission. Even though the statement was in response to police questioning, it was still admissible. The HSC stressed that the fact that the statement was in response to police questioning is a mere factor and "does not per se bar admission." People of Territory of Guam v. Cepeda, 69 F.3d 369, 372 (9th Cir. 1995). The HSC also relied on ICA cases for support. State v. Konohia, 106 Hawai'i 517, 524, 107 P.3d 1190, 1197 (App. 2005); State v. Dunn, 8 Haw. App. 238, 246, 798 P.2d 908, 912-13 (1990).

Confrontation Clause not Violated. The accused has the right "to be confronted with the witnesses against" him or her. Haw. Const. Art. I, sec. 14. When a declarant's "unavailability has been shown, the testimonial statement is admissible for the truth of the matter asserted only if the defendant was afforded a prior opportunity to cross-examine the absent declarant about the statement." State v. Fields, 115 Hawai'i 503, 516, 168 P.3d 955, 968 (2007). That said, the Hawai'i Confrontation Clause does not bar the statement when the "hearsay declarant attends trial and is cross-examined about his or her prior out-of-court statement." Id. at 517, 168 P.3d at 969. The formulations of the rule from Fields came from the analysis of the Confrontation Clause in the Fifth Amendment by the Supreme Court of the United States in Crawford v. Washington, 541 U.S. 36 (2004).

Not Remembering the Statement is Irrelevant to Attending Trial and Being Cross-Examined About it. According to the HSC, neither it nor the SCOTUS, had examined if a declarant who cannot remember the subject matter of the statement adequately "appeared for cross-examination." The HSC rejected Delos Santos' arguments that the cross-examination had to be meaningful. Relying heavily on SCOTUS precedent and cases in other jurisdictions, the HSC held that a declarant need not recall the subject matter of the statement; so long as the declarant appeared at trial and was cross-examined about it, the Confrontation Clause has not been violated.

But was it Testimonial? The federal Confrontation Clause prohibits only "the admission of testimonial statements of a witness who did not appear at trial unless he [or she] was available to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The HSC examined the testimonial-non-testimonial problem in State v. Fitzwater, 122 Hawai'i 354, 372, 227 P.3d 520, 538 (2010):

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions.

Id. (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).

The HSC never examined whether the statement, "my boyfriend beat me up"--a statement made in response to police questioning--was testimonial or not. The HSC explained that that analysis is unnecessary because the witness was "available" and thus it did not matter if it the statement was testimonial or not. There was no constitutional bar.

Which Goes First? And that raises another question: What part should be applied first? The availability part or the testimonial part? Does it matter? What if the statement turned out to be non-testimonial? Then the availability would not matter either. The SCOTUS never examined this second part--the availability of the witness--it has only focused on whether the statement was testimonial or not.

Confrontation Clause's "Unavailable" is Different from an "Unavailable Declarant" under the Rules of Evidence. In holding that the forgetful declarant is still considered "available" for purposes of the Confrontation Clause, the HSC had made a distinction between "unavailable" for purposes of the constitution and "unavailable" under the rules of evidence. There are two kinds of hearsay exceptions. Some require that the declarant be "unavailable." HRE Rule 804. Other exceptions--like the excited utterance--do not; they are admissible regardless of the availability of the declarant. HRE Rule 803. Under the rules, the trial court must first find that the declarant is unavailable before the 804 exceptions can be admitted. There are five types of unavailability. HRE 804(a). A declarant is unavailable when he or she "[t]estifies to a lack of memory about the subject matter of the declarant's statement[.]" HRE Rule 804(a)(3). Once that happens, the declarant is considered "unavailable."

Interestingly, an unavailable declarant means something very different under the Confrontation Clause. All that is requires is that the declarant show up at trial and be cross-examined about the statement. If the declarant cannot remember, it is does not matter. There's nothing wrong with this. Just because the constitution does not prohibit the testimony does not necessarily mean that the statement will come in. The rules of evidence still apply.

Justice Acoba's Concurrence. Justice Acoba agreed with the result only. Justice Acoba first examined whether the statement was non-testimonial. It was, according to Justice Acoba. Because it is non-testimonial, the federal constitution is not involved and it can only be admitted upon a showing of "unavailability" and if the "statement bear[s] adequate indicia of reliability." State v. Sua, 92 Hawai'i 61, 73, 987 P.2d 959, 971 (1999). Here, Justice Acoba wrote that because the Complaintant could not remember, she was unavailable, and secondly, the statement was part of a firmly-rooted hearsay exception. See Ohio v. Roberts, 448 U.S. 56 (1980). Thus, its admission did not violate the Confrontation Clause. Justice Acoba, however, disagreed with the majority's holding that the "mere presence" of the declarant satisfied the Confrontation Clause. A declarant who cannot remember should not, according to Justice Acoba, be considered available for cross-examination.

