NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-JUN-2022 09:49 AM Dkt. 47 SO NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. SHECKY CABULIZAN, Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT SOUTH KOHALA DIVISION (CASE NO. 3DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)
Defendant-Appellant Shecky Cabulizan (Cabulizan)
appeals from the District Court of the Third Circuit, South
Kohala Division's (district court) October 20, 2020 Judgment and
Notice of Entry of Judgment (Judgment),1 convicting him of
Negligent Failure to Control a Dangerous Dog, in violation of
Hawai#i County Code (HCC) § 4-31(a)(2) (2016).2
1 The Honorable Mahilani E.K. Hiatt presided. 2 HCC § 4-31(a)(2) provides:
(a) A dog owner commits the offense of negligent failure to control a dangerous dog, if the person negligently fails to take reasonable measures to prevent the dog from attacking, without provocation, a person or animal and such attack results in:
. . . . (2) Bodily injury to a person. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, Cabulizan does not challenge the sufficiency
of the evidence as to the elements set forth in HCC § 4-31(a)(2),
but challenges the sufficiency of the evidence as to his state of
mind - that he acted negligently. He asserts there was no
evidence that he "was aware of a substantial and unjustifiable
risk that Mauka was a dangerous dog as defined by HCC § 431-1(g)"
or had bitten anyone else before, and that the complaining
witness failed to explain what she meant when she said she
previously saw the dog act "aggressively." Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we affirm the
Judgment for the following reasons.
During trial, the complaining witness testified that
she was walking at the end of her driveway turning onto the
street when three dogs from Cabulizan's property charged towards
her. They surrounded her and barked aggressively. When she
turned to leave, one of the dogs bit the back of her left thigh,
leaving two puncture wounds. The complaining witness further testified that she saw these dogs act aggressively before and has
seen them loose in the area "too many [times] to count."
Conversely, Cabulizan testified that his dogs never attacked
anyone, were not aggressive, and he never received complaints
that they were loose.
In a sufficiency of the evidence challenge, we consider
the evidence in the strongest light for the prosecution; "[t]he
test on appeal is not whether guilt is established beyond a
reasonable doubt, but whether there was substantial evidence to
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
support the conclusion of the trier of fact." State v. Matavale,
115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31 (2007) (citation
omitted). "'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." Id. at 158, 166
P.3d at 331 (citation and brackets omitted).
"A dog owner commits the offense of negligent failure
to control a dangerous dog, if the person negligently fails to take reasonable measures to prevent the dog from attacking,
without provocation, a person or animal and such attack results
in: . . . [b]odily injury to a person." HCC § 4-31(a)(2). A
dangerous dog is one that, "without provocation, attacks a person
or animal," and attack means "aggressive physical contact with a
person or animal initiated by the dog which may include, but is
not limited to, the dog jumping on, leaping at, or biting a
person or animal." HCC § 4-1(d) and (g) (2016).
In addition, "reasonable measures to prevent the dog
from attacking" includes measures required "to prevent the dog from becoming a stray[.]" HCC § 4-31(b)(1) (2016). A "stray"
is, inter alia, "[a]ny dog on a public street, on public or
private school grounds, or in any other public place, except when
under the control of the owner by leash, cord, chain or other
similar means of physical restraint[.]" HCC § 4-1(r)(3) (2016).
Finally, as to state of mind, HCC provides that
"negligently" means the same as it does in Hawaii Revised
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Statutes (HRS) § 702–206 (2014).3 HCC § 4-1(k) (2016).
Negligence, however, "does not involve a state of awareness on
the part of the defendant," but rather, "the inadvertent creation
by the defendant of a risk of which the defendant would have been
aware had the defendant not deviated grossly from the standard of
care that a law-abiding person would have observed in the same
situation." HRS § 702-206 cmt.
In State v. MacDonald, 120 Hawai#i 48, 200 P.3d 417,
No. 28793, 2009 WL 245436 at *5 (App. Jan. 30, 2009) (mem.), this
court considered two separate biting incidents involving the same
dog, and held that there was no substantial evidence that the
owner was negligent as to the first incident because the dog was
in a place where it was allowed to be off a leash, the dog had
never bitten anybody before, and the biting incidents "took place
suddenly, unexpectedly, and in close succession." The subsequent
incident occurred when the defendant was walking the dog on a
four-foot leash and it turned and bit a pedestrian. Id. The
3 HRS § 702–206(4) defines "negligently" as follows:
(a) A person acts negligently with respect to his conduct when he should be aware of a substantial and unjustifiable risk taken that the person's conduct is of the specified nature.
