Specific Instances of Abuse Cannot be Charged as a Continuous Course of Conduct

State v. DeCoite (HSC February 28, 2014)

Background. Henry DeCoite was charged with a single count of abuse of a family or household member. HRS § 709-906. The complaint stated that the offense took place “during or about the period between February 1, 2005, through June 1, 2007, inclusive, as a continuing course of conduct[.]” In response to a discovery request, the prosecution produced two instances of abuse on November 29, 2006 and on March 13, 2007. DeCoite filed a motion to dismiss the complaint on the grounds that the abuse statute does not allow the prosecution to charge the offense as a continuing course of conduct. At the hearing, the prosecution apparently presented some evidence from a domestic violence expert that multiple instances of abuse toward the same person in a relationship are part of that cycle of violence. The family court (Judge Richard T. Bissen) granted the motion. The prosecution appealed and the ICA reversed. DeCoite petitioned for certiorari.

Discreet Instances of Abuse are not a Continuing Course of Conduct . . . “It shall be unlawful for any person . . . to physically abuse a family or household member[.]” HRS § 709-906(1). The HSC zeroed in on the issue to determine a “narrow” view as to whether two instances of abuse constitutes a continuous course of conduct. A continuous offense arises when there is “a continuous, unlawful act or series of acts set afoot by a single impulse and operated by an unintermittent force, however long a time it may occupy[.]” State v. Arceo, 84 Hawaii 1, 18, 928 P.2d 843, 860 (1996). “The test to determine whether [a] defendant intended to commit more than one offense in the course of a criminal episode is whether the evidence discloses one general intent or discloses separate and distinct intents.” State v. Castro, 69 Haw. 633, 653, 756 P.2d 1033, 1047 (1988). When there “is but one intention, one general impulse, and one plan, there is but one offense.” Id.

So much for the Cycle of Violence . . .

The HSC expressly rejected the prosecution’s contention that the instances of abuse were part of a continuous “cycle of violence.” Here, the conduct element is the act of “physical abuse.” HRS § 709-906(1). Physical abuse means “to maltreat in such a manner as to cause injury, hurt or damage to that person’s body.” State v. Fields, 115 Hawaii 503, 530, 168 P.3d 955, 982 (2007). This, according to the HSC, contemplates discrete episodes of violence whether they occur as an isolated incident or part of a series. The HSC also noted that the “cycle of violence” may include multiple instances of abuse interspersed with a make-up or “loving” stage, but to be a continuous course of conduct, there must be a single criminal impulse. The desire or impulse of the serial abuser is control and power, which are not criminal impulses. In sum, the HSC held that “as a matter of law, an alleged two-year period of domestic abuse can never be charged as a continuous conduct offense.”

The Merger Footnote. In a footnote, the HSC warned that this holding does not stop the defense from seeking a merger of multiple counts of domestic abuse “that factually arise from a single, discrete criminal transaction.” See HRS § 701-109(1)(e). And so, perhaps the cycle of violence does live on, but only as a way for the defense to merge multiple charges of domestic abuse. Ironies abound.

Justice Acoba’s Concurrence. Justice Acoba concurred and wrote separately to note that the issue of whether an offense can be a continuous course of conduct must be determined on a case-by-case basis. He agreed with the result under these particular facts that the two incidents here were not part of a continuous course of conduct.

Justice Pollak’s Dissent. Justice Pollak dissented and wrote that the abuse statute can be construed to include a continuing course of conduct. He took the position that abuse of a family or household member occurs multiple times over a period of time. Hence the statute requiring a “cooling off” period. Justice Pollak felt that the two-year marking as a matter of law was also arbitrary and restricted the flexibility that the case-by-case analysis normally affords. He also wrote that the record in this particular case was too incomplete to warrant adequate appellate review of the issue. Ultimately, he believed that the case should have been remanded back to the trial court to enter findings regarding DeCoite’s motion to dismiss for a completely different issue—violations of the statute of limitations.