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Electronically Filed
Supreme Court
29347
21-DEC-2010
01:27 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Petitioner/Plaintiff-Appellee,
vs.
WANDA RURIKO MITA,
Respondent/Defendant-Appellant.
NO. 29347
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD Criminal No. 164978DL (1P108009607)
December 21, 2010
RECKTENWALD, C.J., NAKAYAMA, J., AND CIRCUIT JUDGE LEE
IN PLACE OF MOON, C.J., RECUSED, AND ACOBA, J.,
DISSENTING, WITH WHOM DUFFY, J., JOINS
OPINION OF THE COURT BY RECKTENWALD, C.J.
Wanda Ruriko Mita was charged with Animal Nuisance in
violation of Revised Ordinances of Honolulu (ROH) § 7-2.3 (1990 &
Supp. No. 6, 2-05), which provides that “[i]t is unlawful to be
the owner of an animal, farm animal, or poultry engaged in animal
nuisance as defined in section 7-2.2[.]” Mita was originally
issued a citation that indicated that she committed this offense
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by owning, harboring, or keeping two dogs that were barking.
Prior to the start of trial, the State also orally charged Mita
by using language that tracked the provisions of ROH § 7-2.3.
Mita objected that the charge was insufficient because it did not
give Mita notice of what type of “animal nuisance” she was being
charged with, as that term is defined in ROH § 7-2.2.1 The
District Court of the First Circuit, Honolulu Division (district
court)2 concluded that the charge was sufficient, and convicted
Mita after a bench trial.
Mita appealed to the Intermediate Court of Appeals
(ICA). In its February 23, 2010 Summary Disposition Order (SDO),
the ICA cited State v. Wheeler, 121 Hawai#i 383, 219 P.3d 1170
(2009), in concluding that the charge against Mita was
insufficient because the definition of the term “animal nuisance”
in ROH § 7-2.2 contains an essential element of the offense of
animal nuisance, and the offense cannot be understood by a person
of common understanding without including that definition. The
ICA accordingly vacated the judgment of the district court, and
remanded with instructions to dismiss without prejudice.
The State of Hawai#i (State) raises the following
question in its application for a writ of certiorari: “Whether
the ICA gravely erred as a matter of law and fact in holding that
the oral charge of Animal Nuisance was insufficient.”
For the reasons set forth below, we conclude that the
citation and oral charge, when considered together, gave Mita
fair notice of the offense. In contrast to the circumstances in
Wheeler, the definition of “animal nuisance” in ROH § 7-2.2 does
not create an additional essential element of the offense, and,
1
As discussed further infra, ROH § 7-2.2 (1990 & Supp. No. 6, 2-05)
defines animal nuisance as including several different types of animal
behavior.
2
The Honorable Faye M. Koyanagi presided.
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in any event, is consistent with its commonly understood meaning.
Thus, the charge against Mita was sufficient. Accordingly, we
reverse the ICA’s judgment, and remand this case to the ICA to
address the remaining issues raised by Mita, which the ICA did
not resolve.
I. Background
A. Background Facts
1. Citation and Oral Charge
On June 5, 2008, Mita was issued an “Animal License &
Regulation – Complaint & Summons” (citation). The citation,
signed “Wanda Mita[,]” stated that Mita “[d]id on/or about this 3
day of June Yr 08 at about 1940-2050 did own, harbour or keep
(animal description): Boxers Name Roxy/Obie Color Brown . . . at
(location): [Mita’s residence address] and did commit the offense
of: . . . animal nuisance-Sec.: 7-2.3 Barking Dog[.]”
Additionally, the citation had a section entitled “Officer’s
Report” which stated that “Mita was issued a Barking 3rd
citation. She was already issued a previous Barking 2 warning
citation.” The citation also advised Mita of her appearance date
in court.
Mita appeared in court on July 17, 2008, represented by
counsel, and waived reading of the charge and entered a plea of
not guilty.
At the start of trial on August 14, 2008, prior to any
witnesses being called, the Deputy Prosecuting Attorney (DPA)
read the following charge to Mita: “On or about June 3rd, 2008,
in the city and county of Honolulu, state of Hawaii, you as the
owner of an animal, farm animal, or poultry engaged in animal
nuisance as defined in section 7-2.2, thereby violating section
7-2.3 of the Revised Ordinances of Honolulu.”
