State v. King.

***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
SCWC-15-0000342
13-DEC-2016
07:51 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellant,

vs.

RUDOLPH G. KING, JR.,
Petitioner/Defendant-Appellee.

SCWC-15-0000342

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000342; CR. NO. 14-1-1986)
DECEMBER 13, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

When a person violates a trespass warning previously

issued pursuant to Hawaii Revised Statutes (HRS) § 708-

814(1)(b), may that violation be used as an underlying basis for

a charge of second-degree burglary? We answer in the negative.
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I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Trespass Warning and King’s Reentry

On November 11, 2014, at the Kaimuki Times

Supermarket, Rudolph G. King, Jr. stole a pack of Reese’s Peanut

Butter Cups and sweet tea, the total value of which was $8.66.

A loss prevention officer stopped King outside the store and

placed him under arrest for theft in the fourth degree. See HRS

§ 708-833 (2014).1 At the time of King’s arrest, the loss

prevention officer issued King a trespass warning form entitled

“Notification to Stay Off Property,” which stated as follows:

YOU ARE HEREBY ADVISED THAT YOUR PRESENCE IS NO LONGER
DESIRED ON THE PREMISES OR PROPERTY LISTED ABOVE AND ON ALL
PROPERTIES LISTED ON THE BACK OF THIS WARNING. THIS SERVES
NOTICE THAT YOU ARE NOT TO RETURN TO SAID PROPERTY FOR THE
DURATION LISTED ABOVE. VIOLATION OF THIS WARNING WILL
SUBJECT YOU TO ARREST AND PROSECUTION FOR TRESPASSING
PURSUANT TO SECTION 708-814 OF THE HAWAII PENAL CODE.

The trespass warning contains the addresses of all Times

Supermarket locations in Hawai#i, and it was effective from

November 11, 2014, to November 11, 2015. The warning also

quotes HRS § 708-814(1)(b) (2014), contains King’s description,

and was signed by the loss prevention officer, a police officer,

and King.

1
HRS § 708-833 provides as follows:

(1) A person commits the offense of theft in the fourth
degree if the person commits theft of property or services
of any value not in excess of $250.

(2) Theft in the fourth degree is a petty misdemeanor.

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On December 18, 2014, at the McCully location of Times

Supermarket, a loss prevention officer observed King take a

ribeye roast, valued at $55.55, and exit the store without

paying for it. After placing King under arrest, King verbally

acknowledged that he was issued a prior trespass warning.

On December 22, 2014, King was charged by felony

information with burglary in the second degree, in violation of

HRS § 708-811 (2014):

On or about December 18, 2014, in the City and County
of Honolulu, State of Hawaii, RUDOPH G. KING JR. [(sic)]
did intentionally enter unlawfully in a building, to wit,
Times Supermarket, situated at 1772 South King Street, with
intent to commit therein a crime against a person or
property rights, thereby committing the offense of Burglary
in the Second Degree in violation of Section 708-811[2] of
the Hawaii Revised Statutes.[3]

B. King’s Motion to Dismiss

On January 30, 2015, King filed a Motion to Dismiss

Felony Information for Lack of Probable Cause and/or De Minimis

Violation (motion to dismiss) to the Circuit Court of the First

Circuit (circuit court). King contended that the State’s

2
HRS § 708-811 states as follows:

(1) A person commits the offense of burglary in
the second degree if the person intentionally enters
or remains unlawfully in a building with intent to
commit therein a crime against a person or against
property rights.

(2) Burglary in the second degree is a class C
felony.
3
An amended felony information was filed on December 29, 2014, to
accurately reflect King’s name.

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reliance on the written trespass warning issued to him at Times

Supermarket Kaimuki fails, as a matter of law, to establish

probable cause that he unlawfully entered Times Supermarket

McCully in violation of the second-degree burglary statute.

