State v. Benson

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
02-JUN-2022
07:58 AM
Dkt. 51 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
JOANN I. BENSON, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DCC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Joann I. Benson appeals from:
(1) the "Notice of Entry of Judgment and/or Order" (Restitution
Order) entered by the District Court of the First Circuit,
Honolulu Division on November 12, 2020; and (2) the "Amended
Judgment and Notice of Entry of Amended Judgment" entered by the
district court on September 29, 2021.1 For the reasons explained
below, we affirm the Restitution Order and the Amended Judgment.
On April 30, 2019, Benson's dog (Oden) bit Afatia
Ali#ilua on his right forearm. Benson was cited by Honolulu
Police Department Officer Eric Hokama for negligent failure to
control a dangerous dog, in violation of Revised Ordinances of
Honolulu (ROH) § 7-7.2 (1990 & Supp. No. 12, 2-08) (NFCDD). She

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The Honorable William M. Domingo presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

pleaded not guilty to the charge. She was tried by the district
court on March 4, 2020.
At trial, Ali#ilua testified that on April 30, 2019, at
around 10:45 a.m., he was in the Market City parking lot. He
walked "between cars going to get me something for eat." As he
was walking, a dog's "whole head came out" of a car's window and
"went snatch my right arm, forearm." He "poked the dog's eye"
with his left hand and the dog released his arm. At the time of
the incident, "[o]nly the dog was in the back seat" of a white,
four-door Toyota with the window down halfway. He never saw the
dog before he passed the car.
Officer Hokama testified that on September 14, 2019, he
"conducted a traffic stop for a vehicle [Benson] had owned, a
Toyota Corolla, for expired tax and safety." He stated, "when I
ran the plate in our case report system, it came out there was a
pending dog bite case involving that vehicle[.]" As he
approached the vehicle, Benson was seated in the driver's seat
and a "pit bull kind of looking dog" "was in the back seat and
the window was cracked a little bit." The dog was not on a
leash. Officer Hokama testified that when he informed Benson of
the pending dog bite case, "she just said she will take care of
it at court and then so I just gave her the citation."
Benson testified in her own defense. She drove her car
to Market City on April 30, 2019. She brought Oden with her, but
left him in the car when she went to Foodland and Walgreens.
She left Oden in the back seat and rolled the window down about
four inches for ventilation. She stated she had left Oden in the
car by himself before and he never attacked anyone. She never
had any issue because Oden's "face is pretty big. I didn't think
he'd . . . be able to come out of there at all, . . . let alone
approach anybody or bite anyone." On cross-examination, Benson
testified that she did not put a leash on Oden and he was not in
a kennel while in her car.
After closing arguments, the district court issued its
oral ruling:

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Okay. So we had Mr. Ali#ilua who testified that on April
30th about 10:45 A.M. he's a Robert's Hawaii school bus
driver; that he drop[p]ed off his school charter at the
Foodland area in Market City which is in the City and County
of Honolulu, state of Hawaii. He was in the parking lot.
He decided to go get something to eat in the area, and
as he was walking through the parking lot between cars, all
of a sudden he said the dog snatched his right forearm which
means the dog bit his forearm. He testified it was right
forearm and did show in court that there was a purplish scar
which was that, it was bleeding a lot.

And he testified that there was a dog that had jumped
out of that car with his whole head and bit his arm at which
point he used his left hand to poke the dog in the eye and
at which point the dog released and moved back into the car.
He grabbed his hand to try to stop the bleeding. There was
a couple there that noticed what was going on and they, um,
they took a picture of the car as far as the license, uh,
and called the police and also an ambulance.
Mr. Ali#ilua also testified that he did not see or
notice that there was a dog in the car, did not provoke the
dog, did not stick his hand through the window opening for
the dog to -- to bite him, and there was no provocation on
his part. He testified also that the window was halfway down
which this court finds it was greater than four inches
because the dog was able to completely put his head out.
But it is a pit bull. Even Ms. Benson testified that it has
a big head.

