State v. Mahoe

964 P.2d 635, 88 Haw. 181, 1998 Haw. LEXIS 338

• Court: Hawaii Supreme Court
• Decided: September 1, 1998
• Docket: No. 20909
• Status: Published

Opinion

NAKAYAMA, Associate Justice.

Defendant-appellant Brian Mahoe appeals his judgment of conviction of one count of burglary in the first degree. On appeal, Mahoe argues that the trial court erred by: (1) refusing to excuse a juror for cause who stated in voir dire that he had been burglarized previously but would try to be impartial; (2) allowing evidence of a temporary restraining order to be admitted to show the unlawfulness of Mahoe’s entry; and (3) instructing the jury that the offense of harassment constituted a crime against a person for the purposes of the burglary statute. Although none of Mahoe’s points of error on appeal constitute reversible error, we hold that, based on our independent review of the record, insufficient evidence was presented to uphold his conviction. Therefore, we reverse Mahoe’s burglary conviction. The insufficiency of the evidence is dispositive of this appeal. However, we address Mahoe’s third point of error because it raises a novel issue that has the potential to reoccur in future cases.

I. BACKGROUND

The following facts were adduced at trial. Mahoe and Kristie Delos Santos are the parents of two children. In October, 1996, Ma-hoe and Delos Santos separated. Delos Santos obtained a temporary restraining order that forbade Mahoe from having contact with her, except that limited contact for the purpose of child visitation was allowed under the restraining order.

On November 15,1996, Mahoe called Delos Santos in order to see the children. They arranged that Mahoe would come to Delos Santos’s residence and wait outside by the mailbox. Delos Santos would bring the children out to see him. Later, as Delos Santos was getting the children ready to go outside to meet Mahoe, Mahoe walked into' her residence without knocking. When Mahoe entered, he picked up one of his daughters and began talking with her. Delos Santos was inside her residence with an acquaintance, Matt Rodrigues.

Delos Santos told Mahoe to leave the residence. Mahoe refused to leave and a verbal argument ensued. The argument continued for quite awhile, with Mahoe going through Delos Santos’s belongings and continuing to refuse to leave. Mahoe began taunting Rod-rigues and calling him names. Mahoe then spat in Rodrigues’s face twice. After the second time Mahoe spat in Rodrigues’s face, Rodrigues approached him. Mahoe then “false cracked” Rodrigues in the eye. Rodri-gues and Mahoe began fighting, and Rodri-gues shoved him out the door. Mahoe then left.-

On December 6, 1996, Mahoe was charged by complaint with one count of burglary in the first degree, in violation of Hawaii Revised Statutes (HRS) § 708-810 (1993). Pri- or to trial, Mahoe and the prosecution both filed motions in limine regarding the admission of the restraining order. Mahoe argued that admission of the TRO would be irrelevant or unfairly prejudicial. The prosecution argued that the TRO would be evidence that Mahoe was aware that his entry into Delos Santos’s residence was unlawful. The court ruled that the TRO was admissible as evidence of Mahoe’s state of mind and that its probative value outweighed any potential prejudice.

At trial, the above facts were adduced from the testimony of Delos Santos and Rod-rigues. Mahoe did not testify. Following the close of the evidence and final arguments, the trial court instructed the jury. The jury was instructed on the elements of burglary as follows:

There are four elements to the crime of Burglary in the First Degree[,] each of which the prosecution must prove beyond a reasonable doubt. The four elements are, that on or about the 15th day of November, 1996, in the City and County of Honolulu, State of Hawaii:

1. That [Mahoe] entered or remained unlawfully in a building, to wit, the residence of [Delos Santos].

2. That he did so intentionally.

3. That he entered or remained in that building with an intent to commit a crime therein against a person or property rights.

4. That he recklessly disregarded the risk that the building was the dwelling of another, and the building is such a dwelling.

The jury was instructed on the elements of assault in the third degree, as defined by HRS § 707-712 (1993), and informed that it is a crime against a person. The jury was also instructed on the offense of harassment, as defined by HRS § 711-1106(a) (1993).¹ The defense objected to this instruction on the grounds that Burglary must be predicated on an offense against a person or property rights, and the offense of Harassment is not an offense against a person because it is codified in HRS Chapter 711, entitled “Crimes against Public Order.” The court denied Mahoe’s objection, ruling that:

I don’t believe that the Court is limited to the statutory—I mean the penal code chapters in determining what is an offense against a person and what is an offense against property rights. Let me just state for the record, as I said I questioned as to whether or not I would be limited to this— the headings which are in our penal statute, in other words by chapter, to make a determination whether or not a case is an offense against a person in light of the fact that we have other sections, you know, which categorize our criminal offenses. For instance, we have a Chapter 709 which states offenses against the family and against incompetents.... [0]bviously harassment in its own definition is a crime against a person.

