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Electronically Filed
Supreme Court
SCWC-29703
22-MAR-2013
08:41 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
CHESTER PACQUING, Petitioner/Defendant-Appellant.
SCWC-29703
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29703; CR. NO. 08-1-0556)
MARCH 22, 2013
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ.,
AND CIRCUIT JUDGE BROWNING, ASSIGNED BY
REASON OF VACANCY, WITH ACOBA, J., DISSENTING
OPINION OF THE COURT BY RECKTENWALD, C.J.
Chester Pacquing was charged with one count of
Unauthorized Possession of Confidential Personal Information
(UPCPI) in relation to two traffic stops in which he identified
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himself to a police officer using the name, date of birth, and
address of his former neighbor, the Complainant in this case.
Pacquing moved to dismiss the charge as a de minimis
violation of the UPCPI statute, on the ground that his conduct
did not actually cause or threaten the harm sought to be
prevented by the statute, or did so only to a trivial extent.
See Hawai#i Revised Statutes (HRS) § 702-236(b). In support of
his argument, Pacquing relied primarily on factors set forth by
this court in State v. Park, 55 Haw. 610, 617, 525 P.2d 586, 591
(1974).
The Circuit Court of the First Circuit granted
Pacquing’s motion and dismissed the charge, without prejudice to
the State charging Pacquing with the offense of Unsworn
Falsification to Authorities.1 The State appealed, and the ICA
vacated the circuit court’s dismissal order on the ground that
the circuit court had not been presented with all of the relevant
circumstances surrounding the offense as required under this
court’s holding in State v. Rapozo, 123 Hawai#i 329, 235 P.3d 325
(2010). Specifically, the ICA noted that the circuit court was
not aware that Pacquing was in possession of Complainant’s
driver’s license number and partial social security number, which
were contained on the citation Pacquing received at the initial
1
The Honorable Michael A. Town presided.
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traffic stop. Accordingly, the ICA remanded to permit the
circuit court to consider “all the relevant circumstances.”
Pacquing argues that the ICA erred in concluding that
the circuit court was not presented with all of the relevant
circumstances. He further argues the circuit court did not abuse
its discretion in granting his motion to dismiss. Accordingly,
Pacquing seeks to affirm the circuit court’s dismissal order.
We conclude that Pacquing’s arguments are without
merit. Accordingly, we agree with the ICA that the dismissal
order must be vacated, and the case remanded for further
proceedings. However, while we reach the same result as the ICA,
our reasoning differs. Specifically, we do not find the
information regarding Complainant’s driver’s license number and
partial social security number to be dispositive. Rather, we
conclude that the circuit court abused its discretion in
concluding that Pacquing’s conduct constituted a de minimis
violation of the UPCPI statute because, as set forth below,
Pacquing’s conduct actually caused or threatened the harm sought
to be prevented by the UPCPI statute, and Pacquing failed to meet
his burden of demonstrating the results of his conduct were
trivial. See HRS § 702-236(b). We therefore affirm the ICA’s
judgment.
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I. Background
A. Factual history
The following facts are taken from the submissions of
the parties to the circuit court, and are undisputed.
On March 23, 2008, at approximately 11:00 p.m.,
Honolulu Police Department (HPD) Officer Barry Danielson observed
a black Acura Integra being operated with an expired vehicle tax
emblem. Officer Danielson initiated a traffic stop and pulled
the vehicle over near the intersection of North King Street and
Kalihi Street. Officer Darrin Lum arrived to assist Officer
Danielson.
Officer Lum observed Pacquing in the driver’s seat of
the vehicle. He asked for Pacquing’s license, registration, and
proof of no-fault insurance. Pacquing was unable to produce the
requested documents, but identified himself as Complainant.
Pacquing also gave a date of birth and residential address.
Officer Lum proceeded to verify the information
Pacquing provided. Dispatch informed Officer Lum that the
Department of Motor Vehicles Licensing Division (DMV) had a
record of Complainant with the date of birth and address given by
Pacquing. Dispatch also provided Officer Lum with a description
of Complainant from the DMV, which also matched Pacquing.
Officer Lum issued two citations in Complainant’s name:
one criminal citation for the offense of Driving Without
Insurance, and one infraction citation for the offenses of
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Delinquent Vehicle Tax and Fraudulent Safety Check. Pacquing
signed both citations with Complainant’s name.
Officer Lum later discovered that, although he gave
Pacquing a copy of the criminal citation, he did not give him a
copy of the infraction citation. Officer Lum proceeded to the
address Pacquing had provided to deliver the citation. When no
one answered the door, Officer Lum left the infraction citation
in the mailbox.
On March 24, 2008, Complainant went to the Kalihi
Police Station and informed the police that he had found the
citation in his mailbox and believed it to be in error.
Complainant stated that he did not own or operate the black Acura
Integra listed on the citation, nor was he involved in a traffic
stop at the time listed on the citation. HPD Officer Tish
Taniguchi initiated a police report, and relayed the information
to Officer Lum.
On April 7, 2008, Officer Danielson again initiated a
traffic stop on the same black Acura Integra. Officer Lum again
arrived to assist. Officer Danielson observed Pacquing in the
driver’s seat, and asked for his license, registration, and proof
of no-fault insurance. Pacquing stated that he did not have any
picture identification, but that he recently received a citation
for the same violation. Pacquing presented Officer Danielson
with the March 23, 2008 criminal citation issued by Officer Lum.
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Officer Lum asked Pacquing to exit the vehicle and sit
in Officer Lum’s HPD issued vehicle. Officer Lum asked another
officer to locate Complainant and escort Complainant to the
scene. Complainant arrived at the scene at approximately 3:00
a.m., and identified the defendant as “Chester Pacquing.”
Complainant related that Pacquing used to be his neighbor, and
that Pacquing did not have permission to use any of Complainant’s
personal information.
Officer Lum asked Pacquing if his name was “Chester
Pacquing.” Pacquing responded in the affirmative, and stated
that he was scared because he “had some warrants and did not want
to get arrested.” Pacquing acknowledged that he used to live
near Complainant. Officer Lum then placed Pacquing under arrest.
B. Circuit court proceedings
On April 14, 2008, Pacquing was charged by way of
complaint with one count of UPCPI, in violation of HRS § 708-
839.55,2 in relation to his possession of Complainant’s
2
HRS § 708-839.55 (Supp. 2006) provides:
(1) A person commits the offense of unauthorized
possession of confidential personal information if
that person intentionally or knowingly possesses,
without authorization, any confidential personal
information of another in any form, including but not
limited to mail, physical documents, identification
cards, or information stored in digital form.
