State v. Mita
| Decision Date | 21 December 2010 |
| Docket Number | No. 29347.,29347. |
| Citation | 245 P.3d 458,124 Hawai'i 385 |
| Parties | STATE of Hawai'i, Petitioner/Plaintiff-Appellee, v. Wanda Ruriko MITA, Respondent/Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Gary Y. Okuda (Leu & Okuda), Honolulu, on the briefs, for defendant-appellant.
Peter B. Carlisle, Prosecuting Attorney, James M. Anderson, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.
RECKTENWALD, C.J., NAKAYAMA, J., and Circuit Judge LEE in place of MOON, C.J., recused, and ACOBA, J., dissenting, with whom DUFFY, J., joins.
Wanda Ruriko Mita was charged with Animal Nuisance in violation of Revised Ordinances of Honolulu (ROH) § 7-2.3 (1990 & Supp. No. 6, 2-05), which provides that "[i]t is unlawful to be the owner of an animal, farm animal, or poultry engaged in animal nuisance as defined in section 7-2.2 [.]" Mita was originally issued a citation that indicated that she committed this offense by owning,
[124 Hawai'i 386, 245 P.3d 459]
harboring, or keeping two dogs that were barking. Prior to the start of trial, the State also orally charged Mita by using language that tracked the provisions of ROH § 7-2.3. Mita objected that the charge was insufficient because it did not give Mita notice of what type of "animal nuisance" she was being charged with, as that term is defined in ROH § 7-2.2.1 The District Court of the First Circuit, Honolulu Division (district court) 2 concluded that the charge was sufficient, and convicted Mita after a bench trial.
Mita appealed to the Intermediate Court of Appeals (ICA). In its February 23, 2010 Summary Disposition Order (SDO), the ICA cited State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), in concluding that the charge against Mita was insufficient because the definition of the term "animal nuisance" in ROH § 7-2.2 contains an essential element of the offense of animal nuisance, and the offense cannot be understood by a person of common understanding without including that definition. The ICA accordingly vacated the judgment of the district court, and remanded with instructions to dismiss without prejudice.
The State of Hawai'i (State) raises the following question in its application for a writ of certiorari: "Whether the ICA gravely erred as a matter of law and fact in holding that the oral charge of Animal Nuisance was insufficient."
For the reasons set forth below, we conclude that the citation and oral charge, when considered together, gave Mita fair notice of the offense. In contrast to the circumstances in Wheeler, the definition of "animal nuisance" in ROH § 7-2.2 does not create an additional essential element of the offense, and, in any event, is consistent with its commonly understood meaning. Thus, the charge against Mita was sufficient. Accordingly, we reverse the ICA's judgment, and remand this case to the ICA to address the remaining issues raised by Mita, which the ICA did not resolve.
On June 5, 2008, Mita was issued an "Animal License & Regulation—Complaint & Summons" (citation). The citation, signed "Wanda Mita[,]" stated that Mita "[d]id on/or about this 3 day of June Yr 08 at about 1940-2050 did own, harbour or keep (animal description): Boxers Name Roxy/Obie Color Brown ... at (location): [ Mita's residence address ] and did commit the offense of: ... animal nuisance-Sec.: 7-2.3 Barking Dog [.]" Additionally, the citation had a section entitled "Officer's Report" which stated that The citation also advised Mita of her appearance date in court.
Mita appeared in court on July 17, 2008, represented by counsel, and waived reading of the charge and entered a plea of not guilty.
At the start of trial on August 14, 2008, prior to any witnesses being called, the Deputy Prosecuting Attorney (DPA) read the following charge to Mita: "On or about June 3rd, 2008, in the city and county of Honolulu, state of Hawaii, you as the owner of an animal, farm animal, or poultry engaged in animal nuisance as defined in section 7-2.2, thereby violating section 7-2.3 of the Revised Ordinances of Honolulu."
ROH § 7-2.3 provides as follows:
(Emphasis added).
ROH § 7-2.2 defines "animal nuisance" as follows:
Mita objected to the oral charge:
[ ] Your Honor, if I may make for the record an objection to the arraignment. I do not believe that arraignment is specific enough to put the defendant specifically on notice what part of the—if I may call "barking dog" ordinance she's being charged with. There's [sic] basically four violations or four acts which may constitute a violation of the ordinance. One is whether or not the dog made noise continuously and/or incessantly for a period of ten minutes; that's ordinance section 7-2.2(a); or made noise intermittently for one half-hour or more to the disturbance of any person at any time of day or night; that's ordinance section 7-2.2(a); or bark, whine, howl, cry, or make other unreasonable noise which interfered with reasonable individual or group activity such as but not limited to communication, work, rest, recreation, or sleep; that's ordinance section 7-2.2 [ (b) ] and incorporating 7-2.4(c); or failed to heed the admonition of a police officer or a special officer of the animal control contractor that the noise was unreasonable and should be stopped; that's ordinance section[s] 7-2.2 [ (b) ] and 7-2.4(c). And it's our position that under State v. Jendrusch, 58 Haw. 279, [567 P.2d 1242 (1977),] a 1977 case, we should receive specificity in the arraignment so that we know exactly which of these sections of the ordinance we must defend against.
The DPA argued that the oral charge was sufficient because:
[Mita] is charged under section 7-2.3. 7-2.2 is a definition section, in which it defines animal nuisance, and section 7-2.3 incorporates a general animal nuisance as defined in section 7-2.2; and the State's position would be that the wording of the statute is broad enough to encompass all subsections (a), (b), and (c) listed under animal nuisance.
The DPA offered, however, to read the definition of animal nuisance, but the district court found that a reading was unnecessary and that the arraignment was proper. Mita pled not guilty.
At trial, the State called two witnesses, both of whom were neighbors of Mita. Both witnesses testified that they heard Mita's dogs barking on the evening of June 3, 2008. The first witness testified that she made a written record of Mita's dogs barking on June 3, 2008 from 7:45 p.m. to 8:50 p.m. She testified that she knew it was Mita's dogs barking by their distinctive bark. The second witness testified that she made a written
[124 Hawai'i 388, 245 P.3d 461]
record of Mita's dogs barking on June 3, 2008 from approximately 7:30 p.m. to 8:45 p.m. She testified that she specifically saw Mita's dogs barking that evening, and could distinguish their bark from that of other dogs in the area.
Following the State's evidence, Mita moved for a judgment of acquittal on six grounds outlined in her Trial Memorandum and Memorandum in Support of Motion for Judgment of Acquittal filed on August 14, 2008, as well as her Supplemental Memorandum in Support of Motion for Judgment of Acquittal filed on August 22, 2008. Relevant to the instant appeal, Mita argued that the charge was insufficient because it only charged Mita with violating ROH § 7-2.3, prohibiting animal nuisance, and did not apprise Mita what specific act contained within the definition of "animal nuisance" in ROH § 7-2.2 she was being charged with. The district court denied the motion, and ruled, inter alia, that the charge was sufficient.
The defense called one witness, who was also a neighbor of Mita. The defense witness testified that she "did not notice any dogs barking" the evening of June 3, 2008, and that if Mita's dogs had been barking, she was "almost certain" that she would have noticed it.
After the defense rested, Mita renewed her motion for judgment of acquittal. The district court denied the motion and found Mita guilty of violating ROH § 7-2.3.4 The district court entered its judgment on August 28, 2008, convicting Mita of violating ROH § 7-2.3 and sentencing Mita to pay a $50 fine. Mita filed her notice of appeal on September 5, 2008.
On appeal to the ICA, Mita raised several points of error. She argued that the State failed to prove the following beyond a reasonable doubt: (1) that Mita owned...
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