State v. Hitchcock

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IN THE SUPREME COURT OF THE STATE OF HAWAFI

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STATE oF HAWAI‘I, Plaintiff-Appellee,

VS.

SEAN K. HITCHCOCK, Defendant-Appellant.

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NO. 29847

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
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Hitchcock indicated that he understood the charges against him
and, thereafter, pleaded not guilty},

A bench trial then commenced and lasted one day.
Plaintiff-appellee State of Hawafi's (the prosecution) case-in-
chief consisted of one witness, Officer Carino.

On direct examination, Officer Carino testified that,
on the night of January l4, 2009, he was working near Keaau
Beach Park in the City and County of Honolulu, and his assignment
was “basically to give citations to people that [were] not

supposed to be camping in the park.# when asked how he knew

_Hitchcock was camping in a public park, Officer Carino stated

that he encountered Hitchcock in a tent in’the beach park and saw
that Hitchcock was going in and out of the tent. Officer Carino
indicated that Hitchcock expressly admitted that the tent l
belonged to him, Officer Carino additionally testified that he
ascertained the limits of the beach park from the signs “all over
the park.” According to Officer Carino, there were signs in the
park that “g[a]ve the rules of the park, no camping, um, no
golfing, no alcohol.” However, he testified that there is an
area designated for camping in the park and admitted that
Hitchcock's tent, which was set up tright next to the restroom”
and “right near the parking lot,” was “within the campsite area”
of the beach park,
when asked about his interaction with Hitchcock,

Officer Carino indicated that he asked Hitchcock for his camping

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permit, but Hitchcock did not give him a permit. He indicated
that he could not remember whether Hitchcock actually had a

permit. Officer Carino explained that:

Basically, [Hitchcock] was . . . in the park at a time where
. . no one’s supposed to be camping. Even if you have a
permit, the permit's only good for so much -- for certain

days of the week. And, uh, on wednesday nights and Thursday
nights no one’s supposed to be in the park for maintenance
of the park. So even iffthey have a permit, the permit does
not state those days that you are allowed to stay in there
with a permit. ' '

when asked why he did not issue Hitchcock a “closed park
citation,” Officer Carino testified that Keaeu Beach Park does
not have “closed hours.” Finally, he indicated that, based on
his observations, he issued Hitchcock a citation for illegal
camping in violation of ROH § 10-l.2(a)(l3), but did not arrest
him.

During cross-examination, Officer Carino reiterated
that Hitchcock was “in one of the designated camping areas” of
the beach park when he issued Hitchcock a citation.
Additionally, Officer Carino testified that he was familiar with
Hitchcock and that he had “run into him” prior to the night in
question. He stated that Hitchcock had informed him that he was
homeless and essentially lived at the beach park.

with respect to Hitchcock's permit on the night in
question, Officer Carino again stated that he could not remember
whether Hitchcock presented a permit when he issued the citation,

but indicated that Hitchcock “usually does have a permit.” He

indicated that, in any event, “there's absolutely no way you can

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get a permit there [at the beach park] on wednesday and Thursday”
because the State does maintenance on those days. Also during
Officer Carino’s cross-examination, the trial court took judicial
notice of the fact that January l4, 2009 was a wednesday night.

The prosecution conducted a brief re-direct
examination, during which time it sought to enter into evidence a
certified letter from the Department of Parks and Recreation (the
department) stating that no camping is allowed at the beach park
on wednesdays and Thursdays. The prosecution argued that such
letter should be entered into evidence as a self-authenticating
document, and Hitchcock did not object. The trial court granted
the prosecution's request to enter the letter into evidence.4

The prosecution also questioned Officer Carino about
Hitchcock's history in the park, to which Officer Carino
reiterated that he had encountered Hitchcock in the park before
and that he usually has a permit. Officer Carino explained that
the citation at issue was the only time he had cited Hitchcock
and that “generally everybody there [in the park]” has permits
“for the days allowed for camping there.”

