Thursday, December 23, 2010

HSC Distinguishes Wheeler for the dogs

State v. Mita (HSC December 21, 2010)

Background. Wanda Mita was charged with animal nuisance (Revised Ordinances of Honolulu § 7-2.3. She was first issued a citation stating that Mita "did own, harbor or keep" two brown boxers, Roxy and Obie, at her home "and did commit the offense of . . . animal nuisance-Sec.: 7-2.3 Barking Dog[.]" The citation also indicated that this was Mita's third nuisance citation. When Mita appeared in court, the prosecutor gave this oral charge:

On or about June 3rd, 2008, in the city and county of Honolulu, state of Hawaii, you as the owner of an animal, farm animal, or poultry engaged in animal nuisance as defined in section 7-2.2, thereby violating section 7-2.3 of the Revised Ordinances of Honolulu.

Mita objected on the grounds that the charge was insufficient. The district court overruled the objection, and Mita pleaded not guilty. At trial, Mita renewed her objection in a motion for acquittal. The district court denied the motion and found her guilty as charged. Mita appealed. The ICA vacated the judgment on the grounds that there was an insufficient charge. Chief Judge Nakamura dissented. The State petitioned for certiorari.

Challenging the Sufficiency of the Charging Instrument. "It is unlawful to be the owner of an animal, farm animal, or poultry engaged in animal nuisance as defined in section 7-2.2." ROH § 7-2.3. Mita argued that the charge was insufficient because the State did not define "animal nuisance" in ROH § 7-2.2. "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. "[T]he sufficiency of the charging instrument is measured, inter alia, by 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. Wheeler, 121 Hawai'i 383, 391, 219 P.3d 1170, 1178 (2009).

Wheeler Distinguished. Mita relied heavily on Wheeler. In that case, the HSC held that in a prosecution for operating a vehicle while intoxicated, the term "operate" must state that the operation occurred on a "public way, street, road, or highway." Id. at 394, 219 P.3d at 1181. The HSC distinguished Wheeler. According to the HSC, the State in an animal nuisance prosecution must prove (1) the defendant owned an animal, farm animal, or poultry which (2) engaged in animal nuisance.

Animal nuisance is defined in ROH § 7-2.2 and "shall include but is not limited to" a different kinds of animal behavior. The HSC concluded that the term "animal nuisance"--unlike the term "operate" in the DUI statute--did not create any hidden elements that must be alleged and proven by the prosecution. The HSC also examined whether Mita's charge gave her fair notice of the requirement as a "second significant factor." In Wheeler, there was no notice that the term "operate" was limited to operating on a public way, street, or highway--a peculiar definition that departs from the common understanding of the word. The HSC, after reviewing legal and common dictionaries, noted that the term "animal nuisance" is consistent with the common understanding of the words. The HSC held that Mita had fair notice that the charge stemmed from her dogs, Roxy and Obie, barking.

Distilling Wheeler: two Factors? The majority distinguished Wheeler on the grounds that there were two factors here that were not present in Wheeler: (1) there was no hidden element; and (2) the statutory terms were consistent with the common meaning of the words thereby giving Mita fair notice of the offense. This raises an interesting question. Is it possible to have one factor, but not the other? Can there be hidden elements in the specific definitions, but still give fair notice of the offense? Or can there be no fair notice, but no hidden elements? It does not seem likely.

Justice Acoba's Dissent. Justice Acoba believed that the oral charge was defective because it failed to explain "animal nuisance." "Animal nuisance" identifies three kinds of animal behavior: incessant or continuous noise, barking or unreasonable noise, and biting or stinging. ROH § 7-2.2. Noise is "unreasonable" when it interferes with reasonable activities like sleeping or communicating or when it continues after police admonition. ROH § 7-2.4(c). Here, the charge simply states that Mita had barking dogs. That, according to Justice Acoba, does not allege the attendant circumstance of "animal nuisance." Justice Acoba pointed out that a "barking dog" could be (1) incessant barking, (2) continuous barking, (3) unreasonable barking (i.e., interfered with reasonable activities), or (4) barking after admonition from the police. Justice Acoba also disagreed with the majority's conclusion that the definition of "nuisance" does not depart from the common understanding of the word. Justice Acoba believed that the word "nuisance" must include the narrow definition in the ordinance because it would not be comprehensible to persons of common understanding. "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie." Black's Law Dictionary 1096 (8th ed. 2004).

