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Electronically Filed
Supreme Court
SCWC-30186
28-FEB-2014
02:35 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellant,
vs.
HERMAN DECOITE,
Petitioner/Defendant-Appellee.
SCWC-30186
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30186; FC-CR NO. 09-1-0127(4))
FEBRUARY 28, 2014
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ.,
WITH ACOBA, J., CONCURRING SEPARATELY,
AND POLLACK, J., DISSENTING SEPARATELY
OPINION OF THE COURT BY NAKAYAMA, J.
On application for writ of certiorari, Petitioner-
Defendant Herman Decoite (Decoite) asks us to determine whether
Abuse of Family or Household Member, HRS § 709-906(1), can be
charged as a “continuing course of conduct” offense. On narrower
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grounds, we hold that an alleged two-year period of domestic
abuse could not be charged on a continuing course of conduct
theory. Accordingly, we reverse the Intermediate Court of
Appeals’s (ICA) judgment on appeal and affirm the Circuit Court
of the Second Circuit’s (family court) order dismissing the
State’s complaint without prejudice.
I. BACKGROUND
This case arises out of alleged acts of domestic abuse
that Decoite committed against his former girlfriend over the
course of their five-year relationship. On April 3, 2009, the
State filed a misdemeanor complaint against Decoite, charging him
with one count of abuse of a family or household member (domestic
abuse) pursuant to Hawai#i Revised Statutes (HRS) § 709-906
(Supp. 2006).1 The complaint stated in relevant part: “during or
about the period between February 1, 2005, through June 1, 2007,
inclusive, as a continuing course of conduct, . . . Herman
Decoite did intentionally, knowingly or recklessly engage in and
cause physical abuse of a family or household member[.]”
Decoite requested discovery, and the State produced
police reports of two incidents that occurred on November 29,
2006, and March 13, 2007, respectively. Decoite then filed a
1
HRS § 709-906(1) provided then as it does now: “It shall be
unlawful for any person, singly or in concert, to physically abuse a family or
household member[.]”
2
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motion to dismiss the State’s complaint in the family court.2
Decoite argued that the domestic abuse statute does not permit
charging domestic abuse as a continuous crime, and also that the
only incidents of alleged domestic abuse produced in discovery
fell outside of the applicable two-year statute of limitations.
The State responded that the domestic abuse statute punishes
“physical abuse,” and that because physical abuse can extend
beyond isolated moments, it may be charged on a theory of
continuing conduct. The State further argued that its complaint
against Decoite was not time barred because it had alleged a
continuing course of conduct that ended within the two-year
statute of limitations.
The family court concluded that domestic abuse cannot
be charged on a continuous conduct theory, and issued an order
dismissing the State’s complaint without prejudice. On appeal,
the ICA reversed, holding that in some cases domestic abuse may
be charged as a continuous offense. We granted Decoite’s
application for writ of certiorari to resolve this issue as a
matter of first impression.
II. STANDARDS OF REVIEW
A. Conclusions of Law
Conclusions of law are reviewed de novo under the
2
The Honorable Richard T. Bissen, Jr. presided.
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right/wrong standard. Chun v. Bd. of Trs. of Emps.’ Ret. Sys. of
Haw., 106 Hawai#i 416, 431, 106 P.3d 339, 354 (2005).
B. Statutory Interpretation
When interpreting a statute, this court follows several
well established canons of interpretation.
“[O]ur foremost obligation is to ascertain and give effect
to the intention of the legislature, which is obtained
primarily from the language contained in the statute[s]”
themselves. Mathewson v. Aloha Airlines, Inc., 82 Hawai#i
57, 71, 919 P.2d 969, 983 (1996) (citation and quotation
signals omitted). Second, “[l]aws in pari materia, or upon
the same subject matter, shall be construed with reference
to each other. What is clear in one statute may be called
in aid to explain what is doubtful in another.” HRS § 1–16
(1993); Richardson v. City and County of Honolulu, 76
Hawai#i 46, 55, 868 P.2d 1193, 1202 (1994) (citation
omitted). And, third, “[t]he legislature is presumed not to
intend an absurd result, and legislation will be construed
to avoid, if possible, inconsistency, contradiction[,] and
illogicality.” State v. Malufau, 80 Hawai#i 126, 137, 906
P.2d 612, 623 (1995) (citation and internal quotation marks
omitted).
