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.