State v. Lagat

¶1Concurring Opinion of

¶2Although it is said that the crime or crimes intended need not be alleged, I believe it is preferable that the crime or crimes a defendant purportedly intended to commit in entering a motor vehicle be alleged in the charging document in a prosecution for unauthorized entry into motor vehicle (UEMV), Hawai'i Revised Statutes (HRS) § 708-836.5 (Supp.2000), or that a bill of particulars as to such ciimes be freely granted.

¶3I.

¶4In applying the UEMV statute, the reference to analogous case law concerning the burglary statutes, HRS §§ 708-810 (1993) and 708-811 (1993), is apt, inasmuch as the only express distinction between the offenses is that the former pertain to motor vehicles and the latter to buildings. The gravamen of the burglary and the UEMV offenses is the intent to commit a crime against a person or property. Thus, although “the crime alleged ... is that of intentionally entering or intentionally remaining unlawfully on the described premises!,] ... what makes that act the crime of burglary [or UEMV] ... is the intent to commit a crime against a person or property rights.” State v. Robins, 66 Haw. 312, 314, 660 P.2d 39, 41 (1983). As the facts indicate, in objecting to the elements instruction in this case, the defense argued, in part that, “there’s no actual charge [of] Assault in the Third Degree in this case,” apparently referring to the absence of an allegation of the specific “crime against a person or property” involved.1 The defense thus raises an issue previously considered in connection with identical statutory language employed in burglary prosecutions.

¶5While this court has indicated that, “under our [burglary] statutes[,]” “the particular crime intended to be committed” is not “an essential element which must be alleged,” id. at 315, 660 P.2d at 41, it was acknowledged that, “[nevertheless, the majority of courts in various jurisdictions passing upon whether the crime of burglary has been sufficiently alleged ... have upheld timely challenges to the sufficiency of indictments where the specific crime intended to be committed has not been alleged.” Id.Those jurisdictions that require the prosecution to plead the crime a defendant intended in committing a burglary, explain that such information is needed in order to place a defendant on complete notice of the charges against him or her. See, e.g., Lanier v. State, 733 So.2d 931, 936 (Ala.Crim.App.1998) (“Absent an allegation in Lanier’s indictment charging first-degree burglary that Lanier intended to commit a specific crime while in the Lawson’s basement, Lanier was not put on notice of the crime of which he was accused and which he had to defend against.”).

¶6Despite the fact that such “holdings are treated as a general rule in compendiums of the law dealing with the subject,” Robins, 66 Haw. at 315, 660 P.2d at 41 (citations omitted), this court decided that, “[i]nasmuch as we have here an indictment specifying all the necessary elements to constitute the crime of burglary, ... the lack of an allegation of the specific crime intended to be committed,” id. at 315, 660 P.2d at 41-42 (citation omitted), did not violate the constitutional provisions *501relating to grand jury indictments.2See id.However, Robinsviewed as “[t]he much more difficult question ... whether an indictment which does not set forth the crime intended to be committed by the accused violates his [or her] right ... ‘to be informed of the nature and cause of the accusation.’ ” Id. at 315, 660 P.2d at 42 (quoting U.S. Const. amend. VI, Haw. Const. art. I, § 14);3see also State v. Daly, 4 Haw.App. 52, 54, 659 P.2d 83, 85 (1983) (explaining that, for an indictment to be valid, it must, inter alia, “‘apprise[ ] the defendant of what he [or she] must be prepared to meet’ ”) (quoting Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)); State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977) (finding complaint defective because it “failfed] to meet the requirement that an accused must be informed of the nature and cause of the accusation against him [or her]” (internal quotation marks and citation omitted)).

¶7As to that question, this court observed that, on appeal, the appellate court “must look to all of the information supplied to [the defendant] by the State to the point where the court passes upon the contention that his [or her] right has been violated,” Robins, 66 Haw. at 317, 660 P.2d at 42-43, and that, “on the record [ (there),]” there was “no violation of the right to be informed.” Id.This court noted, however, that, “given the evidence presented to the grand jury,” id.at 317 n. 3, 660 P.2d at 43 n. 3, it saw “no reason” why “the prosecutor should have been reluctant to go ahead and specify that theft was the intent.” Id.In a caveat to its holding, Robinscautioned that there may be “eases in which a general allegation such as that used here[,] combined with a deviation in theory from that presented to the grand jury[,] will result in a claim of unfair surprise and prejudice,” in which event, “[s]uch cases will have to be dealt with on a ease[-]by[-]case basis.” Id.at 317 n. 4, 660 P.2d at 43 n. 4

¶8If, indeed, the crime intended is apparent from the grand jury transcript, I also see no reason why, as Robinsindicated, the prosecution should not specify the crime intended. A general allegation invites “unfair surprise! ] and [resulting] prejudice.” Id. at 315-16, 660 P.2d at 42. Moreover, resort to the record is an indirect method of ascertaining the crimes supposedly intended and may give rise to disputed issues of whether the record adequately and sufficiently provided such notice. Additionally, a search of the record for such information places an unnecessary burden not only on the parties, but also on the trial court that must initially make such a determination, and on the appellate courts, as it did in Robins.