State v. Arceo, 84 Hawai#i 1, 19, 928 P.2d 843, 861 (1996) (some
citations omitted).
III. DISCUSSION
A. Domestic abuse cannot be charged as a continuing conduct
offense based on discrete abusive transactions that occurred over
a two-year period
The conduct element of the domestic abuse statute
states in relevant part: “It shall be unlawful for any person
. . . to physically abuse a family or household member[.]” HRS §
709-906(1) (emphasis added). The narrow issue of this case is
whether that conduct, “to physically abuse,” permits the State to
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charge two temporally discrete instances of domestic abuse on a
continuous course of conduct theory. The State argues that
abusive domestic relationships are defined by a cycle of violence
that is motivated by the abuser’s singular desire for power and
control. Thus, the State would have us hold that temporally
discrete acts of abuse can all be linked to one continuous
criminal impulse that forms the basis of one crime. However, HRS
§ 709-906(1) criminalizes “physical abuse,” which is conduct that
is necessarily discrete and episodic. In fact, the discrete
nature of the actus reus of domestic abuse is a crucial element
of the statutory scheme’s graduated penalty structure, which is
specifically tailored to punish repeated acts of abuse separately
and with increasing severity. Accordingly, we hold that HRS §
709-906(1) does not permit charging temporally discrete episodes
of domestic abuse that occurred over a two-year period as a
continuous course of conduct offense.3
The test to determine whether a crime may be charged on
a continuous conduct theory is whether the language, structure,
and purpose of the statute reveals a legislative intent to
criminalize continuing conduct. See HRS § 701-108(4) (supp.
2006) (“An offense is committed either when every element occurs,
3
However, a single violent transaction comprised of, for example,
several punches, may constitute one continuous episode of domestic abuse. The
episode terminates when the perpetrator’s physically abusive impulse ends.
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or, if a legislative purpose to prohibit a continuing course of
conduct plainly appears, at the time when the course of conduct.
. . is terminated.”); see also Arceo, 84 Hawai#i at 19, 928 P.2d
at 861 (stating that an offense may be deemed continuous if it is
statutorily defined as an uninterrupted and continuing course of
conduct, or manifests a plain legislative purpose to be treated
as such, or both). Additionally, a crime may only be charged on
the theory of continuing conduct if the statute actually
prohibits conduct that may be deemed continuous. See State v.
Rabago, 103 Hawai#i 236, 253, 81 P.3d 1151, 1168 (2003)
(rejecting the legislature’s attempt to define the continuing
sexual abuse of a minor as a continuous offense because the actus
reus of the statute was actually targeting a series of
necessarily discrete criminal acts).
This court has defined a continuous offense as “a
continuous, unlawful act or series of acts set on foot by a
single impulse and operated by an unintermittent force, however
long a time it may occupy[.]” Arceo, 84 Hawai#i at 18, 928 P.2d
at 860 (quoting State v. Temple, 65 Haw. 261, 267 n.6, 650 P.2d
1358, 1362 n.6 (1982)). “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.”
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State v. Castro, 69 Haw. 633, 653, 756 P.2d 1033, 1047 (1988)
(citations omitted). “If there is but one intention, one general
impulse, and one plan, there is but one offense.” Id.
We first applied this rule in State v. Martin, 62 Haw.
364, 369, 616 P.2d 193, 197 (1980), where we held that first
degree theft could constitute a continuous offense. There, the
defendant periodically filed fraudulent public assistance forms
for a six-year period in order to obtain welfare disbursements
from the State. Id. at 366, 616 P.2d at 195-96. We held that
the defendant had committed a continuing offense because each
fraudulent transaction was the continuation of a single and
uninterrupted criminal impulse. Id. at 369, 616 P.2d at 197 (“We
do not view each filing by defendant of a statement of facts
supporting continued eligibility as necessarily constituting a
new offense, since all statements were identical[.]”); see also
Temple, 65 Haw. at 267, 650 P.2d at 1362 (holding that theft of a
firearm was a continuous offense because the conduct element of
the theft statute specifically criminalized the ongoing act of
“retaining” stolen property); State v. Kealoha, 95 Hawai#i 365,
376, 22 P.3d 1012, 1023 (App. 2000) (holding that manufacturing a
dangerous drug may be a single continuous offense because the
general character of “manufacturing” connotes an ongoing process
of various steps that are motivated by one uninterrupted
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impulse).
