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State v. King

Supreme Court of Hawaii

December 13, 2016

STATE OF HAWAI'I, Respondent/Plaintiff-Appellant,
v.
RUDOLPH G. KING, JR., Petitioner/Defendant-Appellee.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000342; CR. NO. 14-1-1986)

          Jason M. Kramberg and Jon N. Ikenagafor petitioner

          Stephen K. Tsushima for respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          POLLACK, J.

         When a 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.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         A. Trespass Warning and King's Reentry

         On 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).[1] 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.

         The 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.

         On 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.

         On 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[2] of the Hawaii Revised Statutes.[3]

         B. King's Motion to Dismiss

         On 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 burglary statute.[5]

          The 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.

         C. Hearing on King's Motion to Dismiss

         At the hearing on King's motion to dismiss, [6] 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.

         In 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. [7]

         The 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.

         The 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).

         II. APPELLATE PROCEEDINGS

         The 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.

         In a 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 ...


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