ROH § 7-2.3 provides as follows:
[] Animal nuisance –- Prohibited. It is unlawful to be
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the owner of an animal, farm animal or poultry engaged
in animal nuisance as defined in Section 7-2.2;
provided, however, that it shall not be deemed to be
animal nuisance for purposes of this article if, at
the time the animal, farm animal or poultry is making
any noise, biting or stinging, a person is trespassing
or threatening trespass upon private property in or
upon which the animal, farm animal or poultry is
situated, or for any other legitimate cause which
teased or provoked said animal, farm animal or
poultry.
(Emphasis added).
ROH § 7-2.2 defines “animal nuisance” as follows:
. . . .
“Animal nuisance,” for the purposes of this
section, shall include but not be limited to any
animal, farm animal or poultry which:
(a) Makes noise continuously and/or incessantly for a
period of 10 minutes or intermittently for one-half
hour or more to the disturbance of any person at any
time of day or night and regardless of whether the
animal, farm animal or poultry is physically situated
in or upon private property;
(b) Barks, whines, howls, crows, cries or makes any
other unreasonable noise as described in Section
7-2.4(c)[ 3] of this article; or
(c) Notwithstanding the provisions of [Hawai#i Revised
Statutes (HRS)] Section 142-75 [governing the duties
and liabilities of an owner of a dog that has bitten
another person] or any other applicable law, bites or
stings a person.
Mita objected to the oral charge:
[] Your Honor, if I may make for the record an
objection to the arraignment. I do not believe that
arraignment is specific enough to put the defendant
3
ROH § 7-2.4(c) (1990 & Supp. No. 6, 2-05) provides:
Noise is unreasonable within the meaning of this
article if considering the nature and the
circumstances surrounding the animal nuisance,
including the nature of the location and the time of
the day or night, it interferes with reasonable
individual or group activities such as, but not
limited to, communication, work, rest, recreation or
sleep; or the failure to heed the admonition of a
police officer or a special officer of the animal
control contractor that the noise is unreasonable and
should be stopped or reduced.
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specifically on notice what part of the - if I may
call “barking dog” ordinance she's being charged with.
There’s [sic] basically four violations or four acts
which may constitute a violation of the ordinance. One
is whether or not the dog made noise continuously
and/or incessantly for a period of ten minutes; that’s
ordinance section 7-2.2(a); or made noise
intermittently for one half-hour or more to the
disturbance of any person at any time of day or night;
that’s ordinance section 7-2.2(a); or bark, whine,
howl, cry, or make other unreasonable noise which
interfered with reasonable individual or group
activity such as but not limited to communication,
work, rest, recreation, or sleep; that’s ordinance
section 7-2.2[(b)] and incorporating 7-2.4(c); or
failed to heed the admonition of a police officer or a
special officer of the animal control contractor that
the noise was unreasonable and should be stopped;
that’s ordinance section[s] 7-2.2[(b)] and 7-2.4(c).
And it’s our position that under State v. Jendrusch,
58 Haw. 279, [567 P.2d 1242 (1977),] a 1977 case, we
should receive specificity in the arraignment so that
we know exactly which of these sections of the
ordinance we must defend against.
The DPA argued that the oral charge was sufficient
because:
[Mita] is charged under section 7-2.3. 7-2.2 is a
definition section, in which it defines animal
nuisance, and section 7-2.3 incorporates a general
animal nuisance as defined in section 7-2.2; and the
State’s position would be that the wording of the
statute is broad enough to encompass all subsections
(a), (b), and (c) listed under animal nuisance.
The DPA offered, however, to read the definition of
animal nuisance, but the district court found that a reading was
unnecessary and that the arraignment was proper. Mita pled not
guilty.
2. Evidence at Trial
At trial, the State called two witnesses, both of whom
were neighbors of Mita. Both witnesses testified that they heard
Mita’s dogs barking on the evening of June 3, 2008. The first
witness testified that she made a written record of Mita’s dogs
barking on June 3, 2008 from 7:45 p.m. to 8:50 p.m. She
testified that she knew it was Mita’s dogs barking by their
distinctive bark. The second witness testified that she made a
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written record of Mita’s dogs barking on June 3, 2008 from
approximately 7:30 p.m. to 8:45 p.m. She testified that she
specifically saw Mita’s dogs barking that evening, and could
distinguish their bark from that of other dogs in the area.
