State v. Bui

• Decision Date: 04 June 2004
• Docket Number: No. 25976.,25976.
• Citation: 104 Haw. 462,92 P.3d 471
• Parties: STATE of Hawai'i, Plaintiff-Appellee v. Ahn Cong BUI, Defendant-Appellant.
• Court: Hawaii Supreme Court

92 P.3d 471

104 Haw. 462

STATE of Hawai'i, Plaintiff-Appellee v. Ahn Cong BUI, Defendant-Appellant.

No. 25976.

Supreme Court of Hawai'i.

June 4, 2004.

Curtis E. Sherwood, on the briefs, for defendant-appellant.

James M. Anderson, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by ACOBA, J.

We hold that in a prosecution for possession of burglar's tools, Hawai'i Revised Statutes (HRS) § 708-812(1)(a) (1993), (1) HRS § 708-812(1)(a) is not unconstitutionally vague or overbroad, (2) there was substantial evidence that Defendant-Appellant Ahn Cong Bui (Defendant) knew that at least one of the tools he possessed was "adapted, designed or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by physical taking," and (3) the jury instructions were not insufficient. Accordingly, we affirm the judgment of conviction and sentence of Defendant.

I.

On March 12, 2003, Defendant was charged with unauthorized entry into motor vehicle, HRS § 708-836.5 (Supp.2002),¹ and with possession of burglar's tools, HRS § 708-812(1)(a). The jury found Defendant not guilty of the unauthorized entry charge and guilty of the possession charge. Judgment of conviction and sentence was entered on June 4, 2003. Essentially the evidence adduced at trial and as generally set forth by the prosecution follows.

On Saturday evening, March 1, 2003, at about 10:00 p.m., Alen Kaneshiro parked his black Toyota MR2 on the Ala Wai Boulevard. On March 3, 2003, at about 9:00 a.m., Kaneshiro observed police officers in the area. He saw that his car's rear window was cut out. He spoke to the police officers, and determined that nothing was missing from the car. On March 3, 2003, Ronald Hosband lived on the tenth floor of a building located at Kahakai Drive. At about 6:00 a.m., while on his lanai, Hosband saw Defendant across the street on Ala Wai Boulevard. Defendant carried a white bag in his left hand. After watching Defendant move up and down the sidewalk, he saw Defendant stop at a small black sports car that was parked. Hosband observed Defendant walk back in the direction from which he had come and then walk back to the sports car. He related that Defendant took a shiny or silvery object out of his right hip pocket and "reached over and cut the rear window out of the car." Hosband then saw Defendant reach into the car "where the window ... had been." Hosband estimated Defendant's hand was in the car for about five or ten seconds. [Id.] Hosband then telephoned "911." Hosband observed Defendant walk back and forth, stopping at a gold colored station wagon twice and at a yellow van. Hosband again telephoned "911." When the police arrived, Hosband identified Defendant as the person he had observed.

Police Officer Kyle Ho (Officer Ho) was dispatched to the area. Officer Ho saw that Defendant had a fanny pack and a white plastic bag. Officer Ho detained Defendant until other officers arrived. Officer David Politsch took the bag from Defendant and examined its contents. Officer Ho saw Officer Politsch take from the bag a pair of gloves, a white ivory knife with a steel blade, a clothes hanger, a screwdriver "with a cut edge," and miscellaneous hand tools.

Following the prosecution's case, Defendant moved for judgment of acquittal on the unauthorized entry charge. Defendant further argued that "as to the burglary tools," there had "been no showing that those tools are actually used in the commission of a burglary." The court denied the motion.

Defendant testified on his own behalf. He said he had "a little financial problem on and off[,]" and would live in his 1990 Cadillac limousine. Defendant's car had been stolen a couple of days before. However, a cab driver friend told him he had seen Defendant's car a short walk from where Defendant worked. Defendant testified that he walked across the street to check his car, after which he came "back [to] borrow some tool that prepare for changing a tire." He borrowed a pair of gloves "from the guy[]" so that he would not soil his clothing while changing the tire; a screwdriver, which was necessary to pry open the hubcap and access the "hubcap lock bar;" a "tool with the blue tape [which] was a "hubcap lock bar remover;" and, a ratchet (with an extension) and a socket to remove the wheel's lug nuts. Upon being asked by his counsel the purpose of the knife and whether the knife was his, Defendant responded that he "didn't recall if I borrow that or not." As to the purpose of the coat hanger, Defendant explained that he "just prepare in case that I cannot get in the car through the key I have."