King contended that a second-degree burglary charge pursuant to

HRS § 708-811 cannot hinge upon a refusal to obey a prior

written trespass warning issued pursuant to HRS § 708-814(1)(b),

because a trespass warning is applicable only to a charge of

criminal trespass in the second degree. That is, a person’s

failure to obey a prior written trespass warning issued pursuant

to HRS § 708-814(1)(b) does not satisfy the “enters or remains

unlawfully in a building” element of burglary in the second

degree. Alternatively, King argued, pursuant to HRS § 702-236,

that his conduct did not actually cause or threaten the harm or

evil sought to be prevented by burglary in the second degree,

since his conduct did not engender circumstances likely to

terrorize occupants of premises intended to be protected by the

second-degree burglary statute.5

5
A court has statutory authority to dismiss a prosecution if the
conduct alleged constitutes a de minimis infraction:

(1) The court may dismiss a prosecution if, having
regard to the nature of the conduct alleged and the nature
of the attendant circumstances, it finds that the
defendant’s conduct:

(a) Was within a customary license or tolerance, which
was not expressly refused by the person whose
(continued . . . )

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The State opposed King’s motion to dismiss, arguing

that the plain language of “enter or remain unlawfully” under

HRS § 708-800 encompasses situations in which the defendant

disobeys a prior trespass warning issued pursuant to HRS § 708-

814(1)(b). According to the State, the prior trespass warning

issued to King is “a lawful order not to enter or remain,

personally communicated to” King, because its terms advised King

that he was not allowed to enter or remain on Times Supermarket

property--including Times Supermarket McCully--from November 11,

2014, through November 11, 2015. In response to King’s argument

that his conduct constituted only a de minimis violation of the

burglary statute, the State argued that second-degree burglary

was not only intended to prevent crimes involving “the

terrorizing of persons situated on the relevant property,” but

(continued . . .)
interest was infringed and which is not
inconsistent with the purpose of the law defining
the offense;

(b) Did 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; or

(c) Presents such other extenuations that it cannot
reasonably be regarded as envisaged by the
legislature in forbidding the offense.

(2) The court shall not dismiss a prosecution under
subsection (1)(c) of this section without filing a written
statement of its reasons.

HRS § 702-236 (2014).

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it also applied to unoccupied premises. Accordingly, the State

urged the circuit court to deny King’s motion to dismiss.

C. Hearing on King’s Motion to Dismiss

At the hearing on King’s motion to dismiss,6 King

contended that liability under HRS § 708-814(1)(b) should not be

used to impose an elevated criminal liability under the second-

degree burglary statute, which uses a separate definition for

“enters or remains unlawfully.” According to King, the prior

trespass warning was not a “lawful order” contemplated by HRS §

708-800 and that, therefore, the violation of the prior trespass

warning would not satisfy the “enters or remains unlawfully”

element of second-degree burglary under HRS § 708-811. King

thus maintained that he should have been charged only with theft

in the fourth degree and criminal trespass in the second degree.

In response, the State argued that the prior trespass

warning issued personally to King revoked his privilege or

license to enter or remain in any Times Supermarket location,

and, hence, when King entered the McCully location of Times

Supermarket, the “enters or remains unlawfully” element of

second-degree burglary was met.7

6
The Honorable Dean E. Ochiai presided.
7
The parties did not proffer oral arguments with respect to King’s
contention that his conduct constituted a de minimis violation of HRS § 708-
811.

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The circuit court granted King’s motion and dismissed

with prejudice the charge of burglary in the second degree:

The Court’s of the belief that a trespass warning . . .
does not give rise to having it become a vehicle to charge
a Burglary in the Second Degree. I see two charges here.
I see a Criminal Trespass in the Second Degree and a Theft
Fourth Degree charge just based upon all that the Court has
had to consider during the course of this hearing.

The court concluded that the State was attempting to

convert two petty misdemeanors into a Class C felony, a course

of action that the court rejected under the facts of the case.

The circuit court also indicated that “the State [wa]s free to

refile other charges that the facts in this case may give rise

to.” The court later filed its written Order Granting

Defendant’s Motion to Dismiss Felony Information (Order Granting

Motion to Dismiss).