And, uh, also testified that when the police came --
well, actually the owner came, which he identified as
Ms. Benson, he told her that the dog had just bitten his arm
and that the police were on their way. She stated that she
was sorry. And he said that, "Wait," you know. "Stay
because the police are coming," and she stated that she had
to leave and left him a message or a piece of paper with her
name on it. I'm not sure whether or not there was any phone
number on there or anything else to contact her. Um, he was
treated apparently by the EMS and he did show his wound in
court.
The second witness which was called was Corporal
Hokama who had testified on September 14, 2019, some five
months -- sorry, five months after the incident he stopped a
white sedan because of, um, expired safety -- uh, safety
tags. And as he was running the check on the car
registration, there was a notification that there was a
pending dog bite case.

And he spoke with Ms. Benson, who he recognized and
identified in court, regarding that and she stated that
she'll take care of it in court and so he gave her a
citation. He noticed that there was a dog in the back seat.
He noticed it was a pit bull and noticed the window in the
back was cracked a little bit.

[Benson] did take the stand, testified that she was
present on that particular day, had gone to Market City with
her dog Oden. He was two and a half years old. Um, and she
went to Market City to get some food. Normally she tries to
park in areas where there are people who won't be walking by

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the car and there was some shade there too. But she
testified that on that day there was -- the parking lot was
full so she took the only available space with any possible
shade, left Oden in the back seat. He was not in a kennel.
Did not have a leash on at that point.
And she testified that she did crack the window
approximately four inches down so that he could get some
ventilation. She also testified that the -- Oden's face is
big. She also testified that he has not acted aggressively
although neighbors' friends tried to provoke him when they
call on the dog and hit the screen which causes him to bark.

The court finds that based on the testimony and
specifically of Mr. [Ali#ilua] that he was just walking by,
didn't expect anything to happen at this point, did not see
a dog, did not provoke a dog, and he was bitten by the dog,
the whole head had just come out.
The court finds also that based on testimony and the
disputed facts that the window was not cracked down four
inches as Ms. Benson stated as the window was at least
halfway down as Mr. [Ali#ilua] stated for -- in order to
enable th[e] dog to come out.
So based on the fact of the window not being -- she
did take some measures but they were negligent --
negligently failed to prevent anything that would relay
provocation -- non-provocation on that. So therefore the
court finds that the State has proved beyond a reasonable
doubt that Ms. Benson is guilty of the charge of dangerous
dog.

The Restitution Order and the Amended Judgment were
entered. This appeal followed.
Benson raises one point of error on appeal: "Benson's
conviction requires reversal where there was no substantial
evidence that Benson negligently failed to control a dangerous
dog or negligently failed to take reasonable measures to prevent
her dog from attacking Ali#ilua."
The Hawai#i Supreme Court has stated:

We have long held that evidence adduced in the trial
court must be considered in the strongest light for the
prosecution when the appellate court passes on the legal
sufficiency of such evidence to support a conviction; the
same standard applies whether the case was before a judge or
a jury. The test on appeal is not whether guilt is
established beyond a reasonable doubt, but whether there was
substantial evidence to support the conclusion of the trier
of fact. Indeed, even if it could be said in a bench trial
that the conviction is against the weight of the evidence,
as long as there is substantial evidence to support the
requisite findings for conviction, the trial court will be
affirmed.

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"Substantial evidence" as to every material element of
the offense charged is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion. And as trier of
fact, the trial judge is free to make all reasonable and
rational inferences under the facts in evidence, including
circumstantial evidence.

State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31
(2007) (cleaned up) (reformatted).
ROH § 7-7.2 (1990 & Supp. No. 12, 2-08) provides, in
relevant part:

Prohibited acts — Conditions on owner – Penalties.

(a) A dog owner commits the offense of negligent failure
to control a dangerous dog,[2] if the owner
negligently fails to take reasonable measures to
prevent the dog from attacking, without provocation, a
person . . . and such attack results in: . . . (2)
bodily injury to a person other than the owner.

Based on the charge in State v. Argus, No. CAAP-17-
0000340, 2019 WL 3384851 (Haw. App. July 26, 2019) (SDO), we held
that

the offense of NFCDD requires proof that the accused:
(1) owned, harbored, kept, or had custody of a dog;
(2) negligently failed to take reasonable measures to
prevent the dog from attacking without provocation; and
(3) which resulted in bodily injury to a person other than
the owner. ROH § 7-7.2.