Friday, August 27, 2010

Double Jeopardy not Offended in Retrial of Single Count of Multiple-act and Alternative-Means Offense

State v. Kalaola (HSC August 19, 2010)

Background. Jason Keliikaoikaika Kalaola was charged with a single count for failing to disperse (HRS § 711-1102). At trial, the prosecution called police officers who responded to a disturbance at the Aloha Tower Marketplace, a mall. Officer Keani Alapa testified that he saw approximately 50 to 75 people fighting on the 2d floor of the mall. Officer Alapa testified that he saw Kalaola challenging people to fight and calling people out. Kalaola was among a group of people that Officer Alapa ordered to leave. They did not leave at first, but eventually they started going downstairs, where new fights started up again. Sergeant Albert Lee testified that he saw people streaming out onto the first floor and parking lot. Sergeant Lee told Kalaola to leave the area at least ten times. Kalaola was yelling and cussing, and Sergeant Lee told him to leave at least ten more times. He saw more fights in the parking lot and Sergeant Lee told Kalaola to leave, but he would not. That was when Sergeant Lee arrested him for failing to dispurse.

The circuit court instructed the jury that the prosecution had to prove beyond a reasonable doubt that Kalaola "was one of six or more persons participating in a course of disorderly conduct" or "was in the immediate vicinity." Kalaola requested the circuit court to instruct the jury about the definition of "disorderly conduct," which was denied. The circuit court, however, also gave the jury a unanimity instruction based on State v. Arceo, 84 Hawai'i 1, 928 P.2d 843 (1996). During closing argument, the prosecutor referred to the Arceo instruction and argued that multiple acts--the events on the 2d floor and the events near the parking lot--supporting a conviction. The jury found Kalaola guilty. He appealed. The ICA concluded that the only error was the failure to give the definition of "disorderly conduct," but rejected Kalaola's other arguments, and vacated the judgment. Kalaola petitioned for certiorari.

Alternative Means Offenses, and Multiple acts Offenses. A person commits the offense of failure to disperse if he or she knowingly (1) was among six or more persons "participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm" or was "in the immediate vicinity" of a disturbance; (2) the person was ordered by a law enforcement officer to disperse; and (3) the person failed to comply with that order. HRS § 711-1102. The HSC noted that this offense is an "alternative means" offense. That means that "a single offense may committed in more than one way[.]" State v. Jones, 96 Hawai'i 161, 170, 29 P.3d 351, 360 (2001). According to the HSC, the offense can be committed by participating in disorderly conduct or being in the immediate vicinity of the disturbance. The HSC also noted that this case is also a "multiple acts" offense, that is, "separate and distinct culpable acts that could support separate counts of an indictment or complaint[,]" but are submitted to the jury in a single count. Id. at 169, 29 P.3d at 359.

Sufficient Evidence Supported a Conviction for Failing to Disperse the 1st Floor, but not the 2d Floor. According to the HSC, the prosecution presented evidence of two possible culpable acts: Kalaola's failure to leave the 2d floor and his failure to leave the ground floor. The HSC held that there was insufficient evidence establishing that Kalaola's failure to disperse from the 2d floor. Officer Alapa did not testify how long Kalaola remained on the 2d floor after he was told to leave. Furthermore, Kalaola was seen on the ground floor 20 minutes later, which suggests that he actually complied with the order to leave. The HSC, however, held that there was sufficient evidence supporting a failure to disperse from the ground floor. There was substantial evidence showing that Kalaola was among at least six people, that Sergeant Lee told Kalaola to leave the area, that Kalaola did not comply because Sergeant Lee testified that he told Kalaola to leave at least ten times. Finally, there was evidence suggesting that Kalaola did these things knowingly. This supporting a conviction for a failure to disperse from the ground floor.

But what about Double Jeopardy? But can Kalaola be retried? The state and federal constitutions prohibit a person from being subjected to "the same offense to be twice put in jeopardy[.]" Haw. Const. Art. I, sec. 10; U.S. Const. Am. V. This provision protects a person against "a second prosecution for the same offense after acquittal[.]" State v. Quitog, 85 Hawai'i 128, 141, 938 P.2d 559, 572 (1997). This also includes cases where "the insufficiency of evidence is such that the appellate court finds that the government failed to prove its case beyond a reasonable doubt." State v. Bannister, 60 Haw. 658, 660, 594 P.2d 133, 135 (1979). But these protections are not absolute. See State v. Miyazaki, 64 Haw. 611, 618, 645 P.2d 1340, 1345 (1982). The Double Jeopardy clauses are not violated when a defendant was not acquitted and the case was set aside for reasons other than insufficiency of evidence. State v. Whiting, 88 Hawai'i 356, 359, 966 P.2d 1082, 1085 (1998); State v. Jess, 117 Hawai'i 381, 439 n. 28, 184 P.3d 133, 191 n. 28 (2008).

Not a Problem here . . . The HSC held that its holding that there was insufficient evidence to convict for the act of not leaving the 2d floor did not invoke the Double Jeopardy Clause. Although "a defendant may not be retried for any offense of which he has been acquitted, whether expressly or impliedly, notwithstanding a subsequent reversal of the judgment on appeal[,]" State v. Feliciano, 62 Haw. 637, 644, 618 P.2d 306, 311 (1980), in this case, the jury did not enter a verdict of acquittal. Nor did the jury's verdict impliedly acquit Kalaola of any offense. Implied acquittals typically arise when the jury convicts of a lesser-included offense (thereby implying that the defendant has been acquitted of the charged offense). Id. at 643-44, 618 P.2d at 311. It can also arise when the jury finds a fact that inconsistent with guilt at retrial. State v. Pesentheiner, 95 Hawai'i 290, 291, 22 P.3d 86, 87 (App. 2001). None of those situations arose here. Remanding the case for retrial, according to the HSC, did not violate Double Jeopardy.