II. APPELLATE PROCEEDINGS

The State timely filed its notice of appeal to the

Intermediate Court of Appeals (ICA). The State challenged the

circuit court’s order granting King’s motion to dismiss, arguing

(1) that there was sufficient evidence to support the felony

information and (2) that King’s conduct was not a de minimis

violation of HRS § 708-811.

In a memorandum opinion, the ICA concluded that there

was probable cause to support the charge of burglary in the

second degree. State v. King, 2016 WL 3077890, at *4, 138

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Hawai#i 51, 375 P.3d 1289 (App. 2016) (mem.). According to the

ICA, the plain language of HRS § 708-800 indicates that

the Burglary 2 statute includes the situation at bar, as
King is alleged to have intentionally entered Times
Supermarkets’ premises in defiance of a lawful order not to
enter the premises, which had been personally communicated
to King by an authorized person, i.e., Times Supermarkets’
[loss prevention officer], with the intent to commit a
crime therein against property rights.

Id. at *3.

The ICA declined to examine the legislative history of

HRS §§ 708-800, 708-811, and 708-814 because King “fail[ed] to

cite any legislative history supporting his interpretation and

fail[ed] to show that the plain language reading of HRS §§ 708–

800 and 708–811 would produce an absurd or unjust result that is

inconsistent with the policies of the Burglary 2 statute.” Id.

The ICA also did not address King’s argument that the rule of

lenity favors a less-expansive interpretation of HRS §§ 708-800,

708-811, and 708-814(1)(b).

With respect to King’s argument that his conduct

constituted a de minimis violation of HRS § 708-811, the ICA

observed that the circuit court “did not enter written findings

of fact and conclusions of law, and neither its oral ruling

[n]or its written order specifically state[s] whether the

court’s ruling was based on King’s probable cause argument or

his de minimis violation argument.” Id. at *6. The ICA

concluded that the state of the record precluded it from

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reviewing the circuit court’s exercise of discretion. Id.

Thus, the ICA remanded the case to the circuit court for

consideration of whether the felony information should be

dismissed on de minimis grounds. Id. Accordingly, the ICA

vacated the circuit court’s Order Granting Motion to Dismiss.

Id.

III. STANDARDS OF REVIEW

The sufficiency of a felony information is based on

“whether there is probable cause to believe that the offense

charged was committed and that the defendant committed the

offense charged.” HRS § 806-85(a) (2014). Probable cause

determinations are reviewed by this court de novo. State v.

Detroy, 102 Hawai#i 13, 18, 72 P.3d 485, 490 (2003). “Statutory

interpretation presents questions of law that are reviewed de

novo under the right/wrong standard.” State v. Lei, 95 Hawai#i

278, 281, 21 P.3d 880, 883 (2001).

IV. DISCUSSION

On certiorari, King challenges the ICA’s decision that

there was probable cause to support the felony information. The

essence of the State’s theory as to probable cause is that

King’s violation of a prior trespass warning issued by an

authorized agent of Times Supermarket pursuant to HRS § 708-

814(1)(b) (2014) constitutes a defiance of “a lawful order not

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to enter” under HRS § 708-800 (2014) and that, therefore, King

entered Times Supermarket McCully unlawfully on December 18,

2014.8 This unlawful entry, argues the State, can be the basis

for charging King with burglary in the second degree under HRS §

708-811 (2014). In response, King maintains that, because the

prior trespass warning issued to him pursuant to HRS § 708-

814(1)(b) does not qualify as a “lawful order” under HRS § 708-

800, his conduct did not constitute an unlawful entry within the

meaning of this statute; hence, there was no probable cause that

his conduct constituted burglary in the second degree under HRS

§ 708-811.

In reviewing the sufficiency of the evidence to

establish probable cause, the evidence, and all reasonable

inferences that can be drawn therefrom, is viewed in favor of

the felony information. State v. Ganal, 81 Hawai#i 358, 367, 917

P.2d 370, 379 (1996). Whether there is probable cause to

support the felony information in this case depends on whether a

prior trespass warning issued pursuant to HRS § 708-814(1)(b) is

a “lawful order” under HRS § 708-800, the violation of which

provides a basis for a second-degree burglary charge.

