State v. Mita

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed

Supreme Court

29347

21-DEC-2010

01:27 PM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I,

Petitioner/Plaintiff-Appellee,

vs.

WANDA RURIKO MITA,

Respondent/Defendant-Appellant.

NO. 29347

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(HPD Criminal No. 164978DL (1P108009607)

December 21, 2010

RECKTENWALD, C.J., NAKAYAMA, J., AND CIRCUIT JUDGE LEE

IN PLACE OF MOON, C.J., RECUSED, AND ACOBA, J.,

DISSENTING, WITH WHOM DUFFY, J., JOINS

OPINION OF THE COURT BY RECKTENWALD, C.J.

Wanda Ruriko Mita was charged with Animal Nuisance in

violation of Revised Ordinances of Honolulu (ROH) § 7-2.3 (1990 &

Supp. No. 6, 2-05), which provides that “[i]t is unlawful to be

the owner of an animal, farm animal, or poultry engaged in animal

nuisance as defined in section 7-2.2[.]” Mita was originally

issued a citation that indicated that she committed this offense

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by owning, harboring, or keeping two dogs that were barking.

Prior to the start of trial, the State also orally charged Mita

by using language that tracked the provisions of ROH § 7-2.3.

Mita objected that the charge was insufficient because it did not

give Mita notice of what type of “animal nuisance” she was being

charged with, as that term is defined in ROH § 7-2.2.1 The

District Court of the First Circuit, Honolulu Division (district

court)2 concluded that the charge was sufficient, and convicted

Mita after a bench trial.

Mita appealed to the Intermediate Court of Appeals

(ICA). In its February 23, 2010 Summary Disposition Order (SDO),

the ICA cited State v. Wheeler, 121 Hawai#i 383, 219 P.3d 1170

(2009), in concluding that the charge against Mita was

insufficient because the definition of the term “animal nuisance”

in ROH § 7-2.2 contains an essential element of the offense of

animal nuisance, and the offense cannot be understood by a person

of common understanding without including that definition. The

ICA accordingly vacated the judgment of the district court, and

remanded with instructions to dismiss without prejudice.

The State of Hawai#i (State) raises the following

question in its application for a writ of certiorari: “Whether

the ICA gravely erred as a matter of law and fact in holding that

the oral charge of Animal Nuisance was insufficient.”

For the reasons set forth below, we conclude that the

citation and oral charge, when considered together, gave Mita

fair notice of the offense. In contrast to the circumstances in

Wheeler, the definition of “animal nuisance” in ROH § 7-2.2 does

not create an additional essential element of the offense, and,

1

As discussed further infra, ROH § 7-2.2 (1990 & Supp. No. 6, 2-05)

defines animal nuisance as including several different types of animal

behavior.

2

The Honorable Faye M. Koyanagi presided.

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in any event, is consistent with its commonly understood meaning.

Thus, the charge against Mita was sufficient. Accordingly, we

reverse the ICA’s judgment, and remand this case to the ICA to

address the remaining issues raised by Mita, which the ICA did

not resolve.

I. Background

A. Background Facts

1. Citation and Oral Charge

On June 5, 2008, Mita was issued an “Animal License &

Regulation – Complaint & Summons” (citation). The citation,

signed “Wanda Mita[,]” stated that Mita “[d]id on/or about this 3

day of June Yr 08 at about 1940-2050 did own, harbour or keep

(animal description): Boxers Name Roxy/Obie Color Brown . . . at

(location): [Mita’s residence address] and did commit the offense

of: . . . animal nuisance-Sec.: 7-2.3 Barking Dog[.]”

Additionally, the citation had a section entitled “Officer’s

Report” which stated that “Mita was issued a Barking 3rd

citation. She was already issued a previous Barking 2 warning

citation.” The citation also advised Mita of her appearance date

in court.

Mita appeared in court on July 17, 2008, represented by

counsel, and waived reading of the charge and entered a plea of

not guilty.

At the start of trial on August 14, 2008, prior to any

witnesses being called, the Deputy Prosecuting Attorney (DPA)

read the following charge to Mita: “On or about June 3rd, 2008,

in the city and county of Honolulu, state of Hawaii, you as the

owner of an animal, farm animal, or poultry engaged in animal

nuisance as defined in section 7-2.2, thereby violating section

7-2.3 of the Revised Ordinances of Honolulu.”

