The Previously-Unknown Cabbage Defense
Background. Max Bowman was charged with spilling on
the highway in violation of HRS § 291C-131. Bowman, a farmer, was driving a
truck full of cabbage from his field in Honokaa to Paauilo on the Big Island.
He was driving a green flatbed pickup truck with cabbage in the bed. It was not
covered. He drove on Route 19—the Hawaii Belt Road—when Officer Romeo Fuiava
passed him in the opposite lane. Officer Fuiava kept heading in his direction
and saw either cabbage or lettuce in the back of Bowman’s truck. About a half a
mile down the road, Fuiava saw lettuce leaves on the road. Fuiava turned around
and caught up to Bowman at “Earl’s store.” Bowman was given a citation.
At the trial, the prosecutor orally arraigned Bowman like
this:
On or about the 28th day of August, 2013,
in Hamakua, State and County of Hawaii, Max Bowman was the operator of a motor
vehicle being moved on a highway, which vehicle was not so constructed,
covered, or loaded as to prevent any of its load from dropping, sifting,
leaking, blowing, spilling, or otherwise escaping therefrom, thereby a
violation of Section 291C-101(a).
Bowman argued that he had been mischarged under subsection
(a) and thought that subsection (c) was more applicable to him. Subsection (c)
reads:
Vehicles carrying agricultural produce
from fields during harvesting shall be exempt from the requirements of this
section, but the owner of the vehicle must provide a reasonable removal of all
such produce spilled or dropped on the highway.
At trial, Bowman testified that he had harvested the cabbage
from his field and admitted some fell onto the highway. The amount was only a
few leaves. “It was trimmings. I actually drove past that section of the road
later in the day, did not see any of it. I can only imagine the wind blew it
off the road to decompose in a matter of days on the side, or it had been run
over sufficiently and evaporated on the road. . . . And if reasonable removal
is any indication, I feel risk of life and limb, running onto the road, cabbage
three or four leaves of cabbage as opposed to letting it decompose naturally
does not sound reasonable to me.”
The District Court disagreed and concluded that Bowman’s
actions toward removal were unreasonable. The District Court noted that had
Bowman gone and picked it up, he would have been acquitted. Bowman was found
guilty and sentenced to pay a fine of $250 and a $7 driver education assessment
fee. Bowman appealed.
Bowman’s Argument. Here are the two provisions at issue:
(a) No vehicle shall be moved on any
highway, unless the vehicle is so constructed, covered, or loaded as to prevent
any of its load other than clear water or feathers from live birds from
dropping, sifting, leaking, blowing, spilling, or otherwise escaping therefrom,
except that sand may be dropped for the purposes of securing traction, or water
or other substance may be sprinkled on a highway in cleaning or maintaining the
highway.
. . . .
(c) Vehicles carrying agricultural
produce from fields during harvesting shall be exempt from the requirements of
this section, but the owner of the vehicle must provide a reasonable removal of
all such produce spilled or dropped on the highway.
HRS § 291C-131.
Bowman argued that these paragraphs are two separate
offenses: one general offense for all vehicles, and a more specific one for
vehicles that carry agricultural produce from fields. The ICA disagreed.
It’s a Defense, not a
Separate Offense. According
to the ICA, the first paragraph is the general offense and the second one is an
exception to that general prohibition. In other words, subsection (c) is a
defense to the general offense in subsection (a). When an “exception is
embodied in the language of the enacting clause of a criminal statute, and
therefore appears to be an integral part of the verbal description of the
offense, the burden is on the prosecution to negative that exception, prima facie,
as part of its main case.” State v.
Jenkins, 93 Hawaii 87, 106-07, 997 P.2d 13, 32-33 (2000). But when the
exception is found elsewhere—like in a separate section—“the burden is on the defendant
to bring forward evidence of exceptive facts that constitute a defense. The
prosecution is not required in such instances to negative, by proof in advance,
exceptions not found in the enacting clause.” Id. And so the prosecution correctly charged Bowman.
Is Something Tough to Prove
the new Absurd Result? The
ICA also noted that if it were to adopt Bowman’s argument—that these were two
separate offenses—it would lead to an absurd result. According to the ICA, it
would be up to the prosecution to demonstrate at the outset that the vehicle
was carrying agricultural produce from fields and that the vehicle had been
carrying them during harvesting. These facts are “squarely within the knowledge
and control of the defendant” and the prosecution would not have “access to
information necessary to properly charge” a defendant. That, apparently, is why
it would be absurd to hold that this is a separate offense.
Is that absurd? Simply because it’s hard to prove? Is that
the new standard in finding an absurd result? Yes, it can be proven. And yes, it
is not illogical or an impossibility—the traditional hallmarks of an absurd
result—it’s just hard for the prosecution to establish. Is this a marked departure?
The Initial Burden of
Establishing a Defense?
The ICA never held that this is an affirmative defense. Quite to the contrary,
it held that the prosecution must negate this defense once Bowman met the
initial burden of production in subsection (c)—that he was in a vehicle carrying
agricultural products from the field during harvest time and that he was not
unreasonable in trying to clean it up. Without much explanation, the ICA simply
held that the there was sufficient evidence to support the conviction because
there was evidence that Bowman failed to clean up the leaves of cabbage from a
major highway. The ICA did not go into much detail about the burden of
production and that all that was needed was a prima facie case before it shifts
over to the prosecution to disprove it. After all, a non-affirmative defense is
still an element that must be disproven by the prosecution. HRS § 702-205. In
these cases, all the defendant needs to do is raise reasonable doubt. See HRS § 701-115 Commentary. And so if
this is a defense as the ICA holds and if it is a non-affirmative defense, then
how come it’s not enough for Bowman to simply raise the fact that he was
transporting cabbage from a field and went back to see if any leaves were still
there to trigger the prosecution’s burden in disproving the defense? Did the
ICA shift the burden too strongly onto the defendant here?
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