State v. Hitchcock

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IN THE SUPREME COURT OF THE STATE OF HAWAFI

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STATE oF HAWAI‘I, Plaintiff-Appellee,

VS.

SEAN K. HITCHCOCK, Defendant-Appellant.

l€ §§ uv as ?rzre-;:siiz

NO. 29847

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

<cR. No. 1P509~00092)

JULY 30, 2010

NAKAYAMA, DUFFY, AND RECKTENWALD, JJ.;

MOON, C.J.,

ACOBA, J., CONCURRING SEPARATELY

OPINION OF THE COURT BY MOON, C.J,

Defendant-appellant Sean K. Hitchcock appeals from the

District Court of the First Circuit'sl April 27, 2009 judgment

convicting him of and sentencing him for illegal camping, in

violation of Revised Ordinances of Honolulu (ROH) § 10-l.2(a)(l3)

or the ordinance], quoted

[hereinafter ROH § 10-l.2(a)(l3)

(2009)

Upon application by Hitchcock, the case was transferred

infra.

1 The Honorable Lono J. Lee presided over the underlying proceedings.

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to this court, pursuant to Hawafi Revised Statutes (HRS)

§ 602-58(b)(l) (Supp. 2OO9).2

Briefly stated, Hitchcock is a homeless man who, at the

time of trial, permanently camped at the Keaau Beach Park [also

referred to as the beach park, or the park] in Wafanae, on the

island of(Fahu. Every three weeks for approximately twenty

months, Hitchcock was issued a camping permit from the City and

County of Honolulu that allowed him to continue camping at the

beach park. On the night of Wednesday, January l4, 2009,

Honolulu Police Department (HPD) Officer Dennis Carino (Officer

Carino) entered the beach park and cited Hitchcock for illegal

camping, in violation of ROH § 10-l.2(a)(l3).3_ The citation was

based on a rule set forth in camping permits that prohibited

camping on Wednesdays and Thursdays to allow the Department of

Parks and Recreation to perform park maintenance. On April 27,

2009, Hitchcock was orally charged with illegal camping and

pleaded not guilty. At the conclusion of a one-day bench trial,

Hitchcock was convicted of illegal camping and fined $25.

2 HRS § 602-58(b)(l) provides that:

The supreme court, in a manner and within the time

provided by the rules of court, may grant an application to

transfer any case within the jurisdiction of the

intermediate appellate court to the supreme court upon the

grounds that the case involves: '

(l) A question of first impression&or a novel legal

question.

3 ROH § lO-l;2(a)(l3) provides that, “[w]ithin the limits of any public

park, it is unlawful for any person to . ... [c]amp at any park not designated

as a campground[.]”

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On appeal, Hitchcock argues that his conviction should

be reversed because: (l) his oral charge was defective in that

it failed to state an offense; (2) there was no “substantial

evidence of the requisite attendant circumstance element” of the

ordinance that Hitchcock camped “at_a park not designated as a

campground”; and, (3) assuming there was sufficient evidence to

convict him, the trial court erred when it failed to apply the

“choice of evils” defense to his case. Hitchcock further argues

that, in any event, ROH § l0-l.2(a){l3) is unconstitutional as

applied to him because it is vague, overbroad, and constitutes

cruel and unusual punishment. Although there were other offenses

that could have been charged in this case, §§§ infra note 5, we

conclude that there was insufficient evidence to show that

Hitchcock violated ROH § l0-l.2(a)(l3).

Thus, for the reasons discussed inf;a, we reverse the

trial court's April 27, 2009 judgment and sentence.

I. BAfHU3ROlDU

On April 27, 2009, Hitchcock was orally charged during

arraignment with illegal camping, in violation of ROH § 10-

l.2(a)(l3), based on his presence at Keaén.Beach Park after

l0:00 p.m. on Wednesday, January l4, 2009. Specifically, the

prosecution orally charged Hitchcock as follows:

Mr. Hitchcock, on January l4, 2009, within the limits of a

public park, you did intentionally, knowingly, or recklessly

camp in any area not designated as a campground thereby

committing the offense of illegal camping in violation of

Section l0-l.2(a)(l3) of the [ROH].

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Hitchcock indicated that he understood the charges against him

and, thereafter, pleaded not guilty},

A bench trial then commenced and lasted one day.

Plaintiff-appellee State of Hawafi's (the prosecution) case-in-

chief consisted of one witness, Officer Carino.

On direct examination, Officer Carino testified that,

on the night of January l4, 2009, he was working near Keaau

Beach Park in the City and County of Honolulu, and his assignment

was “basically to give citations to people that [were] not

supposed to be camping in the park.# when asked how he knew

_Hitchcock was camping in a public park, Officer Carino stated

that he encountered Hitchcock in a tent in’the beach park and saw

that Hitchcock was going in and out of the tent. Officer Carino

indicated that Hitchcock expressly admitted that the tent l

belonged to him, Officer Carino additionally testified that he

ascertained the limits of the beach park from the signs “all over

the park.” According to Officer Carino, there were signs in the

park that “g[a]ve the rules of the park, no camping, um, no

golfing, no alcohol.” However, he testified that there is an

area designated for camping in the park and admitted that

Hitchcock's tent, which was set up tright next to the restroom”

and “right near the parking lot,” was “within the campsite area”

of the beach park,

when asked about his interaction with Hitchcock,

Officer Carino indicated that he asked Hitchcock for his camping

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permit, but Hitchcock did not give him a permit. He indicated

that he could not remember whether Hitchcock actually had a

permit. Officer Carino explained that:

Basically, [Hitchcock] was . . . in the park at a time where

. . no one’s supposed to be camping. Even if you have a

permit, the permit's only good for so much -- for certain

days of the week. And, uh, on wednesday nights and Thursday

nights no one’s supposed to be in the park for maintenance

of the park. So even iffthey have a permit, the permit does

not state those days that you are allowed to stay in there

with a permit. ' '

when asked why he did not issue Hitchcock a “closed park

citation,” Officer Carino testified that Keaeu Beach Park does

not have “closed hours.” Finally, he indicated that, based on

his observations, he issued Hitchcock a citation for illegal

camping in violation of ROH § 10-l.2(a)(l3), but did not arrest

him.