(2) It is an affirmative defense that the person who
possessed the confidential personal information of
another did so under the reasonable belief that the
person in possession was authorized by law or by the
consent of the other person to possess the
confidential personal information.
(continued...)
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confidential personal information3 on or about March 23, 2008, to
and including April 7, 2008.
On September 2, 2008, Pacquing filed a Motion to
Dismiss, or in the Alternative, Motion for Bill of Particulars.
In a supplemental memorandum to the motion, Pacquing argued that
the charge should be dismissed because the State could not prove
he was in possession of Complainant’s confidential personal
information, since the information came from Pacquing’s memory
and was possessed only in his mind. Pacquing asserted that he
was possibly guilty of “some degree of Identity Theft,” but not
UPCPI. Pacquing also acknowledged that he possessed
Complainant’s confidential personal information on April 7, 2008
in the form of the citation, but argued that “[t]he fact that it
was memorialized on a piece of paper and given to [Pacquing] does
not change a thing.” With regard to his alternative motion for a
bill of particulars, Pacquing sought clarification as to whether
the date of the offense was March 23, 2008 or April 7, 2008. The
2
(...continued)
(3) Unauthorized possession of confidential personal
information is a class C felony.
3
“Confidential personal information” is defined as:
information in which an individual has a significant
privacy interest, including but not limited to a
driver’s license number, a social security number, an
identifying number of a depository account, a bank
account number, a password or other information that
is used for accessing information, or any other name,
number, or code that is used, alone or in conjunction
with other information, to confirm the identity of a
person.
HRS § 708-800 (Supp. 2006) (emphasis added).
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circuit court ultimately denied the motion, and Pacquing does not
challenge this ruling on appeal.
On October 6, 2008, Pacquing filed a Motion to Dismiss
for De Minimis Violation, which is the subject of the instant
appeal. Along with the motion, Pacquing submitted a declaration
of counsel, which acknowledged that Pacquing was pulled over on
March 23, 2008 and April 7, 2008; that on the first occasion, he
provided officers with Complainant’s name, date of birth and
address; and that on the second occasion, he presented officers
with the citation he had previously received.
Pacquing asserted that his conduct constituted a de
minimis infraction under the factors set forth in Park.4
Pacquing argued that, rather than the offense of UPCPI, “the
4
Park involved charges against several political candidates for
failing to timely file campaign expense reports. 55 Haw. at 611, 525 P.2d at
588. This court stated that the factors to be taken into account in
consideration of a de minimis motion “should include”:
the background, experience and character of these
defendants-appellees which may indicate whether they
knew of, or ought to have known, the requirements of
[the law requiring filing of campaign expense
statements]; the knowledge on the part of these
defendants-appellees of the consequences to be
incurred by them upon the violation of the statute;
the circumstances concerning the late filing of these
statements of expense; the resulting harm or evil, if
any, caused or threatened by these infractions; the
probable impact of these violations upon the
community; the serious[n]ess of the infractions in
terms of the punishment, bearing in mind, of course,
that the punishment can be suspended in proper cases;
the mitigating circumstances, if any, as to each
offender; the possible improper motives of the
complainant or the prosecutor; and any other data
which may reveal the nature and degree of the
culpability in the offense committed by each
defendant-appellee.
Id. at 617, 525 P.2d at 591.
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likely assumption would be that he was committing identity theft
or violating some duty to not mislead a police officer[,]” such
as Unsworn Falsification to Authorities in violation of HRS §
710-1063.5 Thus, Pacquing argued that “it should be assumed that
[he] envisioned the consequences of his actions to be a violation
of HRS § 710-1063(1)(b)” and Unsworn Falsification to Authorities
was therefore the proper charge. In addition, Pacquing argued
that the circumstances surrounding the offense, the resulting
harm or evil, and the probable impact on the community were
minimal because Complainant immediately informed the police that
he was not involved in the traffic stop, and the police believed
Complainant. Finally, although Pacquing appeared to concede that
the State did not have improper motives in charging him with
UPCPI, he argued that his conduct “did not rise to the level of a
felony offense[,]” and that he therefore had been over-charged.
Pacquing reiterated his argument that the proper charge for his
conduct was the misdemeanor offense of Unsworn Falsification to
Authorities.
5
HRS § 710-1063 (1993) provides in relevant part:
(1) A person commits the offense of unsworn
falsification to authorities if, with an intent to
mislead a public servant in the performance of the
public servant’s duty, the person:
. . .
(b) Submits or invites reliance on any writing
which the person knows to be falsely made,
completed, or altered[.]
. . . .
(2) Unsworn falsification to authorities is a
misdemeanor.
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Pacquing also argued that his conduct constituted a de
minimis violation under the applicable statute, HRS § 702-
236(1)(b) and/or (c).6 Specifically, Pacquing argued that the
legislature did not intend to prevent his conduct under UPCPI,
but rather under Unsworn Falsification to Authorities. He also
argued that a conviction for UPCPI would be unduly harsh.
The State filed a response to Pacquing’s motion,
setting forth facts substantially similar to those set forth
above, but with somewhat more detail than was set forth in
Pacquing’s declaration of counsel. For example, the State
asserted that Complainant informed the officers that Pacquing
“used to be his neighbor[.]” The State also asserted that, upon
being arrested, Pacquing informed the officers that he “was
scared because [he] had some warrants and did not want to get
arrested.”
6
HRS § 702-236 (1993) provides in relevant part:
(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
interest was infringed and which is not inconsistent
with the purpose of the law defining the offense; or
(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.
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The State argued that Pacquing’s conduct implicated the
purpose of the UPCPI statute which, according to the State, was
to “prohibit the intentional or knowing possession of the
confidential personal information of another person, without
authorization, in any form.” The State further argued that
Pacquing’s conduct caused the harm or evil sought to be prevented
by the UPCPI statute, and was not trivial, because “[h]ad
[Pacquing] not been caught, Complainant would have suffered
repercussions of two unjustified traffic citations.” Finally,
the State argued that Pacquing’s conduct was “envisaged by the
legislature in forbidding the offense” because the language of
the statute “unquestionably proscribes [Pacquing’s] conduct.”