During re-cross examination, Hitchcock asked Officer
Carino whether the “wednesday/Thursday” no camping rule was

statewide. Officer Carino stated; fl don't know if it[‘]s

4 Although the transcript indicates that the prosecution's request was
granted and seems to indicate that the letter was entered into evidence, there
is no such letter contained in the record on appeal, nor is there any
indication that the exhibit was, in fact, received into evidence.

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statewide. I don't know that: 1 know for the parks for that --
for Keaau Beach Park it is.” Officer Carino additionally
indicated that “the permit will state . . . what days they’re
allowed there and what days they’re not allowed there.” Finally,
he stated that, “to [his] knowledge,” the wednesday and Thursday
camping restriction was the result of a new camping statute that
took effect in September 2008. No further inquiries or
explanations regarding the “new camping statute” were provided at
that time.

Immediately following Officer Carino’s testimony, the
prosecution rested its case. Hitchcock then made an oral motion
for judgment of acquittal, arguing that:

Although it seems the [prosecution] has met all the‘
elements, uh, to prove this crime and especially in the
light most favorable to the [prosecution] . . ., I would
just say that, uh, and it will become clear after Mr.
Hitchcock has a chance to testify, the statute itself is
unfair. It unfairly targets the homeless people who have
nowhere else to go. On wednesday and Thursday they/re
basically, uh -- they’re basically out of luck.

The prosecution rested on the evidence presented, expressing its
belief that it had “met all the elements prima iagia.” The trial
court orally denied Hitchcock's motion, stating that the
prosecution “has made a prima facie case. viewed in the
strongest light, they've made their case.”

Hitchcock then elected to testify on his own behalf and
was the sole witness for the defense. Regarding his background,
Hitchcock stated during direct examination that he was 41 years

old, born in HawaiHq and held a master’s degree in traditional

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Chinese medicine. He indicated that he served “eight years
active duty” in the army as a special forces operative and
“previous to that . .`. served four years Air Force Auxiliary as
a search and rescue individual.” During his military career, he
suffered injuries, including a broken back and multiple head
traumas, that rendered him permanently ninety percent disabled.
Hitchcock testified that he was employed until May of 200l, but
became unable to work due to his disability. He indicated that
he subsequently entered a vocational rehabilitation program and
tried to find employment, but, when he became homeless, he was
removed from the program.

when asked about his homelessness, Hitchcock testified
that he had been living in an apartment in waFanae, but was
evicted when his landlord found out that he was on probation for
committing a class C felony. According to Hitchcock, he then
went to several rental companies, but none of them would rent an
apartment to him, even though he had good credit, because of
“other circumstances,” which, in Hitchcock's view, meant they did
not want to rent to a person who was on probation. He further
testified that he tried to get into shelters run by the military
and other programs, but was rejected because he is on narcotic
pain medication for his disability and that shelters have a “zero
tolerance policy” for narcotic use, regardless of the reason or
necessity. Upon being asked whether there were “any other

avenues to find housing” that he had not yet exhausted, he

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indicated that he was the first veteran on Uahu to apply for the
“HUD-C” veteran housing program initiated by President Obama, but

stated that such request was still pending and that, at the time

of trial, there was no affordable housing available to him.

Hitchcock then testified that he currently resided at
“Campsite l3 at Keaeu.Beach Park.” He explained that, in order
to stay at the beach park, he “go[es] down to the Satellite City
Hall every three weeks on a friday, and they issue three[]weeks
worth of permits. And, um, I've done that now for about the past
[nineteen, twenty] months.” Hitchcock further indicated, with
respect to the “new camping statute” mentioned during Officer
Carino’s testimony, that “nothing has changed from the old
statute.i . . . [The restriction on camping has] always been
wednesday/Thursday. That has never changed.” He explained that,
although the parks and recreation department claims that
wednesdays and Thursdays are reserved for park maintenance:

(l) there has been no maintenance done for the past five years or
more at the beach park; (2) tlast summer they took away both of
our park employees”; and (3) it is “up to [the people staying at
the beach park] to . . . help clean the park.”