We have also found continuing conduct in criminal
transactions that were temporally quite short. For example, in
State v. Rapoza, we held that attempted murder in the second
degree could constitute a continuing offense. 95 Hawai#i 321,
329, 22 P.3d 968, 976 (2001). There, Rapoza discharged a firearm
five to seven times in the span of a few seconds while pointing
it in the general direction of three complaining witnesses. Id.
at 323, 22 P.3d at 970. We stated: “As to any given complainant,
[Rapoza’s] conduct in discharging the firearm several times did
not amount to ‘separate and distinct culpable acts,’ but rather
betokened ‘a continuous, unlawful . . . series of acts set on
foot by a single impulse and operated by an unintermittent
force[.]’” Id. at 329, 22 P.3d at 976 (quoting Arceo, 84 Hawai#i
at 18, 928 P.2d at 860).
Turning to the statute at issue in this case, the
conduct element of HRS § 709-906(1) makes it a crime to
“physically abuse” a family or household member. We have defined
the term “physically abuse” for purposes of HRS § 709-906(1) as
follows: “To ‘physically abuse’ someone is to maltreat in such a
manner as to cause injury, hurt or damage to that person’s body.”
State v. Fields, 115 Hawai#i 503, 530, 168 P.3d 955, 982 (2007)
(citations and internal quotations omitted). Physical abuse, so
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defined, contemplates discrete episodes that are transitory in
nature, whether those events occur in isolation or in a series.
Cf. Temple, 65 Haw. at 267, 650 P.2d at 1362 (distinguishing the
non-continuous criminal acts “receive” and “dispose” from the
continuous act “retain,” because the former are transitory in
nature and of a brief duration). In that respect, “physical
abuse” is unlike “retaining” a stolen firearm, or “manufacturing”
methamphetamine, which involve ongoing processes.
Furthermore, the touchstone characteristic of a
continuing offense is that it is motivated by a single
uninterrupted criminal impulse. See Martin, 62 Haw. at 369, 616
P.2d at 197. That domestic abuse may occur repetitively, as the
State claims, helps to illustrate that cyclic abuse is a non-
continuous crime. First, the State attached to its opposition to
Decoite’s motion to dismiss sample testimony from a domestic
violence expert. That testimony illustrates that in cases of
repetitive domestic abuse, many superseding impulses and
intermittent forces are at work:
The cycle of violence . . . starts off when people first
start dating and everything is good, and there’s no tension.
And the relationship starts to progress, and something will
begin to create tension.
So one of the phases in the cycle of violence is called the
tension building phase. So during this phase . . .
something . . . starts to create tension and they begin to
argue a little bit about it.
And the tension continues to build. And in an abusive
relationship, a final outburst will happen. And that’s what
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we call the violent outburst phase. And after --
immediately after the violence, typically the abuser is
feeling very remorseful, and sorry, and apologizes, and
tries to make repairs, make amends for the behavior. And
that’s the apologetic, loving reconciliation phase, so that
after the violence happens, the abuser is very sorry and
conciliatory.
. . . .
And so they bond and become closer. And then we have the
honeymoon phase, where everything is good and there is no
tension, and life’s pretty good. And what happens is we go
from the honeymoon phase -- and then there is always
something that creates tension[.]
As the sample testimony shows, during the “loving reconciliation”
phase following a violent incident, a serial abuser typically
feels remorse and will try to repair the relationship. In other
words, the serial abuser’s malignant impulses are frequently
interrupted by the contrary impulse to set things right. This
characterization of serial abuse does not fit with the definition
of a continuing offense, which requires a single, uninterrupted
criminal impulse.4 See Martin, 62 Haw. at 369, 616 P.2d at 197.
Second, statutory and case law make clear that the
single impulse underlying a continuing offense must be a criminal
impulse. See, e.g., Martin, 62 Haw. at 369, 616 P.2d at 197
(recognizing that repeated fraudulent filings were motivated by
4
Decoite argues that the ICA erred when it considered the State’s
proferred evidence. HRAP 10(a) states: “The record on appeal shall consist
of the trial court . . . record, as set out in Rule 4 of the Hawai#i Court
Records Rules[.]” Hawai#i Court Records Rules (HCRR) Rule 4 states: “The
record of each case . . . shall include: (a) all documents related to the
case, including correspondence, submitted for filing in any form[.]” Here,
all of the documents that Decoite claims should not be part of the record on
appeal were attached to the State’s opposition to Decoite’s motion to dismiss.