During cross-examination, Officer Carino reiterated

that Hitchcock was “in one of the designated camping areas” of

the beach park when he issued Hitchcock a citation.

Additionally, Officer Carino testified that he was familiar with

Hitchcock and that he had “run into him” prior to the night in

question. He stated that Hitchcock had informed him that he was

homeless and essentially lived at the beach park.

with respect to Hitchcock's permit on the night in

question, Officer Carino again stated that he could not remember

whether Hitchcock presented a permit when he issued the citation,

but indicated that Hitchcock “usually does have a permit.” He

indicated that, in any event, “there's absolutely no way you can

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get a permit there [at the beach park] on wednesday and Thursday”

because the State does maintenance on those days. Also during

Officer Carino’s cross-examination, the trial court took judicial

notice of the fact that January l4, 2009 was a wednesday night.

The prosecution conducted a brief re-direct

examination, during which time it sought to enter into evidence a

certified letter from the Department of Parks and Recreation (the

department) stating that no camping is allowed at the beach park

on wednesdays and Thursdays. The prosecution argued that such

letter should be entered into evidence as a self-authenticating

document, and Hitchcock did not object. The trial court granted

the prosecution's request to enter the letter into evidence.4

The prosecution also questioned Officer Carino about

Hitchcock's history in the park, to which Officer Carino

reiterated that he had encountered Hitchcock in the park before

and that he usually has a permit. Officer Carino explained that

the citation at issue was the only time he had cited Hitchcock

and that “generally everybody there [in the park]” has permits

“for the days allowed for camping there.”

During re-cross examination, Hitchcock asked Officer

Carino whether the “wednesday/Thursday” no camping rule was

statewide. Officer Carino stated; fl don't know if it[‘]s

4 Although the transcript indicates that the prosecution's request was

granted and seems to indicate that the letter was entered into evidence, there

is no such letter contained in the record on appeal, nor is there any

indication that the exhibit was, in fact, received into evidence.

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statewide. I don't know that: 1 know for the parks for that --

for Keaau Beach Park it is.” Officer Carino additionally

indicated that “the permit will state . . . what days they’re

allowed there and what days they’re not allowed there.” Finally,

he stated that, “to [his] knowledge,” the wednesday and Thursday

camping restriction was the result of a new camping statute that

took effect in September 2008. No further inquiries or

explanations regarding the “new camping statute” were provided at

that time.

Immediately following Officer Carino’s testimony, the

prosecution rested its case. Hitchcock then made an oral motion

for judgment of acquittal, arguing that:

Although it seems the [prosecution] has met all the‘

elements, uh, to prove this crime and especially in the

light most favorable to the [prosecution] . . ., I would

just say that, uh, and it will become clear after Mr.

Hitchcock has a chance to testify, the statute itself is

unfair. It unfairly targets the homeless people who have

nowhere else to go. On wednesday and Thursday they/re

basically, uh -- they’re basically out of luck.

The prosecution rested on the evidence presented, expressing its

belief that it had “met all the elements prima iagia.” The trial

court orally denied Hitchcock's motion, stating that the

prosecution “has made a prima facie case. viewed in the

strongest light, they've made their case.”

Hitchcock then elected to testify on his own behalf and

was the sole witness for the defense. Regarding his background,

Hitchcock stated during direct examination that he was 41 years

old, born in HawaiHq and held a master’s degree in traditional

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Chinese medicine. He indicated that he served “eight years

active duty” in the army as a special forces operative and

“previous to that . .`. served four years Air Force Auxiliary as

a search and rescue individual.” During his military career, he

suffered injuries, including a broken back and multiple head

traumas, that rendered him permanently ninety percent disabled.

Hitchcock testified that he was employed until May of 200l, but

became unable to work due to his disability. He indicated that

he subsequently entered a vocational rehabilitation program and

tried to find employment, but, when he became homeless, he was

removed from the program.

when asked about his homelessness, Hitchcock testified

that he had been living in an apartment in waFanae, but was

evicted when his landlord found out that he was on probation for

committing a class C felony. According to Hitchcock, he then

went to several rental companies, but none of them would rent an

apartment to him, even though he had good credit, because of

“other circumstances,” which, in Hitchcock's view, meant they did

not want to rent to a person who was on probation. He further

testified that he tried to get into shelters run by the military

and other programs, but was rejected because he is on narcotic

pain medication for his disability and that shelters have a “zero

tolerance policy” for narcotic use, regardless of the reason or

necessity. Upon being asked whether there were “any other

avenues to find housing” that he had not yet exhausted, he

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indicated that he was the first veteran on Uahu to apply for the

“HUD-C” veteran housing program initiated by President Obama, but

stated that such request was still pending and that, at the time

of trial, there was no affordable housing available to him.

Hitchcock then testified that he currently resided at

“Campsite l3 at Keaeu.Beach Park.” He explained that, in order

to stay at the beach park, he “go[es] down to the Satellite City

Hall every three weeks on a friday, and they issue three[]weeks

worth of permits. And, um, I've done that now for about the past

[nineteen, twenty] months.” Hitchcock further indicated, with

respect to the “new camping statute” mentioned during Officer

Carino’s testimony, that “nothing has changed from the old

statute.i . . . [The restriction on camping has] always been

wednesday/Thursday. That has never changed.” He explained that,

although the parks and recreation department claims that

wednesdays and Thursdays are reserved for park maintenance:

(l) there has been no maintenance done for the past five years or

more at the beach park; (2) tlast summer they took away both of

our park employees”; and (3) it is “up to [the people staying at

the beach park] to . . . help clean the park.”

As to the citation he received, Hitchcock testified

that he understood that he was taking a risk by being at the

beach park on wednesday and Thursday, but stated that he

“honestly ha[d] nowhere else to go.” He explained that, in the

past, he has asked the HPD where he can go on wednesday and

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Thursday and, in response, the officers have told him to go to a

shelter or “go in the bush somewhere maybe” because that area

would not be handled by the HPD; thus, Hitchcock indicated that

the HPD “just kinda [sic] pushed the issue around.”