Following the State’s evidence, Mita moved for a
judgment of acquittal on six grounds outlined in her Trial
Memorandum and Memorandum in Support of Motion for Judgment of
Acquittal filed on August 14, 2008, as well as her Supplemental
Memorandum in Support of Motion for Judgment of Acquittal filed
on August 22, 2008. Relevant to the instant appeal, Mita argued
that the charge was insufficient because it only charged Mita
with violating ROH § 7-2.3, prohibiting animal nuisance, and did
not apprise Mita what specific act contained within the
definition of “animal nuisance” in ROH § 7-2.2 she was being
charged with. The district court denied the motion, and ruled,
inter alia, that the charge was sufficient.
The defense called one witness, who was also a neighbor
of Mita. The defense witness testified that she “did not notice
any dogs barking” the evening of June 3, 2008, and that if Mita’s
dogs had been barking, she was “almost certain” that she would
have noticed it.
3. Renewed motion for judgment of acquittal
After the defense rested, Mita renewed her motion for
judgment of acquittal. The district court denied the motion and
found Mita guilty of violating ROH § 7-2.3.4 The district court
entered its judgment on August 28, 2008, convicting Mita of
violating ROH § 7-2.3 and sentencing Mita to pay a $50 fine.
4
The district court concluded that the State proved beyond a
reasonable doubt that Mita’s dogs were barking, based on the testimony of the
State’s witnesses. The district court additionally concluded that the State’s
witnesses “had a greater opportunity to make these observations and hearing
the dogs” than did the defense witness, due to the positioning of the
respective properties.
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Mita filed her notice of appeal on September 5, 2008.
B. ICA Appeal
On appeal to the ICA, Mita raised several points of
error. She argued that the State failed to prove the following
beyond a reasonable doubt: (1) that Mita owned the dogs which
were allegedly barking; (2) Mita’s reckless state of mind; (3)
that the dogs were barking in violation of ROH § 7-2.3; and (4)
that a qualified animal control officer had issued Mita the
citation. Additionally, Mita argued that the charge was
insufficient and that ROH § 7-2.3 is unconstitutionally vague.
Citing to Wheeler, a majority of the ICA held in a SDO
that the charge was insufficient, and therefore vacated Mita’s
conviction and sentence and remanded the case to the district
court with instructions to dismiss without prejudice.
Specifically, the ICA concluded that:
The offense of Animal Nuisance is not understood by a
person of common understanding because the ordinance
refers to “an animal, farm animal or poultry engaged
in animal nuisance as defined in Section 7-2.2.” The
term “animal nuisance” is specifically limited to
three types of actions which the animal, farm animal,
or poultry must commit in order to be considered a
violation of ROH § 7-2.3. A violation of ROH § 7-2.3
simply cites another ROH section which contains an
essential element that the State must prove to find
Mita guilty. This did not provide fair notice to Mita.
The ICA did not address Mita’s remaining points of
error.
Chief Judge Nakamura dissented, concluding that the oral
charge against Mita was sufficient. He distinguished the charge
against Mita from that in Wheeler, where the defendant was charged
with operating a vehicle under the influence of an intoxicant
(OVUII).5 First, Chief Judge Nakamura reasoned that, unlike the
5
As discussed infra, the charge in Wheeler tracked the language of
the relevant statute, HRS § 291E-61 (2007), and alleged that the defendant
“did operate or assume actual physical control of a . . . vehicle[,]” but did
(continued...)
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term “operate” as used in the charge in Wheeler, “[t]he statutory
definition of ‘animal nuisance’ does not depart from the commonly
understood meaning of the term.” Second, he concluded that unlike
Wheeler, where “the statutory definition of the term ‘operate’
create[d] an additional essential element” and therefore needed to
be alleged, “the statutory definition of ‘animal nuisance’ does
not purport to create an additional essential element for the
offense.”