Thus, these documents were properly considered on appeal.
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the single criminal impulse to steal from the State); Temple, 65
Haw. at 267, 650 P.2d at 1362 (recognizing that retaining a
stolen firearm was motivated by the single criminal impulse to
steal the firearm); Kealoha, 95 Hawai#i at 376-78, 22 P.3d at
1023-25 (recognizing that the various steps of methamphetamine
production were all motivated by the single criminal impulse to
manufacture a dangerous drug). HRS § 701-104 (1993) specifically
states: “The provisions of [the HRS] cannot be extended by
analogy so as to create crimes not provided for herein[.]” If we
allowed a continuous crime to be founded on a non-criminal
impulse, then we would be extending the provisions of the penal
code by analogy in direct violation of HRS § 701-104.
Here, the State has posited that a serial abuser is
motivated by a single continuous impulse, the desire for power
and control in a relationship. However, the actus reus of HRS §
709-906(1) is physical abuse. HRS § 709-906(1) does not
contemplate psychological abuse. Attempting to exert power and
control in a relationship, on its own, is not illegal. Thus,
although the desire for power and control merits no praise, it is
not a criminal impulse that can support charging domestic abuse
on a continuing conduct theory.
Finally, the overarching structure of the domestic
abuse statute provides compelling evidence that the legislature
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intended repeated acts of abuse to be treated as separate crimes.
Specifically, the graduated penalty provisions of HRS § 709-906
provide:
(5) Abuse of a family or household member [is a] . . .
misdemeanor[] and the person shall be sentenced as follows:
(a) For the first offense the person shall serve a
minimum jail sentence of forty-eight hours; and
(b) For a second offense that occurs within one year
of the first conviction, the person shall be termed a
“repeat offender” and serve a minimum jail sentence of
thirty days.5
. . . .
(7) For a third or any subsequent offense that occurs within
two years of a second or subsequent conviction, the offense
shall be a class C felony.
This penalty structure is specifically tailored to address the
repetitive and cyclic nature of domestic abuse. It evinces a
legislative determination that multiple acts of abuse constitute
separate offenses that should be punished separately and with
increasing severity. The House Judiciary Committee made this
plain when it stated:
The nature of domestic abuse is such that ongoing violence
is not uncommon and, in fact, has the great likelihood of
becoming more serious and increasing in frequency. Your
Committee understands that uniform sanctions applied in a
graduated way in response to these serious offenses will
deliver a strong message to the offenders[.]
5
In State v. Dudoit, we held that “the repeat offender provision of
HRS § 709-906(5) applies to the commission of successive violations of HRS §
709-906 and not merely to successive convictions of such violations” and that
it “may be applied to offenses occurring on the same day.” 90 Hawai#i 262,
266, 274, 978 P.2d 700, 704, 712 (1999) (capitalization and quotations
omitted).
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H. Stand. Comm. Rep. No. 20-92, in 1992 House Journal, at 906.
Charging multiple discrete acts of domestic abuse as a single
continuous crime, as the State did here, conflicts with the
domestic abuse statute’s graduated penalty structure.
In sum, the family court properly dismissed the State’s
complaint because it defectively charged Decoite with domestic
abuse under a continuing course of conduct theory. As a matter
of law, an alleged two-year period of domestic abuse can never be
charged as a continuous conduct offense.6
IV. CONCLUSION
For the foregoing reasons, we reverse the ICA’s
judgment on appeal and affirm the family court’s order dismissing
the State’s complaint without prejudice.
Craig W. Jerome /s/ Mark E. Recktenwald
(Summer M.M. Kupau
with him on the briefs) /s/ Paula A. Nakayama
for petitioner
/s/ Sabrina S. McKenna
Emlyn N. Higa
(Pamela Lundquist with
him on the briefs)
for respondent
6
Our holding does not prevent a criminal defendant from invoking
HRS § 701-109(1)(e) (1993) in an attempt to merge multiple counts of domestic
abuse that factually arise from a single, discrete criminal transaction. See
discussion supra at n.3.
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