NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-JUN-2024
07:53 AM
Dkt. 84 SO
NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
JUNE E. MOORE, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
and
CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
DAVID L. MOORE, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
David L. Moore was charged with 24 counts of Cruelty to
Animals in the Second Degree in violation of Hawaii Revised
Statutes (HRS) § 711-1109(1)(b). David's mother, June E. Moore,
was separately charged with 24 counts of Cruelty to Animals in
the Second Degree in violation of HRS § 711-1109(1)(b) and/or
(h). The cases involved the same 24 dogs, which were found at
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Friends for Life, a "no-kill animal shelter" in Wai#anae, on
October 12, 2016. The cases were consolidated for jury trial.1
On May 9, 2019, David was found guilty as charged on
all counts. June was found guilty as charged on Count 17, and
not guilty on all other counts. A judgment of conviction was
entered in each case on August 15, 2019. David and June filed
separate appeals. We consolidated them. We vacate both
judgments, remand David's case for a new trial on all counts, and
remand June's case for a new trial on Count 17 only.
David's and June's opening briefs don't comply with
Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(4).2 They
fail to provide accurate, or any, citations to the record on
appeal. We could disregard David's and June's respective points
of error and affirm the judgments. See HRAP Rule 28(b)(4)
("Points not presented in accordance with this section will be
disregarded, . . ."). But in criminal cases, the supreme court
protects defendants' due process rights to have appeals decided
on the merits. See, e.g., State v. Uchima, 147 Hawai#i 64, 464
P.3d 852 (2020).
David's Appeal
David purports to state five points of error. Two are
dispositive.
(1) David argues the Cruelty to Animals in the Second
Degree elements instruction was defective because it described
conduct not charged in the State's complaint.3 "[I]t is the duty
of the trial court to properly instruct the jury." State v.
Nichols, 111 Hawai#i 327, 337, 141 P.3d 974, 984 (2006). "When
1
The Honorable Edward H. Kubo, Jr. presided.
2
David's appellate counsel also failed to comply with HRAP
Rule 28(a) because ineffective assistance of David's trial counsel is argued,
but David's opening brief was not served "on the attorney alleged to have been
ineffective."
3
David's statement of points on appeal does not quote the
instruction argued to be erroneous, as required by HRAP Rule 28(b)(4)(B).
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jury instructions . . . are at issue on appeal, the standard of
review is whether, when read and considered as a whole, the
instructions given are prejudicially insufficient, erroneous,
inconsistent, or misleading." Id. at 334, 141 P.3d at 981.
David was charged with violating HRS § 711-1109(1)(b)
(2014). The statute provided:
(1) A person commits the offense of cruelty to animals in
the second degree if the person intentionally, knowingly, or
recklessly:
. . . .
(b) Deprives a pet animal of necessary sustenance or
causes such deprivation[.]
(Emphasis added.)
"Necessary sustenance" means care sufficient to
preserve the health and well-being of a pet animal, except
for emergencies or circumstances beyond the reasonable
control of the owner or caretaker of the pet animal, and
includes but is not limited to the following requirements:
(1) Food of sufficient quantity and quality to allow
for normal growth or maintenance of body weight;
(2) Open or adequate access to water in sufficient
quantity and quality to satisfy the animal's
needs;
(3) Access to protection from wind, rain, or sun;
(4) An area of confinement that has adequate space
necessary for the health of the animal and is
kept reasonably clean and free from excess waste
or other contaminants that could affect the
animal's health; provided that the area of
confinement in a primary pet enclosure shall:
(a) Provide access to shelter;
(b) Be constructed of safe materials to
protect the pet animal from injury;
(c) Enable the pet animal to be clean, dry,
and free from excess waste or other
contaminants that could affect the pet
animal's health;
(d) Provide the pet animal with a solid
surface or resting platform that is large
enough for the pet animal to lie upon in a
normal manner, or, in the case of a caged
bird, a perch that is large enough for the
bird to perch upon in a normal manner;
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(e) Provide sufficient space to allow the pet
animal, at minimum, to do the following:
(i) Easily stand, sit, lie, turn around,
and make all other normal body
movements in a comfortable manner
for the pet animal, without making
physical contact with any other
animal in the enclosure; and
(ii) Interact safely with other animals
within the enclosure; and
(5) Veterinary care when needed to prevent
suffering.