(b) A person acts negligently with respect to attendant circumstances when he should be aware of a substantial and unjustifiable risk that such circumstances exist. (c) A person acts negligently with respect to a result of his conduct when he should be aware of a substantial and unjustifiable risk that his conduct will cause such a result. (d) A risk is substantial and unjustifiable within the meaning of this subsection if the person's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a law-abiding person would observe in the same situation.
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
court held that the owner was negligent for failing to take
reasonable measures to prevent a subsequent biting incident, such
as muzzling the dog. Id. at *6. We further noted that the
ordinance in that case, Revised Ordinances of Honolulu (ROH)
§ 7–7.2,4 which is nearly identical to HCC § 4-31(a)(2), does not
require proof that the dog had previously bitten a person. Id.
at *5.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-JUN-2022 09:49 AM Dkt. 47 SO NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v. SHECKY CABULIZAN, Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT SOUTH KOHALA DIVISION (CASE NO. 3DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)
Defendant-Appellant Shecky Cabulizan (Cabulizan)
appeals from the District Court of the Third Circuit, South
Kohala Division's (district court) October 20, 2020 Judgment and
Notice of Entry of Judgment (Judgment),1 convicting him of
Negligent Failure to Control a Dangerous Dog, in violation of
Hawai#i County Code (HCC) § 4-31(a)(2) (2016).2
1 The Honorable Mahilani E.K. Hiatt presided. 2 HCC § 4-31(a)(2) provides:
(a) A dog owner commits the offense of negligent failure to control a dangerous dog, if the person negligently fails to take reasonable measures to prevent the dog from attacking, without provocation, a person or animal and such attack results in:
. . . . (2) Bodily injury to a person. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, Cabulizan does not challenge the sufficiency
of the evidence as to the elements set forth in HCC § 4-31(a)(2),
but challenges the sufficiency of the evidence as to his state of
mind - that he acted negligently. He asserts there was no
evidence that he "was aware of a substantial and unjustifiable
risk that Mauka was a dangerous dog as defined by HCC § 431-1(g)"
or had bitten anyone else before, and that the complaining
witness failed to explain what she meant when she said she
previously saw the dog act "aggressively." Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we affirm the
Judgment for the following reasons.
During trial, the complaining witness testified that
she was walking at the end of her driveway turning onto the
street when three dogs from Cabulizan's property charged towards
her. They surrounded her and barked aggressively. When she
turned to leave, one of the dogs bit the back of her left thigh,
leaving two puncture wounds. The complaining witness further testified that she saw these dogs act aggressively before and has
seen them loose in the area "too many [times] to count."
Conversely, Cabulizan testified that his dogs never attacked
anyone, were not aggressive, and he never received complaints
that they were loose.
In a sufficiency of the evidence challenge, we consider
the evidence in the strongest light for the prosecution; "[t]he
test on appeal is not whether guilt is established beyond a
reasonable doubt, but whether there was substantial evidence to
2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
support the conclusion of the trier of fact." State v. Matavale,
115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31 (2007) (citation
omitted). "'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." Id. at 158, 166
P.3d at 331 (citation and brackets omitted).
"A dog owner commits the offense of negligent failure
to control a dangerous dog, if the person negligently fails to take reasonable measures to prevent the dog from attacking,
without provocation, a person or animal and such attack results
in: . . . [b]odily injury to a person." HCC § 4-31(a)(2). A
dangerous dog is one that, "without provocation, attacks a person
or animal," and attack means "aggressive physical contact with a
person or animal initiated by the dog which may include, but is
not limited to, the dog jumping on, leaping at, or biting a
person or animal." HCC § 4-1(d) and (g) (2016).
In addition, "reasonable measures to prevent the dog
from attacking" includes measures required "to prevent the dog from becoming a stray[.]" HCC § 4-31(b)(1) (2016). A "stray"
is, inter alia, "[a]ny dog on a public street, on public or
private school grounds, or in any other public place, except when
under the control of the owner by leash, cord, chain or other
similar means of physical restraint[.]" HCC § 4-1(r)(3) (2016).
Finally, as to state of mind, HCC provides that
"negligently" means the same as it does in Hawaii Revised
3 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Statutes (HRS) § 702–206 (2014).3 HCC § 4-1(k) (2016).
