State v. Pacquing

• Decision Date: 22 March 2013
• Docket Number: No. SCWC–29703.,SCWC–29703.
• Citation: 129 Hawai'i 172,297 P.3d 188
• Parties: STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Chester PACQUING, Petitioner/Defendant–Appellant.
• Court: Hawaii Supreme Court

129 Hawai'i 172

297 P.3d 188

STATE of Hawai‘i, Respondent/Plaintiff–Appellee,

v.Chester PACQUING, Petitioner/Defendant–Appellant.

No. SCWC–29703.

Supreme Court of Hawai‘i.

March 22, 2013.

Craig W. Jerome, for petitioner.

Brian R. Vincent, for respondent.

RECKTENWALD, C.J., NAKAYAMA, and McKENNA, JJ., and Circuit Judge BROWNING, assigned by reason of vacancy, with ACOBA, J., dissenting.

Opinion of the Court by RECKTENWALD, C.J.

Chester Pacquing was charged with one count of Unauthorized Possession of Confidential Personal Information (UPCPI) in relation to two traffic stops in which he identified himself to a police officer using the name, date of birth, and address of his former neighbor, the Complainant in this case.

Pacquing moved to dismiss the charge as a de minimis violation of the UPCPI statute, on the ground that his conduct did not actually cause or threaten the harm sought to be prevented by the statute, or did so only to a trivial extent. See Hawai‘i Revised Statutes (HRS) § 702–236(b). In support of his argument, Pacquing relied primarily on factors set forth by this court in State v. Park, 55 Haw. 610, 617, 525 P.2d 586, 591 (1974).

The Circuit Court of the First Circuit granted Pacquing's motion and dismissed the charge, without prejudice to the State charging Pacquing with the offense of Unsworn Falsification to Authorities.¹ The State appealed, and the ICA vacated the circuit court's dismissal order on the ground that the circuit court had not been presented with all of the relevant circumstances surrounding the offense as required under this court's holding in State v. Rapozo, 123 Hawai‘i 329, 235 P.3d 325 (2010). Specifically, the ICA noted that the circuit court was not aware that Pacquing was in possession of Complainant's driver's license number and partial social security number, which were contained on the citation Pacquing received at the initial traffic stop. Accordingly, the ICA remanded to permit the circuit court to consider "all the relevant circumstances."

Pacquing argues that the ICA erred in concluding that the circuit court was not presented with all of the relevant circumstances. He further argues the circuit court did not abuse its discretion in granting his motion to dismiss. Accordingly, Pacquing seeks to affirm the circuit court's dismissal order.

We conclude that Pacquing's arguments are without merit. Accordingly, we agree with the ICA that the dismissal order must be vacated, and the case remanded for further proceedings. However, while we reach the same result as the ICA, our reasoning differs. Specifically, we do not find the information regarding Complainant's driver's license number and partial social security number to be dispositive. Rather, we conclude that the circuit court abused its discretion in concluding that Pacquing's conduct constituted a de minimis violation of the UPCPI statute because, as set forth below, Pacquing's conduct actually caused or threatened the harm sought to be prevented by the UPCPI statute, and Pacquing failed to meet his burden of demonstrating the results of his conduct were trivial. See HRS § 702–236(b). We therefore affirm the ICA's judgment.

I. Background

A. Factual history

The following facts are taken from the submissions of the parties to the circuit court, and are undisputed.

On March 23, 2008, at approximately 11:00 p.m., Honolulu Police Department (HPD) Officer Barry Danielson observed a black Acura Integra being operated with an expired vehicle tax emblem. Officer Danielson initiated a traffic stop and pulled the vehicle over near the intersection of North King Street and Kalihi Street. Officer Darrin Lum arrived to assist Officer Danielson.

Officer Lum observed Pacquing in the driver's seat of the vehicle. He asked for Pacquing's license, registration, and proof of no-fault insurance. Pacquing was unable to produce the requested documents, but identified himself as Complainant. Pacquing also gave a date of birth and residential address.

Officer Lum proceeded to verify the information Pacquing provided. Dispatch informed Officer Lum that the Department of Motor Vehicles Licensing Division (DMV) had a record of Complainant with the date of birth and address given by Pacquing. Dispatch also provided Officer Lum with a description of Complainant from the DMV, which also matched Pacquing.

Officer Lum issued two citations in Complainant's name: one criminal citation for the offense of Driving Without Insurance, and one infraction citation for the offenses of Delinquent Vehicle Tax and Fraudulent Safety Check. Pacquing signed both citations with Complainant's name.