The circuit court held a hearing on Pacquing’s motion
on October 30, 2008, at which the parties generally reiterated
the arguments set forth in their briefs and the court took the
matter under advisement. On February 11, 2009, the circuit court
filed its order granting Pacquing’s motion to dismiss. The
circuit court dismissed the complaint without prejudice to the
State charging Pacquing with Unsworn Falsification to Authorities
within 90 days. The circuit court’s findings of fact generally
repeated the facts set forth above. The circuit court entered
the following relevant conclusions of law:
2. The decision to dismiss a prosecution based upon
it being a de minimis infraction is one made by the
court. The Hawaii Supreme Court has adopted a
“totality of the circumstances” test for determining
whether an offense is to be treated as a de minimis
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infraction. State v. Park, 55 Haw. 610, 525 P.2d 586
(1974).
3. As stated in Park, the following factors should be
considered in determining whether to dismiss a charge
as de minimis:
a. The background, experience and character
of the defendant which may indicate
whether the defendant knew of, or ought to
have known of the requirements of the law;
b. The knowledge on the part of the defendant
of the consequences to be incurred upon a
violation of the statute;
c. The circumstances concerning the
offense[;]
d. The resulting harm or evil, if any, caused
or threatened by the infractions;
e. The probable impact of the violation upon
the community;
f. The seriousness of the infraction in terms
of the punishment, bearing in mind that
the punishment can be suspended in proper
cases (but in felony cases, suspended
sentence is not an authorized disposition
under HRS § 706-605);
g. The mitigating circumstances, if any, as
to the offender;
h. The possible improper motives of the
complainant or the prosecutor;
i. Any other data which may reveal the nature
and degree of the culpability in the
offense committed.
4. The consequences of the first two Park factors,
assuming [Pacquing] knew the requirements of the law,
and therefore knew he should not have given another
person’s information as his own, the logical
conclusion would be that he was committing some form
of identity theft or violating a duty to not mislead a
police officer.
5. With all due regard to the discretion of the
Prosecuting Attorney’s Office, the proper charge in
this case exists pursuant to HRS § 710-1063, Unsworn
Falsification to Authorities . . . .
6. HRS § 710-1063 is a consequence that a person in
[Pacquing’s] position could reasonably expect to
incur.
7. The circumstances surrounding the offense charged,
the resulting harm or evil in this case, and the
probable impact upon the community, are minimal. The
police immediately believed the Complainant . . . when
he informed them that he did not own a black Acura and
he did not get pulled over on March 23, 2008.
[Complainant] did not have to appear in traffic court
and did not incur any traffic violations as a result
of [Pacquing’s] conduct. This minimal result does not
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warrant a felony charge for [Pacquing], or worse, a
felony conviction.
8. The punishment in this case, a felony conviction
for [Pacquing], and a potential five-year term of
incarceration, is too serious and too harsh.
[Pacquing’s] actions did not rise to the level of a
felony offense. Again, [Pacquing’s] conduct may
constitute a misdemeanor pursuant to HRS § 710-
1063(1)(b).
9. [Pacquing], being only 24 years old, is a
mitigating circumstance in his favor. The non-violent
nature of this offense, and [Pacquing’s] history of
non-violence, are also mitigating factors.
10. The [c]ourt is also concerned that [Pacquing] has
been over-charged and his misdemeanor conduct was
pidgeon-holed [sic] into a felony statute.
11. [Pacquing’s] conduct caused harm only to a
minimal extent, and certainly not serious enough to
warrant a felony conviction.
12. [Pacquing’s] conduct also does not fall within
that which was envisioned by the legislature in
forbidding the charged offense.
13. [Pacquing’s] conduct was meant to be prohibited
by HRS § 710-1063(1)(b), Unsworn Falsification to
Authorities.
14. The harshness of a conviction is a factor when
determining whether a charge should be dismissed under
HRS § 702-236. State v. Vance, 61 Haw. 291, 602 P.2d
933 (1979). In the instant case, a conviction for
[Pacquing] could result in an indeterminate five-year
term of imprisonment.
15. [Pacquing’s] conduct constitutes a de minimis
infraction within the meaning of HRS § 702-236.
The State timely filed a notice of appeal on March 12,
2009.
The parties subsequently appeared before the circuit
court on a motion for revocation and sentencing in two unrelated
criminal cases involving Pacquing, Cr. Nos. 05-1-1548 and 08-1-
1492. At the hearing, Pacquing’s counsel raised a “housekeeping
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matter” in relation to the instant case, and the following
exchange occurred:
[DEFENSE COUNSEL]: . . . . [F]or the de minimis
motion we didn’t take testimony, Your Honor, but [the
deputy prosecuting attorney (DPA)] and I agreed now
kind of retroactively to stipulate to the facts that
were laid out in both of our memoranda, if that’s
okay.
THE COURT: That’s not on the calendar so what
am I supposed to do, just make a decision?
[DEFENSE COUNSEL]: Well, my appellate section
is telling me that there may not actually be a record
of fact because we agreed. Since we didn’t take any
testimony we kind of agreed to the facts. But in case
we didn’t mention it at the motion, we just wanted to
agree to the facts.
THE COURT: To do that I need to call the case
and place that stipulation on the record and have him
agree that he doesn’t need to cross-examine anybody[.]
[DEFENSE COUNSEL]: Oh, that’s -- that’s fine,
Your Honor, I’ll address it with my appellate.
THE COURT: So am I making a record today or
not?
[DEFENSE COUNSEL]: I -- I don’t think -- I
mean, I’m not sure. I don’t want to speak for [the
DPA].
[DPA]: Well, my understanding is that back
then, I am pretty sure that both sides already
stipulated to the facts that were in the respective
memorandum [sic], there are no material differences in
the recollection of the facts. However, just to
supplant that, I’ll make sure that it is a
stipulation. I think that we’re both in agreement
that those facts should be made part of the record
even if they weren’t made part of the record back
then.
The circuit court proceeded to call the instant case,
Cr. No. 08-1-0556, and asked defense counsel and Pacquing,
“You’ve made the record that there’s a stipulation there, you’re
making it part of the record, and your client is waving any
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cross-examination?” Both defense counsel and Pacquing agreed,
and the proceedings were then concluded.
C. Appeal
On appeal, the State argued that the circuit court
abused its discretion in granting Pacquing’s motion to dismiss.