¶9II.

¶10Obviously, the failure to prove the intent to commit a crime in a motor vehicle, beyond a reasonable doubt, must result in an acquittal of the charge of UEMV. Conceivably, in limited situations, such a failure may result in a finding of simple trespass, which is a violation and not a crime. In this regard, the significance of identifying the crime(s) the prosecution purports was or were intended to be committed is prompted by the dissenting opinion of Justice Ramil, which maintains that the overlapping coverage under both the second degree burglary statute, HRS § 708-811, and the UEMV statute, in cases involving vehicles used for lodging, evinces an ambiguity requiring resort to legislative history, see dissent at 504, 40 P.3d at 906, which, in turn, is consistent with Defendant’s position. See supra note 1.

¶11A person who enters or remains unlawfully in or on premises commits simple trespass. See HRS § 708-815 (1993).4 “Premises” includes “any building.” HRS § 708-800 *502(1993). As Justice Ramil points out, the definition of “building” in HRS § 708-800 includes not only structures ordinarily thought of as buildings, but also, “any vehicle” used for lodging. See dissenting opinion at 504, 40 P.3d at 906. Governed by the definitions section of HRS § 708-800, the terms used for burglary offenses as stated in HRS §§ 708-810 and 708-811, and for the UEMV statute as stated in HRS § 708-836.5, share a common construction.

¶12The general reference to “motor vehicle” in HRS § 708-836.5(1), then, would arguably bring within its purview “any vehicle ... used for lodging.” HRS § 708 800. Because “building” includes, by definition, a vehicle used for lodging, one who enters such a vehicle is potentially subject to a charge of UEMV. However, if no crime is committed in the vehicle and the intent to commit a crime is not proven, the defendant would be subject only to the violation offense of simple trespass, i.e., unlawfully entering “premises,” that is, a vehicle falling within the definition of a “building.”

¶13By way of illustration, a person who breaks into a camper may be charged with UEMV. His or her claim that entry was not for the purpose of committing a crime, but to seek shelter, may entitle him or her to a lesser included instruction5 on simple trespass. See, e.g., State v. Williams, 6 Haw.App. 17, 18, 708 P.2d 834, 835 (1985) (“Criminal trespass in the first degree is a lesser included offense of burglary in the first degree. ... The primary difference between burglary in the first degree and criminal trespass in the first degree is the presence or absence of an intent to commit in the building a crime against a person or against property rights.”). As where a vehicle not used for lodging is involved, in this situation too, the defendant would have to know what crimes the prosecution claims the defendant intended to commit in order to properly prepare for trial and to defend against the offense of UEMV. Thus, the dissent highlights the importance in UEMV prosecutions of determining the crime against the person or property alleged to have been intended by a defendant.

¶14III.

¶15In the event the prosecution chooses not to specify the crimes intended, trial courts should freely grant bills of particulars for identification of such crimes. See State v. Balanza, 93 Hawai'i 279, 286, 1 P.3d 281, 288 (2000) (“A trial court has the discretion to order a bill of particulars, and it must exercise this discretion in consideration of the purpose of a, bill of particulars, which is to help the defendant prepare for trial and to prevent surprise." (Emphasis added.) (Citing State v. Reed, 77 Hawai'i 72, 78, 881 P.2d 1218, 1224 (1994).)). Although Robinsnoted that “a bill of particulars is discretionary with the judge under Rule 7(a), Hawaii Rules of Penal Procedure,”666 Haw. at 316, 660 P.2d at 42, the failure to grant such a motion in the event a question as to the nature of a general allegation arises would amount, in my view, to an abuse of discretion. As Robinssuggested, the intent to commit a crime against a person or property distinguishes burglary or, in this case, *503UEMV. In charging UEMV, the prosecution must have discerned a rational basis in the facts for inferring an accused’s intent to commit certain crimes and, therefore, should be required to designate such crimes.

¶24Dissenting Opinion by

¶25I respectfully dissent. In my view, although the language of the UEMV statute is clear on its face, the statutory-scheme and stated legislative intent are clearly at odds with the statute’s application in Lagat’s case. At the very least, this discrepancy creates an ambiguity that must be addressed. As such, I must disagree with the majority’s view that adopts the plain language of the statute while disregarding equally clear evidence that calls the application of the statute in Lagat’s case into doubt.

¶26As the majority points out:

Departure from the literal construction of a statute is justified only when such construction would produce an absurd and unjust result and the literal construction is clearly inconsistent with the purposes and policies of the statute.