As to the citation he received, Hitchcock testified
that he understood that he was taking a risk by being at the
beach park on wednesday and Thursday, but stated that he
“honestly ha[d] nowhere else to go.” He explained that, in the

past, he has asked the HPD where he can go on wednesday and

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Thursday and, in response, the officers have told him to go to a
shelter or “go in the bush somewhere maybe” because that area
would not be handled by the HPD; thus, Hitchcock indicated that
the HPD “just kinda [sic] pushed the issue around.”

During cross-examination, Hitchcock admitted that he
was camping at the beach park on the night he received the
citation and admitted that the beach park is a public park. when
asked if he had a permit, he stated that “nobody has a permit on
those days.” On re-direct, Hitchcock reiterated that the beach
park had been his residence for the past nineteen or twenty
months and stated that “[a]ll the police officers know me there.”
At the close of his testimony, Hitchcock rested his case.

The prosecution then presented its closing argument,

stating that:

Your Honor, I believe {the prosecution] has met beyond a
reasonable doubt its burden not only based on the officer’s
testimony but also on the defendant’s own admission during
testimony, He knew he was camping . . . . He knew it was a
park camping ground or a public park and it wasn’t -- and
camping wasn’t allowed at that_time. There's no doubt that
he violated the statute. l think the question the defense
raises is a broader constitutional question which definitely
should be raised. I’m just not sure that this court has --
can address it.

In response, Hitchcock stated:

Your Honor, that's true. The statute; as applied to
people in Mr. Hitchcock's circumstances, is totally
unconstitutional and leaves him with no options but to break
the law. Based on the fact that he is . . . in these
circumstances as he testified, he simply has no other
choice. I’m going to ask the [trial] court to find him not
guilty on that basis.

It's also a choice of evils thing, Your Honor. He’s
got no other options but to break the law. He’s asked where
can he go. There's nowhere else to go. He can’t go to the
shelters, as he testified, because he's on this medication.
He’s clearly, uh, taken many measures to try not to break

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the law. He gets his permit every day for the days that the
State allows him to be there} `He’s simply left with no
other option but to be living where he's living. There's
nowhere for him to go, and he has tried.

So I would raise a constitutional basis by just
_stating simply it is a choice of evils thing. He has no
choice. His circumstances are such that he is forced to
live in the park on wednesdays and Thursdays, and that
subjects him to these penalties. And, uh, Your Honor, I'd
ask the [trial] court to find him not guilty. The intent is
not there. He’s simply left without a choice.

In rebuttal, the prosecution addressed Hitchcock's

choice of evils argument, stating that

r

[Hitchcock] has failed to specify what the alternate evil
is, so I’m not sure I can clearly address it because the
evil that’s being prevented by the law has to -- or the evil
that is avoided by breaking the law has to clearly outweigh
the evil being prevented by the law. Unless defense
articulates the second evil, I’m not sure the [prosecution]
can clearly respond. '

The trial court “found first of all the [prosecution]
is correct that the choice of evils defense is not applicable
[be]cause there is no other alternative evil that is facing Mr.

Hitchcock.” The trial court went on to conclude that:

Certainly this [trial] court is sensitive to your
position, Mr. Hitchcock, but on the issue of the ordinance
it was clearly violated. And even in your testimony you
admit that, I don't see that there's a discriminatory basis
or a constitutional issue before this [trial] court. Okay.

The [trial] court does find that the [prosecution] has
made its case, proved its case beyond a reasonable doubt,
and you’re guilty as charged.`

The trial court then asked Hitchcock if he wanted to address the
trial court as his “right of allocution.”
Hitchcock chose to address the trial court, stating, in

relevant part, that:

There are many points about this case that I would
like to bring up with the [trial] court but probably isn’t
applicable [sic] at this time about how this is done. But
this is being driven by political forces. The task force
that comes down is directed by the mayor at this time. They

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only come down on the wednesday and Thursday and they only
target the grassed area of the park, the actual park.

They don't give tickets to the people who live to the
north of the park which there's over two hundred people on a
mile-long stretch of beach doing the same thing we’re doing.
They never go in there to ticket them ever. So I mean there
are many issues at hand here.