Specifically, the State challenged the circuit court’s apparent
conclusion that UPCPI was not the proper charge for Pacquing’s
conduct. The State also challenged the circuit court’s
conclusions that the impact of Pacquing’s conduct was minimal,
the punishment for UPCPI was “too harsh,” and Pacquing’s youth
and lack of a violent criminal history were mitigating factors.
The State specifically challenged the circuit court’s conclusions
of law numbered 4 through 15.
Pacquing argued that the circuit court did not abuse
its discretion in granting the motion to dismiss because
Pacquing’s conduct did not cause or threaten the harm or evil
sought to be prevented by UPCPI. Pacquing asserted that UPCPI
was designed to prevent “identity theft-related crimes, which
cause[] monetary loss to victims[.]” Pacquing also argued that
the circuit court’s application of the Park factors to the facts
of this case was correct.
On May 27, 2010, approximately ten months after the
filing of its opening brief, the State filed a motion to
supplement the record on appeal with the transcript of a
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preliminary hearing held on April 11, 2008.7 In the transcript
of the preliminary hearing, Officer Lum testified regarding his
encounters with Pacquing on March 23, 2008 and April 7, 2008. In
addition to the facts set forth supra, Officer Lum testified that
he wrote Complainant’s driver’s license number and the last four
digits of his social security number on the citation he gave to
Pacquing on March 23, 2008.
Pacquing did not file a response to the State’s motion
to supplement the record, and the ICA approved the motion and
ordered that the record be supplemented. Pacquing subsequently
filed a motion for reconsideration, in which he argued that it
was not appropriate for the ICA to consider the transcript
because (1) the transcript was not before the circuit court, (2)
the contents of the transcript had not been received into
evidence, and (3) the testimony from the preliminary hearing was
not considered by the circuit court in ruling on Pacquing’s
motion to dismiss. The ICA denied Pacquing’s motion for
reconsideration.
In a Memorandum Opinion, the ICA vacated the circuit
court’s dismissal order and remanded for further proceedings.
The ICA concluded that the circuit court “was not presented with
all the relevant circumstances necessary for it to properly
exercise its discretion in rendering the decision[,]” as required
7
The Honorable Russel S. Nagata presided over the preliminary
hearing.
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under this court’s opinion in Rapozo. Specifically, the ICA
noted that neither party cited the preliminary hearing testimony
in connection with Pacquing’s de minimis motion or introduced the
citations issued to Pacquing in Complainant’s name.8 The ICA
concluded:
Evidence that Pacquing possessed and used
Complainant’s driver’s license number and the last
four digits of Complainant’s social security number
constitutes evidence of relevant circumstances
pertaining to the charged offense. If the Circuit
Court had considered such evidence, it may have
affected the Circuit Court’s analysis. For example,
Pacquing argues that because information regarding a
person’s name, birth date, and address is easily
obtainable through lawful means, Complainant did not
have a significant privacy interest in such
information. The same argument would not apply to
Complainant’s driver’s license number or the last four
digits of Complainant’s social security number.
The ICA filed its judgment on February 23, 2012.
Pacquing timely filed an application for a writ of certiorari.
The State did not file a response.
II. Standard of Review
We review a trial court’s ruling on a motion to dismiss
for de minimis violation for abuse of discretion. State v.
Rapozo, 123 Hawai#i 329, 336, 235 P.3d 325, 332 (2010). A court
abuses its discretion if it clearly exceeds the bounds of reason
or disregards rules or principles of law or practice to the
8
The ICA concluded that the circuit court had not considered all of
the relevant circumstances because it was not presented with the preliminary
hearing transcript, which indicated that the citation Pacquing presented to
the officers on April 7, 2008 contained Complainant’s driver’s license number
and a partial social security number. Pacquing argues that the preliminary
hearing transcript was irrelevant because the circuit court’s decision was not
based on the type of confidential personal information in Pacquing’s
possession. We do not consider the preliminary hearing transcript in reaching
our conclusion.
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substantial detriment of a party litigant. Id. (citation
omitted).
III. Discussion
A. Pacquing’s conduct did not constitute a de minimis violation
of the UPCPI statute
HRS § 702-236(1) addresses the circumstances in which a
prosecution may be dismissed as de minimis, and provides in
relevant part:
(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:
. . .
(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[.]
This court has explained that the statute requires
“that all of the relevant attendant circumstances be considered
by the trial court.” Rapozo, 123 Hawai#i at 337-38, 235 P.3d at
333-34. The defendant bears the burden of bringing these
circumstances before the court for its consideration. See, e.g.,
id.; State v. Oughterson, 99 Hawai#i 244, 256, 54 P.3d 415, 427
(2002) (“[I]nsofar as the defendant advances a motion to dismiss
on de minimis grounds, it is the defendant, and not the
prosecution, who bears the burden of proof on the issue.”)
(emphasis in original). The defendant also bears the burden of
establishing why dismissal of the charge as a de minimis
infraction is warranted in light of those circumstances. Rapozo,
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123 Hawai#i at 331, 235 P.3d at 327. For the reasons set forth
below, the circuit court abused its discretion in granting the de
minimis motion because Pacquing’s conduct caused or threatened
the harm or evil sought to be prevented by HRS § 708-839.55, and
Pacquing did not establish that his conduct was too trivial to
warrant the condemnation of conviction.9 See HRS § 702-
236(1)(b).
1. Pacquing’s conduct caused or threatened the harm or
evil sought to be prevented by HRS § 708-839.55
Pacquing argues that his conduct did not cause or
threaten the harm or evil sought to be prevented by the UPCPI
statute because, Pacquing asserts, “[t]he statute sought to deter
identity theft-related crimes, which cause monetary loss to
victims[.]” Pacquing asserts that he did not possess
Complainant’s confidential personal information with the intent
to commit identity theft, but rather to avoid arrest on
outstanding warrants. As set forth below, Pacquing’s argument is
without merit because the legislative history behind the UPCPI
9
In Park, this court outlined several factors which trial courts
should consider in determining whether to dismiss a charge as a de minimis
infraction. 55 Haw. at 617, 525 P.2d at 591; see also supra note 4. Although
this court has subsequently referenced the Park factors, see e.g., Rapozo, 123
Hawai#i at 344, 235 P.3d at 340, it has not expressly applied all of these
factors in determining whether a trial court properly granted or denied a
motion to dismiss a charge as a de minimis infraction, see, e.g., id.; State
v. Viernes, 92 Hawai#i 130, 134-35, 988 P.2d 195, 199-200 (1999). Rather, our
analysis has relied primarily on the language of the statute, and has
considered the Park factors as appropriate to the circumstances of each case.
