Opinion
NO. CAAP-16-0000407
03-15-2017
STATE of Hawai‘i, Plaintiff-Appellant, v. Mark BIGGERS, Defendant-Appellee.
On the briefs: Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellant. James M. Tabe, Deputy Public Defender for Defendant-Appellee.
On the briefs:
Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellant.
James M. Tabe, Deputy Public Defender for Defendant-Appellee.
(By: Nakamura, Chief Judge, and Reifurth and Ginoza, JJ.)
Plaintiff-Appellant State of Hawai‘i (State) charged Defendant-Appellee Mark Biggers (Biggers) with two counts of second-degree burglary, in violation of Hawaii Revised Statutes (HRS) § 708-811 (2014). Biggers' burglary charges were based on his violation of a trespass warning previously issued by Seven-Eleven Stores pursuant to HRS § 708-814 (1)(b) (2014).
HRS § 708-811 provides, in relevant part:
(1) 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.
HRS § 708-800 (2014), in turn, defines the phrase "enter or remain unlawfully," in relevant part, as follows:
"Enter or remain unlawfully" means to enter or remain in or upon premises when the person is not licensed, invited, or otherwise privileged to do so. A person who, regardless of the person's intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain, personally communicated to the person by the owner of the premises or some other authorized person.
The State appeals from the "Findings of Fact, Conclusions of Law, and Order Granting Motion to Dismiss Felony Information as a Matter of Law" (Dismissal Order) entered by the Circuit Court of the First Circuit (Circuit Court) on April 19, 2016.
The Honorable Dexter D. Del Rosario presided.
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The relevant circumstances of this case are indistinguishable from those in the Hawai‘i Supreme Court's recent decision in State v. King , 139 Hawai‘i 249, 386 P.3d 886 (2016). In King , the supreme court held that the violation of a trespass warning "issued pursuant to HRS § 708-814(1)(b) is not a ‘defi [ance] of a lawful order’ under HRS § 708-800," and therefore, the violation of a trespass warning "cannot be made a vehicle for a second-degree burglary charge under HRS § 708-811." Id. at 257, 386 P.3d at 894 (brackets in original). Based on King , we affirm the Dismissal Order.