I'd like to again reiterate what counsel here has said
about the constitutional issue about the criminalization of
the homeless. And I feel this is why 1 brought this before
Your Honor, to this court, to your attention that it does
seem cruel and unusual under the Fourth Amendment to
criminalize the homeless. And that’s been a federal and

national prerequisite -- not prerequisite, but that is what
has been happening now across the nation in various criminal
courts.

There's an abundance of case law on this subject and
other things like the Fourteenth Amendment, freedom of
movement, et cetera, and that’s what we are trying to
establish here. But that’s exactly why I pled not guilty to
try to get out of the park. And I think all the police
officers who the task force say no, we’ve talked at
considerable length. . . . l rest my case on that.

The prosecution did not respond, but requested that the mandatory

fine of $25 be imposed. Hitchcock then requested that the fine,

if imposed, be suspended. The trial court then imposed a $25

fine on Hitchcock, but suspended the fine “for a period of seven
days on the condition no other similar violations [sic].” On the
same day (April 27, 2009), the trial court entered its written
judgment and sentence in accordance with its oral ruling.

On May 22, 2009, Hitchcock filed a timely notice of

'appeal from the trial court's April 27, 2009 judgment. Upon

motion by.Hitchcock pursuant to HRS § 602-58(b)(l), the case was
transferred to this court on February 24, 20l01 Oral argument

was held on May 6, 20l0.

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II. STANDARDS OF REVIEW

A. Oral Charge

“It is well settled that an accusation must
sufficiently allege all of the essential elements of the offense
charged.” iState v. Sprattling, 99 Hawaid.312, 3l6, 55 P.3d 276,
280 (2002) (citing State v. Merino, 01 HawaFi 198, 212, 915 P.2d

672, 686 (l996)). Stated differently,

the 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. 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. whether an indictment sets forth all the essential
elements of a charged offense is a question of law, which we
review under the aa novo, or “right/wrong,” standard.

Id. (citing State v. Kaakimaka, 84 Hawaid.280, 293-94, 933 P.2d
617, 630-31 (l997)) (other citationsL internal brackets, and
ellipses omitted).

B. 1 Sufficiency of the Evidence

This court has repeatedly stated that, in reviewing the

legal sufficiency of evidence to support a conviction,

evidence adduced in the trial court must be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to
support a conviction; the same standard applies whether the
case was before a judge or a jury. The test on appeal is
not whether guilt is established beyond a reasonable doubt,
but whether there was substantial evidence to support the

conclusion of the trier of fact.
State v. Hicks, 113 HawaiH.60, 70; 148 P.3d 493, 503 (2006)
(citation omitted). “Substantial evidence” is “credible evidence

which is of sufficient quality and probative value to enable a

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person of reasonable caution to support a conclusion.” ida
(citation omitted). n
C. Statutory Interpretation

“The interpretation of a statute is a question law
reviewable aa novo.” State v. woodfall, 120 Hawafi 387, 391,
206 P.3d 84l, 845 (2009) (citations omitted). Further, statutory

construction is guided by the following rules:

First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning, Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists. And fifth, in construing an ambiguous
statute, the meaning of the ambiguous words may be sought by
examining the context, with which the ambiguous words,
phrases, and sentences may be compared, in order to
ascertain their true meaning, .

Id. (quoting Carlisle v. One §1) Boat, 119 HawaFi 245, 256, 195

P.3d 1177, 1188 (2008)) (other citations omitted).
11:. ,DIscUssioN

As previously indicated, Hitchcock argues that the
trial court erred and that his conviction should be reversed
because: (l) his oral charge was defective in that it failed to
state an offense; (2) there was no “substantial evidence of the
requisite attendant circumstance element” of the ordinance that
Hitchcock camped “at a park not designated as a campground”; and,
(3) assuming there was sufficient evidence to convict him, the

trial court erred when it failed to apply the “choice of evils”

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defense to his case. Hitchcock further argues that, in any
event, ROH § 10-1.2(a)(13) is unconstitutional as applied to him
because it is vague, overbroad, and constitutes cruel and unusual
punishment.
A. Oral Charge