ROH § 7-2.3 provides as follows:

[] Animal nuisance –- Prohibited. It is unlawful to be

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the owner of an animal, farm animal or poultry engaged

in animal nuisance as defined in Section 7-2.2;

provided, however, that it shall not be deemed to be

animal nuisance for purposes of this article if, at

the time the animal, farm animal or poultry is making

any noise, biting or stinging, a person is trespassing

or threatening trespass upon private property in or

upon which the animal, farm animal or poultry is

situated, or for any other legitimate cause which

teased or provoked said animal, farm animal or

poultry.

(Emphasis added).

ROH § 7-2.2 defines “animal nuisance” as follows:

. . . .

“Animal nuisance,” for the purposes of this

section, shall include but not be limited to any

animal, farm animal or poultry which:

(a) Makes noise continuously and/or incessantly for a

period of 10 minutes or intermittently for one-half

hour or more to the disturbance of any person at any

time of day or night and regardless of whether the

animal, farm animal or poultry is physically situated

in or upon private property;

(b) Barks, whines, howls, crows, cries or makes any

other unreasonable noise as described in Section

7-2.4(c)[ 3] of this article; or

(c) Notwithstanding the provisions of [Hawai#i Revised

Statutes (HRS)] Section 142-75 [governing the duties

and liabilities of an owner of a dog that has bitten

another person] or any other applicable law, bites or

stings a person.

Mita objected to the oral charge:

[] Your Honor, if I may make for the record an

objection to the arraignment. I do not believe that

arraignment is specific enough to put the defendant

3

ROH § 7-2.4(c) (1990 & Supp. No. 6, 2-05) provides:

Noise is unreasonable within the meaning of this

article if considering the nature and the

circumstances surrounding the animal nuisance,

including the nature of the location and the time of

the day or night, it interferes with reasonable

individual or group activities such as, but not

limited to, communication, work, rest, recreation or

sleep; or the failure to heed the admonition of a

police officer or a special officer of the animal

control contractor that the noise is unreasonable and

should be stopped or reduced.

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specifically on notice what part of the - if I may

call “barking dog” ordinance she's being charged with.

There’s [sic] basically four violations or four acts

which may constitute a violation of the ordinance. One

is whether or not the dog made noise continuously

and/or incessantly for a period of ten minutes; that’s

ordinance section 7-2.2(a); or made noise

intermittently for one half-hour or more to the

disturbance of any person at any time of day or night;

that’s ordinance section 7-2.2(a); or bark, whine,

howl, cry, or make other unreasonable noise which

interfered with reasonable individual or group

activity such as but not limited to communication,

work, rest, recreation, or sleep; that’s ordinance

section 7-2.2[(b)] and incorporating 7-2.4(c); or

failed to heed the admonition of a police officer or a

special officer of the animal control contractor that

the noise was unreasonable and should be stopped;

that’s ordinance section[s] 7-2.2[(b)] and 7-2.4(c).

And it’s our position that under State v. Jendrusch,

58 Haw. 279, [567 P.2d 1242 (1977),] a 1977 case, we

should receive specificity in the arraignment so that

we know exactly which of these sections of the

ordinance we must defend against.

The DPA argued that the oral charge was sufficient

because:

[Mita] is charged under section 7-2.3. 7-2.2 is a

definition section, in which it defines animal

nuisance, and section 7-2.3 incorporates a general

animal nuisance as defined in section 7-2.2; and the

State’s position would be that the wording of the

statute is broad enough to encompass all subsections

(a), (b), and (c) listed under animal nuisance.

The DPA offered, however, to read the definition of

animal nuisance, but the district court found that a reading was

unnecessary and that the arraignment was proper. Mita pled not

guilty.

2. Evidence at Trial

At trial, the State called two witnesses, both of whom

were neighbors of Mita. Both witnesses testified that they heard

Mita’s dogs barking on the evening of June 3, 2008. The first

witness testified that she made a written record of Mita’s dogs

barking on June 3, 2008 from 7:45 p.m. to 8:50 p.m. She

testified that she knew it was Mita’s dogs barking by their

distinctive bark. The second witness testified that she made a

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written record of Mita’s dogs barking on June 3, 2008 from

approximately 7:30 p.m. to 8:45 p.m. She testified that she

specifically saw Mita’s dogs barking that evening, and could

distinguish their bark from that of other dogs in the area.

