The Previously-Unknown Cabbage Defense
State v. Bowman (ICA February 27, 2015)
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?