On appeal, Hitchcock argues that the prosecution's oral
charge prior to the start of trial was defective inasmuch as “the
charge contained language fatally different from the ordinance[]
when it alleged that the camping occurred ‘in any area not
designated as a campground’” and “failed to specify the essential
element of ROH § 10-1.2(a)(13)[] that camping occur ‘at any park
not designated as a campground.’4 (Emphases in original.)
According to Hitchcock, “the distinction between \park' and
‘area' was a material difference, because the [prosecution's]
proof was that Hitchcock camped in an ‘area' where camping was
prohibited on that particular day.” Thus, Hitchcock argues that
“the conviction herein, based on the defective charge, violated
Hitchcock's constitutional rights to fair notice of the charge
against him and his due process right to a fair trial” as
provided in both the federal and state constitutions. Finally,
Hitchcock acknowledges that he did not object to the oral charge
at trial, but claims that the “fatal charging error” affected
Hitchcock's substantial rights and should be addressed by this

court based on plain error.

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In response, the prosecution argues'that, because
Hitchcock's objection to his oral charge was raised for the first
time on appeal, this court's decision in State v. Motta, 66 Haw.
89, 9l, 657 P.2d lO19, 1020 (1983) (providing that the charge
should be “liberally construed in favor of validity” and that the
conviction thereon will not be reversed without the defendant’s
showing of prejudice) should apply in this case. (Citing Mppra,
66 Haw. 90-91, 657 P.2d 1019-20; Merino, 81 Hawafi at 212, 915
P.2d at 686) (other citations omitted)). Applying the test set
forth in Mpppa, the prosecution argues that the oral charge “can
reasonably be construed to charge illegal camping in a public
park” because Hitchcock “represented at trial that he understood
the charge, entered a plea of not guilty to the charge, and
admitted to camping illegally at the public park on the night he
received a citation.” The prosecution further contends that
Hitchcock “has failed to even allege/ much less demonstrate, any
prejudice resulting from the oral charge's incomplete referencei”
As such, the prosecution argues that “[Hitchcock]’s claim that
the oral charge was insufficient and the case reversed on that
basis should be rejected.”

In his reply, Hitchcock avers that the prosecution

“misapplies the [Motta] liberal construction rule to the instant

case” because the Motta rule applies only to a charge that
“merely omits a word rather than an essential element, or to a

defect of mere form and not substance; [such] defects . . . are

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subject to [a] harmless error analysis, and a defendant who
challenges such defects for the first time on appeal must
demonstrate substantial prejudice.”_ Because (in Hitchcock's
view) the defect in the oral charge twas clearly not one of mere
form, but is one of ?substantive subjective [sic] matter
jurisdiction, which may not be waived or dispensed with, and that
is par aa prejudicial,'” (citing State v. Cummings, 101 Hawafi
139, 143, 63 P.3d 1109, 1113 (2003)) (other citations omitted),i
Hitchcock argues that the Mpppa liberal construction analysis “is
inapposite.” In the alternative, Hitchcock argues that the Mpppa
test has been met in this case because: (1) the defective oral
charge was prejudicial in that it was “indisputably material, and
the improper substitution [of] ‘area' for the term ‘park'[]
caused [Hitchcock] to be convicted rather than acquitted”; and
(2) “[t]he oral charge, which does not track the ordinance as to
the critical term ‘park,’ cannot within reason be construed to
charge a crime.” 1
Article I, section 14 of the HawaFi Constitution

provides in relevant part that, “[i]n all criminal prosecutions,
the accused shall enjoy the right ..; . to be informed of the
nature and cause of the accusation.” _aa aiap U.S. Const. amend.
VI. “[I]t is well settled that an ‘accusation must sufficiently
allege all of the essential elements of the offense charged,' a
requirement that ‘[applies] whether an accusation is in the

nature of an oral charge, information, indictment, or

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complaint.'” State v. Ruqgiero, 114 HawaFi 227, 239, 160 P.3d
703, 715 (2007) (quoting State v. Jendrusch, 58 Haw. 279, 281,

567 P.2d 1242, 1244 (1977)) (other citations omitted). As such,

` “the 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.’” Ruggiero, 114
Hawaifi at 239, 160 P.3d at 715 (citing State v. wells, 78 HawaiU_
373, 379-80, 894 P.2d 70, 76-77 (1995)) (internal brackets
omitted).