Officer Lum later discovered that, although he gave Pacquing a copy of the criminal citation, he did not give him a copy of the infraction citation. Officer Lum proceeded to the address Pacquing had provided to deliver the citation. When no one answered the door, Officer Lum left the infraction citation in the mailbox.

On March 24, 2008, Complainant went to the Kalihi Police Station and informed the police that he had found the citation in his mailbox and believed it to be in error. Complainant stated that he did not own or operate the black Acura Integra listed on the citation, nor was he involved in a traffic stop at the time listed on the citation. HPD Officer Tish Taniguchi initiated a police report, and relayed the information to Officer Lum.

On April 7, 2008, Officer Danielson again initiated a traffic stop on the same black Acura Integra. Officer Lum again arrived to assist. Officer Danielson observed Pacquing in the driver's seat, and asked for his license, registration, and proof of no-fault insurance. Pacquing stated that he did not have any picture identification, but that he recently received a citation for the same violation. Pacquing presented Officer Danielson with the March 23, 2008 criminal citation issued by Officer Lum.

Officer Lum asked Pacquing to exit the vehicle and sit in Officer Lum's HPD issued vehicle. Officer Lum asked another officer to locate Complainant and escort Complainant to the scene. Complainant arrived at the scene at approximately 3:00 a.m., and identified the defendant as "Chester Pacquing." Complainant related that Pacquing used to be his neighbor, and that Pacquing did not have permission to use any of Complainant's personal information.

Officer Lum asked Pacquing if his name was "Chester Pacquing." Pacquing responded in the affirmative, and stated that he was scared because he "had some warrants and did not want to get arrested." Pacquing acknowledged that he used to live near Complainant. Officer Lum then placed Pacquing under arrest.

B. Circuit court proceedings

On April 14, 2008, Pacquing was charged by way of complaint with one count of UPCPI, in violation of HRS § 708–839.55,² in relation to his possession of Complainant's confidential personal information³ on or about March 23, 2008, to and including April 7, 2008.

On September 2, 2008, Pacquing filed a Motion to Dismiss, or in the Alternative, Motion for Bill of Particulars. In a supplemental memorandum to the motion, Pacquing argued that the charge should be dismissed because the State could not prove he was in possession of Complainant's confidential personal information, since the information came from Pacquing's memory and was possessed only in his mind. Pacquing asserted that he was possibly guilty of "some degree of Identity Theft," but not UPCPI. Pacquing also acknowledged that he possessed Complainant's confidential personal information on April 7, 2008 in the form of the citation, but argued that "[t]he fact that it was memorialized on a piece of paper and given to [Pacquing] does not change a thing." With regard to his alternative motion for a bill of particulars, Pacquing sought clarification as to whether the date of the offense was March 23, 2008 or April 7, 2008. The circuit court ultimately denied the motion, and Pacquing does not challenge this ruling on appeal.

On October 6, 2008, Pacquing filed a Motion to Dismiss for De Minimis Violation, which is the subject of the instant appeal. Along with the motion, Pacquing submitted a declaration of counsel, which acknowledged that Pacquing was pulled over on March 23, 2008 and April 7, 2008; that on the first occasion, he provided officers with Complainant's name, date of birth and address; and that on the second occasion, he presented officers with the citation he had previously received.

Pacquing asserted that his conduct constituted a de minimis infraction under the factors set forth in Park.⁴ Pacquing argued that, rather than the offense of UPCPI, "the likely assumption would be that he was committing identity theft or violating some duty to not mislead a police officer[,]" such as Unsworn Falsification to Authorities in violation of HRS § 710–1063.⁵ Thus, Pacquing argued that "it should be assumed that [he] envisioned the consequences of his actions to be a violation of HRS § 710–1063(1)(b)" and Unsworn Falsification to Authorities was therefore the proper charge. In addition, Pacquing argued that the circumstances surrounding the offense, the resulting harm or evil, and the probable impact on the community were minimal because Complainant immediately informed the police that he was not involved in the traffic stop, and the police believed Complainant. Finally, although Pacquing appeared to concede that the State did not have improper motives in charging him with UPCPI, he argued that his conduct "did not rise to the level of a felony offense[,]" and that he therefore had been over-charged. Pacquing reiterated his argument that the proper charge for his conduct was the misdemeanor offense of Unsworn Falsification to Authorities.

Pacquing also argued that his conduct constituted a de minimis violation under the applicable statute, HRS § 702–236(1)(b) and/or (c).⁶ Specifically, Pacquing argued that the legislature did not intend to prevent his conduct under UPCPI, but rather under Unsworn Falsification to Authorities. He also...