But what about the 2d Floor? So if the case can be remanded for retrial, could a jury find Kalaola guilty of failing to disperse from the 2d floor? Would that violate Double Jeopardy? According to the HSC, "double jeopardy precludes the State from again seeking a conviction of Kalaola based on his failure to disperse form the second floor[.]"

Justice Acoba's Concurrence and Dissent. Justice Acoba agreed with the majority that the failure-to-disperse offense presents alternative statutory means for conviction and is also based upon multiple acts in this case. However, Justice Acoba wrote that the prosecution failed to adduce evidence that all of the multiple acts were supported by substantial evidence. Finally, Justice Acoba believed that the case should be reversed because retrial would violate the principles of Double Jeopardy. Justice Duffy joined.

Saturday, August 21, 2010

HSC: Evidence of prior Sexual Relations Relevant to show Opportunity to Engage in the Charged Conduct in Sex Assault Trial

State v. Behrendt (HSC August 19, 2010)

Background. Robert Behrendt was charged with three counts of sexual assault in the first degree and one count of kidnapping. The sex assault charges stem from three incidents of alleged sexual contact with Behrendt and SI, a minor under the age of 16. SI grew up in Kona and moved to live with her sister, LI, and LI's husband, Behrendt, in South Dakota, when she was 11. The circuit court allowed SI and LI to testify about instances of sexual contact between SI and Behrendt that allegedly took place in South Dakota and Washington State. The circuit court allowed this evidence as HRE Rule 404(b) evidence establishing a motive, opportunity, and plan. At the end of trial, the circuit court provided a limiting instruction for the evidence of sexual contact on the mainland.

The circuit court also provided instructions for sexual assault in the third degree as a lesser-included offense. Behrendt did not object to its inclusion, but objected on the grounds that the instruction did not properly assert the state of mind. During deliberations, the jury asked the circuit court "[w]hat purpose do we put to the evidence and testimony from S. Dakota?" The circuit court directed the jury back to its limiting instruction. The jury found Behrendt guilty of three counts of the lesser-included offense of sexual assault in the third degree and one count of the lesser-included offense of unlawful imprisonment. The circuit court sentenced Behrendt to five years prison. Behrendt appealed. The ICA affirmed in part, but remanded the case for a new trial on the grounds that the circuit court failed to define "sexual contact" for sexual assault in the third degree.

Prior Bad Acts Admissible when Related to a Relevant Purpose Other than Propensity or Bad Character and can Withstand 403 Scrutiny. Evidence of bad acts "is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident." Hawai'i Rules of Evidence Rule 404(b). The list is not exhaustive. State v. Clark, 83 Hawai'i 289, 300-01, 926 P.2d 194, 205-06 (1996). Even if the non-propensity purpose is a fact of consequence, the trial court must still determine whether its probative value is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." HRE Rule 403; State v. Castro, 69 Haw. 633, 643, 756 P.2d 1033, 1041 (1988).

Prior Sexual Contacts Relevant to Show Opportunity to Engage in the Offense Conduct Without Being Reported. According to the HSC, the first count of sexual assault occurred in Kona. The count is based on evidence that Behrendt and SI had intercourse in SI's bed. According to the HSC, the evidence of prior sexual contact on the mainland "is relevant to establish Behrendt's opportunity to engage in the sexual contacts in Hawai[']i without being detected. . . . Absent that evidence, it would be implausible that Behrendt could suddenly engage in sexual intercourse with SI in a house they shared with her family while SI's sister slept in the same bed, without SI reporting it." The HSC also pointed out that there was an evidentiary foundation for the evidence. The expert testimony and the testimony of SI established that by the time SI returned to Hawai'i, she had become acclimated to the sexual contact and had a sexual relationship with Behrendt. This was the proper foundation for the 404(b) evidence. The HSC emphasized that "this is not a situation where the state offered a pretextual reason for the admission of the evidence, but in fact appeared to be using it to establish the bad character of the defendant." See State v. Fetelee, 117 Hawai'i 53, 82-85, 175 P.3d 709, 738-41 (2008).

But what about 403? The HSC held that the circuit court did not abuse its discretion in determining that the probative value was not outweighed by prejudice. In examining the prejudicial effect of 404(b) evidence, the court must examine certain factors:

the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.

State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273 (1992). According to the HSC, these factors cut in favor of admitting the evidence.

First, the strength of the evidence "is essentially the same as" evidence of the charged conduct. Second, the conduct is essentially the same too and there was little time between the 404(b) evidence and the charged conduct. There was also a need for the evidence, which is considered an important factor, State v. Clark, 83 Hawai'i at 303, 926 P.2d at 208, because without the evidence of prior sexual conduct in South Dakota and Washington, the jury would be left with the impression that the first sexual encounters took place in Kona. The jury would not know that the sexual contact escalated to a complete sexual relationship. Finally, the HSC held that it was not likely to rouse the jury's hostility. The 404(b) is essentially the same kind of conduct as the charged conduct; albeit SI was younger and it happened more frequently. The HSC also noted that there was little chance of juror confusion since the circuit court provided a limiting instruction and referred the jury back to that instruction when it sought clarification.