1 »As pointed out by the prosecution, this court has
adopted a “liberal construction approach” when the sufficiency of
an indictment was challenged for the first time on appeal. §aa

Motta, 66 Haw. at 90, 657 P.2d at 1020. »In Motta, this court

explained that the “adoption of this liberal construction
standard for post-conviction challenges to indictments means we
will not reverse a conviction based upon a defective indictment
unless the defendant can show prejudice or that the indictment
cannot within reason be construed to charge a crime. ida at 9l,
657 P.2d at 1020. In State v. Elliott; 77 HawaiH.309, 884 P.2d
372 (1994), this court extended the Mappa “liberal construction”
approach to the sufficiency of oral charges, holding that,
because the defendant did not challenge the sufficiency of his
oral charges until after the trial, the review of the defendant’s

argument would be governed by the “liberal construction standard”

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set forth in Mpppa, ida at 31l, 884 P.2d at 374. The Elliott
court additionally provided guidance in applying the liberal
construction standard, concluding that “[o]ne way in which an
otherwise deficient count can be reasonably construed to charge a

crime is by examination of the charge as a whole.” Elliott, 77

` Hawai‘i at 312, 384 P.2d at 375 .3a at 196 (citing ma
§§ 1-15(1) and 1-15(2) (1993) (Q0verning the construction of
ambiguous words and phrases)). Accordingly, we look to the
context of the word “designate” in the ordinance and the “reason
and spirit” of ROH § 10-l.2(a)(l3).

with regard to context, we observe that “designate” is

used in section 10-l.2(a)(2), which prohibits Y[c]limb[ing] onto

any tree, except those designated for climbing,” (Emphasis
added.) it is also used in ROH § 10-1.7, which governs

“[a]nimals in public parks.” ROH § 10-1.7(b) provides in
relevant part that

[t]he director [of parks and recreation] is authorized to
designate areas in public parks for use by persons having
custody and control of dogs on a leash and to desigpate
public parks for use as off-leash parks for dogs. in
desigaating parks as off-leash parks and in designating
parks or areas therein for leashed dogs, the director shall
consider the park's size, location, and frequency of use by
members of the public, as well as the primary actual or
designed use of each park or area included in the
desigaation. The director shall post signs that notify the
public of such desigpation that describe or map the park or

park areas so desigpated.

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(Emphases added.) Because such ordinance requires the director
to (l) consider size, location, frequency of use, and original
design for the park prior to making a designation and (2) inform
the public of the designation, providing them with adequate
notice of the location of areas “so designated,” the director's
designation appears to be one that is intended to be of a lasting
and permanent nature. in other words, using a common sense
approach, a “designation” by the director of a dog park (or, as
here, a “campground”), although not entirely unalterable, is
likely unchanged by periodic closures due to maintenance or other
proffered reasons. ` '
For example, if the director were to post a sign in
designated dog parks stating that the presence of dogs for two
days each week is prohibited due to the need for maintenance,
such prohibition would not change the desigpation of the park as
a “dog park” -- that is, the park would not lose its designation
as a “dog park” merely because a temporary restriction on the
presence of dogs in the park had been imposed. indeed, once the
maintenance was finished, the use of the park for dogs would
resume and would not require a new tdesignation” or approval from
the director.
Similarly, the terms of Hitchcock's camping permit,

prohibiting camping on wednesdays and Thursdays, do not change
the “designation” of the beach park as a campground. To the

contrary, Keaeu Beach Park, or at least specific areas therein,

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remained “designated as a campground” during those two days and
that the beach park (like the dog park merely became temporarily
unavailable to the public for camping, indeed, it would be

nonsensical to conclude that the beach park is “designated as a

4 campground” for five days out of the week and not so “designated”

during the other two days.