Following the State’s evidence, Mita moved for a

judgment of acquittal on six grounds outlined in her Trial

Memorandum and Memorandum in Support of Motion for Judgment of

Acquittal filed on August 14, 2008, as well as her Supplemental

Memorandum in Support of Motion for Judgment of Acquittal filed

on August 22, 2008. Relevant to the instant appeal, Mita argued

that the charge was insufficient because it only charged Mita

with violating ROH § 7-2.3, prohibiting animal nuisance, and did

not apprise Mita what specific act contained within the

definition of “animal nuisance” in ROH § 7-2.2 she was being

charged with. The district court denied the motion, and ruled,

inter alia, that the charge was sufficient.

The defense called one witness, who was also a neighbor

of Mita. The defense witness testified that she “did not notice

any dogs barking” the evening of June 3, 2008, and that if Mita’s

dogs had been barking, she was “almost certain” that she would

have noticed it.

3. Renewed motion for judgment of acquittal

After the defense rested, Mita renewed her motion for

judgment of acquittal. The district court denied the motion and

found Mita guilty of violating ROH § 7-2.3.4 The district court

entered its judgment on August 28, 2008, convicting Mita of

violating ROH § 7-2.3 and sentencing Mita to pay a $50 fine.

4

The district court concluded that the State proved beyond a

reasonable doubt that Mita’s dogs were barking, based on the testimony of the

State’s witnesses. The district court additionally concluded that the State’s

witnesses “had a greater opportunity to make these observations and hearing

the dogs” than did the defense witness, due to the positioning of the

respective properties.

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Mita filed her notice of appeal on September 5, 2008.

B. ICA Appeal

On appeal to the ICA, Mita raised several points of

error. She argued that the State failed to prove the following

beyond a reasonable doubt: (1) that Mita owned the dogs which

were allegedly barking; (2) Mita’s reckless state of mind; (3)

that the dogs were barking in violation of ROH § 7-2.3; and (4)

that a qualified animal control officer had issued Mita the

citation. Additionally, Mita argued that the charge was

insufficient and that ROH § 7-2.3 is unconstitutionally vague.

Citing to Wheeler, a majority of the ICA held in a SDO

that the charge was insufficient, and therefore vacated Mita’s

conviction and sentence and remanded the case to the district

court with instructions to dismiss without prejudice.

Specifically, the ICA concluded that:

The offense of Animal Nuisance is not understood by a

person of common understanding because the ordinance

refers to “an animal, farm animal or poultry engaged

in animal nuisance as defined in Section 7-2.2.” The

term “animal nuisance” is specifically limited to

three types of actions which the animal, farm animal,

or poultry must commit in order to be considered a

violation of ROH § 7-2.3. A violation of ROH § 7-2.3

simply cites another ROH section which contains an

essential element that the State must prove to find

Mita guilty. This did not provide fair notice to Mita.

The ICA did not address Mita’s remaining points of

error.

Chief Judge Nakamura dissented, concluding that the oral

charge against Mita was sufficient. He distinguished the charge

against Mita from that in Wheeler, where the defendant was charged

with operating a vehicle under the influence of an intoxicant

(OVUII).5 First, Chief Judge Nakamura reasoned that, unlike the

5

As discussed infra, the charge in Wheeler tracked the language of

the relevant statute, HRS § 291E-61 (2007), and alleged that the defendant

“did operate or assume actual physical control of a . . . vehicle[,]” but did

(continued...)

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term “operate” as used in the charge in Wheeler, “[t]he statutory

definition of ‘animal nuisance’ does not depart from the commonly

understood meaning of the term.” Second, he concluded that unlike

Wheeler, where “the statutory definition of the term ‘operate’

create[d] an additional essential element” and therefore needed to

be alleged, “the statutory definition of ‘animal nuisance’ does

not purport to create an additional essential element for the

offense.”