Additionally, Chief Judge Nakamura noted that the oral
charge “specifically directed Mita to the statutory definition of
the term ‘animal nuisance’” in ROH § 7-2.2, which “served to
further inform and apprise Mita of the nature of the charge
against her.” He recognized that “[a]lthough including a citation
to the offense statute in a charge does not cure a charge that
omits an essential element of the offense, it can be argued that a
specific reference to the statutory definition, which tells the
defendant where to look for additional information, may be
considered where the charge already encompasses the essential
elements of the offense.” Finally, he concluded that pursuant to
Hawai#i Rules of Penal Procedure (HRPP) Rule 7(a) (2008), cited
infra, the charge in the instant case consisted of both the oral
charge and the citation, and when considered together, they
sufficiently alleged the essential elements of the offense of
animal nuisance.
On March 16, 2010, the ICA filed its Judgment on Appeal.
The State timely filed its application on June 10, 2010. Mita did
not file a response.
5
(...continued)
not further include the definition of the term “operate” set forth in HRS
§ 291E-1 (2007): “to drive or assume actual physical control of a vehicle upon
a public way, street, road, or highway . . . .” 121 Hawai#i at 386-87, 391,
219 P.3d at 1173-74, 1178 (emphasis in original).
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II. Standard of Review
“‘Whether [a charge] sets forth all the essential
elements of [a charged] offense . . . is a question of law[,]’
which we review under the de novo, or ‘right/wrong,’ standard.’”
Wheeler, 121 Hawai#i at 390, 219 P.3d at 1177 (citation omitted).
III. Discussion
The State argues that the ICA erred for two reasons.
First, the State argues that the ICA erred because the citation
and oral charge should be considered together under HRPP Rule
7(a),6 and when doing so, the charge sufficiently alleges all the
6
HRPP Rule 7(a) provides:
(a) Use of indictment, information, or complaint. The
charge against a defendant is an indictment, an
information, or a complaint filed in court, provided
that, in any case where a defendant is accused of an
offense that is subject to a maximum sentence of less
than six months in prison (other than Operating a
Vehicle Under the Influence of an Intoxicant) and is
issued a citation in lieu of physical arrest pursuant
to Section 803-6(b) of the [HRS] and summoned to
appear in court, the citation and an oral recitation
of the essential facts constituting the offense
charged as set forth in Rule 5(b)(1), shall be deemed
the complaint, notwithstanding any waiver of the
recitation.
(Emphasis added).
HRPP Rule 5(b)(1) provides, in relevant part:
Arraignment. In the district court, if the offense
charged against the defendant is other than a felony,
the complaint shall be filed and proceedings shall be
had in accordance with this section (b). . . . If a
defendant is issued a citation in lieu of physical
arrest pursuant to Section 803-6(b) of the [HRS] and
summoned to be orally charged as authorized by Rule
7(a) of these rules, a copy of the citation shall be
filed and proceedings shall be had in accordance with
this section (b). . . . When the offense is charged by
a citation and the defendant is summoned to be orally
charged, arraignment shall be in open court or by
video conference when permitted by Rule 43. The
arraignment shall consist of a recitation of the
essential facts constituting the offense charged to
the defendant and calling upon the defendant to plead
(continued...)
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essential elements of the offense of animal nuisance. Second, the
State argues that “the ICA’s reliance upon Wheeler in holding the
oral charge insufficient was misplaced” because “the charge here,
unlike the charge in Wheeler, (1) on its face is ‘readily
comprehensible to persons of common understanding[,]’ and, (2)
cited the essential elements of the offense and incorporated a
statutory reference to the offense’s definitional section.”
For the reasons set forth below, we conclude that the
charge against Mita was sufficient.
A. The Oral Charge Was Sufficient Because it Gave Notice to Mita
of the Nature and Cause of the Accusation
Article I, section 14 of the Hawai#i Constitution
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be informed of the nature and cause of
the accusation[.]” “The criminal process begins when the accused
is charged with a criminal offense, if it is not a felony, by
complaint or oral charge.” State v. Sprattling, 99 Hawai#i 312,
317, 55 P.3d 276, 281 (2002) (citing HRPP Rule 5(b)(1)). “[T]he
sufficiency of the charging instrument is measured, inter alia, by
‘whether it contains the elements of the offense intended to be
charged, and sufficiently apprises the defendant of what he [or
she] must be prepared to meet[.]’” Wheeler, 121 Hawai#i at 391,
219 P.3d at 1178 (quoting State v. Wells, 78 Hawai#i 373, 379-80,
894 P.2d 70, 76-77 (1995)) (some brackets in original, some
added). “In other words, the oral charge must be worded in a
manner such ‘that the nature and cause of the accusation [could]
6
(...continued)
thereto.