See, e.g., Rapozo, 123 Hawai#i at 344, 235 P.3d at 340. Thus, while we do not
“de-emphasize” the factors set forth in Park, see dissenting opinion at 24, we
consider these factors in light of the requirements set forth in the de
minimis statute, as we have done consistently in our prior cases.
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statute indicates that it was intended to deter a broader range
of conduct than “identity theft-related crimes.”
As with all efforts to determine legislative intent,
our inquiry into the harm or evil sought to be prevented by a
statute relies primarily on the plain language of the statute
itself. Rapozo, 123 Hawai#i at 338, 235 P.3d at 334. As stated,
HRS § 708-839.55 proscribes “intentionally or knowingly
possess[ing], without authorization, any confidential personal
information of another in any form, including but not limited to
mail, physical documents, identification cards, or information
stored in digital form.”10 Although the statute describes the
conduct it proscribes, the resulting harm or evil the statute
seeks to prevent is not immediately apparent. Accordingly, we
must look to legislative history to determine the harm or evil
sought to be prevented by HRS § 708-839.55. See First Ins. Co.
of Hawaii v. A&B Props., 126 Hawai#i 406, 415, 271 P.3d 1165,
1174 (2012) (noting that courts may look to legislative history
to determine “the reason and spirit of the law”).
The UPCPI statute originated from Act 65 of the 2005
legislative session. 2005 Haw. Sess. Laws Act 65, §§ 1-2 at 146-
47; see also Hawaii Anti-Phishing Task Force, Report on
10
The dissent concludes that Pacquing did not “possess”
Complainant’s confidential personal information because the information was
not recorded in writing or digitally. Dissenting opinion at 48-49. However,
Pacquing does not raise this argument on appeal. Moreover, this conclusion is
contrary to the statutory language, which prohibits the unauthorized
possession of confidential personal information “in any form[.]” HRS § 708-
839.55 (emphasis added).
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Electronic Commerce-Based Crimes (2006) (hereinafter “Anti-
Phishing Task Force Report”). Through Act 65, the legislature
established a “Hawaii anti-phishing task force to develop state
policy on how best to prevent further occurrences of phishing and
other forms of electronic commerce-based crimes in the State.”
2005 Haw. Sess. Laws Act 65, §§ 1-2 at 147. The legislature
explained that, “in phishing scams, Internet scammers try to get
information, such as credit card numbers, passwords, account
information, or other personal information, by convincing
Internet users to divulge the information under false pretenses.”
Id., § 1 at 147.
Pursuant to Act 65, the task force submitted a report
with findings and recommendations to the 2006 legislature. Anti-
Phishing Task Force Report; see also 2005 Haw. Sess. Laws Act 65,
§ 2(d) at 148. Recognizing that “phishing is a relatively small
part of the identity theft problem[,]” the report addressed
“crimes and scams under the broader category of ‘identity theft’
and those offenses committed as precursors to identity theft.”
Anti-Phishing Task Force Report at 3-4 (emphasis added). The
report noted that, “[b]esides high-tech activities such as
phishing and Internet-based fraud, there are other types of
identity theft committed against Hawaii residents involving very
low-tech activities. Some of the perpetrators are close friends
and family members who . . . use without authorization the
victim’s confidential personal information to obtain credit.”
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Id. at 4 (emphasis added). Accordingly, the task force also
“discussed ways in which the State could deter the low
technology, non-electronic activities, which frequently precede
electronic commerce-based identity theft crimes in Hawaii.” Id.
at 4-5.
The task force undertook a detailed review of state
identity theft statutes. Id. at 10-12, Appendices I and II. The
task force noted that “many states define the act of identity
theft as when a person uses another’s personal identifying
information for any unlawful purpose,” while in other states,
“possession alone of another’s personal identifying information
without authorization and with intent to defraud or commit a
crime or for any unlawful purpose constitutes an offense[.]” Id.
at 10-11.
The task force made the following recommendation
relevant to the instant case:
Law enforcement agencies in Hawaii have found it
difficult to curb the rise in identity theft related
crimes because identity thieves in possession of
personal information that have not yet caused a
monetary loss to the victim cannot be prosecuted for
crimes other than petty misdemeanors. The Task Force
supports legislation that will provide law enforcement
with more efficient enforcement and stricter
enforcement penalties for identity theft crimes.
• Specific Action: Amend [HRS §] 708-839.8,
Identity Theft in the Third Degree to include a
crime for possession or transfer of
“confidential personal information” and [HRS §]
706-606.5 to include Identity Theft as a
repeatable offense. . . .
Id. at 22.
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Proposed legislation arising out of the Anti-Phishing
Task Force Report was first considered by the Senate Committees
on Commerce, Consumer Protection, and Housing and Media, Arts,
Science, and Technology. S. Stand Comm. Rep. No. 2508, in 2006
Senate Journal, at 1248-49. The Committees noted that “[t]he
purpose of this measure is to increase the penalties for identity
theft and make it a crime to intentionally or knowingly possess
the confidential information of another without that person’s
authorization.” Id. at 1248 (emphasis added). The Committees
further noted:
Hawaii law enforcement has found it difficult to
curb the rise in identity theft related crimes when
identity thieves in possession of personal information
who have not yet caused a monetary loss to the victim
cannot be prosecuted for crimes other than petty
misdemeanor thefts. A nominal criminal consequence is
inadequate to address and deter possession of
another’s personal information, and in fact
perpetuates the larger problem of identity theft.
Your Committees find that increasing the penalties for
identity theft by amending the law to make identity
theft an enumerated offense within the repeat offender
statute, and amending the law to make intentionally or
knowingly possessing confidential information of
another without authorization a class C felony, will
help to deter identity theft crimes.[11]
Id. at 1249.
However, the Committees diverged from the task force’s
recommendation that the offense of UPCPI be incorporated into the
offense of Identity Theft in the Third Degree. Instead, the
Committees amended the proposal to add a new section to prohibit
UPCPI, stating:
11
These comments were largely incorporated into the Commentary to
HRS § 708-839.55. See HRS § 708-839.55 cmt. (Supp. 2006).
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Your Committees further recognize that the
unauthorized possession of confidential personal
information should be treated as a separate offense
from identity theft in the first degree, second
degree, or third degree. The purpose of enacting a
new law for the unauthorized possession of
confidential personal information is to fill the
loophole under current law and provide for appropriate
criminal prosecution.