8
The felony information does not charge that King remained
unlawfully in the McCully location of Times Supermarket.

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It is undisputed that statutory construction begins

with an examination of the plain language in order to determine

and give effect to the legislative intent and purpose underlying

the statute. State v. Alangcas, 134 Hawai#i 515, 525, 345 P.3d

181, 191 (2015); State v. McKnight, 131 Hawai#i 379, 388, 319

P.3d 298, 307 (2013). “The legislature is presumed not to

intend an absurd result, and legislation will be construed to

avoid, if possible, inconsistency, contradiction[,] and

illogicality.” State v. Arceo, 84 Hawai#i 1, 19, 928 P. 2d 843,

861 (1996) (quoting State v. Malufao, 80 Hawai#i 126, 137, 906

P.2d 612, 623 (1995)).

A. Plain Language

HRS § 708-811 defines burglary in the second degree as

follows:

(1) A person commits the offense of burglary in the
second degree if the person intentionally enters or remains
unlawfully in a building with intent to commit therein a
crime against a person or against property rights.

(2) Burglary in the second degree is a class C felony.

HRS § 708-811. “Enter or remain unlawfully,” as defined by HRS

§ 708-800,

means to enter or remain in or upon premises when the
person is not licensed, invited, or otherwise privileged to
do so. A person who, regardless of the person’s intent,
enters or remains in or upon premises which are at the time
open to the public does so with license and privilege
unless the person defies a lawful order not to enter or
remain, personally communicated to the person by the owner
of the premises or some other authorized person. A license
or privilege to enter or remain in a building which is only

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partly open to the public is not a license or privilege to
enter or remain in that part of the building which is not
open to the public.

HRS § 708-800 (emphasis added). HRS § 708-814(1)(b) sets forth

the offense of criminal trespass in the second degree as applied

to commercial premises:

(1) A person commits the offense of criminal trespass in
the second degree if:
. . . .

(b) The person enters or remains unlawfully in or
upon commercial premises after a reasonable
warning or request to leave by the owner or
lessee of the commercial premises, the owner’s or
lessee’s authorized agent, or a police officer;
provided that this paragraph shall not apply to
any conduct or activity subject to regulation by
the National Labor Relations Act.

For the purposes of this paragraph,
“reasonable warning or request” means a warning
or request communicated in writing at any time
within a one-year period inclusive of the date
the incident occurred, which may contain but is
not limited to the following information:

(i) A warning statement advising the person that
the person’s presence is no longer desired
on the property for a period of one year
from the date of the notice, that a
violation of the warning will subject the
person to arrest and prosecution for
trespassing pursuant to section 708-
814(1)(b), and that criminal trespass in the
second degree is a petty misdemeanor;

(ii) The legal name, any aliases, and a
photograph, if practicable, or a physical
description, including but not limited to
sex, racial extraction, age, height, weight,
hair color, eye color, or any other
distinguishing characteristics of the person
warned;

(iii) The name of the person giving the warning
along with the date and time the warning was
given; and

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(iv) The signature of the person giving the
warning, the signature of a witness or
police officer who was present when the
warning was given and, if possible, the
signature of the violator . . . .

HRS § 708-814 (emphases added).

Looking at the plain language of HRS § 708-814(1)(b),

in order for a person to “enter[] or remain[] unlawfully in or

upon commercial premises,” he or she must fail to obey “a

reasonable warning or request to leave” issued in accordance

with the requirements of the statute. A “reasonable warning or

request” is then given a specialized meaning that applies only

“[f]or the purposes of this paragraph.” HRS § 708-814(1)(b);

cf. Kaanapali Hillside Homeowners’ Ass’n ex rel. Bd. of Dirs. v.