Justice Acoba: the Ordinance--as Construed by the Majority--is Unconstitutionally Vague. Justice Acoba also agreed with Mita that because the charge failed to allege how her barking dogs constituted an "animal nuisance" as defined in ROH § 7-2.2, there was no fair notice of the offense. According to Justice Acoba, the majority's reliance on the phrase "shall include but not limited to" in the animal nuisance definition is misplaced. The ordinance must be construed so that "nuisance" fits in one of the narrow kinds of animal behavior to avoid unconstitutionally vague legislation. A statute is unconstitutionally vague if "a person of ordinary intelligence cannot obtain an adequate description of the prohibited conduct or how to avoid committing illegal acts," State v. Kam, 69 Haw. 483, 487, 748 P.2d 372, 375 (1988), and "encourage[s] arbitrary and discriminatory enforcement[.]" State v. Beltran, 116 Hawai'i 146, 151, 172 P.3d 458, 465 (2007). Justice Acoba believed that if the term "animal nuisance" is not limited to the enumerated paragraphs in the ordinance, there is no limit to what behavior arises to "animal nuisance." For example, a person would not know whether his or her dog engaged in "animal nuisance" by wearing a bell on its collar, sniffing, growling, or rolling around in the sidewalk. This broad, all-encompassing definition, according to Justice Acoba, should not be sustained. Justice Duffy joined.

Wednesday, December 1, 2010

Prior Convictions: Essential Element, not Sentencing Factors

State v. Bryan (ICA November 30, 2010)

Background. The State brought two cases against Bryan. In one case, Bryan was charged, among other things, with operating a vehicle while her license was suspended pursuant to a prior OUI offense (HRS § 291E-62) and open container. The license charge went like this:

On or about the 3rd day of September, 2004, in the City and County of Honolulu, State of Hawaii, ERIN E. BRYAN, . . . , a person hose license and privilege to operate a vehicle has been revoked, suspended, or otherwise restricted pursuant to [the OUI statutory scheme], did operate or assume actual physical control of any vehicle while her license or privilege to operate a vehicle remained suspended or revoked.

In the second case, Bryan was charged with a single count of operating a vehicle after license and privilege have been suspended for operating a vehicle while under the influence of an intoxicant. It essentially tracked the same language. It did not include any language about prior convictions for the HRS § 291E-62 violations.

Bryan pleaded no contest in both cases. Before her sentencing, she filed a memoranda arguing that she should be sentenced as a first-time offender for the second case on the grounds that the prior HRS § 291E-62 convictions were essential elements that needed to be pleaded in the charging instruments. The circuit court rejected her argument and sentenced her as a third-time offender subject to the mandatory sentences. Bryan appealed.

A Special Kind of Driving Without a License . . . "No person whose license and privilege to operate a vehicle have been revoked, suspended, or otherwise restricted pursuant to this section or to [the OUI statutory scheme] shall operate or assume actual physical control of any vehicle . . . [w]hile the person's license or privilege to operate a vehicle remains suspended or revoked." HRS § 291E-62. Bryan was charged and pleaded no contest to two counts of violating this statute. A third-time offender of this statute within a five-year period requires a mandatory year in prison, $2,000 fine, and permanent license revocation. HRS § 291E-62(b)(3).

Extending Wheeler . . . The ICA examined the sufficiency of the pleadings in light of State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009). In Wheeler, the HSC noted that for the OUI statute, the term "operate" is a term of art that is limited "to driv[ing] or assum[ing] actual physical control of a vehicle upon a public way, street, road or highway." HRS § 291E-1. The HSC held that the requirement that the operation of a vehicle be on a public roadway is an attendant circumstance of the OUI offense and must be stated in the charging document. Wheeler, 121 Hawai'i at 395, 219 P.3d at 1182.