There was Sufficient Evidence for the Lesser-Included Sexual Offenses. The HSC rejected Behrendt's argument that there was insufficient evidence for the lesser-included offenses. "[I]n the absence of [] a rational basis in the evidence, the trial court should not instruct the jury as to included offenses[.]" State v. Kinnane, 79 Hawai'i 46, 49, 987 P.2d 973, 976 (1995). Behrendt argued that the evidence showed only repeated instances of "sexual penetration." Sexual assault in the third degree, however, calls for "sexual contact" rather than "sexual penetration." HRS § 707-732(1)(c). "Sexual contact" includes "any touching . . . of the sexual or other intimate parts of a person not married to the actor, or of the sexual or other intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts." HRS § 707-700. The HSC held that there was sufficient evidence establishing "sexual contact." In fact, the HSC stated although there was evidence that "would support a conviction for sexual assault in the first degree, a rational juror could have inferred that there was 'sexual contact' prior to the penetration[.]"

Justice Acoba's Dissent. Justice Acoba believed that the evidence of sexual relations on the mainland should not have been admitted. Justice Acoba essentially cited the same authorities as the majority on this issue of HRE Rules 404(b) and 403, but arrived at a much different conclusion. Justice Acoba wrote that the admission of the "prior bad acts was nothing more than evidence used to show that [Behrendt] was a person of bad character. The testimony was admitted to establish that [Behrendt] had sexual relations with complainant prior to moving to Hawai'i, but was probative of nothing more than that fact." This allowed the jury to infer that Behrendt was "predisposed to commit the offenses with which he was charged by placing before it evidence of prior incidents without establishing that the prior acts were probative of some other fact of consequence." It "permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened." Commentary to HRE Rule 404. Justice Acoba also pointed out that the majority concluded that the 404(b) evidence showed an opportunity, but the circuit court instructed the jury to consider it for opportunity, motive, and plan. The evidence was not relevant to establishing motive or plan so, wrote Justice Acoba, it is possible that the jury could have erroneously viewed the evidence.

As for the purpose of establishing opportunity, Justice Acoba wrote that there was sufficient evidence establishing a submissive sexual relationship taking place in Hawai'i without needing the evidence from the mainland. Moreover, even if the evidence was able to withstand 404(b) purposes, it still could not get past HRE Rule 403. Justice Acoba believed that the "majority overstate[d] the need for the evidence and disregard[ed] the substantial prejudice in admitting such evidence." One of the factors in 403 balancing that was not mentioned by the majority was "the efficacy of alternative proof[.]" State v. Pineiro, 70 Haw. 509, 518, 778 P.2d 704, 711 (1989). Justice Acoba wrote that "the evidence relating to acts in Hawai'i was far more effective in explaining [Behrendt's] ability to commit the charged offenses." The Hawai'i evidence is far superior to evidence of prior sexual relations on the mainland because it related directly to the purported 404(b) purpose: opportunity to commit the offense. That alternative--believed Justice Acoba--was far less likely to rouse juror hostility too and it was far less likely to confuse the issues at trial.

Justice Acoba: Sexual Contact Cannot be Inferred from Evidence of Penetration, but there was Enough to Provide the Instructions for the Lesser-Included Offenses. Justice Acoba agreed that there was a rational basis for the lesser-included offenses because SI testified that she engaged in sexual contact other than sexual penetration. It was wrong, wrote Justice Acoba, for the majority to hold that sexual contact can be inferred from the same evidence of sexual penetration. A guilty verdict for the lesser-included offense is an acquittal for the greater offense. See Green v. United States, 355 U.S. 184, 190 (1957). For Justice Acoba, that meant that "the jury's conclusion that [Behrendt] did not penetrate [SI] would preclude it from inferring that sexual contact occurred in the course of penetration." In reviewing the record, however, there was some evidence of "sexual contact" thereby establishing the rational basis for the instruction.

Friday, August 20, 2010

Agency's Approval of Developer's plan to Remove Skeletal Remains Subject to Judicial Review

Kaleikini v. Theilen (HSC August 18, 2010)

Background. General Growth Properties (GGP) discovered remains of ancient Hawaiians, or iwi, on its property near Ward Center in Honolulu. GGP discovered the iwi as it was constructing the Ward Village Shops. A hearing was held before the Oahu Island Burial Council. At the hearing, GGP sought permission to remove the iwi into an area that would be safe. GGP also maintained that there was no way to alter the current construction plan. Keleikini testified at the hearing. She opposed GGP's plan and testified that she is a "cultural descendant" of the iwi and that Native Hawaiian cultural practices require undisturbed treatment of the iwi. Kaleikini argued that GGP should have been more careful in their construction plans. The burial council approved of GGP's plan.