The defense did not object to the jury instructions regarding possession of burglar's tools, or to the verdict form. Following the settlement of jury instructions, the court denied the defense's renewed motion for judgment of acquittal.

On appeal, Defendant maintains that (1) as a matter of plain error HRS § 708-812(1)(a) "is unconstitutional on its face and as applied to [Defendant]," (2) "the evidence adduced at trial was insufficient to convict Defendant of the burglary tools charge," and (3) "the jury instructions and verdict form² were fatally insufficient."

II.

A.

As to his first point on appeal, Defendant contends that HRS § 708-812(1)(a) is unconstitutional because it was, inter alia, vague and overbroad. "A penal statute is vague if a person of ordinary intelligence cannot obtain an adequate description of the prohibited conduct or how to avoid committing illegal acts." State v. Kam, 69 Haw. 483, 487, 748 P.2d 372, 375 (1988). HRS § 708-812(1)(a) states that the subject offense is

knowing[] possess[ion of] any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking and the person intends to use the explosive, tool, instrument, or article, or knows some person intends ultimately to use it, in the commission of the offense of the nature described aforesaid[.]

(Emphases added.) He argues that "burglary tools," as described in the statute, could include anything used in the commission of a burglary. Appellant explains that he "possessed... a screwdriver, knife, coat hanger and ratchet, but items such as shoes, canes, clothing, etc, could just as easily have fit the statutory definition."

HRS § 708-812(1)(a) is not vague because it describes the proscribed conduct in ordinary and understandable terms. The statute specifies that the items must be "any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense[.]" HRS § 708-812(1)(a). Accordingly, the "explosive, tool, instrument or article" denoted is one which the Defendant knew must have been "adapted, designed, or commonly used for committing or facilitating the commission of an offense[.]" The offense(s) as to which the statute applies are limited and defined as those involving forcible entry into premises or theft by physical taking. Therefore, the use of a shoe, cane or clothing, as posited by Defendant, would not come within the purview of this statute unless the items also satisfied the qualifying language in the statute. Consequently, we conclude a person of ordinary intelligence would be able to ascertain the nature of conduct prohibited.

The statute also adequately informs a person on how to avoid committing the offense. Although items of everyday use may be encompassed within HRS § 708-812(1)(a), the nature of the items is qualified by the requirement that a defendant knows they have been adapted or designed or are of such character as to be commonly used for the prohibited purposes. Moreover, the person must knowingly possess such items and a person cannot be convicted under the statute unless the prosecution proves beyond a reasonable doubt that he intended to use the tools, instruments, or other articles in his possession to commit or facilitate forcible entry into premises or theft by physical taking. Cf. State v. Lee, 75 Haw. 80, 103, 856 P.2d 1246, 1259 (1993) (holding that specific intent requirement contained in drug paraphernalia statute was sufficient to meet due process standards under the Hawai'i and Federal constitutions). Therefore, the statute on its face clearly informs a person that a violation of the statute may be avoided so long as the articles are not employed with the culpable intent set forth in the statute. The statute thus notifies a person of ordinary intelligence of what conduct is prohibited.

B.

As mentioned before, Defendant also contends that HRS § 708-812(1)(a) is overbroad. This court, in State v. Kane, 87 Hawai'i 71, 951 P.2d 934 (1998), explained that a defendant who raises an overbreadth claim must establish that he or she is personally affected:

"The doctrine of overbreadth, although closely related to a vagueness claim, is distinct in that while a statute may be clear and precise in its terms, it may sweep so broadly that constitutionally protected conduct is included in its proscriptions." [State v.]Gaylord, 78 Hawai'i [127,] 142, 890 P.2d [1167,] 1182 [ (1995) ]. As an element of its overbreadth analysis, this court has consistently applied the principle that

one who alleges that a statute is unconstitutionally overbroad, other than a statute affecting the freedom of expression, must be directly affected by the claimed overbroad aspects. Put differently, a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may conceivably be applied unconstitutionally to others.

[Id.] (citations, brackets, and internal quotation marks omitted).

Id. at 77, 951 P.2d at 940 (some internal citations and quotation marks omitted) (emphasis added). Defendant's challenge to ...