After trial, Mahoe was found guilty as charged and sentenced to an indeterminate term of imprisonment of ten years. Mahoe timely appealed.

II. DISCUSSION

A. Insufficient evidence of intent

Although it was not raised by Mahoe on appeal, our review of the record indicates that there is an issue regarding the sufficiency of evidence regarding Mahoe’s intent to commit the crime of burglary- in the first degree. “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Hawaii Rules of Penal Procedure Rule 52(b). See also State v. Cullen, 86 Hawai'i 1, 8, 946 P.2d 955, 962 (1997); State v. Arceo, 84 Hawai'i 1, 33, 928 P.2d 843, 875 (1996). We therefore address the sufficiency of the evidence.

This ease requires us to interpret the Hawaii Penal Code.

We review statutes de novo. The starting point in statutory construction is to determine the legislative intent from the language of the statute itself. Our foremost obligation when interpreting a statute is to ascertain and give effect to the intention of the legislature, which is obtained primarily from the language contained in the statute itself. We read statutory language in the context of the entire statute, and construe it in a manner consistent with its purpose. A rational, sensible and practicable interpretation of a statute is preferred to one which is unreasonable or impracticable. The legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality. As a general rule, penal statutes are to be strictly construed. Ambiguous penal statutes are to be construed in favor of the accused.

State v. Bautista, 86 Hawai'i 207, 209-10, 948 P.2d 1048,1050-51 (1997) (citations, brackets, and quotation marks omitted).

[V]erdicts based on conflicting evidence will not be set aside where there is substantial evidence to support the jury’s findings.” Tsugawa v. Reinartz, 56 Haw. 67, 71, 527 P.2d 1278, 1282 (1974). We have defined “substantial evidence” as “credible evidence which is of sufficient quality and probative value to enable a [person] of reasonable caution to support a conclusion.” See, e.g., In re Doe, Born on January 5, 1976, 76 Hawai'i 85, 93, 869 P.2d 1304, 1312 (1994) (citations omitted) (brackets in original).

Aga v. Hundahl, 78 Hawai'i 230, 237, 891 P.2d 1022, 1029 (1995). “[I]t is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the [trier of fact].” State v. Buck, 83 Hawai'i 308, 321, 926 P.2d 599, 612 (1996) (citation omitted). “We have long held that 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.” State v. Batson, 73 Haw. 236, 248, 831 P.2d 924, 931 (1992), reconsideration denied, 73 Haw. 625, 834 P.2d 1315 (1992) (citations omitted).

The prosecution has the burden to prove every element of the offense beyond a reasonable doubt. HRS § 701-114 (1993). An individual cannot be convicted of a crime unless the state of mind required to establish each element of the offense is proven beyond a reasonable doubt. HRS § 701-114(l)(b) (1993).

HRS § 708-810 (1993) provides, in pertinent part, that:

(I) A person commits the offense of burglary in the first degree if the person intentionally enters or remains unlawfully in a building, with intent to commit therein a crime against a person or against property rights, and: .... (c) The person recklessly disregards a risk that the building is the dwelling of another, and the building is such a dwelling.

The dispositive issue presented by this case is whether, in order to uphold Ma-hoe’s burglary conviction, his unlawful entry must have been effected for the purpose of committing “a crime against a person or against property rights.” In the instant ease, insufficient evidence was presented that, at the time Mahoe entered Delos Santos’s residence, he did so with the intent to commit either harassment or assault, the offenses that purportedly elevated the charge from trespass to burglary. Based on the plain language of the statute and the historical development of the offense of burglary, we hold that, in order to sustain Mahoe’s burglary conviction, the evidence must show that the unlawful entry by Mahoe was effected for the purpose of committing an offense against a person or property rights. The intent to commit the offense must have existed at the time the unlawful entry was made.

The issue presented by this case has not previously been addressed by the Hawai'i appellate courts. We begin our analysis with the plain language of the statute. In order to be convicted of the offense of burglary, the perpetrator must “intentionally [enter] or [remain] unlawfully in a building, with intent to commit therein a crime against a person or against property rights.” The Hawai'i Penal Code’s definition of burglary was adopted from the Model Penal Code. The commentary to the Model Penal Code discusses the evolution of the offense of burglary as follows:

The initial development of the offense of burglary, as well as much of the later expansion of the offense, probably resulted from an effort to compensate for defects of the traditional law of attempt. The common law of attempt ordinarily did not reach a person who embarked on a course of criminal behavior unless he came very close to his goal.... Under that view of the law of attempt, a person apprehended while breaking into a dwelling with intent to commit a felony therein would not have committed an attempt, for he would not have arrived at the scene of his projected theft, rape, or murder.... The development and expansion of the offense of burglary provided a partial solution to these problems. Making entry with criminal intent an independent substantive offense carrying serious sanctions moved back the moment when the law could intervene in a criminal design and authorized penalties more nearly in accord with the seriousness of the actor’s conduct. Since every burglar ry is by hypothesis an attempt to commit some other crime, it is appropriate to consider the sanction for the completed offense that is the objective of the burglary in evaluating the propriety of the sentence that is authorized for the burglary itself.