Kaleikini wrote a letter to the Department of Land and Natural Resources (DLNR) to review the burial council's decision at a contested case hearing. Kaleikini maintained that she was entitled to a contested case hearing because the burial council adversely affected her rights as a cultural descendant and a Native Hawaiian. The DLNR denied her request on the grounds that she must make an agency appeal. Kaleikini then filed a notice of agency appeal before the circuit court and a separate action seeking declaratory and injunctive relief. Kaleikini filed a motion to stay the final approval of GGP's plan by the DLNR, pending the outcome of her agency appeal. The circuit court concluded that since there was no contested case hearing to appeal from, it had no jurisdiction. The case was dismissed. Kaleikini appealed.

In Kalekini's declaratory judgment action, however, the circuit court sua sponte filed Kaleikini's motion to stay. That motion was denied. Kalekini then filed a motion for a preliminary injunction and a motion for summary judgment. Those too were denied. The DLNR--joined by GGP--filed a motion for summary judgment. It granted the motion in part. The parties eventually settled. The ICA dismissed Kaleikini's appeal as moot.

Mootness Based on a Concession. At oral argument, Kaleikini conceded that her case was moot. The HSC held that the case was moot based on her concession. The issue now turned on whether it met any of the exceptions to the mootness doctrine.

But the Public-Interest Exception Applies. The application of the public-interest exception depends on "(1) the public or private nature of the question presented, (2) the desirability of an authoritative determination for future guidance of public officers, and (3) the likelihood of future recurrence of the question." Hamilton v. Lethem, 119 Hawai'i 1, 6-7, 193 P.3d 839, 844-45 (2008). According to the HSC, the issue here is "the availability of judicial review of decisions relating to the removal of Native Hawaiian burial sites." This issue is of "great public importance" based on the policy statements of the Legislature that amended laws related to the treatment of discovered human skeletal remains in HRS Chapter 6E. Secondly, there is a need for an authoritative determination on the issue of whether an appellant can seek judicial review for the agency's denial of a request for a contested case hearing; and that determination would guide "public officials"--like the agencies and the courts. Finally, the HSC concluded that this issue with the iwi will arise again "as it seems probable that iwi will continue to be unearthed at future construction projects."

Kaleikini Entitled to a Contested Case Hearing. Kaleikini requested a contested case hearing, but the circuit court dismissed her case based on a lack of jurisdiction. "The right to appeal is purely statutory and exists only when jurisdiction is given by some constitutional or statutory provision." Lingle v. Hawai'i Gov't Employees Ass'n, 107 Hawai'i 178, 184, 111 P.3d 587, 593 (2005). HRS § 91-14 provides jurisdiction to review the final decisions and orders in "contested case[s]." This statute applies when (1) the agency ruled in a "contested case" (i.e. it is "required by law" and "determines the rights, duties, and privileges of specific parties"); (2) the agency's action is a "final decision and order" or is a "preliminary ruling" that nonetheless deprives the claimant of adequate relief; (3) the claimant followed the applicable agency rules and participated in the contested case; and (4) the claimant had standing (i.e. his or her "legal interests must have been injured."). Public Access Shoreline Hawai'i v. Hawai'i County Planning Com'n, 79 Hawai'i 425, 431, 903 P.2d 1246, 1252 (1995).

The HSC concluded that this was a "contested case" because it was required by HRS § 6E-43 and HAR § 13-300-51. Because there was no "contested case," the HSC speculated that to determine whether such a hearing would have affected GGP's rights, duties, and privileges. The HSC held that it did; the approval of GGP's burial plan implicated GGP's right to use the property and determined its duties to the iwi discovered on its property. As to the other prongs, the HSC held that the denial of the request for a hearing constituted a "final decision and order" by the agency, that Kaleikini followed the rules of the agency, and Kaleikini has standing based on her status as a "cultural descendant" and her rights as a Native Hawaiian which are protected in Art. XII, section 7 of the Hawai'i Constitution. Because she met the prongs of PASH, the circuit court erred in dismissing her agency appeal based on a lack of jurisdiction.

Justice Acoba's Concurrence. Justice Acoba concurred with the result, but disagreed with the majority's analysis. Justice Acoba believed that the contested case was not mandated by a statute or agency, but rather was required by the due process rights of the Hawai'i Constitution. Justice Acoba would have held that Kaleikini's "constitutional due process right as a Native Hawaiian practicing the native and customary traditions of protecting iwi mandated a contested case hearing[.]" In order for an agency hearing to be "required by law" (and, thus, a "contested case" subject to judicial review), the hearing must be required by an agency rule, statute, or constitutional due process. PASH, 79 Hawai'i at 431, 903 P.2d at 1252. Justice Acoba examined the applicable statutes and agency rules and determined that they do not require a hearing. The only possibility, then, was the constitution. Justice Acoba recognized GGP's property interests affected by the burial council's decision. He also recognized Kaleikini's traditional and customary practice "to ensure that the iwi receive proper care and respect." The Hawai'i Constitution protects these rights and affords her with a contested case hearing where these rights are affected.

Justice Acoba also disputed the majority's interpretation of the BLNR's authority to determine specific hearings in this area. The issues here are very specific, and are not reported here.

