State v. Kahalewai, 5685

• Decision Date: 21 October 1975
• Docket Number: No. 5685,5685
• Citation: 541 P.2d 1020,56 Haw. 481
• Parties: STATE of Hawaii, Plaintiff-Appellant, Cross Appellee, v. James KAHALEWAI, Defendant-Appellee, Cross Appellant.
• Court: Hawaii Supreme Court

Page 1020

541 P.2d 1020

56 Haw. 481

STATE of Hawaii, Plaintiff-Appellant, Cross Appellee, v. James KAHALEWAI, Defendant-Appellee, Cross Appellant.

No. 5685.

Supreme Court of Hawai'i.

Oct. 21, 1975.

Rehearing Denied Dec. 3, 1975.

Syllabus by the Court

1. Where an individual alleges that a statute which regulates his conduct is unconstitutional on the grounds that his conduct cannot affect the public health, safety and welfare, he has the burden of proof which is neither met nor shifted by the mere assertion that his conduct has no effect on the public.

2. Every enactment of the legislature carries a presumption of constitutionality and should be upheld by the courts unless it has been shown to be, beyond all reasonable doubt, in violation of the Constitution.

3. The presumption that Section 1250(1)(a) of the Hawaii Penal Code which regulates inhalation of intoxicating compounds is a reasonable exercise of the police power has not been rebutted.

4. Consumption of compounds for the express purpose of becoming intoxicated is not a fundamental right and therefore the state is not required to prove a compelling state interest to justify regulation or prohibition of such consumption.

5. Where a statute does not proscribe constitutionally protected conduct, no issue of overbreadth arises.

6. Where words of general description follow the enumeration of certain things, those words are restricted in their meaning to objects of like kind and character with those specified; this rule of construction is especially applicable to penal statutes which must be construed strictly.

7. As used in Section 1250(1)(a) of the Hawaii Penal Code, the general term 'any other substance' means any other substance similar to the enumerated specific compounds which immediately precede the general term, all of which are volatile organic liquids used ordinarily as industrial solvents.

8. Section 1250(1)(a) of the Hawaii Penal Code is sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties and therefore meets the constitutional requirements of certainty.

9. Section 1250(1)(a) of the Hawaii Penal Code only prohibits an act of breathing, inhaling or drinking of the described compounds with a specific intent of inducing a certain physiological condition.

10. The terms 'intoxication', 'stupefaction' 'depression', 'giddiness', 'paralysis', 'irrational', 'changing', 'distorting', 'disturbing', and 'mental processes' as used in Section 1250(1)(a) of the Hawaii Penal Code are sufficiently definite to give a person of common intelligence notice of what conduct is proscribed.

11. Generally, appellate courts will not consider questions which were not raised in the trial court.

Dale Lee, Deputy Pros.Atty. (Charlotte E. Libman, Deputy Pros.Atty. on the briefs, Maurice Sapienza, Pros.Atty., Honolulu, of counsel), for plaintiff-appellant, cross appellee.

Simeon Acoba, Jr., Honolulu, for defendant-appellee, cross appellant.

Before RICHARDSON, C. J., KOBAYASHI, OGATA, MENOR, JJ., and SODETANI, Circuit Judge, assigned by reason of vacancy.

OGATA, Justice.

Pursuant to HRS § 641-13(1), and H.R.Cr.P., Rule 37(e), the State has appealed from the order which dismissed a misdemeanor complaint against defendant with prejudice. Defendant has cross-appealed insofar as the trial court rejected the other grounds urged below in support of his motion to dismiss. We reverse the order which dismissed the complaint with prejudice, but otherwise affirm the trial court's disposition of defendant's motion to dismiss.

Defendant was charged with violating HRS § 712-1250(1) (a), ¹ Promoting Intoxicating Compounds (hereinafter referred to as Section 1250(1)(a) of the Hawaii Penal Code). ² When he appeared for arraignment in the District Court of the First Circuit, State of Hawaii, on April 1, 1974, he demanded a jury trial. His case was thereafter committed to the Circuit Court of the First Circuit of the State of Hawaii for trial by jury. In that court, defendant filed on May 17, 1974, a motion to dismiss the complaint on the following separate grounds: (1) Section 1250(1)(a) of the Hawaii Penal Code infringes upon personal liberty unconstitutionally because it punishes actions and purposes not affecting the general welfare; (2) the terms 'intoxication', 'stupefaction', 'depression', 'giddiness', 'irrational behavior', 'changing', 'distortion', 'disturbing' as used in Section 1250(1)(a) of the Hawaii Penal Code are unconstitutionally vague; (3) Section 1250(1)(a) of the Hawaii Penal Code prohibits conduct which is protected by the state and federal constitutions; and (4) the enforcement of Section 1250(1)(a) of the Hawaii Penal Code against 'sniffers' of paint and glue but not against all users of intoxicants is a violation of the equal protection clauses of the state and federal constitutions.