As to the “reason and spirit” of the ordinance, ROH
§ 10-l.2(a)(13) is contained in chapter 10, which governs the use
of public parks. surrounding provisions in ROH § 10-1.2

similarly prohibit certain activities in a public park,

including, but not limited to: (l) willful damage or injury to
property, ROH § 10-1.2(a)(1); (2) polishing or repairing a car,
ROH § 10-1.2(a)(1l); (3) entering or remaining during the night

hours that the park is closed, ROH § 10-1.2(12); and (4) building
or kindling of a fire, other than in'a grill or brazier, ROH

§ 10-1.2(a)(4). Given the nature of the surrounding
prohibitions, section 10-1.2 seems to set forth rules primarily
designed to protect the safety of park users, as well as preserve
the integrity of public park areas. `Accordingly, the prohibition
against camping in any park “not designated as a campground” in
ROH § 10-1.2(a)(13) is a rule designed to promote safety and
protect public parks and their users.

Such interpretation is supported by the broad

definition of “public park” included in ROH § 10-1.1. The

ordinance defines public park as “any park, park roadway,

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playground, athletic field, beach, beach right-of-way, tennis
court, golf course, swimming pool} or other recreation area or
facility under the control, maintenance[,] and management of the
department of parks and recreation.” Applying such definition to
the ordinance at issue, it is reasonable to infer that the
prohibition of camping in “any park not designated as a
campground” was enacted to prevent persons from sleeping on park
roadways, golf courses, tennis courts, and other places that are
arguably unsafe for persons to occupy overnight and/or for any
length of time. As a result, it appears that ROH § 10-1.2(a)(13)
was promulgated to prohibit persons from occupying areas that'
were never intended for use as a campground, i.e., for overnight
occupancy.

However, as previously indicated, the evidence adduced
at trial established that Keaéu Beach Park was designated as a
campground and, thus, intended for use as a campground. indeed,
Officer Carino admitted that there are campground areas and
restroom facilities at the beach park and testified that the park
does not have any #closed hours,” even at night. Hitchcock
additionally indicated that the city had been providing Hitchcock
permits to camp at the beach park for almost two years. As a
result, it would be consistent with the “reason and spirit” of
the ordinance, iiai, safety of park users, to interpret the

phrase “designated as a campground” as a continuing

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classification, even when periodic restrictions are imposed on
camping for maintenance purposes;'

Based on the foregoing, we agree with Hitchcock that,
although Officer Carino’s testimony that permits were not valid
on the day that Hitchcock was cited may show that Hitchcock
violated the terms of a permit issued to him, it “is not material
to the issue . . . whether Keaeu.Beach Park was designated as a
campground so as to support his conviction for the offense the

prosecution elected to charge.”7 we, therefore, conclude that

there was insufficient evidence adduced at trial to show that

Hitchcock illegally camped “in any park not designated as a
campground” because: (1) the evidence at trial established that
(a) the beach park was designated as a campground and

(b) Hitchcock was in the designated camping area on the night he
was cited; (2) the park's “designation” as a campground did not
change on wednesdays and Thursdays; and (3) the prosecution
relied solely on the wednesday/Thursday camping prohibition to
prove that the beach park was “not designated as campground” on
the day that Hitchcock was cited. Consequently, we hold that the
trial court erred in convicting Hitchcock for illegal camping

pursuant to ROH § 10-1.2(a)(13).

7 As noted supra note 5, there are other provisions within ROH Chapter
10, Article 1 that could have been applicable to his conduct.

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lV. CONCLUSION

Based on the foregoing, we reverse the trial court's

April 27, 2009 judgment convicting Hitchcock of illegal camping
under ROH § 10-1.2(a)(13).8

Karen T. Nakasone, 1 (:;7
Deputy Public Defender,
for defendant-appellant '

James M. Anderson, Deputy
Prosecuting Attorney,

mnaE.DNg&, .
for plaintiff-appellee @} d`

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