Additionally, Chief Judge Nakamura noted that the oral

charge “specifically directed Mita to the statutory definition of

the term ‘animal nuisance’” in ROH § 7-2.2, which “served to

further inform and apprise Mita of the nature of the charge

against her.” He recognized that “[a]lthough including a citation

to the offense statute in a charge does not cure a charge that

omits an essential element of the offense, it can be argued that a

specific reference to the statutory definition, which tells the

defendant where to look for additional information, may be

considered where the charge already encompasses the essential

elements of the offense.” Finally, he concluded that pursuant to

Hawai#i Rules of Penal Procedure (HRPP) Rule 7(a) (2008), cited

infra, the charge in the instant case consisted of both the oral

charge and the citation, and when considered together, they

sufficiently alleged the essential elements of the offense of

animal nuisance.

On March 16, 2010, the ICA filed its Judgment on Appeal.

The State timely filed its application on June 10, 2010. Mita did

not file a response.

5

(...continued)

not further include the definition of the term “operate” set forth in HRS

§ 291E-1 (2007): “to drive or assume actual physical control of a vehicle upon

a public way, street, road, or highway . . . .” 121 Hawai#i at 386-87, 391,

219 P.3d at 1173-74, 1178 (emphasis in original).

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II. Standard of Review

“‘Whether [a charge] sets forth all the essential

elements of [a charged] offense . . . is a question of law[,]’

which we review under the de novo, or ‘right/wrong,’ standard.’”

Wheeler, 121 Hawai#i at 390, 219 P.3d at 1177 (citation omitted).

III. Discussion

The State argues that the ICA erred for two reasons.

First, the State argues that the ICA erred because the citation

and oral charge should be considered together under HRPP Rule

7(a),6 and when doing so, the charge sufficiently alleges all the

6

HRPP Rule 7(a) provides:

(a) Use of indictment, information, or complaint. The

charge against a defendant is an indictment, an

information, or a complaint filed in court, provided

that, in any case where a defendant is accused of an

offense that is subject to a maximum sentence of less

than six months in prison (other than Operating a

Vehicle Under the Influence of an Intoxicant) and is

issued a citation in lieu of physical arrest pursuant

to Section 803-6(b) of the [HRS] and summoned to

appear in court, the citation and an oral recitation

of the essential facts constituting the offense

charged as set forth in Rule 5(b)(1), shall be deemed

the complaint, notwithstanding any waiver of the

recitation.

(Emphasis added).

HRPP Rule 5(b)(1) provides, in relevant part:

Arraignment. In the district court, if the offense

charged against the defendant is other than a felony,

the complaint shall be filed and proceedings shall be

had in accordance with this section (b). . . . If a

defendant is issued a citation in lieu of physical

arrest pursuant to Section 803-6(b) of the [HRS] and

summoned to be orally charged as authorized by Rule

7(a) of these rules, a copy of the citation shall be

filed and proceedings shall be had in accordance with

this section (b). . . . When the offense is charged by

a citation and the defendant is summoned to be orally

charged, arraignment shall be in open court or by

video conference when permitted by Rule 43. The

arraignment shall consist of a recitation of the

essential facts constituting the offense charged to

the defendant and calling upon the defendant to plead

(continued...)

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essential elements of the offense of animal nuisance. Second, the

State argues that “the ICA’s reliance upon Wheeler in holding the

oral charge insufficient was misplaced” because “the charge here,

unlike the charge in Wheeler, (1) on its face is ‘readily

comprehensible to persons of common understanding[,]’ and, (2)

cited the essential elements of the offense and incorporated a

statutory reference to the offense’s definitional section.”

For the reasons set forth below, we conclude that the

charge against Mita was sufficient.

A. The Oral Charge Was Sufficient Because it Gave Notice to Mita

of the Nature and Cause of the Accusation

Article I, section 14 of the Hawai#i Constitution

provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be informed of the nature and cause of

the accusation[.]” “The criminal process begins when the accused

is charged with a criminal offense, if it is not a felony, by

complaint or oral charge.” State v. Sprattling, 99 Hawai#i 312,

317, 55 P.3d 276, 281 (2002) (citing HRPP Rule 5(b)(1)). “[T]he

sufficiency of the charging instrument is measured, inter alia, by

‘whether it contains the elements of the offense intended to be

charged, and sufficiently apprises the defendant of what he [or

she] must be prepared to meet[.]’” Wheeler, 121 Hawai#i at 391,

219 P.3d at 1178 (quoting State v. Wells, 78 Hawai#i 373, 379-80,

894 P.2d 70, 76-77 (1995)) (some brackets in original, some

added). “In other words, the oral charge must be worded in a

manner such ‘that the nature and cause of the accusation [could]

6

(...continued)

thereto.

