State v. Benson, CAAP-21-0000012

CourtCourt of Appeals of Hawai'i
Parties STATE of Hawai‘i, Plaintiff-Appellee, v. Joann I. BENSON, Defendant-Appellant
Docket NumberCAAP-21-0000012
Decision Date02 June 2022

151 Hawai‘i 169
509 P.3d 1132 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,
v.
Joann I. BENSON, Defendant-Appellant

NO. CAAP-21-0000012

Intermediate Court of Appeals of Hawai‘i.

June 2, 2022


On the briefs:

Ashlyn L. Whitbeck, Deputy Public Defender, State of Hawai‘i, for Defendant-Appellant.

Loren J. Thomas, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant Joann I. Benson appeals from: (1) the "Notice of Entry of Judgment and/or Order" (Restitution Order ) entered by the District Court of the First Circuit, Honolulu Division on November 12, 2020; and (2) the "Amended Judgment and Notice of Entry of Amended Judgment" entered by the district court on September 29, 2021.1 For the reasons explained below, we affirm the Restitution Order and the Amended Judgment.

On April 30, 2019, Benson's dog (Oden ) bit Afatia Aliilua on his right forearm. Benson was cited by Honolulu Police Department Officer Eric Hokama for negligent failure to control a dangerous dog, in violation of Revised Ordinances of Honolulu (ROH ) § 7-7.2 (1990 & Supp. No. 12, 2-08) (NFCDD ). She pleaded not guilty to the charge. She was tried by the district court on March 4, 2020.

At trial, Ali‘ilua testified that on April 30, 2019, at around 10:45 a.m., he was in the Market City parking lot. He walked "between cars going to get me something for eat." As he was walking, a dog's "whole head came out" of a car's window and "went snatch my right arm, forearm." He "poked the dog's eye" with his left hand and the dog released his arm. At the time of the incident, "[o]nly the dog was in the back seat" of a white, four-door Toyota with the window down halfway. He never saw the dog before he passed the car.

Officer Hokama testified that on September 14, 2019, he "conducted a traffic stop for a vehicle [Benson] had owned, a Toyota Corolla, for expired tax and safety." He stated, "when I ran the plate in our case report system, it came out there was a pending dog bite case involving that vehicle[.]" As he approached the vehicle, Benson was seated in the driver's seat and a "pit bull kind of looking dog" "was in the back seat and the window was cracked a little bit." The dog was not on a leash. Officer Hokama testified that when he informed Benson of the pending dog bite case, "she just said she will take care of it at court and then so I just gave her the citation."

Benson testified in her own defense. She drove her car to Market City on April 30, 2019. She brought Oden with her, but left him in the car when she went to Foodland and Walgreens. She left Oden in the back seat and rolled the window down about four inches for ventilation. She stated she had left Oden in the car by himself before and he never attacked anyone. She never had any issue because Oden's "face is pretty big. I didn't think he'd ... be able to come out of there at all, ... let alone approach anybody or bite anyone." On cross-examination, Benson testified that she did not put a leash on Oden and he was not in a kennel while in her car.

After closing arguments, the district court issued its oral ruling:

Okay. So we had Mr. Ali‘ilua who testified that on April 30th about 10:45 A.M. he's a Robert's Hawaii school bus driver; that he drop[p]ed off his school charter at the Foodland area in Market City which is in the City and County of Honolulu, state of Hawaii. He was in the parking lot.

He decided to go get something to eat in the area, and as he was walking through the parking lot between cars, all of a sudden he said the dog snatched his right forearm which means the dog bit his forearm. He testified it was right forearm and did show in court that there was a purplish scar which was that, it was bleeding a lot.

And he testified that there was a dog that had jumped out of that car with his whole head and bit his arm at which point he used his left hand to poke the dog in the eye and at which point the dog released and moved back into the car. He grabbed his hand to try to stop the bleeding. There was a couple there that noticed what was going on and they, um, they took a picture of the car as far as the license, uh, and called the police and also an ambulance.

Mr. Ali‘ilua also testified that he did not see or notice that there was a dog in the car, did not provoke the dog, did not stick his hand through the window opening for the dog to -- to bite him, and there was no provocation on his part. He testified also that the window was halfway down which this court finds it was greater than four inches because the dog was able to completely put his head out. But
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