During cross-examination, Hitchcock admitted that he

was camping at the beach park on the night he received the

citation and admitted that the beach park is a public park. when

asked if he had a permit, he stated that “nobody has a permit on

those days.” On re-direct, Hitchcock reiterated that the beach

park had been his residence for the past nineteen or twenty

months and stated that “[a]ll the police officers know me there.”

At the close of his testimony, Hitchcock rested his case.

The prosecution then presented its closing argument,

stating that:

Your Honor, I believe {the prosecution] has met beyond a

reasonable doubt its burden not only based on the officer’s

testimony but also on the defendant’s own admission during

testimony, He knew he was camping . . . . He knew it was a

park camping ground or a public park and it wasn’t -- and

camping wasn’t allowed at that_time. There's no doubt that

he violated the statute. l think the question the defense

raises is a broader constitutional question which definitely

should be raised. I’m just not sure that this court has --

can address it.

In response, Hitchcock stated:

Your Honor, that's true. The statute; as applied to

people in Mr. Hitchcock's circumstances, is totally

unconstitutional and leaves him with no options but to break

the law. Based on the fact that he is . . . in these

circumstances as he testified, he simply has no other

choice. I’m going to ask the [trial] court to find him not

guilty on that basis.

It's also a choice of evils thing, Your Honor. He’s

got no other options but to break the law. He’s asked where

can he go. There's nowhere else to go. He can’t go to the

shelters, as he testified, because he's on this medication.

He’s clearly, uh, taken many measures to try not to break

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the law. He gets his permit every day for the days that the

State allows him to be there} `He’s simply left with no

other option but to be living where he's living. There's

nowhere for him to go, and he has tried.

So I would raise a constitutional basis by just

_stating simply it is a choice of evils thing. He has no

choice. His circumstances are such that he is forced to

live in the park on wednesdays and Thursdays, and that

subjects him to these penalties. And, uh, Your Honor, I'd

ask the [trial] court to find him not guilty. The intent is

not there. He’s simply left without a choice.

In rebuttal, the prosecution addressed Hitchcock's

choice of evils argument, stating that

r

[Hitchcock] has failed to specify what the alternate evil

is, so I’m not sure I can clearly address it because the

evil that’s being prevented by the law has to -- or the evil

that is avoided by breaking the law has to clearly outweigh

the evil being prevented by the law. Unless defense

articulates the second evil, I’m not sure the [prosecution]

can clearly respond. '

The trial court “found first of all the [prosecution]

is correct that the choice of evils defense is not applicable

[be]cause there is no other alternative evil that is facing Mr.

Hitchcock.” The trial court went on to conclude that:

Certainly this [trial] court is sensitive to your

position, Mr. Hitchcock, but on the issue of the ordinance

it was clearly violated. And even in your testimony you

admit that, I don't see that there's a discriminatory basis

or a constitutional issue before this [trial] court. Okay.

The [trial] court does find that the [prosecution] has

made its case, proved its case beyond a reasonable doubt,

and you’re guilty as charged.`

The trial court then asked Hitchcock if he wanted to address the

trial court as his “right of allocution.”

Hitchcock chose to address the trial court, stating, in

relevant part, that:

There are many points about this case that I would

like to bring up with the [trial] court but probably isn’t

applicable [sic] at this time about how this is done. But

this is being driven by political forces. The task force

that comes down is directed by the mayor at this time. They

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only come down on the wednesday and Thursday and they only

target the grassed area of the park, the actual park.

They don't give tickets to the people who live to the

north of the park which there's over two hundred people on a

mile-long stretch of beach doing the same thing we’re doing.

They never go in there to ticket them ever. So I mean there

are many issues at hand here.

I'd like to again reiterate what counsel here has said

about the constitutional issue about the criminalization of

the homeless. And I feel this is why 1 brought this before

Your Honor, to this court, to your attention that it does

seem cruel and unusual under the Fourth Amendment to

criminalize the homeless. And that’s been a federal and

national prerequisite -- not prerequisite, but that is what

has been happening now across the nation in various criminal

courts.

There's an abundance of case law on this subject and

other things like the Fourteenth Amendment, freedom of

movement, et cetera, and that’s what we are trying to

establish here. But that’s exactly why I pled not guilty to

try to get out of the park. And I think all the police

officers who the task force say no, we’ve talked at

considerable length. . . . l rest my case on that.

The prosecution did not respond, but requested that the mandatory

fine of $25 be imposed. Hitchcock then requested that the fine,

if imposed, be suspended. The trial court then imposed a $25

fine on Hitchcock, but suspended the fine “for a period of seven

days on the condition no other similar violations [sic].” On the

same day (April 27, 2009), the trial court entered its written

judgment and sentence in accordance with its oral ruling.

On May 22, 2009, Hitchcock filed a timely notice of

'appeal from the trial court's April 27, 2009 judgment. Upon

motion by.Hitchcock pursuant to HRS § 602-58(b)(l), the case was

transferred to this court on February 24, 20l01 Oral argument

was held on May 6, 20l0.

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II. STANDARDS OF REVIEW

A. Oral Charge

“It is well settled that an accusation must

sufficiently allege all of the essential elements of the offense

charged.” iState v. Sprattling, 99 Hawaid.312, 3l6, 55 P.3d 276,

280 (2002) (citing State v. Merino, 01 HawaFi 198, 212, 915 P.2d

672, 686 (l996)). Stated differently,

the 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. 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. whether an indictment sets forth all the essential

elements of a charged offense is a question of law, which we

review under the aa novo, or “right/wrong,” standard.

Id. (citing State v. Kaakimaka, 84 Hawaid.280, 293-94, 933 P.2d

617, 630-31 (l997)) (other citationsL internal brackets, and

ellipses omitted).

B. 1 Sufficiency of the Evidence

This court has repeatedly stated that, in reviewing the

legal sufficiency of evidence to support a conviction,

evidence adduced in the trial court must be considered in

the strongest light for the prosecution when the appellate

court passes on the legal sufficiency of such evidence to

support a conviction; the same standard applies whether the

case was before a judge or a jury. The test on appeal is

not whether guilt is established beyond a reasonable doubt,

but whether there was substantial evidence to support the

conclusion of the trier of fact.