(Some emphasis added).
The maximum sentence for a violation of the offense of animal
nuisance is thirty days imprisonment. ROH § 7-2.10(b) (1990 & Supp. No. 6,
2-05).
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be understood by a person of common understanding[.]’” Sprattling,
99 Hawai#i at 318, 55 P.3d at 282 (quoting State v. Israel, 78
Hawai#i 66, 70, 890 P.2d 303, 307 (1995)) (brackets in original).
The relevant inquiry, therefore, is whether or not the charge
provided the accused with fair notice of the essential elements.
Wheeler, 121 Hawai#i at 395, 219 P.3d at 1182. This court has
recognized that “‘[a] charge defective in this regard amounts to a
failure to state an offense, and a conviction based upon it cannot
be sustained, for that would constitute a denial of due process.’”
Id. at 391, 219 P.3d at 1178 (quoting State v. Jendrusch, 58 Haw.
279, 281, 567 P.2d 1242, 1244 (1977)).
As noted above, the ICA concluded that, pursuant to this
court’s holding in Wheeler, the charge in the instant case was
insufficient. However, Wheeler is distinguishable. In Wheeler,
the defendant was orally charged with operating a vehicle under
the influence of an intoxicant (OVUII). 121 Hawai#i at 386-87,
219 P.3d at 1173-74. The charge tracked the language of the
relevant statute, HRS § 291E-61, and alleged that the defendant
“did operate or assume actual physical control of a motor vehicle
while under the influence of alcohol . . . .” Id. However, the
charge did not further include the definition of the term
“operate,” which was defined in HRS § 291E-1 as “to drive or
assume actual physical control of a vehicle upon a public way,
street, road, or highway . . . .” Id. at 391, 219 P.3d at 1178
(emphasis in original). This court held that HRS § 291E-1
establishes an attendant circumstance of the proscribed conduct,
i.e., that the offense of OVUII occur on a public way, street,
road, or highway. Id. at 392-93, 219 P.3d at 1179-80. Therefore,
since the location of the proscribed conduct established by HRS
§ 291E-1 was an attendant circumstance, this court held that it
was an essential element of the offense of OVUII that should have
been included within the charge against the defendant. Id.
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(citing HRS § 702-205 (1993)).7
This court emphasized that although the charge tracked
the language of the statute, the term “operate” as used in HRS
§ 291E-61 “is neither ‘unmistakable’ nor ‘readily comprehensible
to persons of common understanding’” and therefore did not provide
the defendant with fair notice of that aspect of the charge. Id.
at 394-95, 219 P.3d at 1181-82 (citation omitted). Specifically,
this court concluded that the common understanding of the term
“operate” “does not geographically limit where the conduct must
take place.” Id. at 394, 219 P.3d at 1181. Therefore, merely
including the term “operate” in the charge, without providing the
defendant with notice that his conduct must have occurred “upon a
public way, street, road, or highway,” was insufficient. Id.
Additionally, this court recognized that “none of the other
information in the charge provided [the defendant] with fair
notice of that element” where, for example, the charge “did not
contain any specification of where the alleged offense occurred,
other than it took place in the City and County of Honolulu.” Id.
at 395, 219 P.3d at 1182.
There are two significant factors present in the instant
case that were not present in Wheeler, thus making it readily
distinguishable: (1) the definition of “animal nuisance” in ROH
§ 7-2.2 does not create an additional essential element of the
offense; and (2) in any event, the definition of “animal nuisance”
is consistent with its commonly understood meaning and therefore
Mita had fair notice of the offense charged. Thus, the oral
charge against Mita, which tracked the language of ROH § 7-2.3,
sufficiently alleged all of the essential elements of the offense
7
HRS § 702-205 provides: “The elements of an offense are such (1)
conduct, (2) attendant circumstances, and (3) results of conduct, as: (a) Are
specified by the definition of the offense, and (b) Negative a defense (other
than a defense based on the statute of limitations, lack of venue, or lack of
jurisdiction).”