Doran, 114 Hawai#i 361, 372, 162 P.3d 1277, 1288 (2007)

(reasoning that the legislature’s use of the phrase “for the

purposes of this section” in defining “planned community

association” in HRS § 607-14 indicated that the definition of

“planned community association” in HRS § 607-14 is different

from the definition of that same phrase in chapter 421J of the

HRS). Thus, a person’s violation of a “reasonable warning or

request to leave” means that the person has “enter[ed] or

remain[ed] unlawfully in or upon commercial premises” under HRS

§ 708-814(1)(b), and it does not mean that the person has

concurrently entered or remained unlawfully for purposes of

other offenses, such as burglary, under Chapter 708 of the

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Hawaii Penal Code that contains the “enters or remains

unlawfully” element. As such, a “reasonable warning or request”

is confined within the legal framework created by HRS § 708-

814(1)(b) and is not the same as, or a subset of, a “lawful

order” provided by HRS § 708-800. As applied in this case,

failure to comply with a “reasonable warning or request” issued

under HRS § 708-814(1)(b) would subject the noncomplying person

to prosecution under HRS § 708-814(1)(b) (criminal trespass in

the second degree), and such failure cannot be made the basis

for charging second-degree burglary under HRS § 708-811.

This interpretation is supported by the nature of the

information that may be contained by a “reasonable warning or

request” issued pursuant to HRS § 708-814(1)(b). The trespass

warning apprises the person to whom it is issued that “a

violation of the warning will subject the person to arrest and

prosecution for trespassing pursuant to section 708-814(1)(b),

and that criminal trespass in the second degree is a petty

misdemeanor.” HRS § 708-814(1)(b)(i). By specifying exactly

the subsection of HRS § 708-814 that the violator of the warning

will be prosecuted under, it is clear that the trespass warning

issued pursuant to HRS § 708-814(1)(b) does not at all

contemplate a situation in which its violation would result in

the prosecution of the violator for second-degree burglary if,

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for example, a shoplifting is committed during a return to the

premises. See id. Additionally, HRS § 708-814(1)(b) provides

that the warning may contain a detailed physical description of

the person to whom it is issued, the person’s photograph, the

person’s name or any aliases, the name of the person who issued

the warning, and the signatures of the person who issued the

warning and of a witness or of a police officer. HRS § 708-

814(1)(b)(ii)—(iv). Thus, a principal purpose of the HRS § 708-

814(1)(b) trespass warning is to make it easier for commercial

establishments to identify the person to whom the warning was

issued so that, when the person reenters or again remains

unlawfully on the commercial premises covered by the warning,

that person can be immediately apprehended and charged with

second-degree criminal trespass.

The plain language of HRS § 708-800 is also

instructive. This statute defines “enter or remain unlawfully”

without reference to the “reasonable warning or request” that

HRS § 708-814(1)(b) authorizes to be issued with respect to

commercial premises. Similarly, the legislature did not refer

to the trespass warning in HRS § 708-814(1)(b) as a “lawful

order.” This is a further indication that HRS § 708-800 defines

the phrase “enter or remain unlawfully” separately and

distinctly from HRS § 708-814(1)(b). See Kaanapali Hillside,

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114 Hawai#i at 372, 162 P.3d at 1288 (concluding that HRS § 607–

14’s definition of “planned community association” is different

from the definition of that phrase in chapter 421J of the HRS

since the HRS § 607-14 definition did not reference HRS chapter

421J).

B. Legislative History and Intent

The foregoing interpretation is also confirmed by the

legislative history of HRS § 708-814(1)(b). The predecessor of

what is now HRS § 708-814(1)(b) was first added to the second-

degree criminal trespass statute in 1979. 1979 Haw. Sess. Laws

Act 201, § 1 at 422—23. The House Standing Committee Report

noted that the addition was intended to make the unlawful

entering or remaining upon commercial premises a petty

misdemeanor instead of just a violation. H. Stand. Comm. Rep.

No. 984, in 1979 House Journal, at 1632—33. The Report noted

that, prior to the 1979 amendment, “entering or remaining

unlawfully in commercial premises is simple trespass, a

violation,” and this made it

extremely difficult for retailers and shopping centers to
remove from their premises, solicitors and demonstrators
who are harassing or inconveniencing customers or causing
loss of sales, because being that such persons can only be
charged with . . . a violation, the police will not place
them under physical arrest without a penal summons being
first obtained.