State v. Hicks, 113 HawaiH.60, 70; 148 P.3d 493, 503 (2006)

(citation omitted). “Substantial evidence” is “credible evidence

which is of sufficient quality and probative value to enable a

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person of reasonable caution to support a conclusion.” ida

(citation omitted). n

C. Statutory Interpretation

“The interpretation of a statute is a question law

reviewable aa novo.” State v. woodfall, 120 Hawafi 387, 391,

206 P.3d 84l, 845 (2009) (citations omitted). Further, statutory

construction is guided by the following rules:

First, the fundamental starting point for statutory

interpretation is the language of the statute itself.

Second, where the statutory language is plain and

unambiguous, our sole duty is to give effect to its plain

and obvious meaning, Third, implicit in the task of

statutory construction is our foremost obligation to

ascertain and give effect to the intention of the

legislature, which is to be obtained primarily from the

language contained in the statute itself. Fourth, when

there is doubt, doubleness of meaning, or indistinctiveness

or uncertainty of an expression used in a statute, an

ambiguity exists. And fifth, in construing an ambiguous

statute, the meaning of the ambiguous words may be sought by

examining the context, with which the ambiguous words,

phrases, and sentences may be compared, in order to

ascertain their true meaning, .

Id. (quoting Carlisle v. One §1) Boat, 119 HawaFi 245, 256, 195

P.3d 1177, 1188 (2008)) (other citations omitted).

11:. ,DIscUssioN

As previously indicated, Hitchcock argues that the

trial court erred and that his conviction should be reversed

because: (l) his oral charge was defective in that it failed to

state an offense; (2) there was no “substantial evidence of the

requisite attendant circumstance element” of the ordinance that

Hitchcock camped “at a park not designated as a campground”; and,

(3) assuming there was sufficient evidence to convict him, the

trial court erred when it failed to apply the “choice of evils”

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defense to his case. Hitchcock further argues that, in any

event, ROH § 10-1.2(a)(13) is unconstitutional as applied to him

because it is vague, overbroad, and constitutes cruel and unusual

punishment.

A. Oral Charge

On appeal, Hitchcock argues that the prosecution's oral

charge prior to the start of trial was defective inasmuch as “the

charge contained language fatally different from the ordinance[]

when it alleged that the camping occurred ‘in any area not

designated as a campground’” and “failed to specify the essential

element of ROH § 10-1.2(a)(13)[] that camping occur ‘at any park

not designated as a campground.’4 (Emphases in original.)

According to Hitchcock, “the distinction between \park' and

‘area' was a material difference, because the [prosecution's]

proof was that Hitchcock camped in an ‘area' where camping was

prohibited on that particular day.” Thus, Hitchcock argues that

“the conviction herein, based on the defective charge, violated

Hitchcock's constitutional rights to fair notice of the charge

against him and his due process right to a fair trial” as

provided in both the federal and state constitutions. Finally,

Hitchcock acknowledges that he did not object to the oral charge

at trial, but claims that the “fatal charging error” affected

Hitchcock's substantial rights and should be addressed by this

court based on plain error.

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In response, the prosecution argues'that, because

Hitchcock's objection to his oral charge was raised for the first

time on appeal, this court's decision in State v. Motta, 66 Haw.

89, 9l, 657 P.2d lO19, 1020 (1983) (providing that the charge

should be “liberally construed in favor of validity” and that the

conviction thereon will not be reversed without the defendant’s

showing of prejudice) should apply in this case. (Citing Mppra,

66 Haw. 90-91, 657 P.2d 1019-20; Merino, 81 Hawafi at 212, 915

P.2d at 686) (other citations omitted)). Applying the test set

forth in Mpppa, the prosecution argues that the oral charge “can

reasonably be construed to charge illegal camping in a public

park” because Hitchcock “represented at trial that he understood

the charge, entered a plea of not guilty to the charge, and

admitted to camping illegally at the public park on the night he

received a citation.” The prosecution further contends that

Hitchcock “has failed to even allege/ much less demonstrate, any

prejudice resulting from the oral charge's incomplete referencei”

As such, the prosecution argues that “[Hitchcock]’s claim that

the oral charge was insufficient and the case reversed on that

basis should be rejected.”

In his reply, Hitchcock avers that the prosecution

“misapplies the [Motta] liberal construction rule to the instant

case” because the Motta rule applies only to a charge that

“merely omits a word rather than an essential element, or to a

defect of mere form and not substance; [such] defects . . . are

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subject to [a] harmless error analysis, and a defendant who

challenges such defects for the first time on appeal must

demonstrate substantial prejudice.”_ Because (in Hitchcock's

view) the defect in the oral charge twas clearly not one of mere

form, but is one of ?substantive subjective [sic] matter

jurisdiction, which may not be waived or dispensed with, and that

is par aa prejudicial,'” (citing State v. Cummings, 101 Hawafi

139, 143, 63 P.3d 1109, 1113 (2003)) (other citations omitted),i

Hitchcock argues that the Mpppa liberal construction analysis “is

inapposite.” In the alternative, Hitchcock argues that the Mpppa

test has been met in this case because: (1) the defective oral

charge was prejudicial in that it was “indisputably material, and

the improper substitution [of] ‘area' for the term ‘park'[]

caused [Hitchcock] to be convicted rather than acquitted”; and

(2) “[t]he oral charge, which does not track the ordinance as to

the critical term ‘park,’ cannot within reason be construed to

charge a crime.” 1

Article I, section 14 of the HawaFi Constitution

provides in relevant part that, “[i]n all criminal prosecutions,

the accused shall enjoy the right ..; . to be informed of the

nature and cause of the accusation.” _aa aiap U.S. Const. amend.