Here, HRS § 291E-62, prohibits people whose license was already restricted pursuant to an OUI offense or other kind of restriction in HRS chapter 291E from "operat[ing] a vehicle. The term "operate" in HRS § 291E-62 is identical to the term "operate" in the OUI statute. Both are limited to driving on a public roadway. According to the ICA, this meant that the prosecution must allege in its complaint that the operation took place on a public street or roadway.

Taking the Liberal Construction Approach. In Wheeler, the defendant objected to the sufficiency of the pleadings and, therefore, the HSC did not apply the liberal-construction approach. Wheeler, 121 Hawai'i at 399-400, 219 P.3d 1186-87. Bryan, however, did not object and she did not raise the issue on appeal.

When there is no objection to the sufficiency of the charging instrument, the appellate court applies the liberal construction approach. "Under this approach, there is a presumption of validity for charges challenged subsequent to a conviction. In those circumstances, the court will not reverse a conviction based upon a defective indictment or complaint unless the defendant can show prejudice or that the indictment or complaint cannot within reason be construed to charge a crime." Id. at 399-400, 219 P.3d at 1186-87. This approach also allows the appellate court to examine "the charge as a whole." State v. Elliot, 77 Hawai'i 309, 312, 884 P.2d 372, 375 (1994).

In the first case, the ICA held that even though there was nothing in the charge indicating that Bryan operated the vehicle on a public roadway, the open container charge stated that on the same date as the alleged license offense, she had an open container in "a motor vehicle when it was upon a public street, road or highway or at a scenic lookout[.]" The ICA stated that it was reasonable to infer that the two charges stemmed from the same incident and because the open container involved a public roadway of some kind, it was reasonable to infer that the license violation also involved driving on a public roadway.

As for the second case--the single count of the driving violation--there was no public-road requirement stated and "there is no basis for reasonably construing the complaint . . . to allege the public-road requirement, which is an essential element[.]" The ICA vacated the second case with instructions to dismiss the case without prejudice.

How to pop a Wheeler. The ICA noted that Bryan did not raise the Wheeler issue before the circuit court and she did not argue it on appeal either. The failure to object called for the liberal-construction approach, which creates a presumption of validity. The ICA, however, noted that while her appeal was pending Wheeler came down from the HSC. This meant that there was no real opportunity to raise a Wheeler issue at all because there was no issue at the time. Does that mean that Bryan was out of luck? The opinion does not indicate whether the parties briefed their cases prior to or after Wheeler came down. Should Bryan have filed a supplemental brief?

Prior Convictions: the Other Essential Element. Prior convictions for driving under the influence is an essential element that must be alleged in charging document in order to later seek enhanced penalties for a multiple OUI offender. State v. Domingues, 106 Hawai'i 480, 487-88, 107 P.3d 409, 416-17 (2005); State v. Kekuewa, 114 Hawai'i 411, 420, 163 P.3d 1148, 1157 (2007) (characterizing prior convictions as a mere sentencing factor rather than essential element "would have raised serious concerns regarding the statute's constitutionality, given a defendant's inability to ascertain the class and grade of the offense charged (i.e., a petty misdemeanor or a class C felony) and whether the right to a jury has or has not attached." Even when the legislature created a separate offense for the habitual drunk driver in HRS § 291E-61.5, the HSC refused to overrule the Domingues analysis. See State v. Ruggiero, 114 Hawai'i 227, 238, 160 P.3d 703, 714 (2004).

The ICA agreed with Bryan that prior convictions of suspended driving are an essential element that must be alleged in the charging instrument in order to impose the enhanced penalties. According to the ICA, the statutory scheme for the OUI offense and HRS § 291E-62 are analogous and should be treated similarly. Both statutes have escalating penalties based on priors and both mixes some offenses triggering a right to a jury trial with those that do not. The ICA held that the analyses and rationales in Domingues, Kekuewa, and Ruggiero control. Prior convictions for suspended driving are attendant circumstances and thus an essential element that must be alleged in the charging document. The ICA vacated Bryan's conviction in the first case and remanded for sentencing as a first-time offender.