Section 1250(1)(a) of the Hawaii Penal Code provides:

'(1) A person commits the offense of promotion intoxicating compounds if he knowingly and unlawfully:

(a) Breathes, inhales, or drinks any compound, liquid, or chemical, containing toluol, hexane, trichloroethylene, acetone, toluene, ethyl acetate, methyl ethyl ketone, trichloroethane, isopropanol, methyl isobutyl ketone, methyl cellosolve acetate, cyclohexanone, or any other substance for the purpose of inducing a condition of intoxication, stupefaction, depression, giddiness, paralysis or irrational behavior, or in any manner changing, distorting or disturbing the auditory, visual or mental processes.'

Defendant was charged in the words of the statute as follows:

'You are hereby charged that on or about November 29, 1973, in the City and County of Honolulu, State of Hawaii, you did knowingly and unlawfully breathe, inhale, or drink any compound, liquid, or chemical containing toluol, hexane, trichloroethylene, acetone, toluene, ethyl acetate, methyl ethyl ketone, trichloroethane, isopropanol, methyl isobutyl ketone, methyl cellosolve acetate, cyclohexanone, or any other substance for the purpose of inducing a condition of intoxication, stupefaction, depression, giddiness, paralysis or irrational behavior, or in any manner changing, distorting or disturbing the auditory, visual or mental processes, thereby committing the offense of Promoting Intoxicating Compounds in violation of Section 1250 of the Hawaii Penal Code.'

The court below granted defendant's motion to dismiss on the asserted ground that Section 1250(1)(a) of the Hawaii Penal Code, as written, prohibits conduct which is privileged by the federal and state constitutions, as well as conduct that is not privileged. The court then dismissed the complaint with prejudice.

Initially defendant contended that an individual's consumption of the compounds described in Section 1250(1)(a) of the Hawaii Penal Code cannot affect the public welfare, and, therefore, its restriction on consumption of those compounds is unconstitutional as beyond the police power of the legislature. Defendant relied primarily upon State v. Cotton, 55 Haw. 138, 516 P.2d 709 (1973), wherein we stated that the statutory requirement that motorcycle riders wear helmets was a proper exercise of the general police power, although we expressly limited our holding to that case.

In State v. Baker, 56 Haw. 271, 276, 535 P.2d 1394, 1397 (1975), we said with regard to the constitutional validity of Hawaii's marijuana law that:

'It is well settled that when a substance has been proscribed as harmful, the presumption of constitutionality applies although there are conflicting scientific views as to its harmful effects.'

In this case the defendant did not dispute the fact that an individual is harmed by the inhalation of the specific substances mentioned in Section 1250(1)(a). Essentially, defendant contended that any physical injury to the individual resulting from the proscribed conduct can be of no concern to the public. ³ Neither the State nor defendant presented evidence below as to the effects on the individual of consumption of the compounds described in the above statute, ⁴ nor as to the possible effect on the public resulting from an individual's consumption of those substances. ⁵ In State v. Kantner, 53 Haw. 327, 332, 493 P.2d 306, 309 (1972), the majority opinion held that 'the absence of sound scientific data concerning the long-term effects of (the substance proscribed) renders appellants' burden (of showing Hawaii's marijuana law unconstitutional) insurmountable.' And as emphatically demonstrated by our holding in Baker, we do not believe that the burden of proof is shifted to the State by the mere assertion that an individual's conduct has no effect on the public welfare. The degree of proof required to overcome the presumption of constitutionality has been stated by this court in Bishop v. Mahiko, 35 Haw. 608, 641 (1940):

'Every enactment of the legislature carries a presumption of constitutional validity and should be upheld by the courts unless it has been shown to be, beyond all reasonable doubt, in violation of the Constitution. Moreover, the facts adduced to show unconstitutionality must be clear and convincing and must show beyond question that the legislature exceeded the limits marked by the Constitution.' (Emphasis supplied.)

Therefore, since the defendant has fallen far short of meeting such a burden of proof, the presumption that the legislative enactment is a valid exercise of police power will prevail.

Next, defendant attempts to shift the burden of proof to the State by reading this statute, as did the court below, to say that a person commits the offense if he knowingly consumes '. . . any other substance for the purpose, of inducing intoxication' for any of the other specified conditions. When so read, it is claimed that this portion of the code might prohibit the consumption of substances such as alcoholic beverages, tobacco, and even coffee which contains caffein. ⁶ Defendant alleg...