VI. “[I]t is well settled that an ‘accusation must sufficiently

allege all of the essential elements of the offense charged,' a

requirement that ‘[applies] whether an accusation is in the

nature of an oral charge, information, indictment, or

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complaint.'” State v. Ruqgiero, 114 HawaFi 227, 239, 160 P.3d

703, 715 (2007) (quoting State v. Jendrusch, 58 Haw. 279, 281,

567 P.2d 1242, 1244 (1977)) (other citations omitted). As such,

` “the 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.’” Ruggiero, 114

Hawaifi at 239, 160 P.3d at 715 (citing State v. wells, 78 HawaiU_

373, 379-80, 894 P.2d 70, 76-77 (1995)) (internal brackets

omitted).

1 »As pointed out by the prosecution, this court has

adopted a “liberal construction approach” when the sufficiency of

an indictment was challenged for the first time on appeal. §aa

Motta, 66 Haw. at 90, 657 P.2d at 1020. »In Motta, this court

explained that the “adoption of this liberal construction

standard for post-conviction challenges to indictments means we

will not reverse a conviction based upon a defective indictment

unless the defendant can show prejudice or that the indictment

cannot within reason be construed to charge a crime. ida at 9l,

657 P.2d at 1020. In State v. Elliott; 77 HawaiH.309, 884 P.2d

372 (1994), this court extended the Mappa “liberal construction”

approach to the sufficiency of oral charges, holding that,

because the defendant did not challenge the sufficiency of his

oral charges until after the trial, the review of the defendant’s

argument would be governed by the “liberal construction standard”

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set forth in Mpppa, ida at 31l, 884 P.2d at 374. The Elliott

court additionally provided guidance in applying the liberal

construction standard, concluding that “[o]ne way in which an

otherwise deficient count can be reasonably construed to charge a

crime is by examination of the charge as a whole.” Elliott, 77

` Hawai‘i at 312, 384 P.2d at 375 <amphaaia aaaaa). Farthar, in

State v. Sprattling, 99 Hawaid.312, 55 P.3d 276 (2002), this

court expressed that the Mpppa “post-conviction liberal

construction standard” “essentially prescribes a presumption of

validity on indictments that are challenged subsequent to a

conviction.” ida at 3l8, 55 P.3d at 282. Relying on Mpppa, the

Sprattling court stated that, “[ijn determining whether an

offense has been sufficiently pleaded, this court has departed

from strict technical rules construing the validity of an oral

charge. . . . Rather, we now interpret a charge as a whole,

employing practical considerations and common sense.”

Despite Hitchcock's claims that Mpr;a applies only to

“a defect of mere form and not substance,” we found no such

limitation in Mppra or the cases applying it. Thus, inasmuch as

it is undisputed that Hitchcock did not object to the oral charge

at the trial level and, instead, raises his argument for the

first time on appeal, the Mprpa liberal construction approach

applies in this case.

As previously indicated, the prosecution entered the

following oral charge on the records

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Mr. Hitchcock, von January,14, 2009, within the limits of a

public park, you did intentionally, knowingly, or recklessly

camp in any area not designated as a campground thereby

committing the offense of illegal camping in violation of

Section 10-1.2(a) (13) of the [ROH].

(Emphasis added.) ROH § 10-1.2(a)(13) provides that, “[w]ithin

the limits of any public park, it is unlawful for any person to

[c]amp at any park not designated as a campground[.]”

(Emphasis added.) Comparing the plain language of the oral

charge to the ordinance, it is clear that, as Hitchcock points

out, the prosecution used the word “area,” instead of “park” and,

thus, misstated a word in ROH § 10-1¢2(a)(13). However, the

prosecution also stated that Hitchcock was being charged for

conduct that was committed “within the limits of a public park.”

By indicating that the conduct for which Hitchcock was charged

had to have occurred within the limits of a public park, the oral

charge can be read (and liberally construed) as indicating that

Hitchcock was illegally camping in a park that was not designated

as a campground (not merely an area not designated as a

campground). Thus, examining the charge as a whole, it cannot be

said that the prosecution's alteration of a single word, i.e.,

“area” instead of “park,” rendered the oral charge so defective

that it did not state an offense. Thus, applying the liberal

construction standard, the oral charge can, within reason, be

construed to charge the offense of illegal camping pursuant to

ROH § 10-1.2(a)(13).

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Given the aforementioned conclusion, we now turn to

examine whether, in the alternative, Hitchcock demonstrated that

he was prejudiced by the oral charge. we observe, as stated by

the prosecution, that Hitchcock has not presented any evidence

that the prosecution's use of the word “area” instead of “park”

prejudiced, surprised, or hampered his defense in any way.

Indeed, we fail to see how the substitution of the word “park”

could materially affect or harm Hitchcock's right to be informed

of the charges against him, especially given that the prosecution

included the phrase “public parkf within the charge. Therefore,

Hitchcock failed to demonstrate that he was somehow prejudiced by

the prosecution's misstatement in his oral charge. In sum, it

cannot be said that the prosecutionfs use of the word “area”

rather than “park” rendered the oral charge so unclear that it

“by no reasonable construction can . . . be said to charge the

offense for which conviction was had.”

Moreover, this court has stated that,

in determining whether the accused’s right to be informed of

the nature and cause of the accusation against him [or her]

has been violated, we must look to all of the information

supplied to him [or her by the State to the point where the

court passes upon the contention that the right has been

violated. v

State v. Israel, 78 HawaiH_66, 70, 890 P.2d 303, 307 (l995)

(emphasis added) (citing State v. Treat, 67 Haw. 119, 120, 680

P.2d 250, 251 (1984; State v. Robins, 66 Haw. 312, 317, 660 P.2d

39, 42-43 (1983)) (other citation omitted) (brackets in

original). This court additionally stated that a defendant’s

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right to be informed of the nature and cause of the accusation

can be deemed satisfied if the record “c1early demonstrate[s] the

defendant’s actual knowledge” of the charges against him or her.

ida at 71, 890 P.2d 308.

inasmuch as Hitchcock argued the oral charge was

defective (and his constitutional rights had been violated) for

the first time on appeal, we turn to examine the information

provided or “supplied” by the prosecution to Hitchcock prior to

appeal. The record indicates that Officer Carino testified at

trial that Hitchcock was within the limits of a beach park at the

time he was issued a citation. Officer Carino further testified

that

[Hitchcock] was . . . in the park at a time where . . . no

one’s supposed to be camping, -Even if you have a permit,

the permit's only good . . . for certain days of the week.