Justice Recktenwald's Concurrence. Justice Recktenwald wrote separately to address the circuit court's application of Kaniakapupu v. Land Use Commission, 111 Hawai'i 124, 139 P.3d 712 (2006). The circuit court relied on Kaniakapupu as authority to dismiss Kaleikini's agency appeal. In that case, the HSC held that there was no "contested case" arising from the agency's denial of a claimant's motion to show cause. Id. at 132-34, 139 P.3d at 720-22. In this case, wrote Justice Recktenwald, the relevant statutes and rules provided for a contested case hearing. It was clear that Justice Recktenwald agreed with the majority's analysis that the agency rules and statutes required the hearing, and there was no need look to the Hawai'i Constitution--as Justice Acoba believed.

Interestingly, Justice Recktenwald added that "it is appropriate to consider this case under the public interest exception to the mootness doctrine in order to clarify the scope of the holding in Kaniakapupu." Why is this sentence interesting? It seems to Justice Recktenwald that the public-interest exception includes those cases that should clarify the law. That may be so, but it does not squarely fit with the three-prong analysis in Hamilton. Then again, Justice Recktenwald's sentence fits in with the second prong--the need for an authoritative determination for guidance of public officials. But that is only one of three factors.

Thursday, August 5, 2010

Right Charge, Wrong Evidence

State v. Hitchcock (HSC July 30, 2010)

Background. Sean Hitchcock was orally charged with illegal camping in violation of Revised Ordinances of Honolulu § 10-1.2(a)(13):

Mr. Hitchcock, on January 14, 2009, within the limits of a public park, you did intentionally, knowingly, or recklessly camp in any area not designated as a campground thereby committing the offense of illegal camping in violation of Section 10-1.2(a)(13) of the [ROH].

Hitchcock did not challenge the sufficiency of the charge. At trial, Officer Dennis Carino testified that on that night he was at Kea'au Beach Park out near Waianae where he saw Hitchcock going in and out of a tent within the beach park. Hitchcock told Officer Carino that it was his tent. Officer Carino also testified that there were signs all over the park stating "no camping." Officer Carino could not remember if Hitchcock had a permit, but he explained that there are certain nights--Wednesdays and Thursdays--where no one is permitted to camp. The district court took judicial notice that January 14, 2009 was a Wednesday night. On cross-examination, Officer Carino admitted that he often ran into Hitchock at the park and that he usually has his permit. Officer Carino also admitted that Hitchcock was within the designated camping area. Hitchcock testified that he was homeless and that in order to stay at the park he went to a satellite city hall every three weeks on Friday and gets his permits which is viable for up to three weeks. The district court found Hitchcock guilty and sentenced him to the maximum $25.00 fine. Hitchcock appealed and the case was transferred to the HSC.

When not Raised Below, Sufficiency of Charging Instrument--Oral or Written--Reviewed Liberally and for Prejudice. The HSC rejected Hitchcock's argument that the charge was orally defective. "It is well settled that an accused must sufficiently allege all of the essential elements of the offense charged." State v. Sprattling, 99 Hawai'i 312, 316, 55 P.3d 276, 280 (2002). The sufficiency of the charging instrument depends on "whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he or she must be prepared to meet." State v. Ruggiero, 114 Hawai'i 227, 239, 160 P.3d 703, 715 (2007). When raised for the first time on appeal, appellate courts take a "liberal construction" to the charging instrument. State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1020 (1983). Under this standard, appellate courts "will not reverse a conviction based upon a defective indictment unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime." Id. at 91, 657 P.2d at 1020. This standard also applies to oral charging and must be considered as a whole. State v. Elliot, 77 Hawai'i 309, 884 P.2d 372 (1994).

Nothing Wrong with Allegation of an Area, Instead of a park. Hitchcock's oral charging alleged that he " within the limits of a public park, [he] . . . camp[ed] in any area not designated as a campground[.]" ROH § 10-1.2(a)(13) states that "[w]ithin the limits of any public park, it is unlawful for any person to . . . [c]amp at any park not designated as a campground[.]" The distinction is between any area or any park. The HSC held that this distinction is not fatal to the charge because the oral charge indicated that the unlawful conduct--the camping--was "within the limits of a public park." The HSC stated that "it cannot be said that the prosecution's alteration of a single word . . . rendered the oral charge so defective that it did not state an offense." The HSC also found no evidence of any prejudice. According to the HSC, there is no evidence that the use of the word "area" rather than "park" prejudiced, surprised, or hampered Hitchcock's defense.

Insufficient Evidence Establishing that the park in Question was not Designated for Camping. The prosecution must prove beyond a reasonable doubt each and every element of the offense. HRS § 701-114. The elements of an offense are the conduct, the attendant circumstances, and the results of the conduct, if any. HRS § 702-205. According to the HSC, ROH § 10-1.2(a)(13) has two elements: (1) the conduct of camping and (2) the attendant circumstance that the camping was in "any park not designated as a campground." So, the prosecution had to prove beyond a reasonable doubt that Kea'au Beach Park is a park "not designated as a campground." According to the HSC, there was no evidence of that attendant circumstance. Camping is permitted at Kea'au Beach Park and even though there are signs that say "no camping," Officer Carino admitted that certain areas within the park are designated for camping and that Hitchcock's tent that night was within one of those areas.