Model Penal Code § 221.1 (1985) (emphasis added).

Pursuant to the commentary to the Model Penal Code, the elements of the offense of burglary are established at the moment that an unlawful.entry or “remaining” with the requisite criminal intent is made. It would be an unwarranted extension of Hawaii's modern burglary statute to expand the offense of burglary to include situations in which the criminal intent develops after an unlawful entry or remaining has occurred. See State v. Madrid, 113 Ariz. 290, 552 P.2d 451, 452 (1976) (“[b]urglary may be distinguished from the crime of theft and shoplifting in that the intent to commit a theft or any felony must be formed at the time of entry ”) (emphasis added).

The Model Penal Code defines burglary, in pertinent part, as follows: “A person is guilty of burglary if he enters a building or occupied structure ... with purpose to commit a crime therein[.]” In adopting the Model Penal Code, the Hawai'i legislature made two changes that must be addressed herein. First, the Hawai'i Penal Code provides that a person commits the offense of burglary if the person “intentionally enters or remains unlawfully in a building.” Second, the person must have an “intent to commit therein a crime against a person or against property rights.” Our interpretation of the legislative intent behind these changes is that the legislature did not intend to alter the Model Penal Code’s requirement that an intent to commit an offense exist at the time of the unlawful entry or “remaining.”

The requirement that the unlawful entry be made with intent to commit a crime is functionally identical to the language of the Model Penal Code that provides that the purpose of the entry must be the commission of a crime. HRS § 702-206(l)(c) (1993) provides that “[a] person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result.” Black’s Law Dictionary 1236 (6th ed.1990) defines “purpose” as “[t]hat which one sets before him to accomplish or attain; an end, intention, or aim, object, plan, project. Term is synonymous with ends sought, an object to be attained, an intention, etc.” (Emphases added.) Therefore, the language of the Hawaii statute that defines burglary as unlawful entry “with intent to commit” a crime is functionally the same as the Model Penal Code which provides that the “purpose” of the entry must be the commission of a crime. The commentary to the Model Penal Code states that “[t]he purpose that must accompany the intrusion is described as a ‘purpose to commit a crime therein.’ ” (Emphasis added.) The intent and the entry must be coexisting, such that the entry is made for the purpose of committing the crime.

We have not previously addressed the meaning of “unlawfully remain” in the context of the burglary statute. We interpret this language, as have other courts that have addressed similar language, as being inserted to cover situations in which the initial entry was lawful, but the presence later becomes unlawful and the perpetrator remains with the intent to commit a crime.

In People v. Hutchinson, 124 Misc.2d 487, 477 N.Y.S.2d 965 (App.Div.1984), the Supreme Court of New York, Bronx County, held that, if a criminal defendant entered with true consent, his subsequent commission of a criminal act could not in and of itself convert a lawful entry into an unlawful remaining sufficient to sustain a burglary charge. The Hutchinson court held that “[cjriminal liability for unlawfully remaining is designed to apply to situations in which a person enters with genuine license and privilege but remains after the termination of the license or privilege.” 477 N.Y.S.2d at 967. In rejecting the prosecution’s argument that the commission of a criminal act was enough to uphold a conviction for burglary even if the initial entry was lawful, the court held that

[t]his reasoning impermissibly broadens the scope of liability for burglary, making a burglar of anyone who commits a crime on someone else’s premises. It erroneously merges two separate and independent elements that must coexist to establish burglary: First, the trespassory element of entry or remaining without license or privilege; Second, intent to commit a crime.

Id.

Other jurisdictions that have considered the meaning of the term “remains unlawfully” have reached the same interpretation as the New York courts. In Arabie v. State, 699 P.2d 890 (Alaska Ct.App.1985), the court addressed the statutory “remains unlawfully” language as follows:

The commentary to [the Alaska burglary statute] explains that the “word ‘remain’ in the phrase ‘enter or remain unlawfully’ is designed to apply to cases in which a person enters with a ‘license or privilege’ but remains on the premises after his license or privilege has terminated.” Thus, the provision is intended to cover situations in which a person is privileged to enter a closed building but remains in the building after the privilege has expired; likewise, it applies to the situation where a person enters a building when it is open to the public but remains after the building has closed.

