State v. MITA

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NO. 29347

IN THE IN'I‘ERMEDIATE C`OURT OF APPEALS

OF THE STATE OF HAWAI‘I

sTATE oF HAwAiT:, plaintiff-App@1iee, v.
WANDA RURIKO MITA, Defendant~Appellant

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APPEAL snow THE D:sTR:cT c0URT oF ran E:RsT ciRcU:T
HoNoLULU D:visioN
(HPD criminal No. i64973DL <iPi03009607>>

SUMMARY DISPOSITION ORDER
(By: Foley and Fujise, JJ.; Nakamura, C.J., dissenting)

Defendant~Appellant Wanda Ruriko Mita (Mita) appeals
from the Judgment filed on August 28, 2008 in the District Court
of the First Circuit, Honolulu Division (district court).1

The district court convicted Mita of Animal Nuisance,
in violation of Revised Ordinances of Honolulu (ROH) § 7~2.3.2

On appeal, Mita contends that in finding her guilty,
the district court erred because (l) the State of Hawafi (State)
failed to prove beyond a reasonable doubt that Mita owned the
barking dogs, (2) the State failed to prove beyond a reasonable
doubt that Mita acted with the requisite state of mind, (3) the
State failed to prove beyond a reasonable doubt that the dogs

1 The Honorable Faye M. Koyanagi presided.
2 ROH § 7-2.3 provides:
Sec. 7-2.3 Animal nuisance~~Pr0hibited.

lt is unlawful to be the owner of an animal, farm animal or
poultry engaged in animal nuisance as defined in Section 7~2.2;
provided, however, that it shall not be deemed to be animal
nuisance for purposes of this article if, at the time the animal,
farm animal or poultry is making any noise, biting or stinging, a
person is trespassing or threatening trespass upon private
property in or upon which the animal, farm animal or poultry is
situated, or for any other legitimate cause which teased or
provoked said animal, farm animal or poultry.

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were barring in violation of ROH § 7~2,3, {4) the charge was
insuificient, {5) ROH § 7-2.3 is unconstitutionally vague, and
(6l the State failed to prove that a qualified animal control
officer had issued the citation to Mita.

Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we agree with Mita's
point of error that the charge was insufficient, vacate Mita's
conviction and sentence, and remand this case to the district
court with instructions to dismiss without prejudice.

The oral charge read before trial on August 14, 2008
was insufficient. "This court‘s analysis of charges under the

Hawaid constitution has focused on whether the language actually

used in the charge provides fair notice to the defendant." State

V. Wheeler, 121 HaWafi 383, 394, 219 P.3d 1170, 1181 (2009).
"[W]here the definition of an offense includes generic terms, it
is not sufficient that the indictment shall charge the offense in
the same generic terms as in the definition; but it must state
the species and descend to particulars." ;d; at 393, 219 P.3d at
1180 (brackets and ellipses omitted) (quoting State v. lsrael, 78
Hawaid.66, 73, 890 P.2d 303, 310 (1995)). "[I]ncluding a
citation to the statute in the charge does not cure a charge that
omits an essential element of the offense." Wheeler, 121 Hawafi
at 393, 219 P.3d at 1180. A charge is insufficient when the
nature and cause of the accusation could not be understood by a
person of common understanding. ;d; at 394, 219 P.3d at 1181;
see also :Sraei, 73 Hawai‘i at 70, 390 P.zd at 307>.

The offense of Animal Nuisance is not understood by a
person of common understanding because the ordinance refers to
"an animal, farm animal or poultry engaged in animal nuisance as

defined in Section 7~2.2." The term "animal nuisance" is

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specifically limited to three types of actions which the animal,
farm snimal, or poultry must commit3 in order to be considered a
violation of RCH § 7~2.3. A violation of RGH § 7~2.3 simply
cites another RCH section which contains an essential element
that the state must prove to find Mita guilty. This did not
provide fair notice to Mita.
Therefore,
lT lS HEREBY ORDERED that the Judgment filed on

August 28, 2008, in the District Court of the First Circuit,
Honolulu Division, is vacated and this case is remanded to the
District Court of the First Circuit, Honolulu Division, with
instructions to dismiss without prejudice.

DATED: Honolulu, Hawafi, February 23, 20l0;

On the briefs: 6/é;:AeH%7
Gary Y. Okuda [;2

for Defendant-Appe1lant. Associate Judge
James M. Anderson, ja § k€zz! ,
Deputy Prosecuting Attorney, 47 “
City and County of Honolulu, Associate Judge

for Plaintiff~Appellee.

3 R©H § 7s2.2 provides in relevant part:
Sec. 7-2.2 Definiti0ns.

"Animal nuisance," for the purposes of this section, shall
include but not be limited to any animal, farm animal or poultry
which:

§ Makes noise continuously and/or incessantly for a period of

(a

10 minutes or intermittently for one~half hour or more to the
disturbance of any person at any time of day or night and
regardless of whether the animal, farm animal or poultry is

physically situated in or upon private property;
(b) Barks, whines, howls, crows, cries or makes any other
unreasonable noise as described in Section 7-2.4(c) of this

article; or

(c} Notwithstanding the provisions of HRS Section 142-75 or any
other applicable law, bites or stings a person.

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