(Some emphasis added).

The maximum sentence for a violation of the offense of animal

nuisance is thirty days imprisonment. ROH § 7-2.10(b) (1990 & Supp. No. 6,

2-05).

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be understood by a person of common understanding[.]’” Sprattling,

99 Hawai#i at 318, 55 P.3d at 282 (quoting State v. Israel, 78

Hawai#i 66, 70, 890 P.2d 303, 307 (1995)) (brackets in original).

The relevant inquiry, therefore, is whether or not the charge

provided the accused with fair notice of the essential elements.

Wheeler, 121 Hawai#i at 395, 219 P.3d at 1182. This court has

recognized that “‘[a] charge defective in this regard amounts to a

failure to state an offense, and a conviction based upon it cannot

be sustained, for that would constitute a denial of due process.’”

Id. at 391, 219 P.3d at 1178 (quoting State v. Jendrusch, 58 Haw.

279, 281, 567 P.2d 1242, 1244 (1977)).

As noted above, the ICA concluded that, pursuant to this

court’s holding in Wheeler, the charge in the instant case was

insufficient. However, Wheeler is distinguishable. In Wheeler,

the defendant was orally charged with operating a vehicle under

the influence of an intoxicant (OVUII). 121 Hawai#i at 386-87,

219 P.3d at 1173-74. The charge tracked the language of the

relevant statute, HRS § 291E-61, and alleged that the defendant

“did operate or assume actual physical control of a motor vehicle

while under the influence of alcohol . . . .” Id. However, the

charge did not further include the definition of the term

“operate,” which was defined in HRS § 291E-1 as “to drive or

assume actual physical control of a vehicle upon a public way,

street, road, or highway . . . .” Id. at 391, 219 P.3d at 1178

(emphasis in original). This court held that HRS § 291E-1

establishes an attendant circumstance of the proscribed conduct,

i.e., that the offense of OVUII occur on a public way, street,

road, or highway. Id. at 392-93, 219 P.3d at 1179-80. Therefore,

since the location of the proscribed conduct established by HRS

§ 291E-1 was an attendant circumstance, this court held that it

was an essential element of the offense of OVUII that should have

been included within the charge against the defendant. Id.

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(citing HRS § 702-205 (1993)).7

This court emphasized that although the charge tracked

the language of the statute, the term “operate” as used in HRS

§ 291E-61 “is neither ‘unmistakable’ nor ‘readily comprehensible

to persons of common understanding’” and therefore did not provide

the defendant with fair notice of that aspect of the charge. Id.

at 394-95, 219 P.3d at 1181-82 (citation omitted). Specifically,

this court concluded that the common understanding of the term

“operate” “does not geographically limit where the conduct must

take place.” Id. at 394, 219 P.3d at 1181. Therefore, merely

including the term “operate” in the charge, without providing the

defendant with notice that his conduct must have occurred “upon a

public way, street, road, or highway,” was insufficient. Id.

Additionally, this court recognized that “none of the other

information in the charge provided [the defendant] with fair

notice of that element” where, for example, the charge “did not

contain any specification of where the alleged offense occurred,

other than it took place in the City and County of Honolulu.” Id.

at 395, 219 P.3d at 1182.

There are two significant factors present in the instant

case that were not present in Wheeler, thus making it readily

distinguishable: (1) the definition of “animal nuisance” in ROH

§ 7-2.2 does not create an additional essential element of the

offense; and (2) in any event, the definition of “animal nuisance”

is consistent with its commonly understood meaning and therefore

Mita had fair notice of the offense charged. Thus, the oral

charge against Mita, which tracked the language of ROH § 7-2.3,

sufficiently alleged all of the essential elements of the offense

7

HRS § 702-205 provides: “The elements of an offense are such (1)

conduct, (2) attendant circumstances, and (3) results of conduct, as: (a) Are

specified by the definition of the offense, and (b) Negative a defense (other

than a defense based on the statute of limitations, lack of venue, or lack of

jurisdiction).”