699 P.2d at 894.²

The general rule is that “[p]enal statutes are to be strictly construed.” State v. Ganal, 81 Hawai'i 358, 373, 917 P.2d 370, 385 (1996) (citation omitted). We adopt the formulation of “remains unlawfully” as interpreted by the courts of Alaska and New York, cited supra. A perpetrator “remains unlawfully” for the purposes of a burglary prosecution only in situations in which the individual makes an initial lawful entry, that subsequently becomes unlawful. In the instant case, Mahoe’s initial entry was unlawful. Therefore, the “unlawfully remaining” portion of the statute is inapplicable to the instant case.

At the close of trial, the prosecuting attorney argued to the jury that “[t]he State is just asking you to do your job and follow the law which shows that [Mahoe] entered [Delos Santos’s] dwelling unlawfully, and while he was in there he had the intent to commit a crime against a person.” This is an overly expansive view of burglary. We read this argument as a concession by the prosecution that the evidence showed that Mahoe’s intent to commit a crime against a person was not formed until after his entry. As in Hutchinson, the intents to commit two separate offenses, trespass and harassment or assault, may have co-existed, but that is insufficient to sustain a charge of burglary. Evidence, circumstantial or direct, must show that the unlawful entry or remaining was for the purpose of committing an offense. In order to demonstrate this, the prosecution must introduce sufficient evidence to show that, at the time of the entry into the building, the defendant had the intent to commit a crime against a person or against property rights. Only if the defendant had the requisite intent at the time of entry may it be proven that the entry or subsequent unlawful remaining was for the purpose of committing a crime against a person or property rights. The record here is devoid of such evidence. Mahoe’s entry was unlawful, but substantial evidence was not presented that his entry was made for the purpose of committing a crime. Therefore, his conviction must be reversed.

B. Harassment is a crime against a person.

HRS § 708-810 provides that a person commits the offense of burglary in the first degree if “the person intentionally enters or remains unlawfully in a building, with intent to commit therein a crime against a person or against property rights ...” The trial court instructed the jury on the offenses of assault and harassment as “crimes against a person” sufficient to uphold a conviction for burglary. Mahoe objected to the instruction on the offense of harassment. The basis of Mahoe’s objection is that harassment is not a “crime against a person” within the meaning of the burglary statute.

HRS § 711-1106 defines harassment as:

A person commits the offense of harassment if, with intent to harass, annoy, or alarm another person, that person: (a) Strikes, shoves, kicks or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact[.]³

HRS Chapter 711 is entitled “Offenses against Public Order.” Mahoe argues that a conviction for burglary should only be predicated on offenses enumerated in HRS Chapters 707 (entitled “Offenses Against the Person”) or Chapter 708 (entitled “Offenses Against Property Rights”).

HRS § 708-810 does not define, by its terms or in commentary, the universe of crimes “against a person or property rights” that can form the foundation of a burglary conviction. We have previously held that “intentionally entering or intentionally remaining unlawfully ... with the intent to commit any crime against a person or property rights constitutes burglary.” State v. Robins, 66 Haw. 312, 315, 660 P.2d 39, 41 (1983) (emphasis added). In State v. Lau, 78 Hawai'i 54, 890 P.2d 291 (1995), we rejected a claim that driving under the influence was a “traffic offense” and not a “criminal offense” because the offense was codified in HRS Chapter 291, entitled “Traffic Violations.” Lau is instructive here because it stands for the proposition that the elements of the offense determine how to characterize it. The rationale in Lau is dispositive of Mahoe’s claim that the title of the chapter should be mechanically applied to determine what constitutes a “crime against a person.”

Harassment is clearly a crime against a person. The statutory definition states that a person commits the offense of harassment if, “with intent to harass, annoy, or alarm another person, that person: (a) strikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact.” HRS § 711-1106 (emphases added). Because the broad language of the burglary statute does not evidence an intent to confine crimes “against a person” to those enumerated in Chapter 707, and harassment is a crime against a person, we hold that a conviction for burglary may be predicated on the offense of harassment.

III. CONCLUSION

For the above reasons, we reverse Mahoe’s conviction of burglary in the first degree. On the briefs:

1 . The instruction read:

A person commits the offense of Harassment if, with the intent to harass, annoy or alarm another person, that person: strikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact. There are two material elements to the offense of Harassment. The two material elements are:

1. That Brian Mahoe struck, shoved, kicked, or otherwise touched another person in an offensive manner or subjected the other person to offensive physical contact.

2. That he did so with the intent to harass, annoy or alarm another person.

2 . The Alaska statute states that "[a] person commits the crime of burglary ... if the person enters or remains unlawfully in a building with intent to commit a crime in the building.” Alaska Stat. § 46.310(a) (Michie 1996).

3 . Although there are other subsections of the harassment statute, this was the only one given to the jury in this case.