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.


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