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State of Hawaii v. Christopher Reid

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII


December 10, 2012

STATE OF HAWAII,
PLAINTIFF-APPELLEE,
v.
CHRISTOPHER REID,
DEFENDANT-APPELLANT

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-CRIMINAL NO. 10-1-1407)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Foley, Presiding J., Fujise and Ginoza, JJ.)

Defendant-Appellant Christopher Kanoa Reid (Reid) appeals from the Judgment of Conviction and Sentence, entered May 19, 2011 in the Family Court of the First Circuit*fn1 (family court).

Reid was found guilty of harassment, in violation of Hawaii Revised Statutes (HRS) § 711-1106(1)(a) (Supp. 2010).

On appeal, among other points, Reid contends the family court erred by denying his "Motion to Dismiss for Lack of Subject Matter Jurisdiction" (Motion to Dismiss) filed March 2, 2011.

During the hearing on Reid's Motion to Dismiss, the family court relied upon Reid's familial status as a household member when it determined that it had jurisdiction over Reid in a

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

harassment case. In State v. Alagao, 77 Hawaii 260, 883 P.2d 682 (App. 1994), this court expressly stated that a defendant's status as a family or household member did not satisfy the subject matter jurisdictional criteria of HRS § 571-14(a)(1)*fn2 in a harassment case. This court stated in Alagao:

HRS § 709-906 (Supp. 1992) specifies the offense of

Abuse of Family and Household Members. Alagao was not charged with that offense. The fact that Alagao was a "family or household member" for purposes of HRS § 709-906 did not satisfy HRS § 571-14(1)'s subject matter jurisdiction factual criteria because a "family or household member" is not by that fact "the child's parent or guardian or . . . any other person having the child's legal or physical custody[.]"

Id. at 263, 883 P.2d at 685.

On appeal, the State of Hawaii concedes that "Reid was not [the minor's] parent or guardian, nor did he have legal custody of [the minor]." Therefore, the family court could only exercise its jurisdiction over Reid if Reid had physical custody of the minor at the time of the alleged harassment. However, Reid did not have physical custody of the minor at the time of the alleged harassment. In Alagao, this court adopted the definition of physical custody, as defined in HRS § 583-2(8) (1985), as actual possession and control of a child. There was no evidence that Reid exercised actual possession and control of the minor at the time he allegedly kicked the minor.

Therefore,

IT IS HEREBY ORDERED that the Judgment of Conviction and Sentence entered May 19, 2011 in the Family Court of the First Circuit is vacated and the case is remanded with instructions to dismiss the charge for lack of jurisdiction.

Presiding Judge

Associate Judge

Associate Judge


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