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of animal nuisance.
Under the Hawai#i Penal Code, the essential elements of
an offense are (1) conduct; (2) attendant circumstances; and (3)
results of conduct. Wheeler, 121 Hawai#i at 391, 219 P.3d at 1178
(citing HRS § 702-205 (1993)). In Wheeler, because the definition
of the term “operate” created an attendant circumstance, which is
an essential element of the charge pursuant to HRS § 702-205, this
court concluded that the oral charge must provide fair notice of
that element. Id. at 392-93, 219 P.3d at 1179-80. Here, Mita was
charged with violating ROH § 7-2.3, which provides, in relevant
part, that “[i]t is unlawful to be the owner of an animal, farm
animal or poultry engaged in animal nuisance as defined in Section
7-2.2.” Therefore, in order for a person to be found guilty of
violating ROH § 7-2.3 the State must prove (1) that person is the
owner of an animal, farm animal or poultry which (2) engaged in
animal nuisance.
The oral charge against Mita directly tracked ROH § 7-
2.3 and read as follows: “On or about June 3rd, 2008, in the city
and county of Honolulu, state of Hawaii, you as the owner of an
animal, farm animal, or poultry engaged in animal nuisance as
defined in section 7-2.2, thereby violating section 7-2.3 of the
Revised Ordinances of Honolulu.” The charge did not further
allege the definition of “animal nuisance” as found in ROH § 7-
2.2. However, this did not render the oral charge insufficient
because the definition does not create additional essential
elements of the offense of animal nuisance.8
The ICA concluded that “[t]he term ‘animal nuisance’ is
8
We respectfully disagree with the dissent’s contention that State
v. Nobriga, 10 Haw. App. 353, 873 P.2d 110 (1994), overruled on other grounds
by State v. Maelega, 80 Hawai#i 172, 907 P.2d 758 (1995), stands for the
proposition that ROH § 7-2.2 contains additional essential elements of the
offense of animal nuisance. Nobriga did not address whether ROH § 7-2.2 sets
forth additional essential elements, and clearly stated that the “offense” of
animal nuisance “is set forth in [ROH] § 7-2.3 (1990)[.]” Id. at 355, 873
P.2d at 112 (emphasis added).
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specifically limited to three types of actions which the animal,
farm animal, or poultry must commit in order to be considered a
violation of ROH § 7-2.3.” However, the definition of “animal
nuisance” in ROH § 7-2.2 does not create elements in addition to
those already required by ROH § 7-2.3, but instead provides an
inclusive, rather than exclusive, list of examples of what the
term may include:
“Animal nuisance,” for the purposes of this
section, shall include but not be limited to any
animal, farm animal or poultry which:
(a) Makes noise continuously and/or incessantly for a
period of 10 minutes or intermittently for one-half
hour or more to the disturbance of any person at any
time of day or night and regardless of whether the
animal, farm animal or poultry is physically situated
in or upon private property;
(b) Barks, whines, howls, crows, cries or makes any
other unreasonable noise as described in Section
7-2.4(c) of this article[, quoted supra note 3]; or
(c) Notwithstanding the provisions of HRS Section
142-75 or any other applicable law, bites or stings a
person.
(Emphasis added).
Thus, the charge against Mita is distinguishable from
Wheeler because unlike the term “operate,” the definition of the
term “animal nuisance” does not create any additional attendant
circumstances or other essential elements of the offense of animal
nuisance. Wheeler does not require that the State provide
statutory definitions in every charge which tracks the language of
a statute that includes terms defined elsewhere in the code.
Requiring the State to do so would render charges unduly complex,
in contravention of the policy reflected in HRPP Rule 7(d) that
“[t]he charge shall be a plain, concise and definite statement of
the essential facts constituting the offense charged.” Rather, as
this court concluded in Wheeler, the State need only allege the
statutory definition of a term when it creates an additional
essential element of the offense, and the term itself does not
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provide a person of common understanding with fair notice of that
element. See Wheeler, 121 Hawai#i at 393, 219 P.3d at 1180 (“In
general, ‘[w]here the statute sets forth with reasonable clarity
all essential elements of the crime intended to be punished, and
fully defines the offense in unmistakable terms readily
comprehensible to persons of common understanding, a charge drawn
in the language of the statute is sufficient.’”) (citations
omitted) (brackets in original).