Id. at *1. Given the circumstances in this case, it appears the
same elements apply here as well.
Benson does not contest that she owned Oden, that
Ali#ilua did not provoke Oden, or that Ali#ilua sustained bodily
injury. She contends she did not "negligently fail[] to take
reasonable measures to prevent her dog from attacking Ali#ilua"
because "there was no evidence presented that would suggest
Benson should have been aware of a substantial and unjustifiable
risk that her dog would attack Ali#ilua, since her dog had never

2
"Dangerous dog" is defined as "any dog which, without provocation,
attacks a person or animal. A dog's breed shall not be considered in
determining whether or not it is dangerous." ROH § 7-7.1 (1990 & Supp. No.
12, 2-08).

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attacked, bitten, or been aggressive to any persons before
without provocation." She cites Hawaii Revised Statutes (HRS)
§ 702-206 ("Definitions of states of mind").3
HRS § 702-206 (2014) provides, in relevant part:

(4) "Negligently."
(a) A person acts negligently with respect to his conduct
when he should be aware of a substantial and
unjustifiable risk taken that the person's conduct is
of the specified nature.

(b) A person acts negligently with respect to attendant
circumstances when he should be aware of a substantial
and unjustifiable risk that such circumstances exist.

(c) A person acts negligently with respect to a result of
his conduct when he should be aware of a substantial
and unjustifiable risk that his conduct will cause
such a result.

(d) A risk is substantial and unjustifiable within the
meaning of this subsection if the person's failure to
perceive it, considering the nature and purpose of his
conduct and the circumstances known to him, involves a
gross deviation from the standard of care that a
law-abiding person would observe in the same
situation.

Contrary to Benson's contention, "negligently" under
HRS § 702-206 "does not involve a state of awareness on the part
of the defendant." HRS § 702-206 cmt. (2014). "Rather,
negligence involves the inadvertent creation by the defendant of
a risk of which the defendant would have been aware had the
defendant not deviated grossly from the standard of care that a
law-abiding person would have observed in the same situation."
Id.
ROH § 7-7.2(b) defines "reasonable measures to prevent
the dog from attacking" as including, among other things,
measures required to be taken under Article 4 of ROH Chapter 7
"to prevent the dog from becoming a stray[.]" A "stray" is,
among other things, any dog in a "public place, except when under
the control of the owner by leash, cord, chain or other similar

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ROH § 7-7.1 provides, in relevant part:
"Negligently" shall have the same meaning as is ascribed to
the term in HRS Section 702-206.

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means of physical restraint[.]" ROH § 7-4.1 (1990 & Supp.
No. 19, 7-2011).
In Argus we held that the defendant negligently failed
to take reasonable measures to prevent his dog from attacking the
complaining witness because the complaining witness's testimony
established that "the dog that bit her while she was walking on a
public sidewalk, was unleashed." 2019 WL 3384851, at *3. We
stated that the defendant's "failure to keep his dogs on a leash
constitutes negligence on his part" under ROH § 7-7.2. Id. at *3
n.5.
Further, in State v. MacDonald, No. 28793, 2009 WL
245436 (Haw. App. Jan. 30, 2009) (mem.), this court recognized
that ROH § 7-7.2 does not require evidence of a dog's previous
bite. There, we stated:

On its face, ROH § 7–7.2 does not state that the
ordinance applies only to owners of dogs that have
previously bitten a person. By its plain and unambiguous
language, the ordinance applies whenever a dog owner
"negligently fails to take reasonable measures to prevent
the dog from attacking, without provocation, a person . . .
and such attack results in . . . bodily injury to a person
other than the owner." The only instance where a "prior"
attack by a dog would be relevant is at sentencing[.]

Id. at *5.
In this case, the district court found that Benson left
her dog in her car in a public place, unleashed, with the window
"at least halfway down[.]" This finding was supported by
substantial evidence, and was not clearly erroneous. The
district court did not err in concluding that Benson negligently
failed to take reasonable measures to prevent Oden from biting
Ali#ilua.
Based on the foregoing, the Restitution Order entered
by the district court on November 12, 2020, and the Amended
Judgment entered by the district court on September 29, 2021, are
affirmed.

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DATED: Honolulu, Hawai#i, June 2, 2022.

On the briefs:
/s/ Lisa M. Ginoza
Ashlyn L. Whitbeck, Chief Judge
Deputy Public Defender,
State of Hawai#i, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Loren J. Thomas, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.

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