The Expiration of Permits does not Change the "Designation" of a park. The HSC rejected the prosecution's argument that because no permits allow camping in the park on Wednesday and Thursday nights, Kea'au Beach Park is not "designated" as a park for camping on those nights. The word "designate" is not defined by statute. "The words of a law are generally to be understood in their most known and usual signification, without attending so much to the literal and strictly grammatical construction of the words as to their general or popular use or meaning." Stallard v. Consolidated Maui, Inc., 103 Hawai'i 468, 476, 83 P.3d 731, 739 (2004). The HSC turned to Webster's dictionary, but that did not help. Since the plain and ordinary language cannot glean the meaning and since there are competing interpretations, the HSC looked to ROH § 1-2.1, which points courts to the context of the word in the ordinance as well as the reason and spirit of the law when construing ambiguous words. The HSC surveyed the word "designate" throughout the ROH chapter 10 and the reason and spirit of the law and held that a park does not lose its designation as a camping park two out of five days of the week.

Sufficient Charge, but Wrong Evidence. The HSC has made it clear what happened in this case. The prosecution opted to charge Hitchcock with camping in a non-designated camping park. There was nothing wrong with the language of the charge. The only problem was it did not have the right offense in mind. The facts easily lined up for a camping-without-a-permit offense. Instead, it tried to bootstrap that evidence into a different offense.

Justice Acoba's Concurrence. Justice Acoba believed that Hitchcock's conviction should have been reversed because the oral charge was "so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had[.]" State v. Motta, 66 Haw. at 94, 657 P.2d at 1022. Justice Acoba believed that the distinction between an "area" and "park" was fatal to the charge. This is a jurisdictional defect. State v. Cummings, 101 Hawai'i 139, 142, 63 P.3d 1109, 1112 (2003). Justice Acoba agreed with the majority that the Motta standard applied. He believed that "the charge utterly failed to state that camping is prohibited where the entire park itself is not designated as a campground[.]" Justice Acoba explained camping in an area within a public park is not a crime. Only when that area is a park not designated. The ordinance itself is confusing. In a footnote, Justice Acoba observed that the ordinance contemplates parks within the limits of a public park that are not designated as campgrounds. It also suggests that the "public park" is different from the "park" not designated for camping.

How come it's not a Dissent? Justice Acoba agreed with the result of the majority--reversal. But the majority reversed based on insufficient evidence at trial. Justice Acoba, on the other hand, believed that the oral charge was defective and there was no subject matter jurisdiction. In State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), the HSC affirmed the ICA's conclusion that the oral charge of operating a vehicle under the influence was defective for missing an essential element and agreed that the conviction should be vacated and remanded with instructions to dismiss without prejudice. The Wheeler court was unanimous. Justice Acoba never explained why he agreed with a reversal instead of a vacation. Arguably, Hitchcock's conviction should have been vacated and remanded with instructions to dismiss without prejudice, thereby allowing the prosecution to bring it again. So why should the conviction be reversed?

Maybe not. Justice Acoba's agreement for reversal is consistent with his vote in In re: N.C., where the majority held that the pleadings in a juvenile proceedings were defective and that majority reversed the family court. It was Justice Recktenwald, however, who agreed with the defect, but dissented because he believed that defective pleading is jurisdictional and should be dismissed without prejudice. Had he agreed with Justice Acoba on the defective pleading, he might have had to dissent as he did in In re: N.C. Interesting.

Monday, August 2, 2010

Bullet in Brassiere is no De Minimis Matter

State v. Rapozo (HSC July 30, 2010)

Background. Tanya Rapozo was stopped by the police for driving erratically on Ala Wai Boulevard at around 1:15 a.m. She was arrested and a search at the station revealed that she had a .38 caliber bullet tucked into her brassiere. At the time of the search, Rapozo was a convicted felon. Her crimes included drug offenses and theft. Rapozo was charged with prohibited ownership or possession of any firearm or ammunition. HRS § 134-7(b) and (h). Rapozo filed a motion to dismiss on the grounds that charge was a de minimis infraction. Her only evidence was a declaration that stated she was going to convert the bullet into a charm bracelet. The circuit court granted the motion. The ICA vacated.

Analyzing De Minimis Infractions Requires Comparison of the Statutes. The trial court may dismiss an action as a de minimis infraction when, "having regard to the nature of the conduct alleged and the nature of the attendant circumstances," finds that the conduct "did not actually cause or threaten the harm or evil sought to be presented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction[.]" HRS § 702-236(1)(b). The trial court must consider all relevant circumstances "regarding the commission of the offense" as well as the offense conduct. State v. Viernes, 92 Hawai'i 130, 133, 988 P.2d 195, 198 (1999); see also State v. Fukugawa, 100 Hawai'i 498, 504, 60 P.3d 899, 905 (2005). The defendant has the burden to show all of those relevant circumstances to the trial court. State v. Oughterson, 99 Hawai'i 244, 256, 54 P.3d 415, 427 (2002). The defendant must also show that "the harm or evil sought to be prevented" was not caused or threatened by the offensive conduct or that the offense was "too trivial to warrant" conviction.