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of animal nuisance.

Under the Hawai#i Penal Code, the essential elements of

an offense are (1) conduct; (2) attendant circumstances; and (3)

results of conduct. Wheeler, 121 Hawai#i at 391, 219 P.3d at 1178

(citing HRS § 702-205 (1993)). In Wheeler, because the definition

of the term “operate” created an attendant circumstance, which is

an essential element of the charge pursuant to HRS § 702-205, this

court concluded that the oral charge must provide fair notice of

that element. Id. at 392-93, 219 P.3d at 1179-80. Here, Mita was

charged with violating ROH § 7-2.3, which provides, in relevant

part, that “[i]t is unlawful to be the owner of an animal, farm

animal or poultry engaged in animal nuisance as defined in Section

7-2.2.” Therefore, in order for a person to be found guilty of

violating ROH § 7-2.3 the State must prove (1) that person is the

owner of an animal, farm animal or poultry which (2) engaged in

animal nuisance.

The oral charge against Mita directly tracked ROH § 7-

2.3 and read as follows: “On or about June 3rd, 2008, in the city

and county of Honolulu, state of Hawaii, you as the owner of an

animal, farm animal, or poultry engaged in animal nuisance as

defined in section 7-2.2, thereby violating section 7-2.3 of the

Revised Ordinances of Honolulu.” The charge did not further

allege the definition of “animal nuisance” as found in ROH § 7-

2.2. However, this did not render the oral charge insufficient

because the definition does not create additional essential

elements of the offense of animal nuisance.8

The ICA concluded that “[t]he term ‘animal nuisance’ is

8

We respectfully disagree with the dissent’s contention that State

v. Nobriga, 10 Haw. App. 353, 873 P.2d 110 (1994), overruled on other grounds

by State v. Maelega, 80 Hawai#i 172, 907 P.2d 758 (1995), stands for the

proposition that ROH § 7-2.2 contains additional essential elements of the

offense of animal nuisance. Nobriga did not address whether ROH § 7-2.2 sets

forth additional essential elements, and clearly stated that the “offense” of

animal nuisance “is set forth in [ROH] § 7-2.3 (1990)[.]” Id. at 355, 873

P.2d at 112 (emphasis added).

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specifically limited to three types of actions which the animal,

farm animal, or poultry must commit in order to be considered a

violation of ROH § 7-2.3.” However, the definition of “animal

nuisance” in ROH § 7-2.2 does not create elements in addition to

those already required by ROH § 7-2.3, but instead provides an

inclusive, rather than exclusive, list of examples of what the

term may include:

“Animal nuisance,” for the purposes of this

section, shall include but not be limited to any

animal, farm animal or poultry which:

(a) Makes noise continuously and/or incessantly for a

period of 10 minutes or intermittently for one-half

hour or more to the disturbance of any person at any

time of day or night and regardless of whether the

animal, farm animal or poultry is physically situated

in or upon private property;

(b) Barks, whines, howls, crows, cries or makes any

other unreasonable noise as described in Section

7-2.4(c) of this article[, quoted supra note 3]; or

(c) Notwithstanding the provisions of HRS Section

142-75 or any other applicable law, bites or stings a

person.

(Emphasis added).

Thus, the charge against Mita is distinguishable from

Wheeler because unlike the term “operate,” the definition of the

term “animal nuisance” does not create any additional attendant

circumstances or other essential elements of the offense of animal

nuisance. Wheeler does not require that the State provide

statutory definitions in every charge which tracks the language of

a statute that includes terms defined elsewhere in the code.

Requiring the State to do so would render charges unduly complex,

in contravention of the policy reflected in HRPP Rule 7(d) that

“[t]he charge shall be a plain, concise and definite statement of

the essential facts constituting the offense charged.” Rather, as

this court concluded in Wheeler, the State need only allege the

statutory definition of a term when it creates an additional

essential element of the offense, and the term itself does not

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provide a person of common understanding with fair notice of that

element. See Wheeler, 121 Hawai#i at 393, 219 P.3d at 1180 (“In

general, ‘[w]here the statute sets forth with reasonable clarity

all essential elements of the crime intended to be punished, and

fully defines the offense in unmistakable terms readily

comprehensible to persons of common understanding, a charge drawn

in the language of the statute is sufficient.’”) (citations

omitted) (brackets in original).