And, uh, on wednesday nights and-Thursday nights no one’s

supposed to be in the park for maintenance of the park.

(Emphasis added.) Officer Carino indicated that, based on his

observations of Hitchcock camping in the beach park on a

prohibited night, he issued Hitchcock a citation for illegal

camping in violation of ROH § 10-1.2(a)(13).

Such testimony by Officer Carino clearly informed

Hitchcock that he was being charged with camping in the beach

park when the park itself was not designated as a campground.

Indeed, it would be absurd for Hitchcock (or anyone) to believe

he was being charged with camping merely in an area of a park not

/ designated as a campground when Officer Carino specifically

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stated that the basis for his citation of Hitchcock was

Hitchcock's presence in the beach park at a time the park was not

designated as a campground. Consequently, the prosecution

provided Hitchcock with information such that he could understand

the nature of the charges against him. Furthermore, Hitchcock

indicated during his arraignment that he understood the charges

against him. He testified at length regarding his presence at

the beach park, admitted that no one has a permit to camp in the

beach park on wednesdays and Thursdays, and indicated that he

understood he was taking a risk by remaining in the beach park on

the night in question. Such testimony shows that Hitchcock was

aware that his citation was based, at least in part, on his

continued presence at a public park -- not merely in any “area.”

Therefore, the record “clearly demonstrates” that Hitchcock had

“actual knowledge of the charges against him.” Israel, 78

Hawaid at 71, 890 P.2d at 308. w

inasmuch as: (l) the oral charge, when liberally

construed, states the offense of illegal camping and provided

Hitchcock with notice that he was being charged with camping in a

“park” not designated as a campground; (2) there is no evidence

in the record that the prosecution's use of the word “area”

instead of “park” “substantially prejudiced” Hitchcock; and,

(3) in any event, the record indicates that Hitchcock had actual

knowledge of the nature of the charges against him, we conclude

the oral charge was not defective. Consequently, we cannot agree

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with Hitchcock that his constitutional rights to a fair trial and

to have fair notice of the charge against him were violated.

B. SufficiencV of the Evidence

On appeal, Hitchcock argues that there was insufficient

evidence to support his conviction because the prosecution “had

to prove, as an attendant circumstance of the offense, that

Keaau Beach Park was ‘not designated as a campground,'” and the

prosecution “failed to meet its burden.” More specifically,

Hitchcock contends that

[t]he overwhelming evidence at trial established the

converse of what the [prosecution] was supposed to prove.

All testimony adduced on this point[] supported the

indisputable conclusion[] that Keaau Beach Park was

designated as a campground -- the opposite of the attendant-

circumstance-element of a non-campground designated park

that the [prosecution] was supposed to prove. [0fficer

Carino] described how camping was permitted at designated

campsites throughout the park, and that Hitchcock's tent was

within such a campsite. The city department issued camping

permits for camping in this park, and the officer said

Hitchcock had such a permit. The very fact that a city

department issued permits allowing for camping in the park[]

establishes that the park is designated as a campground.

Even when viewed in the light most favorable to the

[prosecution], the reference that there were “no camping”

signs throughout the park, and that camping permits

generally were not valid on the particular day Hitchcock was

cited . . . did not prove that the park was “not designated

as a campground.” . . . There was no notice within the

ordinance[] conveying the supposed prohibitions . . ., i.e.,

that absolutely no camping was allowed on wednesdays and

Thursdays, or that camping within the designated campsite

areas of the park was otherwise allowed on all other days,

or that the permit contained a specific advisement regarding

the wednesday/Thursday camping ban.

Hitchcock further argues that Officer Carino’s “reference to

permits not being valid on the day that Hitchcock was cited only

shows that Hitchcock appears to have violated the terms of the

permit, and is not material to the issue . . . whether KeaEmi

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Beach Park was designated as a campground[] or not.” (Emphases

added).5 Thus, Hitchcock claims that the prosecution's evidence

“fails to establish gui1t, even in the light most favorable to v

the [prosecution]” and that the lack of substantial evidence

“violated Hitchcock's due process right not to be convicted

except on proof of every element beyond a reasonable doubt.”

in its answering brief, the prosecution argues that

there was substantial evidence adduced at trial that, “on the

evening [Hitchcock] was cited for illegal camping at Keaau Beach

Park, the area in which [Hitchcock] pitched his tent was not

designated as a campground” because, although the evidence

5 Before the iCA, Hitchcock observed that

[o]ther pertinent provisions exist within the

statutory scheme of [the] ROH, which clearly address the

conduct the prosecution was attempting to prosecute herein,

ROH § 10-1.3(a)(2) states that a permit is required for

camping: “Any person using the recreational and other areas

and facilities under the controlg maintenance, management

and operation of the department of parks and recreation

shall first obtain a permit from the department for the

following uses: . . . (2) Camping[.]” ROH § 10-1.3(c)

clearly articulates the consequence for violation of the

terms of a permit, as follows: “Any violation . . . of the

terms or condition contained in the permit which violation

is caused by the permittee, . . . []shall constitute ground

for revocation of the permit by the director of parks and

recreation.” ROH § 10-1.6(a) provides for the penalty of

criminal prosecution for “any person convicted of a

violation of any section or provision of this article shall

be punished by a fine of not more than S500.00 or by

imprisonment for not more than 30 days, or by both such fine

and imprisonment.”

if Hitchcock's permit had indeed stated that the

permit was not valid on wednesdays and Thursdays, and

Hitchcock then violated the terms of the permit by camping

in the park on those days, the State could both revoke the

permit under ROH § 10-1.3(c), and the State could attempt

prosecution under ROH § 10-1.6(a) for the permit violation,

which appears to be the appropriate charging mechanism under

the facts herein, rather than ROH § 10-1.2(a)(13).