The Purpose of the Felon-in-Possession Statute is to Prevent Firearm and Ammunition use in Subsequent Crimes. In order to determine the purpose of the criminal statute, the HSC stated that courts must look primarily to the language of the statute. State v. Akina, 73 Haw. 75, 78, 828 P.2d 269, 271 (1992); State v. Ornellas, 79 Hawai'i 418, 423, 903 P.2d 723, 728. "We do not resort to legislative history to cloud a statutory text that is clear." State v. Kupihea, 98 Hawai'i 196, 206, 46 P.3d 498, 508 (2002).

This was the criminal offense:

No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.

HRS § 137-(b).

According to the HSC, the statute "reflects the determination by the legislature that the possession of firearms or ammunition by certain categories of people raises an unacceptable risk that those items will be used for unlawful purposes." The HSC arrived to this conclusion by tracing the amendments to the statute over the years, which broadened the scope of prohibited person. The HSC also examined the legislative history.

Rapozo's Possession of a Single live Bullet in her bra fell Within the Intended Scope of Criminal Conduct. The HSC held that the possession of a single, live bullet by a felon convicted of drug offenses "directly implicat[ed] the precise harm that the legislature sought to avoid[.]" The legislative history, according to the HSC, revealed a concern about the relationship between drugs and violence with firearms and ammunitions.

Rapozo's Conduct was not too Trivial Either. The HSC also examined whether Rapozo's conduct was too trivial to warrant a conviction. The HSC reconfirmed that "all relevant facts bearing on Defendant's conduct and the nature of the attendant circumstances reagrdign the commission of the offense" should be shown to the trial court. State v. Park, 55 Haw. 610, 616, 525 P.2d 589, 591 (1974). The HSC extracted nine factors from Park: (1) the background, experience, and character of the defendant; (2) the defendant's knowledge of the consequences; (3) the circumstances surrounding the offense; (4) the harm or evil caused or threatened by the offense; (5) the probable impact of the offense on the community; (6) the seriousness of punishment; (7) the mitigating circumstances; (8) possible improper motives of the complaintant or prosecutor; and (9) "any other date which may reveal the nature and degree of the culpability in the offense committed by each defendant." Id.

According to the HSC, the bare assertion by Rapozo that the bullet was going to be made into a charm bracelet did not satisfy her burden of showing that her conduct was too trivial. There was no explanation as to where she was going at 1:15 in the morning or where she was coming from. There was no information supporting her credibility. Even if she was found credible, there was no indication that the live bullet would remain a live bullet on her charm bracelet. The HSC remanded the case to see if Rapozo could meet that burden. The HSC added that it was not likely should could meet that burden.

Justice Acoba's Dissent. Justice Acoba agreed that the starting point is gleaning the legislative purpose for the criminal offense and that that intent comes primarily from the language of the statute itself. Justice Acoba, however, disagreed that the language of HRS § 134-7(b) revealed a legislative intent and accordingly turned to the legislative history. Justice Acoba's review of the committee reports over the years showed that the purpose of the harm or evil to be prevented by HRS § 134-7(b) is the "prevention of 'gun crimes,' and 'crimes involving the illegal possession and use of firearms.'"

That being the purpose of the criminal statute, Justice Acoba examined the relevant circumstances. Rapozo was pulled over and arrested for driving under the influence and driving without a license. There was no gun or other ammunition or drugs found on her person or in her car. Rapozo explained that she was going to make the bullet into a charm bracelet. In sum, Rapozo could not harm anyone with the bullet in her bra and that the use of the ammunition was in no way connected to the purpose for her arrest. Moreover, Rapozo's felony convictions were not crimes of violence and no firearms or ammunition were used.

Justice Acoba also took issue with the majority's analysis that the conduct was not too trivial. According to Justice Acoba, the prosecution did not dispute the evidence so there was no reason to test Rapozo's credibility. "As a general rule, if a party does not raise an argument at trial, that argument will be deemed to have been waived on appeal[.]" State v. Moses, 102 Hawai'i 449, 456, 77 P.3d 940, 947 (2004). Justice Acoba believed that the majority did not adequately defer to the discretion of the trial court. While he may not have agreed with the circuit court here, there was nothing in the record showing an abuse of discretion. Justice Duffy joined.

Finding Legislative Intent . . . Justices Acoba and Duffy disagreed with the majority that the legislative purpose and intent could be gleaned from the plain language of the statute. The majority, however, examined the history of amendments to the statute and concluded that it did. The rule requires the court to examine the plain language of the statute. Does that include the history of amendments to the statute? It would appear that the majority has departed from this well-established and often-formulated canon of construction.

When do you Bring the De Minimis Motion? When should a lawyer bring a de minimis motion? It's a tricky question. Here we had it as a pretrial motion and the HSC ultimately concluded that there was not enough evidence supporting the dismissal. The defendant has the burden of showing that even though his or her conduct was criminal, there were certain circumstances warranting dismissal. How should it be addressed as a pretrial motion? Does it assume that the defendant is guilty? In Akina, the defendant brought the motion at the close of the prosecution's evidence. That would allow more evidence for the trial court to make the necessary findings. Then again, it could be brought at the close of the defendant's case too--but by then the evidentiary portion of the trial is over. In theory, the motion could be a post-conviction motion and could be argued very similarly to a sentencing argument. At that point, the judge would be under some pressure--especially after a jury conviction--to grant the motion. These questions are tough. De minimis is tricky.