Id. at 1249 (emphasis added).
This history indicates that the statute was intended to
deter a broader range of conduct than identity theft-related
crimes. First, the legislative history indicates that, although
the ultimate goal behind the UPCPI statute was to deter identity
theft, the more immediate purpose was to “fill a loophole” and
increase criminal penalties for conduct that would otherwise
constitute a misdemeanor. Id. at 1248-49. Thus, the UPCPI
statute was not enacted solely to prevent identity theft.
Moreover, the legislature rejected the Anti-Phishing Task Force’s
recommendation to include the offense of UPCPI in the statute
prohibiting Identity Theft in the Third Degree. Id. at 1249. It
therefore appears that the legislature understood UPCPI to be
distinct from identity theft, because it does not involve “a
monetary loss to the victim[.]” Id.
Second, neither the plain language of the statute nor
its legislative history establishes that the legislature intended
to allow prosecution only where the defendant intended to commit
identity theft. Indeed, the Anti-Phishing Task Force Report
noted that the UPCPI statutes adopted in other jurisdictions
often require that the defendant intended to use the information
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to defraud another or commit a crime, or acted with another
unlawful purpose. Anti-Phishing Task Force Report at 10-12,
Appendices I & II. However, neither the task force nor the
legislature recommended a provision that would predicate the
offense of UPCPI upon an intent to commit identity theft.
Rather, HRS § 708-839.55 does not require that the
defendant have any specific purpose in possessing the
confidential personal information,12 provided that the defendant
possesses the information “without authorization[.]” (Emphasis
added). Accordingly, Pacquing’s argument that he did not commit
UPCPI because he only intended to “mislead the police officer”
and avoid arrest is unavailing, since there is nothing in the
record to suggest Complainant authorized Pacquing to possess the
information for that purpose.
Third, the legislative history evidences the
legislature’s intent to penalize Pacquing’s conduct with a felony
conviction. S. Stand Comm. Rep. No. 2508, in 2006 Senate
Journal, at 1249. The legislature specifically noted, “A nominal
criminal consequence is inadequate to address and deter
possession of another’s personal information, and in fact
perpetuates the larger problem of identity theft.” Id.
12
Accordingly, we respectfully disagree with the dissent’s assertion
that the state of mind specified in HRS § 708-839.55, i.e., the intentional or
knowing possession of confidential information, indicates that the purpose of
the statute is limited to identity theft. Dissenting opinion at 30-31.
Respectfully, nothing in the statute requires the prosecution to prove that
the defendant possessed confidential personal information for this, or any
other, specific purpose. HRS § 708-839.55.
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Accordingly, although Pacquing argues that a potential felony
conviction and indeterminate five year term of incarceration are
too harsh in light of the potential for charging him with the
misdemeanor offense of Unsworn Falsification to Authorities, this
argument is unpersuasive.13
Finally, it is instructive to contrast the
circumstances of this case with those in Viernes, where this
court concluded that the circuit court did not abuse its
discretion in dismissing as de minimis a prosecution for
promoting a dangerous drug in the third degree. 92 Hawai#i at
135, 988 P.2d at 200. This court observed that the purpose of
the statute at issue was to “respond to abuse and social harm”
and “to counter increased property and violent crimes.” Id. at
134, 988 P.2d at 199 (citation omitted). However, because the
amount of methamphetamine possessed by the defendant was too
small to be sold or used, his possession could not “lead to
abuse, social harm, or property and violent crimes.” Id.
Accordingly, we affirmed the circuit court’s dismissal order on
13
In addition, Unsworn Falsification to Authorities is intended to
prevent harms relating to the “[e]fficiency and fairness of governmental
operations and public confidence in public administration[.]” HRS § 710-1063
cmt. (1993). “[T]he falsification must be made with intent to mislead a
public servant in the performance of the public servant’s official duty.” Id.
Although the commentary notes that this conduct may also have “unfortunate
consequences . . . for the individual whose life, freedom or property may be
affected,” the clear objective of the statute is to ensure that “information
which the government relies upon not be falsified.” Id.
The statute is not directed at harms to individuals such as
Complainant. Thus, although it appears that the State additionally could have
charged Pacquing with Unsworn Falsification to Authorities, the availability
of this charge does not render Pacquing’s conduct a de minimis violation of
the UPCPI statute.
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the ground that it was not possible for the defendant’s
possession to lead to the harm the statute sought to prevent.
Id. at 134-35, 988 P.2d at 199-200.
In contrast, there is nothing in the facts of the
instant case to suggest that Pacquing’s possession of
Complainant’s confidential personal information could not lead to
identity theft or other crimes. As stated, Pacquing had been in
possession of Complainant’s confidential personal information
since an unspecified time when the two were neighbors. He used
Complainant’s confidential personal information to attempt to
avoid arrest on two known occasions. Had he not been arrested on
April 7, 2008, Pacquing would have had a continuing opportunity
to utilize Complainant’s confidential personal information for a
variety of criminal purposes. Accordingly, Pacquing’s possession
of Complainant’s confidential personal information “implicates
the precise harm the legislature sought to avoid” in enacting the
UPCPI statute.14 See Rapozo, 123 Hawai#i at 342, 235 P.3d at 338
(noting that the defendant’s possession of “an operable bullet
with the potential to kill or seriously injure a human being, to
cause other physical harm, or to be used in the commission of a
crime” implicated the harm the legislature sought to prevent in
prohibiting felons from possessing firearms and ammunition).
14
The State argued that Pacquing’s conduct caused the harm or evil
sought to be prevented by HRS § 708-839.55. Viernes is directly applicable on
this point. Accordingly, we respectfully disagree with the dissent’s
assertion that this argument was waived by the State. Dissenting opinion at
32.
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For the foregoing reasons, Pacquing’s conduct caused or
threatened the harm or evil sought to be prevented by the UPCPI
statute.15
2. Pacquing did not establish that his conduct was too
trivial to warrant the condemnation of conviction
HRS § 702-236(1)(b) permits a court to dismiss a charge
as de minimis where the defendant’s conduct “[d]id 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[.]” (Emphasis added).