¶27Majority at 499, 40 P.3d at 901 (citing State v. Villeza, 85 Hawai'i 258, 272-73, 942 P.2d 522, 536 (1997) (internal quotation marks, brackets, and citations omitted)) (emphases added). Additionally,

we have rejected an approach to statutory [interpretation] which limits us to the words of a statute, no matter how clear they may appear upon perfunctory review. For we recognize our primary duty [in interpreting statutes] is to ascertain the intention of the legislature and to implement that intention to the fullest degree, and where there is ... material evidencing legislative purpose and intent, there is no reason for a court to seek refuge in “strict construction,” “plain meaning,” or “the popular sense of the words.”

¶28Kaiama v. Aguilar, 67 Haw. 549, 554, 696 P.2d 839, 842 (1985). Thus, when turning to the history of a statute to ascertain whether the legislature had a different meaning in mind when it adopted the language in question, the court must “do so with the recognition that only [a clear] showing of contrary intentions from that data would justify a limitation on the ‘plain meaning’ of the statutory language.” Id.(citing Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984)).

¶29As noted in State v. Aplaca, 96 Hawai'i 17, 25 P.3d 792 (2001), “[t]his court may also consider the reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning. HRS § 1-15(2) (1993).” Id. at 22, 25 P.3d at 797 (citations omitted) (ellipsis points in original).

¶30In Lagat’s case, the statutory phrase “intent to commit a crime against a person,” reading it out of context, specifically prohibits Lagat’s actions at first glance. However, further inquiry into the statutory scheme reveals evidence that the legislature enacted HRS § 708-836.5 for a purpose at odds with the application of the statute in Lagat’s case.

¶31A. Section 708-836.5 Commentary and Statutory Scheme

¶32The commentary to HRS § 708-836.5 (Supp.2000) states, “Act 87, Session Laws 1996, added this section to the penal code and made the offense of unauthorized entry into motor vehicle a class C felony due to the increased number of car thefts in the State.” (Emphasis added.) Also, HRS § 708-836.5 is found in HRS chapter 708, “Offenses Against Property Rights,” under Part IV, “Theft and Related Offenses.” (Emphasis added.)

¶33These legislative choices, specifically the overt commentary to the UEMV statute, suggest the legislature had a very, specific purpose in mind when enacting the UEMV statute. Any general application of the statute, without requiring that Lagat’s criminal conduct be related to theft, would not only exceed the bounds of the statute’s stated purpose, but would unnecessarily “trump” other statutes.

¶34B. Second Degree Burglary Rendered Superfluous

¶35It is a rule of statutory construction that “courts are bound to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, *504or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute.” Keliipuleole v. Wilson, 85 Hawai'i 217, 221, 941 P.2d 300, 304 (1997).

¶36One such statute that would be rendered superfluous by the majority’s interpretation of the UEMV statute is second degree burglary, HRS § 708-811 (1993).1 Like the UEMV statute, the burglary statutes are found in Chapter 708. The wording of the UEMV statute directly models the wording of the second degree burglary statute. The only difference between the two statutes is that the word “building,” as it appears in the second degree burglary statute, is replaced with the pirrase “motor vehicle” in the UEMV statute. See supra note 1. Both the UEMV and second degree burglary statutes are class C felonies. See HRS § 708-811(2)(1993); HRS § 708-836.5(2) (Supp. 2000).

¶37An interpretation of the UEMV statute that prohibits any crime committed in a vehicle (including simple assault), would render the second degree burglary statute superfluous as it pertains to vehicles. The definition section applicable to the burglary statutes defines “building” to include vehicles “used for lodging.”2 The majority’s interpretation of the UEMV statute eliminates the need for that part of the second degree burglary statute, as the UEMV statute criminalizes all crimes committed upon unauthorized entry of any vehicle, whether or not the vehicle is used for lodging. If the legislature intended to criminalize Lagat’s conduct (i.eassault) under the UEMV statute, a better route would have been to amend the burglary statute to model those of other jurisdictions who have enacted similar statutes.

¶38C. Other jurisdictions

¶39The uncertainty and ambiguity presented by the Hawai'i UEMV statute prompts a review of other jurisdictions with similar statutes. Some jurisdictions have enacted “carjacking” statutes, drafted specifically to cover the taking of a motor vehicle from a person or custody of another—these statutes take on a form very similar to general robbery statutes.3 Other jurisdictions have opt*505ed to include a UEMV-like statute as part of their general burglary statutes.4 These jurisdictions are specific when defining the types of crimes covered by the statute, most jurisdictions listing felonies and theft-related crimes as the underlying offenses. See supra note 4. Hawaii's UEMV statute does not share this level of clarity.

¶40Although it is not the judiciary’s job to redraft statutes, it is our job to give meaning to the chosen words of the legislature and exert effort to insure that the meaning coincides with legislative intent. The ambiguities presented by the UEMV statute as drafted do not convince me that this duty will be fulfilled by affirming Lagat’s conviction under this statute.