The second significant factor discussed by this court

when analyzing the sufficiency of the charge in Wheeler was

whether the term “operate” gave the defendant fair notice of the

requirement that the proscribed conduct occur on a public way,

street, road, or highway. 121 Hawai#i at 393-96, 219 P.3d at

1181-83. Specifically, this court considered whether the

statutory definition of the term “operate” is “readily

comprehensible to persons of common understanding[,]” namely

whether a person would understand that to “operate” means not only

that a person “perform[s] a function, or operation” but also

includes the additional requirement of doing so “upon a public

way, street, road, or highway.” Id. This court contrasted the

situation in Wheeler with that in Hamling v. United States, 418

U.S. 87 (1974). In Hamling, the petitioners challenged the

sufficiency of an indictment which charged them with the “use of

the mails to carry an obscene book,” arguing that although the

indictment tracked the language of the statute, it did not provide

them with adequate notice because it failed to include the

definition of the term “obscenity.” Id. at 91, 117. The United

States Supreme Court rejected that argument, holding that

“obscenity” “is a term sufficiently definite in legal meaning to

give a defendant notice of the charge against him.” Id. at 118-

19.

We emphasized that Hamling was distinguishable from the

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circumstances in Wheeler because “the term ‘obscenity’ itself

provided a person of common understanding with some notice of the

nature of the prohibited conduct. In contrast, ‘operate’ has been

statutorily defined . . . in a manner that does not comport with

its commonly understood definition.” Wheeler, 121 Hawai#i at 394,

219 P.3d at 1181. Specifically, this court recognized that the

common understanding of the term “operate” “does not

geographically limit where the conduct must take place.” Id.

Therefore, merely including the term “operate” in the charge,

without providing the defendant with notice that his conduct must

have occurred “upon a public way, street, road, or highway[,]”

rendered the charge insufficient. Id. at 394-96, 219 P.3d at

1181-83.

The charge in the instant case, like that in Wheeler,

tracked the language of the relevant ordinance, ROH § 7-2.3.

However, in contrast to Wheeler, “animal nuisance” is consistent

with its commonly-understood meaning and provides a defendant with

notice of what is being charged. The dictionary definitions of

both “animal” and “nuisance” support this conclusion. The term

“animal” is defined as “[a]ny living creature other than a human

being[,]” Black’s Law Dictionary 102 (9th ed. 2009) or “a mammal

as distinguished from a bird, reptile, or other nonmammal.”

Webster’s 3rd International Dictionary of the English Language

Unabridged 85 (3d ed. 1967) (hereinafter “Webster’s”). The term

“nuisance” is defined as “[a] condition, activity, or situation

(such as a loud noise or foul odor) that interferes with the use

or enjoyment of property[,]” Black’s Law Dictionary at 1171, or

“an offensive, annoying, unpleasant, or obnoxious thing or

practice: a cause or source of annoyance that although often a

single act is usu[ally] a continuing or repeated invasion or

disturbance of another’s right[,]” Webster’s at 1548, or “a

person, thing, or circumstance causing inconvenience or

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annoyance[,]” The New Oxford American Dictionary 1175 (2001).

Thus, a person of common understanding would have fair

notice that “animal nuisance” could include the various examples

of conduct provided in ROH § 7-2.2: that the animal, for example,

(1) continuously makes noise for at least ten minutes or

intermittently for a half hour or more so as to disturb others,

(2) barks, whines, howls, crows, cries or makes other unreasonable

noises, or (3) bites or stings a person, all of which would cause

damage, annoyance or inconvenience to others. Unlike Wheeler,

where it could not be said that a person would understand that the

term “operate” necessarily means that they must do so on a public

street or roadway, there is nothing contained within the

definition of “animal nuisance” in ROH § 7-2.2 that cannot be

discerned from its common usage. Rather, like in Hamling, 418

U.S. at 102, where the United States Supreme Court held that the

term “obscene” provided the petitioners with sufficient notice,

the common meaning of the term “animal nuisance” is sufficiently

broad enough to encompass the component parts of its definition.