Before the court can make this determination, “all of the
relevant facts bearing upon the defendant’s conduct and the
nature of the attendant circumstances regarding the commission of
the offense should be shown to the judge.” Park, 55 Haw. at 616,
525 P.2d at 591. It is an abuse of discretion for a circuit
court to dismiss a charge as de minimis without considering “all
of the relevant surrounding circumstances” as required under HRS
§ 702-236. Rapozo, 123 Hawai#i at 347, 235 P.3d at 343. The
defendant bears the burden of proof on this issue, and thus bears
the burden of providing evidence to support a finding that his or
her conduct implicated the harm or evil sought to be prevented by
15
In the circuit court, Pacquing also argued that his conduct
constituted a de minimis offense under HRS § 702-236(1)(c), which applies to
conduct that “[p]resents such other extenuations that it cannot reasonably be
regarded as envisaged by the legislature in forbidding the offense.” His
application does not contain any arguments that specifically address this
prong of the statute, and the only arguments which could reasonably be
construed to apply are those we reject above. Accordingly, we do not
separately address this prong of the statute.
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the statute only to an extent too trivial to warrant the
condemnation of conviction. Oughterson, 99 Hawai#i at 256, 54
P.3d at 427; Carmichael, 99 Hawai#i 75, 80, 53 P.3d 214, 219
(2002).
As set forth below, we conclude that the circuit court
abused its discretion in concluding that the effect of Pacquing’s
conduct was too trivial to warrant the condemnation of
conviction.16 First, the circuit court disregarded principles of
law set forth in the de minimis statute when evaluating the
effect of Pacquing’s conduct. See Rapozo, 123 Hawai#i at 336,
235 P.3d at 332 (“A court abuses its discretion if it clearly
exceeded the bounds of reason or disregarded rules or principles
of law or practice to the substantial detriment of a party
litigant.”) (emphasis added) (citation omitted). Second,
Pacquing failed to carry his burden of demonstrating that his
possession of Complainant’s confidential personal information was
trivial, because he failed to address “the nature of the conduct
alleged and the nature of the attendant circumstances[.]” HRS
§ 702-236(1).
16
The circuit court did not make an express conclusion with regard
to triviality. Rather, the circuit court concluded that “[Pacquing’s] conduct
caused harm only to a minimal extent, and certainly not serious enough to
warrant a felony conviction.” (Emphasis added). Although “minimal” and
“trivial” do not have precisely the same meaning, compare Merriam-Webster’s
Collegiate Dictionary 791 (11th ed. 2003) (defining “minimal” as “the least
possible,” “barely adequate” or “very small or slight”) with Black’s Law
Dictionary 1647 (9th ed. 2009) (defining “trivial” as “[t]rifling;
inconsiderable; of small worth or importance”), we presume that the circuit
court intended this conclusion to apply to the triviality requirement set
forth in the de minimis statute.
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In granting Pacquing’s motion to dismiss, the circuit
court stated:
The circumstances surrounding the offense charged, the
resulting harm or evil in this case, and the probable
impact upon the community, are minimal. The police
immediately believed the Complainant . . . when he
informed them that he did not own a black Acura and he
did not get pulled over on March 23, 2008.
[Complainant] did not have to appear in traffic court
and did not incur any traffic violations as a result
of [Pacquing’s] conduct. This minimal result does not
warrant a felony charge for [Pacquing], or worse, a
felony conviction.
In so concluding, the circuit court addressed the harm
“actually cause[d]” by the offense. See HRS § 702-236(1)(b).
However, the circuit court did not address the harm
“threaten[ed]” by the offense, as required under HRS § 702-
236(1)(b). The harm threatened by Pacquing’s conduct is
particularly relevant here, where the harm to Complainant was
avoided only through a fortuitous turn of events: Officer Lum
neglected to give Pacquing a copy of the infraction citation
following the first traffic stop and thereafter traveled to
Complainant’s home to deliver the citation, Complainant then
advised the police that he was not involved in the traffic stop,
and Pacquing then was arrested for UPCPI before any further
citations could be issued.
Had any of these events not occurred, Complainant would
have incurred traffic citations for conduct in which he did not
engage. Being unaware of the citations, Complainant would not
have presented for any court appearances in relation to the
citations. A bench warrant then could have been issued for
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Complainant’s failure to appear. In addition, Pacquing would
have evaded arrest on the bench warrants he was attempting to
avoid, and could have continued to receive additional citations
in Complainant’s name.17
The circuit court did not address any of these
circumstances, or any other circumstances threatened by
Pacquing’s conduct, as required under HRS § 702-236(1)(b).
Because the circuit court disregarded principles of law set forth
in HRS § 702-236(1), it abused its discretion in granting
Pacquing’s motion to dismiss.
In addition, both Pacquing and the circuit court failed
to adequately address the circumstances surrounding the offense.
Rapozo is directly analogous on this point. There, the defendant
was charged with Ownership or Possession Prohibited of Any
Firearm or Ammunition By a Person Convicted of Certain Crimes, in
relation to an incident in which she was arrested and a bullet
was found in her bra during a search at the police station.
Rapozo, 123 Hawai#i at 331, 235 P.3d at 327. The circuit court
dismissed the charge as a de minimis violation. Id. On appeal,
this court concluded that the circuit court’s dismissal
constituted an abuse of discretion because the defendant failed
to adequately address her alleged conduct and attendant
17
In its opposition to Pacquing’s motion, the State argued, “Had
[Pacquing] not been caught, Complainant would have suffered the repercussions
of two unjustified traffic citations.” Accordingly, we respectfully disagree
with the dissent’s assertion that these circumstances were never argued by the
parties. Dissenting opinion at 38.
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circumstances. Id. Although her counsel’s declaration stated
that she was in possession of the bullet because she intended to
have it made into a charm for a bracelet, she
offered no further evidence or testimony to
corroborate that asserted explanation. She did not
explain why, if her purpose in possessing the bullet
was to make it into a charm for a bracelet, she was
carrying it with her while driving at 1:14 a.m. in
Waikiki. Nor did she explain why, if her purpose was
benign, she concealed the bullet in an intimate part
of her clothing. Nor did she explain where and when
she obtained the bullet, and where she was traveling
from and going to when she was stopped by police.
Id. at 345, 235 P.3d at 341.