HRS § 711-1100 (Supp. 2015).
The 24 counts in the State's second amended complaint
against David were substantially identical:
On or about October 12, 2016, in the City and County of
Honolulu, State of Hawai#i, DAVID L. MOORE did
intentionally, knowingly, or recklessly deprive a dog,
identified as [animal number and identification number], a
pet animal, of necessary sustenance or cause such
deprivation, by depriving said pet animal of care sufficient
to preserve the health and well-being of said pet animal;
except for emergencies or circumstances beyond the
reasonable control of the owner or caretaker of said pet
animal, or causing such deprivation by, to wit, failing to
provide said pet animal with food of sufficient quantity and
quality to allow for normal growth or maintenance of body
weight; and/or open or adequate access to water in
sufficient quantity and quality to satisfy the animal’s
needs; and/or an area of confinement that had adequate space
necessary for the health of said pet animal and was kept
reasonably clean and free from excess waste or other
contaminants that could affect said pet animal’s health;
and/or sufficient space in the area of confinement which
would allow said pet animal to easily stand, sit, lie, turn
around, and make all other normal body movements in a
comfortable manner without making physical contact with any
other animal in the enclosure; and/or interact safely with
other animals within the enclosure; and/or depriving said
pet animal of veterinary care when needed to prevent
suffering, thereby committing the offense of Cruelty to
Animals in the Second Degree, in violation of Section
711-1109(1)(b) of the Hawai#i Revised Statutes.
(Emphasis added.)
The complaint's "to wit" clause identified the specific
conduct alleged by the generic statutory definition of "necessary
sustenance." See State v. Jardine, 151 Hawai#i 96, 101, 508 P.3d
1182, 1187 (2022) (stating that where a statutory definition is
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generic, "it would be prudent for the State to incorporate a 'to
wit' clause" to "descend to particulars" to "apprise a defendant
of what the defendant must be prepared to meet"). The complaint
did not charge David with failing to provide each dog with access
to protection from wind, rain, or sun; or an area of confinement
providing access to shelter constructed of safe materials to
protect the dog from injury, enable the dog to be dry, and
provide the dog with a solid surface or resting platform large
enough for the dog to lie in a normal manner.
The jury was instructed:
As to Defendant DAVID L. MOORE, there are two material
elements of the offense of Cruelty to Animals in the Second
Degree that the prosecution must prove beyond a reasonable
doubt as to each of the 24 counts.
These two elements as to each Count are:
1. That on or about October 12, 2016, in the City
and County of Honolulu, State of Hawai#i, the
Defendant David L. Moore intentionally,
knowingly, or recklessly engaged in conduct; and
2. That such conduct deprived or caused deprivation
to the relevant pet animal, referred to in that
Count, of necessary sustenance.
"Necessary sustenance" means care sufficient to
preserve the health and well-being of a pet animal, except
for emergencies or circumstances beyond the reasonable
control of the owner or caretaker of the pet animal, and
includes but is not limited to the following requirements:
(1) Food of sufficient quantity and quality to allow
for normal growth or maintenance of body weight;
(2) Open or adequate access to water in sufficient
quantity and quality to satisfy the animal's
needs;
(3) An area of confinement that has adequate space
necessary for the health of the animal and is
kept reasonably clean and free from excess waste
or other contaminants that could affect the
animal's health; provided that the area of
confinement in a primary pet enclosure shall:
(a) Provide access to shelter;
(b) Be constructed of safe materials to
protect the pet animal from injury;
(c) Enable the pet animal to be clean, dry,
and free from excess waste or other
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contaminants that could affect the pet
animal's health;
(d) Provide the pet animal with a solid
surface or resting platform that is large
enough for the pet animal to lie upon in a
normal manner, . . . ; or
(e) Provide sufficient space to allow the pet
animal, at minimum, to do the following:
(i) Easily stand, sit, lie, turn around,
and make all other normal body
movements in a comfortable manner
for the pet animal, without making
physical contact with any other
animal in the enclosure; and
(ii) Interact safely with other animals
within the enclosure [sic]
(4) Veterinary care when needed to prevent
suffering.
(Emphasis added.)