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established that Hitchcock's tent “was in a designated camping

area,” it also showed that “camping was not permitted on

wednesday and Thursdays fin that] those days were designated as

maintenance times at that park.” The prosecution additionally

points to the evidence that Hitchcock “understood that he risked

citation by remaining at the park on wednesdays and Thursdays”

and that he “conceded that the [prosecution] had ‘met all the

elements . . . to prove this crime and especially in the light

most favorable to the [prosecution]f” while arguing in support of

his motion for a judgment of acquittal.6

HRS § 701-114 (1993) provides, in relevant part, that

“no person may be convicted of an offense unless the following

are proved beyond a reasonable doubt: . . . [e]ach element of the

offense [and t]he state of mind required to establish each

element of the offense,” ROH § 10-1.2(a)(13), the offense for

which Hitchcock was charged, has two elements: (l) the conduct

element of “camping”; and (2) the attendant circumstance that

such camping may not be done in “any park not designated as a

campground.” §aa HRS § 702-205 (1993) (stating that the elements

of an offense consist of conduct, attendant circumstances, and

results of conduct). Thus, the prosecution had the burden to

5 The prosecution additionally relies upon the trial court's admission

of the certified letter from the Department of Parks and Recreation into

evidence "which indicated that camping was not allowed on wednesdays and

Thursdays." However, as previously indicated, the certified letter is not

contained in the record on appeal.

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prove, as an attendant circumstance of the offense, that KeaYMi

Beach Park was “any park not designated as a campground.”

Here, the record indicates that there are areas in

Keaau Beach Park where camping is permitted. Although Officer

Carino testified that there are signs in the park saying “no

camping,” he later admitted that certain areas in the park are

“designated for camping” and that Hitchcock's tent was in one of

the appropriate camping areas on the night in question. The

record additionally shows that the city issued permits to

Hitchcock to camp at Keaau Beach Park and, that, at the time of

trial, the city had been issuing Hitchcock such permits every

three weeks for about nineteen or twenty months. As such, the

evidence adduced at trial sufficiently established that the

Keaau Beach Park is, generally, “designated as a campground.”

However, all parties acknowledge that camping was not permitted

at the beach park on wednesdays and Thursdays because, according

to the terms of the camping permitsy'the city performed park

maintenance on those days. indeed, Hitchcock admitted that

“nobody has a permit” to camp at the beach park on wednesdays and

Thursdays.

The prosecution takes the position that the camping

prohibition on wednesdays and Thursdays established that, on

those days, the beach park was “not designated as a campground.”

On the other hand, Hitchcock claims, as indicated supra, that the

fact that camping permits are not valid on wednesdays and

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Thursdays “only shows that Hitchcock appears to have violated the

terms of the permit, and is not material to the issue

whether Keaeu Beach Park was designated as a campground[] ori,

not.”i Consequently, the inquiry whether sufficient evidence was

adduced at trial to sustain Hitchcock's conviction turns on

whether the beach park is “designated as a campground” on

wednesdays and Thursdays, when camping is prohibited.

Because the evidence adduced regarding the beach park

and the relevant camping restrictions is not in dispute, the

question whether the beach park was “designated as a campground”

on wednesdays and Thursdays becomes a question of law. A review

of the ROH reveals that the term “designate” is not defined in

ROH § 10-1.2(a)(13), nor is it defined in chapter 10 of the ROH

governing “parks and park facilities.” However, this court has

stated that “[t]he words of law are generally to be understood in

their most known and usual signification, without attending so

much to the literal and strictly grammatical construction of the

words as to their general or popular use or meaning.” Stallard

v. Consolidated Maui, inc., 103 Ham@iYi 468, 476, 83 P.3d 731,

739 (2004) (citing HRS § 1-14 (1993)); cf. State v. BaVlV, 118

HawaiH.1, 11, 185 P.3d 186, 196 t2008) (citation omitted)

(holding that this court “must heed the ‘plain and obvious

meaning' of the statute in order to give effect to the intention

of the legislature”).

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webster's dictionary defines “designate,” iprar aiia,

as follows: (l) “to declare to be: characterize,” as in, “areas

designated as strategic”; and (2) “to choose and set apart,”

argi, “control dams designated for construction.” webster's

Third New international Dictionary 612 (3rd ed. 1993) (emphases

in original). The aforementioned definitions, however, do not

aid in interpreting the term “designate” in the context of the

phrase “designated as a campground.”' indeed, the definitions

provide no guidance as to whether Keaau Beach Park was

continuously “designated as a campground” during the two days

each week it was closed to campers for maintenance because such

definitions could be used to support either of the aforementioned

interpretations submitted by Hitchcock and the prosecution.

Because the “plain and obvious meaning” of the word

“designate” cannot be gleaned from the ordinance itself or the

dictionary definitions, and the parties essentially present

different interpretations, the word “designate,” as used in ROH

§ 10-1.2(a)(13), is ambiguous. we, therefore, turn to ROH

§ 1-2.l, which governs the construction of ambiguous words in

ordinances and provides in relevant part:

in the construction of ordinances . . . the following

rules shall be observed unless it shall be apparent from the

context that a different construction is intended:

(b) Construction of Ambiguous words. where the words are

ambiguous:

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(1) The meaning of the ambiguous words may be sought

by examining the context, with which the

ambiguous words, phrases, and sentences may be

compared, in order to ascertain their true

meaning.

(2) The reason and spirit of the ordinance,

resolution, rules and regulations, and the cause

which induced enactment or promulgation may be

considered to discover its true meaning.

(3) Every construction which leads to an absurdity

shall be rejected.

Additionally, this court has stated that, “[i]f [a] statute is

ambiguous, and no such plain or obvious meaning emerges, it is

permissible for the court to resort to context and extrinsic

aiaa.~ s_a@, 113 Hawai‘i at 11, 1a5‘1>.3a at 196 (citing ma

§§ 1-15(1) and 1-15(2) (1993) (Q0verning the construction of

ambiguous words and phrases)). Accordingly, we look to the

context of the word “designate” in the ordinance and the “reason

and spirit” of ROH § 10-l.2(a)(l3).

with regard to context, we observe that “designate” is

used in section 10-l.2(a)(2), which prohibits Y[c]limb[ing] onto

any tree, except those designated for climbing,” (Emphasis

added.) it is also used in ROH § 10-1.7, which governs

“[a]nimals in public parks.” ROH § 10-1.7(b) provides in

relevant part that

[t]he director [of parks and recreation] is authorized to

designate areas in public parks for use by persons having

custody and control of dogs on a leash and to desigpate

public parks for use as off-leash parks for dogs. in

desigaating parks as off-leash parks and in designating

parks or areas therein for leashed dogs, the director shall

consider the park's size, location, and frequency of use by

members of the public, as well as the primary actual or

designed use of each park or area included in the

desigaation. The director shall post signs that notify the

public of such desigpation that describe or map the park or

park areas so desigpated.