Here, Pacquing has offered even less with regard to his
alleged conduct and the attendant circumstances. None of the
facts set forth in Pacquing’s declaration of counsel or his de
minimis motion explain the circumstances surrounding Pacquing’s
unauthorized possession of Complainant’s confidential personal
information. Moreover, the only fact in the circuit court’s
findings that addresses the circumstances surrounding Pacquing’s
unauthorized possession of Complainant’s confidential personal
information was apparently taken from the State’s memorandum is
opposition, and states, “[Complainant] is [Pacquing’s]
neighbor.”18 The remaining facts in both Pacquing’s declaration
18
The circuit court’s finding that Pacquing and Complainant were
neighbors is unchallenged and therefore binding on this court. See Kelly v.
1250 Oceanside Partners, 111 Hawai#i 205, 227, 140 P.3d 985, 1007 (2006).
Nevertheless, we disagree with the dissent’s assertion that this finding is
based on evidence submitted by Pacquing. Dissenting opinion at 41. In
asserting that Pacquing put these facts before the court, the dissent relies
on argument contained in Pacquing’s Motion to Dismiss, or in the Alternative,
Motion for a Bill of Particulars, rather than on the declaration of counsel
and argument submitted in relation to Pacquing’s de minimis motion. See
Dissenting opinion at 40-41, 41 n.22.
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of counsel and the circuit court’s findings of fact address the
circumstances surrounding Pacquing’s two traffic stops, and do
not provide any information with regard to Pacquing’s possession
of Complainant’s confidential information. The fact that
Complainant is Pacquing’s neighbor does not, by itself, explain
how Pacquing came to possess that information.19
Moreover, unlike in Rapozo, Pacquing did not offer a
“benign” explanation for his conduct. Id.; see also Park, 55
Haw. at 617-18, 525 P.2d at 592 (concluding that it was an abuse
of discretion to dismiss a charge as de minimis “without any
indicators to show that [the offense] was in fact an innocent,
technical infraction”). Indeed, Pacquing offered no explanation
at all. Additionally, although he now asserts that he possessed
the Complainant’s information in order to avoid arrest, this
explanation cannot be described as benign, innocent, or a
technical infraction.20
Pacquing argues that Rapozo is distinguishable from the
instant case because, in Rapozo, the defense did not present any
19
The dissent concludes that this information would be “naturally
acquired over the course of their relationship” and “arose out of the ordinary
circumstance of knowing to whom he lived next to.” Dissenting opinion at 34,
41. Again, the dissent bases this conclusion on argument contained in
Pacquing’s Motion to Dismiss, or in the Alternative, Motion for a Bill of
Particulars, rather than on the declaration of counsel and argument submitted
in relation to Pacquing’s de minimis motion. Dissenting opinion at 33-34.
Moreover, this explanation does not appear in the circuit court’s findings.
Respectfully, the dissent’s conclusion is speculative.
20
Accordingly, we respectfully disagree with the dissent’s assertion
that the record indicates that Pacquing could have possessed Complainant’s
confidential information for an “unobjectionable purpose.” Dissenting opinion
at 33. The only “purpose” evident in the record was Pacquing’s intent to
avoid arrest on outstanding warrants.
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evidence. However, Rapozo is identical to the instant case in
this regard. “Rapozo addressed her alleged conduct and the
attendant circumstances solely through her attorney’s declaration
in support of her motion to dismiss.” Rapozo, 123 Hawai#i at
345, 235 P.3d at 341. Similarly, here, Pacquing addressed his
alleged conduct and the attendant circumstances solely through
his attorney’s declaration in support of his motion to dismiss.
Nevertheless, Pacquing asserts that his case differs
from Rapozo because, here, “both parties agreed to and stipulated
that the facts set forth in the De Minimis Motion and in the
State’s Memorandum were all of the relevant facts bearing upon
the defendant’s conduct and the nature of the attendant
circumstances regarding the commission of the offense.” However,
the stipulation did not take place prior to or during the hearing
on Pacquing’s motion, but rather after the circuit court ruled
and the State filed its notice of appeal. Thus, the circuit
court did not have jurisdiction to accept the stipulation, and
the stipulation was of no effect. TSA Int’l Ltd. v. Shimizu
Corp., 92 Hawai#i 243, 265, 990 P.2d 713, 735 (1999) (“Generally,
the filing of a notice of appeal divests the trial court of
jurisdiction over the appealed case.”) (citation omitted). In
any event, there was no stipulation as to the facts at the time
the circuit court ruled on the de minimis motion.21
21
During the hearing on the stipulation, the DPA stated, “Well, my
understanding is that back then, I am pretty sure that both sides already
(continued...)
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Finally, even assuming that the State somehow could be
limited by its post hoc stipulation, the State did not, as
Pacquing asserts, agree that the stipulated facts were “all of
the relevant facts bearing upon the defendant’s conduct and the
nature of the attendant circumstances regarding the commission of
the offense.” Rather, the State stipulated that “there are no
material differences in the recollection of the facts” set forth
in the respective memoranda, and that “those facts should be made
part of the record[.]”22 Moreover, regardless of the State’s
stipulation, it was nonetheless Pacquing’s burden to establish
that his conduct did not cause or threaten the harm sought to be
prevented by the UPCPI statute, or that it did so only to a
trivial extent. See State v. Fukugawa, 100 Hawai#i 498, 507, 60
P.3d 899, 908 (2002). For the reasons set forth above, he did
not meet this burden.
Accordingly, the circuit court abused its discretion in
granting Pacquing’s motion to dismiss.
21
(...continued)
stipulated to the facts that were in the respective memorandum[.]” However,
there is nothing in the record to indicate that the parties had previously
stipulated to these facts. Rather, the only stipulation contained in the
record is that which occurred subsequent to the filing of the State’s notice
of appeal.
22
Accordingly, the dissent’s citation to State v. Adler, 108 Hawai#i
169, 175, 118 P.3d 652, 658 (2005), in which a party was judicially estopped
from taking contrary positions with respect to the applicable law during the
course of a case, is inapposite. See dissenting opinion at 14 n.6.
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IV. Conclusion
Although we do not adopt the ICA’s reasoning, we agree
with its conclusion that the dismissal order must be vacated.
Accordingly, we affirm the ICA’s February 23, 2012 judgment,
which vacated the circuit court’s February 11, 2009 Findings of
Fact, Conclusions of Law and Order Granting Defendant’s Motion to
Dismiss for De Minimis Violation, and remanded for further
proceedings.
Craig W. Jerome for /s/ Mark E. Recktenwald
petitioner
/s/ Paula A. Nakayama
Brian R. Vincent for
respondent /s/ Sabrina S. McKenna
/s/ R. Mark Browning
-36-