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Electronically Filed
Supreme Court
SCWC-13-0002691
10-MAY-2017
08:02 AM
SCWC-13-0002691
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
ROSS COLLINS aka RIP COLLINS,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0002691; CR. NO. 13-1-0133)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner/Defendant-Appellant Ross Collins aka Rip
Collins (Collins) applied for a writ of certiorari from the
Intermediate Court of Appeals’ (ICA) December 9, 2016 Judgment on
Appeal filed pursuant to its October 25, 2016 unpublished Summary
Disposition Order (SDO). The ICA affirmed the Circuit Court of
the First Circuit’s (circuit court) Judgment of Conviction and
Sentence as to Count I and Judgment of Conviction and Sentence as
to Count II, both of which were entered on July 10, 2013, in
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favor of Respondent/Plaintiff-Appellee State of Hawai#i (the
State).
On January 28, 2013, Collins entered a Tesoro gas
station and convenience store located at 1529 Dillingham
Boulevard in Honolulu, Hawai#i (Tesoro gas station) in violation
of a written trespass warning1 previously issued to him on
October 3, 2012 pursuant to Hawai#i Revised Statutes (HRS) § 708-
814(1)(b).2 Upon entering the Tesoro gas station, Collins took a
can of beer and exited the premises without paying for it. He
was then arrested and charged with one count of burglary in the
1
The written trespass warning stated, in pertinent part:
You are hereby advised that your presence is no longer
desired on the premises or property: 1529 Dillingham
Blvd., Hon., HI, 96819 (Tesoro) 832-1369 for a period
of one year from date of notice.
This serves as notice that you are not to return to
said premises or property. Violation of this warning
will subject you to arrest and prosecution for
Trespassing pursuant to section 708-814(1)(b) of the
Hawaii Revised Statutes.
2
HRS § 708-814(1)(b) (Supp. 2010) states:
(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.
2
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second degree in violation of HRS § 708-8113 (Count I), and one
count of resisting arrest in violation of HRS §§ 710-1026(1)(a)
and/or 710-1026(1)(b)4 (Count II).
At trial, the State’s theory of the case was that
Collins had committed burglary in the second degree because he
unlawfully entered and remained in the Tesoro gas station by
entering the premises in contravention of the previously issued
written trespass warning, with the intent to steal a beer, and
thereby commit a crime against a person or property rights.
Following the State’s case-in-chief, Collins orally moved for a
judgment of acquittal on Count I, arguing that the State failed
to prove that Collins had unlawfully entered the Tesoro gas
3
HRS § 708-811 (1993) provides:
(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.
4
HRS § 710-1026 (Supp. 2010) states:
(1) A person commits the offense of resisting arrest
if the person intentionally prevents a law enforcement
officer acting under color of the law enforcement
officer’s official authority from effecting an arrest
by:
(a) Using or threatening to use physical force
against the law enforcement officer or another;
or
(b) Using any other means creating a substantial
risk of causing bodily injury to the law
enforcement officer or another.
(2) Resisting arrest is a misdemeanor.
3
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station. The circuit court5 denied Collins’ motion. The jury
found Collins guilty as charged on Counts I and II.
The ICA affirmed, holding, inter alia,6 that there was
sufficient evidence for a rational juror to conclude that Collins
understood the trespass warning when it was issued, and that
Collins purposefully disregarded the warning when he entered the
Tesoro gas station in January 2013. This court accepted Collins’
application for writ of certiorari on March 13, 2017.
In his application for writ of certiorari, Collins
presents one question for review: whether the ICA erred in
affirming the circuit court’s denial of his motion for a judgment
of acquittal as to Count I. Collins argues that pursuant to this
court’s decision in State v. King, 139 Hawai#i 249, 386 P.3d 886
(2016), Collins’ burglary conviction was, as a matter of law,
improperly premised upon his violation of the October 2012
written trespass warning.
5
The Honorable Glenn J. Kim presided.
6
On appeal, Collins also argued that the circuit court erred in denying
Collins’ motion for a judgment of acquittal on Count II because “there was no
substantial evidence that Collins had intentionally prevent [sic] Officer
Neves from effecting his arrest by either intentionally using physical force
against Officer Neves or intentionally using means that created a substantial
risk of causing bodily injury to Officer Neves.” On this point, the ICA held
that “the jury could have concluded beyond a reasonable doubt that Collins
either used physical force or put Officer Neves at a substantial risk of
bodily injury. Accordingly, the Circuit Court did not err in denying Collins’
motion for judgment of acquittal with regard to Count II.” In his application
for writ of certiorari, Collins did not raise any questions regarding this
point. Consequently, we do not address Collins’ second point of error on
appeal before the ICA. See Hawai#i Rules of Appellate Procedure (HRAP) Rule
40.1(d) (2015).
4
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In King, we determined that the violation of a trespass
warning issued pursuant to HRS § 708-814(1)(b) does not
constitute the defiance of a “lawful order personally
communicated to the defendant” within the meaning of HRS § 708-
800.7 139 Hawai#i at 257, 386 P.3d at 894. Thus, we held that
the violation of a trespass warning issued under HRS § 708-
814(1)(b) cannot support a charge for burglary in the second
degree under HRS § 708-811. Id.
Applying the principles in King to the present case,
Collins’ contravention of the written trespass warning did not
constitute an unlawful entry for the purposes of burglary in the
second degree. See id. Besides his violation of the written
trespass warning, the State did not present any other evidence
that Collins had otherwise “enter[ed] or remain[ed] unlawfully”
in the Tesoro gas station on January 28, 2013. See HRS § 708-
7
HRS § 708-800 (1993) defines “enter or remain unlawfully” as follows:
‘Enter or remain unlawfully’ 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 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.
(Emphasis added.)
5
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811. Therefore, a reasonable juror could not have concluded,
based on the evidence viewed in the light most favorable to the
State, that Collins was guilty of burglary in the second degree.
Accordingly,
IT IS HEREBY ORDERED that the ICA’s December 9, 2016
Judgment on Appeal is affirmed in part and reversed in part. The
circuit court’s July 10, 2013 Judgment of Conviction and Sentence
as to Count I is reversed. The circuit court’s July 10, 2013
Judgment of Conviction and Sentence as to Count II is affirmed.
DATED: Honolulu, Hawai#i, May 10, 2017.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
6