The jury instruction included particulars of what
constituted "necessary sustenance" that were not included in the
complaint's "to wit" clauses. The complaint did not apprise
David that he would have to "be prepared to meet" those omitted
particulars; they should not have been included in the jury
instruction. The error was not harmless because Hawaiian Humane
Society field services manager Harold Han testified, over David's
objection, that the dogs were "kept on a cage made of wire meshtype material, which is not allowed. . . . It needs to have a
solid platform where the dog can get its feet 'cause the feet get
irritated. So it needs to be able to get off of that wire mesh."
David was not charged with failure to provide the dogs "with a
solid surface or resting platform that is large enough for the
[dog] to lie upon in a normal manner[.]" David was deprived of
due process because the guilty verdicts4 could have been based on
uncharged conduct.
David's additional argument that "the inclusion of said
extraneous elements also allowed for a non-unanimous verdict by
4
The jury completed 48 separate verdict forms, one for each count
against David and one for each count against June.
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the jury" is without merit because a proper unanimity instruction
was given.
(2) If we find trial error, we must also decide any
challenge to sufficiency of the State's evidence because the
double jeopardy clause bars a retrial if a reviewing court finds
the trial evidence legally insufficient to support a conviction.
State v. Davis, 133 Hawai#i 102, 118, 324 P.3d 912, 928 (2014).
David challenges sufficiency of the evidence by appealing the
trial court's denial of his motion for judgment of acquittal.
When reviewing a motion for judgment of acquittal, we employ
the same standard that a trial court applies to such a
motion, namely, whether, upon the evidence viewed in the
light most favorable to the prosecution and in full
recognition of the province of the trier of fact, the
evidence is sufficient to support a prima facie case so that
a reasonable mind might fairly conclude guilt beyond a
reasonable doubt. Sufficient evidence to support a prima
facie case requires substantial evidence as to every
material element of the offense charged. Substantial
evidence as to every material element of the offense charged
is credible evidence which is of sufficient quality and
probative value to enable a person of reasonable caution to
support a conclusion. Under such a review, we give full
play to the right of the fact finder to determine
credibility, weigh the evidence, and draw justifiable
inferences of fact.
State v. Moon, 152 Hawai#i 195, 204, 524 P.3d 1219, 1228 (2023)
(cleaned up).
David argues the State didn't introduce evidence of
"when the dogs in question arrived at [Friends for Life and] what
condition they were in upon arrival . . . ." There was no such
evidence. Han testified that animal shelters ordinarily keep a
record for each animal "that tracks from intake all the way
through disposition for adoption." He found no records showing
when the dogs arrived at Friends for Life, or that medical checks
were done on them. But the particulars for which David was
charged did not require that the State prove when the dogs
arrived at Friends for Life, or their condition when they
arrived.
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David was charged with "failing to provide [the dogs]
with food of sufficient quantity and quality to allow for normal
growth or maintenance of body weight; and/or open or adequate
access to water in sufficient quantity and quality to satisfy the
animal's needs[.]" Han testified, and video and photographic
evidence showed, that food bowls were empty and water bowls were
dry, and "some of 'em have urine in them." There were some
"Lixit" water dispensers on the property, but none of the 24 dogs
had access to them. Mary Suzanne Palumbo, DVM, testified, "as a
veterinarian, one of the things that struck me is that we saw
absolutely no food or no water in the -- in any of the cages."
David was charged with failing to provide "an area of
confinement that had adequate space necessary for the health of
[the dog] and was kept reasonably clean and free from excess
waste or other contaminants that could affect [the dog]'s health;
and/or sufficient space in the area of confinement which would
allow [the dog] to easily stand, sit, lie, turn around, and make
all other normal body movements in a comfortable manner without
making physical contact with any other animal in the
enclosure[.]" Han testified he smelled feces while across
Farrington Highway from the Friends for Life property. The odor
became stronger as he got closer to the property. It was so
severe he considered using a mask when going into one of the
structures. One of the dogs had a "severe skin condition along
with . . . many layers of feces and urine[.]" He saw two dogs in
a cage that "just don't have enough space in there to do normal
bodily functions or sit, stand, and, you know[.]" Witnesses
testified there were rats, alive and dead, and fleas, ticks, and
flies on the property. The dogs were infested with ticks and
fleas.
