TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000342; CR.
M. Kramberg and Jon N. Ikenagafor petitioner
Stephen K. Tsushima for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
person violates a trespass warning previously issued pursuant
to Hawaii Revised Statutes (HRS) § 708-814(1)(b), may
that violation be used as an underlying basis for a charge of
second-degree burglary? We answer in the negative.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Trespass Warning and King's Reentry
November 11, 2014, at the Kaimuki Times Supermarket, Rudolph
G. King, Jr. stole a pack of Reese's Peanut Butter Cups
and sweet tea, the total value of which was $8.66. A loss
prevention officer stopped King outside the store and placed
him under arrest for theft in the fourth degree. See
HRS § 708-833 (2014). At the time of King's
arrest, the loss prevention officer issued King a trespass
warning form entitled "Notification to Stay Off
Property, " which stated as follows:
YOU ARE HEREBY ADVISED THAT YOUR PRESENCE IS NO LONGER
DESIRED ON THE PREMISES OR PROPERTY LISTED ABOVE AND ON ALL
PROPERTIES LISTED ON THE BACK OF THIS WARNING. THIS SERVES
NOTICE THAT YOU ARE NOT TO RETURN TO SAID PROPERTY FOR THE
DURATION LISTED ABOVE. VIOLATION OF THIS WARNING WILL SUBJECT
YOU TO ARREST AND PROSECUTION FOR TRESPASSING PURSUANT TO
SECTION 708-814 OF THE HAWAII PENAL CODE.
trespass warning contains the addresses of all Times
Supermarket locations in Hawaii, and it was effective from
November 11, 2014, to November 11, 2015. The warning also
quotes HRS § 708-814(1)(b) (2014), contains King's
description, and was signed by the loss prevention officer, a
police officer, and King.
December 18, 2014, at the McCully location of Times
Supermarket, a loss prevention officer observed King take a
ribeye roast, valued at $55.55, and exit the store without
paying for it. After placing King under arrest, King verbally
acknowledged that he was issued a prior trespass warning.
December 22, 2014, King was charged by felony information
with burglary in the second degree, in violation of HRS
§ 708-811 (2014):
On or about December 18, 2014, in the City and County of
Honolulu, State of Hawaii, RUDOPH G. KING JR. [(sic)] did
intentionally enter unlawfully in a building, to wit, Times
Supermarket, situated at 1772 South King Street, with intent
to commit therein a crime against a person or property
rights, thereby committing the offense of Burglary in the
Second Degree in violation of Section 708-811 of the Hawaii
King's Motion to Dismiss
January 30, 2015, King filed a Motion to Dismiss Felony
Information for Lack of Probable Cause and/or De Minimis
Violation (motion to dismiss) to the Circuit Court of the
First Circuit (circuit court). King contended that the
State's reliance on the written trespass warning issued
to him at Times Supermarket Kaimuki fails, as a matter of
law, to establish probable cause that he unlawfully entered
Times Supermarket McCully in violation of the second-degree
burglary statute. King contended that a second-degree
burglary charge pursuant to HRS § 708-811 cannot hinge
upon a refusal to obey a prior written trespass warning
issued pursuant to HRS § 708-814(1)(b), because a
trespass warning is applicable only to a charge of criminal
trespass in the second degree. That is, a person's
failure to obey a prior written trespass warning issued
pursuant to HRS § 708-814(1)(b) does not satisfy the
"enters or remains unlawfully in a building"
element of burglary in the second degree. Alternatively, King
argued, pursuant to HRS § 702-236, that his conduct did
not actually cause or threaten the harm or evil sought to be
prevented by burglary in the second degree, since his conduct
did not engender circumstances likely to terrorize occupants
of premises intended to be protected by the second-degree
State opposed King's motion to dismiss, arguing that the
plain language of "enter or remain unlawfully"
under HRS § 708-800 encompasses situations in which the
defendant disobeys a prior trespass warning issued pursuant
to HRS § 708-814(1)(b). According to the State, the
prior trespass warning issued to King is "a lawful order
not to enter or remain, personally communicated to"
King, because its terms advised King that he was not allowed
to enter or remain on Times Supermarket property--including
Times Supermarket McCully--from November 11, 2014, through
November 11, 2015. In response to King's argument that
his conduct constituted only a de minimis violation of the
burglary statute, the State argued that second-degree
burglary was not only intended to prevent crimes involving
"the terrorizing of persons situated on the relevant
property, " but it also applied to unoccupied premises.
Accordingly, the State urged the circuit court to deny
King's motion to dismiss.
Hearing on King's Motion to Dismiss
hearing on King's motion to dismiss,  King contended that liability under HRS
§ 708-814(1)(b) should not be used to impose an elevated
criminal liability under the second-degree burglary statute,
which uses a separate definition for "enters or remains
unlawfully." According to King, the prior trespass
warning was not a "lawful order" contemplated by
HRS § 708-800 and that, therefore, the violation of the
prior trespass warning would not satisfy the "enters or
remains unlawfully" element of second-degree burglary
under HRS § 708-811. King thus maintained that he should
have been charged only with theft in the fourth degree and
criminal trespass in the second degree.
response, the State argued that the prior trespass warning
issued personally to King revoked his privilege or license to
enter or remain in any Times Supermarket location, and,
hence, when King entered the McCully location of Times
Supermarket, the "enters or remains unlawfully"
element of second-degree burglary was met. 
circuit court granted King's motion and dismissed with
prejudice the charge of burglary in the second degree:
The Court's of the belief that a trespass warning . . .
does not give rise to having it become a vehicle to charge a
Burglary in the Second Degree. I see two charges here. I see
a Criminal Trespass in the Second Degree and a Theft Fourth
Degree charge just based upon all that the Court has had to
consider during the course of this hearing.
court concluded that the State was attempting to convert two
petty misdemeanors into a Class C felony, a course of action
that the court rejected under the facts of the case. The
circuit court also indicated that "the State [wa]s free
to refile other charges that the facts in this case may give
rise to." The court later filed its written Order
Granting Defendant's Motion to Dismiss Felony Information
(Order Granting Motion to Dismiss).
State timely filed its notice of appeal to the Intermediate
Court of Appeals (ICA). The State challenged the circuit
court's order granting King's motion to dismiss,
arguing (1) that there was sufficient evidence to support the
felony information and (2) that King's conduct was not a
de minimis violation of HRS § 708-811.
memorandum opinion, the ICA concluded that there was probable
cause to support the charge of burglary in the second degree.
State v. King, 2016 WL 3077890, at *4, 138 Hawaii
51, 375 P.3d 1289 (App. 2016) (mem.). According ...