APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT. CASE NO. 3DTC-13-067572.
On the briefs: Jo Kim, for Defendant-Appellant.
Jason R. Kwiat, Deputy Prosecuting Attorney, County of Hawai'i, for Plaintiff-Appellee.
FOLEY AND FUJISE, JJ., WITH NAKAMURA, C.J. CONCURRING SEPARATELY.
[135 Hawai'i 182] FOLEY. J.
Defendant-Appellant Max Bowman (Bowman) appeals from a Judgment and Notice of Entry of Judgment entered on November 8, 2013, in the District Court of the Third Circuit (district court) convicting him of spilling loads on highways in violation of Hawaii Revised Statutes (HRS) § 291C-131(a) (2007 Repl.) (subsection (a)).
On appeal, Bowman contends (1) that the written complaint and oral charge were insufficient because they did not put him on notice of the elements of HRS § 291C-131(c) (2007 Repl.) (subsection (c)), which applies to vehicles transporting agricultural produce; (2) that subsection (c) is an offense for which Plaintiff-Appellee State of Hawai'i (State) had the initial burden to prove beyond a reasonable doubt; (3) that Bowman cannot be charged for violating subsection (c) because the State did not prove he was the " owner" of the vehicle; and (4) that the State failed to prove all elements of subsection (c) beyond a reasonable doubt.
On August 30, 2013, Bowman, who identifies himself as a farmer, was transporting cabbage from his field in Honoka'a to Pa'auilo. Bowman was driving a " green flatbed pickup [truck]" (vehicle) with the cabbage in uncovered containers in the back of the vehicle. No evidence was introduced at trial as to who owned the vehicle.
As Bowman drove south on Route 19 to Pa'auilo, Officer Romeo Fuiava (Officer Fuiava) was traveling in the opposite direction and passed Bowman on the road. Officer Fuiava observed " either cabbage or lettuce" in back of Bowman's vehicle. About a half a mile after Officer Fuiava passed Bowman, he " started seeing the lettuce on the side of the road and some on the road." 
[135 Hawai'i 183] Officer Fuiava did not see any produce on the road when he passed the same spot on the road about a half hour to forty-five minutes before seeing Bowman. Officer Fuiava also did not see any other vehicles transporting produce during his shift that day.
Upon seeing the produce on the road, Officer Fuiava turned around to " catch up" to the green flatbed truck that had previously passed. Officer Fuiava " caught up" to the vehicle in Pa'auilo in the parking lot of " Earl's store." The vehicle in the parking lot was the same vehicle that Officer Fuiava had seen on Route 19. Officer Fuiava made contact with the driver of the vehicle, whom he identified as Bowman. Officer Fuiava recalled that he explained to Bowman why Bowman had been stopped, but could not remember what was said during their conversation. Officer Fuiava issued Bowman a citation for violating subsection (a).
On November 7, 2013, the case proceeded to a bench trial with Bowman appearing pro se. During the bench trial, the prosecutor orally arraigned Bowman, stating:
On or about the 28th day of August, 2013, in Hamakua, state and county of Hawaii, Max Bowman was the operator of a motor vehicle being moved on a highway, which vehicle was not so constructed, covered, or loaded as to prevent any of its load from dropping, sifting, leaking, blowing, spilling, or otherwise escaping therefrom, thereby a violation of Section 291C-101(a) (sic), [HRS] as Amended.
Bowman testified on his behalf, expressing a belief that he was mischarged under subsection (a) and that he thought subsection (c) was a more applicable charge. Bowman stated:
Well, with, you know, respect to our prosecuting attorney, I just feel like I've been mischarged. It was referred under [subsection (a)], which is where he got the no vehicle shall be moved on any highway unless the vehicle is so constructed, dropping, sifting. Anyway, the provision I feel is more applicable is [subsection (c)]: " Vehicles carrying agricultural produce from fields during harvesting shall be exempt from the requirements of this section, but the owner of the vehicle must provide for a reasonable removal of all such produce spilled or dropped on the highway."
Emphasis added.) After the district court suggested that Bowman testify to facts in support of subsection (c), Bowman further testified:
I'm a farmer. I was carrying agricultural produce from my field during harvesting, at which point some of it did spill on the highway. As far as the reasonable removal section goes, it couldn't have been much. It was trimmings. I actually drove past that section of the road later in the day, did not see any of it. I can only imagine the wind blew it off the road to decompose in a matter of days on the side, or it had been run over sufficiently and evaporated on the road. It could not have been more than one pound or two pounds of cabbage, maybe 20 leaves. And if reasonable removal is any indication, I feel risk of life and limb, running onto the road, grabbing three or four leaves of cabbages as opposed to letting it decompose naturally does not sounds reasonable to me.
Emphases added.) On cross-examination. Bowman testified that he was carrying his load of cabbage for work that day and that he returned to the, location where he had dropped the cabbage about three to four hours after receiving his citation. Bowman did not dispute that he spilled cabbage trimmings on the highway that day nor did he dispute that he transported his load in uncovered containers. Instead, Bowman contended that, pursuant to subsection (c), he " reasonabl[y] removed" the trimmings from the road when he chose to allow the trimmings to " decompose naturally."
After hearing the testimony of Officer Fuiava and Bowman, the district court determined that, although subsection (c) could have been applied to the facts of the case, Bowman did not act reasonably to remove all of the products that were spilled or dropped when he " just left it on the road." The district court reasoned that " had [Bowman] gone and picked it up, [he] would have been acquitted of this charge." The court further reasoned that, under subsection (c), Bowman " was pretty much [exempt] from having to cover this load, but if it falls, [he's] going to [135 Hawai'i 184] have to go and pick it up." The district court ultimately determined that the State had proven its case beyond a reasonable doubt and found Bowman guilty of violating subsection (a). The district court imposed a $250 fine and a $7 driver education assessment fee on Bowman.
On November 29, 2013, Bowman, represented by counsel, filed a ...