Oral Argument Before the Hawaii Supreme Court — SCWC-15-342
No. SCWC-15-0000342, Thursday, November 17, 2016, 10 a.m.
STATE OF HAWAI`I, Respondent/Plaintiff-Appellant, vs. RUDOLPH G. KING, JR., Petitioner/Defendant-Appellee.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorney for Petitioner:
Jon N. Ikenaga, Deputy Public Defender
Attorney for Respondent:
Stephen K. Tsushima, Deputy Prosecuting Attorney
NOTE: Order accepting Application for Writ of Certiorari, filed 09/29/16.
COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.
Petitioner/defendant-appellee Rudolph G. King, Jr. was issued a trespass warning by a loss prevention officer of the Kaimuki Times Supermarket after King was caught shoplifting. The trespass warning was issued pursuant to HRS § 708-814(1)(b) (criminal trespass in the second degree), and it stated that King’s presence was no longer desired at all Hawaii locations of Times Supermarket, that King was prohibited from returning to any Hawaii Times Supermarket locations from November 11, 2014, to November 11, 2015, and that the violation of the warning would subject King to arrest and prosecution for second-degree trespassing.
On December 18, 2014, at the McCully location of Times Supermarket, a loss prevention officer observed King take a meat item, valued at $55.55, and exit the store without paying for it. After placing King under arrest, King acknowledged that he had been issued a prior trespass warning. King was thereafter charged by felony information with burglary in the second degree, in violation of HRS § 708-811, which states that “[a] person commits the offense of burglary in the second 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.”
King moved to dismiss the felony information, arguing that it was not supported by probable cause and/or that his conduct constituted a de minimis violation of HRS § 708-811. Essentially, King contended that a second-degree burglary charge cannot hinge upon a refusal to obey a prior written trespass warning issued pursuant to HRS § 708-814(1)(b). In the alternative, King argued that his conduct did not actually cause or threaten the harm or evil sought to be prevented by burglary in the second degree. The circuit court granted King’s motion to dismiss the felony information and held that a violation of a trespass warning may not be used as a vehicle to charge second-degree burglary.
The State appealed to the Intermediate Court of Appeals (ICA), arguing that King’s violation of the prior trespass warning constituted a defiance of a “lawful order not to enter or remain” on any Times Supermarket location, that King entered unlawfully within the meaning of that phrase under HRS § 708-800, and that the felony information charging King with second-degree burglary was therefore supported by probable cause. The ICA agreed with the State, concluded that there was probable cause to support the charge of second-degree burglary, vacated the circuit court’s order granting King’s motion to dismiss, and remanded the case to the circuit court for further consideration of King’s de minimis motion.
On certiorari, King challenges the ICA’s decision that there was probable cause to support the felony information. The issue before this court is whether a prior trespass warning issued in accordance with HRS § 708-814(1)(b) constitutes a defiance of “a lawful order not to enter or remain” under HRS § 708-800 so as to satisfy the “enter or remain unlawfully” element of second-degree burglary.