Id. at 1632—33. Obtaining a penal summons was a time-consuming

process, and there was nothing the merchant or retailer could

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do. Id. at 1633. Thus, the legislature added what is now HRS §

708-814(1)(b) to the second-degree criminal trespass statute in

order to “effectively give retailers a means to remove

undesirables because it would allow the police to place them

under physical arrest.” Id. The legislative history of the

1979 amendment to HRS § 708-814 never mentioned HRS § 708-800 or

intimated that a “reasonable warning or request” issued under

HRS § 708-814(1)(b) was intended to satisfy the “lawful order”

element of HRS § 708-800. See id.

In 1998, HRS § 708-814(1)(b) was again amended to

define “reasonable warning or request” in response to the ICA’s

decision in State v. Sadler, 80 Hawai#i 372, 375, 910 P.2d 143,

147 (App. 1996), which held that HRS § 708-814(1)(b)

“contemplates a warning or request contemporaneous with a person

entering or remaining unlawfully on the premises.” 1998 Haw.

Sess. Laws Act 146, § 1 at 531; Conf. Com. Rep. No. 81, in 1998

Senate Journal, at 277. This interpretation of HRS § 708-

814(1)(b) meant that “in order to convict a person for criminal

trespass in the second degree, the person must refuse a warning

or request to leave that is made contemporaneously with the

person’s entering or remaining on the premises.” Conf. Com.

Rep. No. 81, in 1998 Senate Journal, at 277. This was viewed by

the legislature as “burdensome on commercial establishments

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because owners and operators are unable to meaningfully evict

trespassers who may interfere with business and commit property

crimes.” Id. Thus, the 1998 amendment to HRS § 708-814(1)(b)

was intended to allow commercial establishments to issue a

“reasonable warning or request” to leave with an effective

period of up to one year, the violation of which would permit

the prosecution of the violator for criminal trespass in the

second degree regardless of whether a contemporaneous warning or

request to leave is issued at the time the violator reenters or

again remains unlawfully on the commercial premises covered by

the warning. Id. In addition, the 1998 amendment

particularized the guidelines on what information may be

included in the warning. 1998 Haw. Sess. Laws Act 146, § 1 at

531.

Based on the legislative history of HRS § 708-

814(1)(b), the overarching purpose for the enactment of HRS §

708-814(1)(b) was to create a discrete legal framework within

which commercial premises could be protected from actions

similar to those committed by King in this case.9 The statute is

9
The State argues that this court should consider decisions of the
Court of Appeals of Washington in resolving this case. See State v. Kutch,
951 P.2d 1139, 1142 (Wash. Ct. App. 1998); State v. Morris, 210 P.3d 1025
(Wash. Ct. App. 2009). However, Washington’s statutory scheme is
significantly different from the operative statutory scheme in this case. In
fact, Washington does not have a discrete commercial trespass statute that is
similar to HRS § 708-814(1)(b). See generally Wash. Rev. Code Ann. ch.
(continued . . . )

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essentially a prophylactic tool “to meaningfully evict

trespassers who may interfere with business and commit property

crimes.” Conf. Com Rep. No. 81, 1998 Senate Journal, at 777.

Nowhere in HRS § 708-814(1)(b)’s legislative history was there

any mention of burglary, much less an expression that the

legislature intended for a “reasonable warning or request”