The charge against Mita which tracked the language of ROH § 7-2.3

without further defining “animal nuisance” was therefore

sufficient.

Moreover, in contrast to Wheeler, the charge against

Mita contained other information that provided her with fair

notice of the offense charged. Pursuant to HRPP Rule 7(a), when a

defendant is accused of an offense that is subject to a maximum

sentence of less than six months imprisonment, and the defendant

is issued a citation rather than placed under arrest, the citation

and the oral charge are considered together to be the complaint.

HRPP Rule 7(a).9 Here, the maximum sentence for a violation of

9

HRPP Rule 7(a) states in relevant part: “[I]n any case where a

defendant is accused of an offense that is subject to a maximum sentence of

less than six months in prison . . . and is issued a citation in lieu of

(continued...)

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the offense of animal nuisance is thirty days imprisonment. ROH

§ 7-2.10(b). Therefore, when analyzing the sufficiency of the

charge of animal nuisance against Mita, this court considers both

the citation issued to Mita, as well as the oral charge against

her. When doing so, it is clear that all the essential elements

of the charge were properly alleged.

As noted above, the citation, signed by Mita, stated

that Mita “[d]id on/or about this 3 day of June Yr 08 at about

1940-2050 did own, harbour or keep (animal description): Boxers

Name Roxy/Obie Color Brown . . . at (location): [Mita’s residence

address] and did commit the offense of: . . . animal nuisance-

Sec.: 7-2.3 Barking Dog[.]” The citation also had a section

entitled “Officer’s Report” which stated that “Mita was issued a

Barking 3rd citation. She was already issued a previous Barking 2

warning citation.” Mita’s citation therefore put her on notice

that she was cited for violating ROH § 7-2.3 (her third citation)

because her two dogs were barking. Thus, when the DPA orally

charged Mita prior to trial, alleging that she was the owner of an

animal that engaged in animal nuisance, Mita had fair notice that

the charge was due to her dogs, Roxy and Obie, barking in a manner

that disturbed others. Accordingly, the ICA erred in concluding

that the charge was insufficient. Cf. State v. Baker, 55 Haw.

621, 622-23, 525 P.2d 571, 572 (1974) (holding that the indictment

charging defendant with forgery in the second degree was

sufficient, although inarticulately drawn due to technical errors

in its wording, because it “provided the [defendant] with

sufficient facts to put him on reasonable notice of the charges

against him”) (emphasis added).

9

(...continued)

physical arrest pursuant to Section 803-6(b) of the [HRS] and summoned to

appear in court, the citation and an oral recitation of the essential facts

constituting the offense charged as set forth in Rule 5(b)(1), shall be deemed

the complaint, notwithstanding any waiver of the recitation.” See also supra,

note 6.

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In sum, the charge against Mita, comprised of both the

citation and oral charge, provided her with fair notice of the

offense of animal nuisance. The significant factors in Wheeler

which caused this court to conclude that the charge was

insufficient are not present here. While the charge in Wheeler

contained a hidden element, the statutory definition of the term

“animal nuisance” does not create an additional essential element

of the offense of animal nuisance, and, in any event, is

consistent with the commonly understood meaning of the term.

Accordingly, the charge against Mita was sufficient.

As noted above, the ICA did not address any of the other

issues raised by Mita in her opening brief. Additionally, neither

party has requested that they be addressed here. Accordingly, in

light of our holding that the ICA erred in concluding that the

charge against Mita was insufficient, we remand this case to the

ICA to address Mita’s remaining issues.

IV. Conclusion

For the foregoing reasons, we conclude that the charge

against Mita was sufficient and remand this case to the ICA to

address the remaining issues raised in Mita’s opening brief.

On the briefs:

Gary Y. Okuda (Leu & /s/ Mark E. Recktenwald

Okuda) for defendant-

appellant. /s/ Paula A. Nakayama

Peter B. Carlisle, /s/ Randal K.O. Lee

Prosecuting Attorney,

James M. Anderson,

Deputy Prosecuting Attorney,

for plaintiff-appellee.

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