The second significant factor discussed by this court
when analyzing the sufficiency of the charge in Wheeler was
whether the term “operate” gave the defendant fair notice of the
requirement that the proscribed conduct occur on a public way,
street, road, or highway. 121 Hawai#i at 393-96, 219 P.3d at
1181-83. Specifically, this court considered whether the
statutory definition of the term “operate” is “readily
comprehensible to persons of common understanding[,]” namely
whether a person would understand that to “operate” means not only
that a person “perform[s] a function, or operation” but also
includes the additional requirement of doing so “upon a public
way, street, road, or highway.” Id. This court contrasted the
situation in Wheeler with that in Hamling v. United States, 418
U.S. 87 (1974). In Hamling, the petitioners challenged the
sufficiency of an indictment which charged them with the “use of
the mails to carry an obscene book,” arguing that although the
indictment tracked the language of the statute, it did not provide
them with adequate notice because it failed to include the
definition of the term “obscenity.” Id. at 91, 117. The United
States Supreme Court rejected that argument, holding that
“obscenity” “is a term sufficiently definite in legal meaning to
give a defendant notice of the charge against him.” Id. at 118-
19.
We emphasized that Hamling was distinguishable from the
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circumstances in Wheeler because “the term ‘obscenity’ itself
provided a person of common understanding with some notice of the
nature of the prohibited conduct. In contrast, ‘operate’ has been
statutorily defined . . . in a manner that does not comport with
its commonly understood definition.” Wheeler, 121 Hawai#i at 394,
219 P.3d at 1181. Specifically, this court recognized that the
common understanding of the term “operate” “does not
geographically limit where the conduct must take place.” Id.
Therefore, merely including the term “operate” in the charge,
without providing the defendant with notice that his conduct must
have occurred “upon a public way, street, road, or highway[,]”
rendered the charge insufficient. Id. at 394-96, 219 P.3d at
1181-83.
The charge in the instant case, like that in Wheeler,
tracked the language of the relevant ordinance, ROH § 7-2.3.
However, in contrast to Wheeler, “animal nuisance” is consistent
with its commonly-understood meaning and provides a defendant with
notice of what is being charged. The dictionary definitions of
both “animal” and “nuisance” support this conclusion. The term
“animal” is defined as “[a]ny living creature other than a human
being[,]” Black’s Law Dictionary 102 (9th ed. 2009) or “a mammal
as distinguished from a bird, reptile, or other nonmammal.”
Webster’s 3rd International Dictionary of the English Language
Unabridged 85 (3d ed. 1967) (hereinafter “Webster’s”). The term
“nuisance” is defined as “[a] condition, activity, or situation
(such as a loud noise or foul odor) that interferes with the use
or enjoyment of property[,]” Black’s Law Dictionary at 1171, or
“an offensive, annoying, unpleasant, or obnoxious thing or
practice: a cause or source of annoyance that although often a
single act is usu[ally] a continuing or repeated invasion or
disturbance of another’s right[,]” Webster’s at 1548, or “a
person, thing, or circumstance causing inconvenience or
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annoyance[,]” The New Oxford American Dictionary 1175 (2001).
Thus, a person of common understanding would have fair
notice that “animal nuisance” could include the various examples
of conduct provided in ROH § 7-2.2: that the animal, for example,
(1) continuously makes noise for at least ten minutes or
intermittently for a half hour or more so as to disturb others,
(2) barks, whines, howls, crows, cries or makes other unreasonable
noises, or (3) bites or stings a person, all of which would cause
damage, annoyance or inconvenience to others. Unlike Wheeler,
where it could not be said that a person would understand that the
term “operate” necessarily means that they must do so on a public
street or roadway, there is nothing contained within the
definition of “animal nuisance” in ROH § 7-2.2 that cannot be
discerned from its common usage. Rather, like in Hamling, 418
U.S. at 102, where the United States Supreme Court held that the
term “obscene” provided the petitioners with sufficient notice,
the common meaning of the term “animal nuisance” is sufficiently
broad enough to encompass the component parts of its definition.
