State v. Zowail

Citation465 P.3d 689
Decision Date15 June 2020
Docket NumberSCWC-18-0000777
Parties STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Mohammad A. ZOWAIL, Petitioner/Defendant-Appellant.
CourtSupreme Court of Hawai'i

Jon N. Ikenaga, for petitioner

Donn Fudo, Honolulu, for respondent

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION

On November 18, 2017, Mohammad A. Zowail set up a table at the edge of the sidewalk along Kalâkaua Avenue in Waikîkî to showcase his art for sale and perform a painting demonstration. As he worked, a sizeable crowd formed to watch, and some pedestrians had to detour around the spectators. After observing Zowail, police charged him with violating Revised Ordinances of Honolulu (ROH) § 29-5.1 (1990) for "engag[ing] in business... on any public sidewalk where [his] operation tend[ed] to, or [did] impede or inconvenience the public or any person[.]"1 The District Court of the First Circuit (district court) convicted Zowail, finding that the size of the crowd meant that his operation tended to impede or inconvenience the public.

This case requires us to determine whether "operation" in ROH § 29-5.1 encompasses bystanders who have stopped to watch a performance, but are otherwise unconnected to the business operation. Zowail argues that the district court erred by including the spectators as part of his operation because "it would be manifestly unjust to hold Zowail penally responsible for the actions of other persons that were beyond his control." He further claims that if "operation" in ROH § 29-5.1(a) includes spectators, the statute would be unconstitutionally vague because the ordinance gives no guidance as to when the size of a crowd crosses the threshold to become a violation of ROH § 29-5.1. We agree.

Accordingly, we hold that "operation" in ROH § 29-5.1 means the area in which a defendant conducts their business, such as the immediate perimeter around a table for goods or a demarcated performance area. Thus, a defendant's "operation" does not include spectators over which a defendant has no control. As evidence did not show that Zowail's operation - excluding spectators - impeded or inconvenienced any person, Zowail's conviction was not supported by substantial evidence.

We also note that Zowail's charge was deficient for failure to allege mens rea: "A charge that fails to charge a requisite state of mind cannot be construed reasonably to state an offense[.]" State v. Apollonio, 130 Hawai‘i 353, 359, 311 P.3d 676, 682 (2013) (holding oral charge defective for failure to specify mens rea for speeding offense). However, we need not vacate Zowail's conviction on this basis. Because Zowail's "operation" did not violate ROH § 29-5.1, his conviction must be reversed and a judgment of acquittal entered.

II. BACKGROUND
A. The Charge

Zowail received a "complaint and summons" form charging him with having committed the offense of "Use of Sidewalks" in violation of ROH § 29-5.1 and instructing him to appear in court.

The State formally arraigned Zowail immediately before trial commenced. In reading the charge, the State advised Zowail using the language of ROH § 29-5.1 almost verbatim:

On or about November 18, 2017, in the City and County of Honolulu, State of Hawai‘i, Mohamad Ali Zowail, did unlawfully as a solicitor or canvasser engage[ ] in business on any public street, sidewalk or mall where such person's operation tends to or does impede or inconvenience a public [sic] or any person in the lawful use of such street, sidewalk or mall.
"Solicitor" or "canvasser," as used in this article, means any person traveling by foot or any other type of conveyance or by wagon, automobile, motor truck, taking or attempting to take orders for the sale of goods, wares, merchandise or other personal property for future delivery, or for services to be furnished or performed in the future whether or not such person carries or exhibits any samples or collects advance payments on sales.
The term shall also include any person for who, [sic] for oneself or for another, hires, leases, uses or occupies any building, structure, tent, room, shop, vehicle, or other place for the sole purpose of exhibiting samples and taking orders for future delivery.

When asked, Zowail affirmed that he understood the charge that was read, and he pled not guilty. He did not object to the charge as insufficient.

B. Factual Background

The following testimony was adduced during the bench trial.2

On November 18, 2017, around 7:00 p.m., Officer Aaron Luther and Sergeant Zane Hamrick were "working a plainclothes operation to specifically focus on peddling and other sidewalk infractions in the Waikiki district." They came across Zowail, who was the only performer on the sidewalk that night.