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(Emphases added.) Because such ordinance requires the director

to (l) consider size, location, frequency of use, and original

design for the park prior to making a designation and (2) inform

the public of the designation, providing them with adequate

notice of the location of areas “so designated,” the director's

designation appears to be one that is intended to be of a lasting

and permanent nature. in other words, using a common sense

approach, a “designation” by the director of a dog park (or, as

here, a “campground”), although not entirely unalterable, is

likely unchanged by periodic closures due to maintenance or other

proffered reasons. ` '

For example, if the director were to post a sign in

designated dog parks stating that the presence of dogs for two

days each week is prohibited due to the need for maintenance,

such prohibition would not change the desigpation of the park as

a “dog park” -- that is, the park would not lose its designation

as a “dog park” merely because a temporary restriction on the

presence of dogs in the park had been imposed. indeed, once the

maintenance was finished, the use of the park for dogs would

resume and would not require a new tdesignation” or approval from

the director.

Similarly, the terms of Hitchcock's camping permit,

prohibiting camping on wednesdays and Thursdays, do not change

the “designation” of the beach park as a campground. To the

contrary, Keaeu Beach Park, or at least specific areas therein,

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remained “designated as a campground” during those two days and

that the beach park (like the dog park merely became temporarily

unavailable to the public for camping, indeed, it would be

nonsensical to conclude that the beach park is “designated as a

4 campground” for five days out of the week and not so “designated”

during the other two days.

As to the “reason and spirit” of the ordinance, ROH

§ 10-l.2(a)(13) is contained in chapter 10, which governs the use

of public parks. surrounding provisions in ROH § 10-1.2

similarly prohibit certain activities in a public park,

including, but not limited to: (l) willful damage or injury to

property, ROH § 10-1.2(a)(1); (2) polishing or repairing a car,

ROH § 10-1.2(a)(1l); (3) entering or remaining during the night

hours that the park is closed, ROH § 10-1.2(12); and (4) building

or kindling of a fire, other than in'a grill or brazier, ROH

§ 10-1.2(a)(4). Given the nature of the surrounding

prohibitions, section 10-1.2 seems to set forth rules primarily

designed to protect the safety of park users, as well as preserve

the integrity of public park areas. `Accordingly, the prohibition

against camping in any park “not designated as a campground” in

ROH § 10-1.2(a)(13) is a rule designed to promote safety and

protect public parks and their users.

Such interpretation is supported by the broad

definition of “public park” included in ROH § 10-1.1. The

ordinance defines public park as “any park, park roadway,

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playground, athletic field, beach, beach right-of-way, tennis

court, golf course, swimming pool} or other recreation area or

facility under the control, maintenance[,] and management of the

department of parks and recreation.” Applying such definition to

the ordinance at issue, it is reasonable to infer that the

prohibition of camping in “any park not designated as a

campground” was enacted to prevent persons from sleeping on park

roadways, golf courses, tennis courts, and other places that are

arguably unsafe for persons to occupy overnight and/or for any

length of time. As a result, it appears that ROH § 10-1.2(a)(13)

was promulgated to prohibit persons from occupying areas that'

were never intended for use as a campground, i.e., for overnight

occupancy.

However, as previously indicated, the evidence adduced

at trial established that Keaéu Beach Park was designated as a

campground and, thus, intended for use as a campground. indeed,

Officer Carino admitted that there are campground areas and

restroom facilities at the beach park and testified that the park

does not have any #closed hours,” even at night. Hitchcock

additionally indicated that the city had been providing Hitchcock

permits to camp at the beach park for almost two years. As a

result, it would be consistent with the “reason and spirit” of

the ordinance, iiai, safety of park users, to interpret the

phrase “designated as a campground” as a continuing

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classification, even when periodic restrictions are imposed on

camping for maintenance purposes;'

Based on the foregoing, we agree with Hitchcock that,

although Officer Carino’s testimony that permits were not valid

on the day that Hitchcock was cited may show that Hitchcock

violated the terms of a permit issued to him, it “is not material

to the issue . . . whether Keaeu.Beach Park was designated as a

campground so as to support his conviction for the offense the

prosecution elected to charge.”7 we, therefore, conclude that

there was insufficient evidence adduced at trial to show that

Hitchcock illegally camped “in any park not designated as a

campground” because: (1) the evidence at trial established that

(a) the beach park was designated as a campground and

(b) Hitchcock was in the designated camping area on the night he

was cited; (2) the park's “designation” as a campground did not

change on wednesdays and Thursdays; and (3) the prosecution

relied solely on the wednesday/Thursday camping prohibition to

prove that the beach park was “not designated as campground” on

the day that Hitchcock was cited. Consequently, we hold that the

trial court erred in convicting Hitchcock for illegal camping

pursuant to ROH § 10-1.2(a)(13).

7 As noted supra note 5, there are other provisions within ROH Chapter

10, Article 1 that could have been applicable to his conduct.

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lV. CONCLUSION

Based on the foregoing, we reverse the trial court's

April 27, 2009 judgment convicting Hitchcock of illegal camping

under ROH § 10-1.2(a)(13).8

Karen T. Nakasone, 1 (:;7

Deputy Public Defender,

for defendant-appellant '

James M. Anderson, Deputy

Prosecuting Attorney,

mnaE.DNg&, .

for plaintiff-appellee @} d`

13¢,._,.,¢,1,, n_“v\aa<n.gctn~at_

8

in light of our reversal of Hitchcock's conviction, we need not

address Hitchcock's remaining contentions regarding the “choice of evils”

defense or the constitutionality of ROH § 10-1.2(a)(13i.

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