Park Factors Fall Out of Favor in Assessing De Minimis Infraction

State v. Pacquing (HSC March 22, 2013)
Background. Chester Pacquing was driving a black Acura when he was pulled over by the police on North King Street in Kalihi one night for driving with an expired tax emblem. The police asked for his license, registration, and proof of no-fault insurance. Pacquing didn’t show them the documents, but said he was Michael John Jose and provided a birthdate and residential address. Two citations were generated under that name. One was served on Pacquing, but the police served the other citation at the address he provided. The real Jose was served the citation and Jose went to the Kalihi police station. He told the police that he didn’t own a black Acura. A few weeks later, the police pulled over the same black Acura and again the same officers arrived to the scene. There, they found Pacquing and again Pacquing could not produce any of the driver’s documents. He said that he had no picture id, but was recently cited and showed them one of the citations. The police detained Pacquing while they woke up Jose (it was around 3:00 a. m.). Jose showed up and identified Pacquing as Pacquing. Pacquing told the police that was in fact his name and that he was scared because of outstanding warrants. He said that he used to live next to Jose. Pacquing was arrested and charged with the unauthorized possession of confidential personal information, a felony. HRS § 708-839.55.

Pacquing filed a motion to dismiss on the grounds that this was a de minimis infraction. The circuit court granted the motion, but granted the motion without prejudice to the prosecution for charging Pacquing with unsworn falsification to authorities within 90 days of the order. The prosecution appealed. On appeal, the ICA held that the circuit court erred in granting the motion to dismiss. Pacquing petitioned for certiorari.

How to Bring a De Minimis Motion. The court may dismiss the case “if, having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds that the defendant’s conduct [d]id not actually cause or threaten the harm or evil sought to be prevented 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 defendant must show “that all of the relevant attendant circumstances” were presented before the court. Statev. Rapozo, 123 Hawaii 329, 337-38, 235 P.3d 325, 333-34 (2010); State v. Oughterson, 99 Hawaii 244, 256, 54 P.3d 415, 427 (2002). According to the HSC, the circuit court abused its discretion in granting Pacquing’s motion.

Assessing the Conduct Caused or Threatened the harm or evil Meant to be Prevented by HRS § 708-839.55. The offense of unauthorized possession of confidential personal information, or UPCPI, arises when a person “intentionally or knowingly possesses, without authorization, any confidential personal information of another in any form, including but not limited to mail, physical documents, identification cards, or information stored in digital form.” HRS § 708-839.55. According to the HSC, because the statute does not clearly describe the harm or evil that it is designed to prevent, it looked to the statute’s legislative history. See First Ins. Co. of Hawaii v. A&B Props., 126 Hawaii 406, 415, 271 P.3d 1165, 1174 (2012).

. . . Requires Diving into Legislative History. The statute was promulgated in an anti-phishing package designed to prevent “phishing scams, [where] Internet scammers try to get information, such as credit card numbers, passwords, account information, or other personal information, by convincing Internet users to divulge the information under false pretenses.” 2005 Haw. Sess. Laws Act 65, § 1 at 147. But the HSC noted that phishing is just one form of identity theft. Identity theft need not be high tech. “Some perpetrators are close friends and family members who . . . use without authorization the victim’s confidential personal information to obtain credit.” Id. at 4. After reviewing the legislative history, the HSC concluded that the offense is part of a broad plan to stop identity theft.

Here, Pacquing used his neighbor’s personal information to avoid arrest and citation on two occasions. According to the HSC, if Pacquing had not finally been arrested, he “would have had a continuing opportunity to utilize Jose’s confidential personal information for a variety of criminal purposes.” This is precisely the harm that the statute is meant to stop.

And the Threatened harm or evil was not too Trivial to Warrant Conviction. Pacquing could have also had the case dismissed if he could show that the offense was committed “to an extent too trivial to warrant the condemnation of conviction.” HRS § 702-236(1)(b). According to the HSC, in order to establish this, the defendant must show that the conduct may have implicated the harm or evil that the statute meant to prevent, but only to an extent too trivial to warrant the condemnation of conviction. State v. Oughterson, 99 Hawaii at 256, 54 P.3d at 327.

Here, the circuit court granted the motion because Jose did not have to appear in the traffic court once he told the police that he didn’t own a black Acura. The HSC held that the circuit court failed to consider the threatened harm in addition to the actual harm. The threatened harm could have led to all kinds of hardship on Jose. He could have been called into court and since he was not actually served with the citation a warrant would have issued for his arrest and he could have been prosecuted for contempt of court. Moreover, Pacquing could have continued to use the Jose’s name and Jose would have racked up more citations. These were not considered by the circuit court and is in disregard of the principles set forth in HRS § 702-236(1). Moreover, there was no evidence setting forth the explanation for the offense and using the information to avoid arrest is not “a benign, innocent, or a technical infraction.” Thus, it was an abuse of discretion in granting the motion.

Justice Acoba’s Dissent. Justice Acoba dissented. Dismissal as a de minimis infraction is based on the nine factors laid out in State v. Park, 55 Haw. 610, 617, 525 P.2d 586, 591 (1974):

(1) the background, experience and character of the defendant; (2) knowledge on the part of the defendant of the consequences of the act; (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 the punishment; (7) the mitigating circumstances; (8) possible improper motives of the complainant or prosecutor; (9) any other data which may reveal the nature and degree of the culpability in the offense committed by each defendant.


Justice Acoba noted that the majority did not address these factors even though the circuit court followed precedent and dutifully applied the factors. It was well within the circuit court’s discretion to conclude that Pacquing’s conduct was de minimis. Justice Acoba pointed out that the majority’s decision to “de-emphasize” the Park factors is inconsistent with its reliance on the same factors in Rapozo. Unlike the majority, Justice Acoba wrote that the circuit court took into consideration all nine factors. Justice Acoba also took issue with the majority’s use of legislative history. The same legislative history, according to Justice Acoba, shows that the offense was not intended to criminalize things outside of identity theft. 


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