The charge against Mita which tracked the language of ROH § 7-2.3
without further defining “animal nuisance” was therefore
sufficient.
Moreover, in contrast to Wheeler, the charge against
Mita contained other information that provided her with fair
notice of the offense charged. Pursuant to HRPP Rule 7(a), when a
defendant is accused of an offense that is subject to a maximum
sentence of less than six months imprisonment, and the defendant
is issued a citation rather than placed under arrest, the citation
and the oral charge are considered together to be the complaint.
HRPP Rule 7(a).9 Here, the maximum sentence for a violation of
9
HRPP Rule 7(a) states in relevant part: “[I]n any case where a
defendant is accused of an offense that is subject to a maximum sentence of
less than six months in prison . . . and is issued a citation in lieu of
(continued...)
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the offense of animal nuisance is thirty days imprisonment. ROH
§ 7-2.10(b). Therefore, when analyzing the sufficiency of the
charge of animal nuisance against Mita, this court considers both
the citation issued to Mita, as well as the oral charge against
her. When doing so, it is clear that all the essential elements
of the charge were properly alleged.
As noted above, the citation, signed by Mita, stated
that Mita “[d]id on/or about this 3 day of June Yr 08 at about
1940-2050 did own, harbour or keep (animal description): Boxers
Name Roxy/Obie Color Brown . . . at (location): [Mita’s residence
address] and did commit the offense of: . . . animal nuisance-
Sec.: 7-2.3 Barking Dog[.]” The citation also had a section
entitled “Officer’s Report” which stated that “Mita was issued a
Barking 3rd citation. She was already issued a previous Barking 2
warning citation.” Mita’s citation therefore put her on notice
that she was cited for violating ROH § 7-2.3 (her third citation)
because her two dogs were barking. Thus, when the DPA orally
charged Mita prior to trial, alleging that she was the owner of an
animal that engaged in animal nuisance, Mita had fair notice that
the charge was due to her dogs, Roxy and Obie, barking in a manner
that disturbed others. Accordingly, the ICA erred in concluding
that the charge was insufficient. Cf. State v. Baker, 55 Haw.
621, 622-23, 525 P.2d 571, 572 (1974) (holding that the indictment
charging defendant with forgery in the second degree was
sufficient, although inarticulately drawn due to technical errors
in its wording, because it “provided the [defendant] with
sufficient facts to put him on reasonable notice of the charges
against him”) (emphasis added).
9
(...continued)
physical arrest pursuant to Section 803-6(b) of the [HRS] and summoned to
appear in court, the citation and an oral recitation of the essential facts
constituting the offense charged as set forth in Rule 5(b)(1), shall be deemed
the complaint, notwithstanding any waiver of the recitation.” See also supra,
note 6.
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In sum, the charge against Mita, comprised of both the
citation and oral charge, provided her with fair notice of the
offense of animal nuisance. The significant factors in Wheeler
which caused this court to conclude that the charge was
insufficient are not present here. While the charge in Wheeler
contained a hidden element, the statutory definition of the term
“animal nuisance” does not create an additional essential element
of the offense of animal nuisance, and, in any event, is
consistent with the commonly understood meaning of the term.
Accordingly, the charge against Mita was sufficient.
As noted above, the ICA did not address any of the other
issues raised by Mita in her opening brief. Additionally, neither
party has requested that they be addressed here. Accordingly, in
light of our holding that the ICA erred in concluding that the
charge against Mita was insufficient, we remand this case to the
ICA to address Mita’s remaining issues.
IV. Conclusion
For the foregoing reasons, we conclude that the charge
against Mita was sufficient and remand this case to the ICA to
address the remaining issues raised in Mita’s opening brief.
On the briefs:
Gary Y. Okuda (Leu & /s/ Mark E. Recktenwald
Okuda) for defendant-
appellant. /s/ Paula A. Nakayama
Peter B. Carlisle, /s/ Randal K.O. Lee
Prosecuting Attorney,
James M. Anderson,
Deputy Prosecuting Attorney,
for plaintiff-appellee.
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