issued pursuant to HRS § 708-814(1)(b) to satisfy the “lawful

order” requirement of HRS § 708-800.10 Nor was there an

indication that the legislature intended to create a brand-new

precursor to second-degree burglary that commercial property

owners and law enforcement could use pursuant to their

discretion. If such a severe escalation were intended by the

(continued . . .)
9A.52. Thus, the holdings announced by the Washington cases cannot be
meaningfully applied here.
10
The illogicality in treating a “reasonable warning or request” as
satisfying the “lawful order” requirement of HRS § 708-800 and, thus,
transforming the breach of a warning into a precursor to second-degree
burglary is also demonstrated by examining the nature of the conduct that may
result in the issuance of a “reasonable warning or request.” Notably, the
issuance of a “reasonable warning or request” under HRS § 708-814(1)(b) is
not contingent on the commission of illegal activity on the commercial
premises; rather, such a warning may be issued for a variety of reasons,
including legal conduct, with a view of removing “undesirables” from
commercial premises. See HRS § 708-814(1)(b); H. Stand. Comm. Rep. No. 984,
in 1979 House Journal, at 1633. For example, a person need not shoplift or
harass on the premises in order to allow the commercial premises to issue an
HRS § 708-814(1)(b) warning; the person may be excluded from the commercial
premises simply because he or she is an “undesirable[].” See HRS § 708-
814(1)(b); H. Stand. Comm. Rep. No. 984, in 1979 House Journal, at 1633. In
instances where the trespass warning is issued for reasons other than prior
illegal conduct, the recipient’s reentry on the commercial premises, if
coupled with intent to commit a crime against a person or property rights,
would be subject to prosecution as a felony offense. Thus, the recipient
could be prosecuted for second-degree burglary because he or she violated a
trespass warning issued based on a previous act that was not illegal.

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legislature, it would have voiced that result in the language of

the statute and the legislative history in more definite terms.

Indeed, in instances where the legislature has intended to

elevate specified conduct to felonies, it has expressly

reflected that intent in the language of the statute. See HRS §

708-831(1)(c) (2014) (theft of aquacultural products); id. §

708-831(1)(d) (2014) (theft of agricultural equipment or

products exceeding $100 in value); id. § 708-835.5 (2014) (theft

of livestock); id. § 708-835.7 (2014) (theft of copper).11

C. The Felony Information is Not Supported by Probable Cause

Thus, the violation of a “reasonable warning or

request” issued pursuant to HRS § 708-814(1)(b) is not a

“defi[ance] of a lawful order” under HRS § 708-800; hence, the

violation of a “reasonable warning or request” cannot be made a

vehicle for a second-degree burglary charge under HRS § 708-811.

11
Construing a “reasonable warning or request” issued pursuant to
HRS § 708-814(1)(b) as satisfying the “lawful order” element of HRS § 708-800
may result in an enforcement regime that could be abused based on the
discretion of owners of commercial premises. For example, there may be
situations in which owners of commercial premises would not act immediately
to arrest a person who violates a prior HRS § 708-814(1)(b) trespass warning
and wait for some indicia that the violator of the warning intends to commit
shoplifting or another qualifying offense on the premises before effectuating
arrest in order to escalate the offense from second-degree criminal trespass
to second-degree burglary. Such a course of action may prove attractive
given the severity of the punishment for second-degree burglary, i.e., up to
five years of imprisonment, HRS § 706-660(1)(b) (2014), as compared to the
punishment for second-degree criminal trespass, i.e., up to thirty days of
incarceration, HRS § 701-107(4) (2014).

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In this case, because the felony information charging King with

second-degree burglary is based on King’s violation of a prior

trespass warning issued under HRS § 708-814(1)(b), there is no

probable cause to support the felony information. At most, King

should have been charged with second-degree criminal trespass

and fourth-degree theft.12

V. CONCLUSION

Accordingly, we hold that the ICA erred in vacating

the circuit court’s Order Granting Motion to Dismiss because the

circuit court did not err in concluding that there was no

probable cause to support the felony information. Hence, the

ICA Judgment on Appeal is vacated, and the circuit court’s Order

Granting Motion to Dismiss is affirmed.

Jason M. Kramberg and /s/ Mark E. Recktenwald
Jon N. Ikenaga
for petitioner /s/ Paula A. Nakayama

Stephen K. Tsushima /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack

/s/ Michael D. Wilson

12
King also argues that the rule of lenity should be applied in
construing the statutes involved in this case and that the rule announced in
State v. Modica, 58 Haw. 249, 567 P.2d 420 (1977), prohibits the State from
charging him with a felony offense where his conduct could also be punished
under two misdemeanor offenses. It is unnecessary to address these
contentions in light of our resolution of this case. King does not challenge
the ICA’s resolution of whether his conduct constituted a de minimis
violation of HRS § 708-811.

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