NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION (CASE NO. 1P109-10730)
E. Gunner Schull (Cades Schutte) for Defendant-Appellant.
Anne K. Clarkin Deputy Prosecuting Attorney for Plaintiff-Appellee.
Nakamura, Chief Judge, and Fujise and Ginoza, JJ.
Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Edwin Gunner Schull, Jr. (Schull) with permitting a dog, of which he was an owner, to become a stray, in violation of Revised Ordinances of Honolulu (ROH) § 7-4.2 (1990 & Supp. No. 19, 7-2011). The charge also alleged that Schull was subject to sentencing as a second-time offender, pursuant to ROH § 7-4.9 (1990 & Supp. No. 19, 7-2011, Supp. No. 17, 6-2010). After a bench trial, the District Court of the First Circuit (District Court) found that Schull had violated ROH § 7-4.2, which the District Court found was Schull's "second offense, " and-fined him $100. Schull appeals from the Notice of Entry of Judgment and/or Order (Judgment) filed on February 24, 2010, in the District Court.
On appeal, Schull argues that: (1) the District Court erred in ruling that the charge was sufficient; (2) the District Court erred in construing the charged violation of ROH § 7-4.2 as not requiring proof of a mens rea or any action by the defendant to permit a dog to become a stray and in denying his motion for judgment of acquittal on that basis; (3) the District Court erred in admitting evidence of prior incidents concerning the two dogs involved in this case; and (4) ROH § 7-4.2, as construed by the District Court, is unconstitutionally overbroad and vague.
The decision in this appeal turns on the proof required to establish the violation of ROH § 7-4.2 with which Schull was charged. Schull was charged with violating ROH § 7-4.2 and being subject to punishment as a second-time offender pursuant to ROH § 7-4.9 (a) (2). We conclude that the charged violation of ROH § 7-4.2 does not require proof of a mens rea. It does, however, for the conduct element of the offense, require proof that the dog's owner did permit the dog to become a stray. Therefore, the mere fact that a dog owned by the defendant became a stray is not sufficient; additional evidence showing that the defendant dog-owner permitted the dog to become a stray is required.
Based on our review of the record, we conclude that the District Court decided this case based on the erroneous belief that proof that Schull was the owner of the dogs and that the dogs had become strays was sufficient to establish the charged violation of ROH § 7-4.2, without requiring proof that Schull had permitted the dogs to become strays. Because the District Court decided the case based on an erroneous view of the law, the District Court's decision that Schull violated ROH § 7-4.2 as charged cannot stand. We further conclude, however, that when viewed in the light most favorable to the State, there was sufficient evidence to prove that Schull committed the charged violation of ROH § 7-4.2, such that a new trial is warranted. Accordingly, we vacate the Judgment, and we remand the case for a new trial.
With respect to Schull's other points of error, we conclude that the charge was sufficient; that the District Court did not err in admitting evidence of prior incidents involving the two dogs; and that under our construction of ROH § 7-4.2, it is not unconstitutionally overbroad or vague.
The charge in the present case stemmed from an incident that occurred on August 13, 2009. Schull's neighbor saw two dogs, which the neighbor identified as belonging to Schull, running loose beyond Schull's property. Schull had previously been found to have violated ROH 7-4.2, as reflected in a judgment entered on December 12, 2008.
Schull was orally charged in the present case as follows:
[O]n or about August 13, 2009, on the island of Oahu, state of Hawaii, Gunner Schull — Edwin Gunner Schull, Jr., also known as E. Gunner Schull, an owner of any dog, whether such dog was licensed or not, did permit such dog to become astray [sic], a violation — in violation of Section 7-4.2'of the [ROH]. [Schull] is subject to sentencing under Section 7-4.9 paren A paren 2 of the [ROH] where [Schull] committed the instant offense within two years of the occurrence of a previous offense under Section 7, Article 4 of the [ROH].
Schull moved to dismiss the charge on the ground that it was insufficient on its face in that it failed to explain "what the defendant did and what he has to do in order to defend himself." The District Court denied the motion to dismiss.
Prior to trial, the State filed a notice of its intent to use evidence of two prior incidents concerning the same two dogs involved in this case. The State proffered that one of the incidents took place between January 1 and February 28, 2009, and involved Schull exiting his house with the two dogs that were not on leashes. The other incident took place in July 2009 and involved the two dogs running loose on the street with Schull and a female 30 to 40 feet behind the dogs.. The State offered the evidence pursuant to Hawai'i Rules of Evidence (HRE) Rule 404(b) (Supp. 2012) to prove identity and that Schull was the owner and keeper of the dogs.
Schull objected to the State's introduction of evidence regarding the prior incidents. Schull stated that he was prepared to. admit that "Charlie and Buster, " the dogs in question, "are kept in the household of the defendant and that on August 13 Charlie and Buster did escape and were on a public street." Schull argued that his offer to stipulate obviated the necessity for evidence of the prior incidents "with respect to identifying the dogs or . . . the circumstances involved." In response, the District Court noted that HRE Rule 404(b) also permits the introduction of evidence to prove lack of mistake. The District Court also noted that the State had not accepted Schull's offer to stipulate and overruled Schull's objection to the evidence of the prior incidents.
The State adduced the following evidence at trial:
Tom Ehlke (Ehlke), Schull's neighbor, lived three houses away from Schull. Ehlke testified that on August 13, 2009, he was in his garage when he saw two dogs belonging to Schull running up his street unleashed and without anyone accompanying them. The dogs veered onto the property of Ehlke's neighbor, stopped in another neighbor's driveway, then continued down the street. Ehlke and his wife walked to the Schull's driveway. About fifteen or twenty minutes later, Ehlke saw the dogs "hovering between — on the public road and sometimes on the Schull property without leashes."
Ehlke testified that he saw Schull waiting at the curb of the public street for the dogs to come back to Schull's house:
Q. You testified that on August 13, early in the — well in the late afternoon that you saw Mr. Schull ...