David was charged with "depriving [the dogs] of
veterinary care when needed to prevent suffering[.]" There was
substantial evidence — witness testimony, videos, and photographs
— from which a reasonable juror could conclude the dogs were
suffering. The dogs had skin lesions. Their claws were not
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trimmed. Carlene Takushi, DVM, testified specifically about dogs
1 through 17, that the dogs "did not receive adequate veterinary
care." She described dogs with a painful eye condition called
"KCS" that is treatable with medication, parvovirus, periodontal
disease, and anaplasma and mycoplasma, both tick-borne diseases
treatable with medication. Ehrlichia — a tick-borne disease that
is potentially fatal but also treatable with medication, was
found in all but two of the dogs. Palumbo testified as to the
condition of dogs 18 through 24, the dogs "were all severely
ill."
David also argues the State didn't introduce evidence
of "[his] alleged contribution to the dire conditions many of the
dogs were found in at the time of the raid." The State
introduced evidence that David was the treasurer and a director
of Friends for Life, a Hawai#i nonprofit corporation, in 2016.
He became Friends for Life's president in 2017, and signed the
corporation's annual report. He signed the agreement to forfeit
the dogs to the Hawaiian Humane Society. Friends for Life's
website identifies David as its president. David's Facebook page
stated he is "Chief Pooper Scooper at Friends For Life Hawaii."
The State presented substantial evidence sufficient for a
reasonable mind to fairly conclude that David was guilty as
charged beyond a reasonable doubt.
We need not address David's other points of error.
June's Appeal
(1) June, like David, was charged with violating HRS
§ 711-1109(1)(b). June was also charged with violating HRS
§ 711-1109(1)(h) (2014), which criminalized assisting another who
"[d]eprives a pet animal of necessary sustenance or causes such
deprivation[.]" The 24 counts in the State's third amended
complaint against June were substantially identical to the 24
counts in the second amended complaint against David. The trial
court's Cruelty to Animals in the Second Degree elements
instruction was defective because it described conduct with which
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June was not charged. June did not challenge the jury
instruction, but the instructional error adversely affected her
substantial rights.
If the substantial rights of the defendant have been
affected adversely, the [instructional] error will be deemed
plain error. Further, this Court will apply the plain error
standard of review to correct errors which seriously affect
the fairness, integrity, or public reputation of judicial
proceedings, to serve the ends of justice, and to prevent
the denial of fundamental rights.
Nichols, 111 Hawai#i at 334, 141 P.3d at 981 (citations omitted).
For the reasons discussed above, June was also deprived of due
process because the guilty verdict on Count 17 could have been
based on uncharged conduct included in the Cruelty to Animals in
the Second Degree elements instruction.
(2) June challenges the trial court's denial of her
motion for judgment of acquittal. The State introduced evidence
that June owned the property where Friends for Life was located,
and a pickup truck found at the property bearing the Friends for
Life logo. She was the president and a director of Friends for
Life, a Hawai#i nonprofit corporation. She signed Friends for
Life's 2016 and 2017 tax returns as its president. Her Facebook
page stated she "Worked at Friends For Life Hawaii." She signed
an agreement, individually and as president of Friends for Life,
forfeiting the dogs to the Hawaiian Humane Society. The State
introduced substantial evidence about the physical and living
conditions of each of the 24 dogs that, when viewed in the light
most favorable to the prosecution, would be sufficient to support
a reasonable mind to fairly conclude that June intentionally,
knowingly, or recklessly deprived the dogs of necessary
sustenance, caused that deprivation, or assisted another in
depriving the dogs of necessary sustenance or causing that
deprivation. The State presented substantial evidence sufficient
for a reasonable mind to fairly conclude that June was guilty as
charged beyond a reasonable doubt.
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(3) June's other points of error are disregarded, HRAP
Rule 28(b)(4), or waived, HRAP Rule 28(b)(7).
For these reasons, we vacate the judgments in
1CPC-17-1707 and 1CPC-17-1708, and remand for a new trial on all
counts against David, and on Count 17 against June.
DATED: Honolulu, Hawai#i, June 21, 2024.
On the briefs:
/s/ Keith K. Hiraoka
Joseph R. Mottl, Presiding Judge
for Defendant-Appellant
June E. Moore. /s/ Clyde J. Wadsworth
Associate Judge
Kai Lawrence,
for Defendant-Appellant /s/ Karen T. Nakasone
David L. Moore. Associate Judge
Donn Fudo,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.
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