Officer Luther and Sergeant Hamrick observed Zowail for five or ten minutes while he was conducting an "art performance," spray painting a canvas and explaining to the crowd what he was doing. Although they did not witness any sales take place, both officers agreed that Zowail was offering his paintings for sale for $75.00 and that he told the crowd they could take paintings home in cardboard tubes to protect them.3

Zowail testified that he was 23 years old, in school getting a psychology degree, and hoping to work up to a Ph.D. He explained, "I just have a passion for art and this is a new generation of art. I was showing people what I do. ... It's basically an art show done within like ten minutes, all with spray paint." He told the court that he was exercising his First Amendment right to perform on the public sidewalk.

There was no dispute over the layout of Zowail's area of operation. Zowail had a table set up on the sidewalk outside the T Galleria on Kalâkaua Avenue. On the table, Officer Luther testified that Zowail had "spray paint cans and art supplies, canvases, pens and [other things] of that nature." On the ground in front of the table, Zowail put down a black cloth so that paint did not get onto the sidewalk, and left a box for people to put money in. Zowail testified that the table was two feet by four feet and that his display was approximately two or three feet wide in total. As the table was set up on the street-edge of the sidewalk, facing the storefronts, there was room for pedestrians to walk past or for a crowd to gather around. However, Zowail did not designate where the crowd could start or end. Officer Luther and Sergeant Hamrick did not contradict Zowail's testimony about the size of his display - in fact, a photograph of the display submitted by the State corroborated Zowail's estimate of his operation's size.

The State's case that Zowail's operation inconvenienced the public hinged on the size of the crowd that formed to watch Zowail's performance, and the officers’ estimate of the number of bystanders differed significantly from Zowail's account.

Zowail testified that the size of the crowd fluctuated, but he estimated there were only ten to fifteen people around him at any given time: "[P]eople make a circle around me, if you're behind ten people, you're unable to see it because the height of my waist. So you won't be able to see if you're standing behind those ten people." He estimated that the biggest crowd around him was twenty people. He believed that other people on the sidewalk were not specifically watching his performance, but passing by.

On the other hand, Officer Luther testified that there were "easily 50" people gathered, standing "[e]asily four rows" deep. However, on cross-examination Officer Luther conceded that the photographs the State entered into evidence did not show nearly that many people - for example, he counted fifteen people in Photograph 1 and fourteen people in Photograph 2. Officer Luther also agreed with defense counsel that from the photos, it looked like there was about a foot of clearance between the edge of the crowd on the sidewalk and the storefronts facing Kalâkaua, including space for a woman who was walking past with a stroller.

Sergeant Hamrick estimated that the crowd included "75-plus people" and testified that there was no space on the sidewalk for anyone to walk past. On direct examination, he told the court that the crowd was "packed solid ... [l]ike a pack of sardines. You had to walk around to get through." On cross-examination, Sergeant Hamrick testified that photographs showed significantly more people than Officer Luther had counted. For example, he testified that Photograph 1 depicted fifty people – although he counted only sixteen people, he believed that the others were standing behind them - and he similarly testified that Photograph 2 depicted thirty-five or forty people.

While Officer Luther and Sergeant Hamrick gave differing estimates of how much space was left on the sidewalk around the crowd, they both agreed that some pedestrians had to step around it. Officer Luther testified that "[t]he opening to the Galleria is a large open doorway area and several people actually had to enter into that area to get around the crowd as opposed to just going down the sidewalk." He saw about three people with strollers and "at least one male in a wheelchair" have to go around the crowd by entering and then exiting the Galleria. There was not enough space for a stroller or a wheelchair to go through the crowd. Moreover, Officer Luther explained that even if there were a foot or two of space on the sidewalk, it was not enough: "Through my personal experience, if there's a large crowd, I'm not going to barge my [way] through it, try to squeeze in tight. Even if there was a foot or two of space, I would still feel more comfortable walking around as opposed to going through a crowd."

Officer Luther also observed that the area where Zowail was performing was more crowded than other areas in Waikîkî because people were watching the performance. He noted that "where a lot of the other performers set up it's usually on a corner so [pedestrians] can walk around in either direction....

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