Negligence, however, "does not involve a state of awareness on
the part of the defendant," but rather, "the inadvertent creation
by the defendant of a risk of which the defendant would have been
aware had the defendant not deviated grossly from the standard of
care that a law-abiding person would have observed in the same
situation." HRS § 702-206 cmt.
In State v. MacDonald, 120 Hawai#i 48, 200 P.3d 417,
No. 28793, 2009 WL 245436 at *5 (App. Jan. 30, 2009) (mem.), this
court considered two separate biting incidents involving the same
dog, and held that there was no substantial evidence that the
owner was negligent as to the first incident because the dog was
in a place where it was allowed to be off a leash, the dog had
never bitten anybody before, and the biting incidents "took place
suddenly, unexpectedly, and in close succession." The subsequent
incident occurred when the defendant was walking the dog on a
four-foot leash and it turned and bit a pedestrian. Id. The
3 HRS § 702–206(4) defines "negligently" as follows:
(a) A person acts negligently with respect to his conduct when he should be aware of a substantial and unjustifiable risk taken that the person's conduct is of the specified nature.
(b) A person acts negligently with respect to attendant circumstances when he should be aware of a substantial and unjustifiable risk that such circumstances exist. (c) A person acts negligently with respect to a result of his conduct when he should be aware of a substantial and unjustifiable risk that his conduct will cause such a result. (d) A risk is substantial and unjustifiable within the meaning of this subsection if the person's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a law-abiding person would observe in the same situation.
4 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
court held that the owner was negligent for failing to take
reasonable measures to prevent a subsequent biting incident, such
as muzzling the dog. Id. at *6. We further noted that the
ordinance in that case, Revised Ordinances of Honolulu (ROH)
§ 7–7.2,4 which is nearly identical to HCC § 4-31(a)(2), does not
require proof that the dog had previously bitten a person. Id.
at *5.
In State v. Hironaka, 144 Hawai#i 391, 442 P.3d 454,
No. CAAP-XX-XXXXXXX, 2019 WL 2366370 at *3 (App. June 5, 2019)
(SDO), this court held that there was no substantial evidence to
support a finding of negligence because "[t]here was no evidence
that [the dog] had previously run out of the house unrestrained,"
or that the owner "was, or should have been, aware of violent
tendencies or other circumstances that would have caused a
law-abiding person to take additional steps to restrain their
dog."
Like the second incident in MacDonald, and unlike the
circumstances in Hironaka, there was evidence that Cabulizan's
dogs escaped his property unrestrained on numerous occasions,
which would have caused a law-abiding person to take steps to
prevent the dog from becoming a stray. Indeed, testimony that
the dogs have escaped "too many [times] to count," taken with the
fact that three dogs escaped at the same time, suggests that
4 ROH § 7-7.2(a) (1990 & Supp. No. 12, 2-08) provides, in relevant part: A dog owner commits the offense of negligent failure to control a dangerous dog, if the owner negligently fails to take reasonable measures to prevent the dog from attacking, without provocation, a person or animal and such attack results in: (1) the maiming or causing of serious injury to or the destruction of an animal or (2) bodily injury to a person other than the owner.
5 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Cabulizan's measures to keep the dogs from escaping were
inadequate.
Based on the numerous escapes, the district court could
reasonably infer that Cabulizan should have been aware there was
a substantial and unjustifiable risk that his dogs, while stray,
could jump on, leap on, or bite a person encountered. See State
v. Batson, 73 Haw. 236, 254, 831 P.2d 924, 934 (1992) (explaining
that "given the difficulty of proving the requisite state of mind
by direct evidence in criminal cases, we have consistently held
that proof by circumstantial evidence and reasonable inferences
arising from circumstances surrounding the defendant's conduct is
sufficient") (cleaned up). Thus, considered in the strongest
light for the prosecution, we hold that there was sufficient
evidence of Cabulizan's negligent state of mind to support the
conviction. Matavale, 115 Hawai#i at 157-58, 166 P.3d at 330-31.
THEREFORE, we affirm the district court's October 20,
2020 Judgment and Notice of Entry of Judgment.
DATED: Honolulu, Hawai#i, June 27, 2022.
On the briefs: /s/ Katherine G. Leonard Presiding Judge William H. Jameson, Jr., Deputy Public Defender, /s/ Keith K. Hiraoka for Defendant-Appellant. Associate Judge
Stephen L. Frye, /s/ Sonja M.P. McCullen Deputy Prosecuting Attorney, Associate Judge County of Hawai#i, for Plaintiff-Appellee.