Briefly, the facts surrounding the burglary charges follow. On January 14, 2000, Defendant-Appellant Samuel Harper (Defendant) went to the apartment of Amber Sifferman, ostensibly to find his girlfriend, Joahn Ogawa. Defendant walked onto Sifferman's lanai and entered the apartment through the screen door and curtains. Sifferman demanded that Defendant leave. Defendant eventually head-butted Sifferman and the two engaged in a fist-fight. Sifferman's boyfriend escorted Defendant out of the door and back onto the lanai. Ogawa walked across the apartment living room to the lanai doorway to tell Defendant that she would speak with him later. Defendant then took a step into the apartment, from the lanai, and head-butted Ogawa.
Defendant was charged in an amended complaint with, inter alia, burglary in the first degree, Hawai`i Revised Statutes (HRS) § 708-810(1)(c) (1993) (Count I), for the entry into the apartment through the screen door when he first arrived on the lanai, and with another count of burglary in the first degree (Count V), for his passing through the screen door to head-butt Ogawa. (2) Prior to his jury trial, Defendant moved to dismiss Count I, and/or Count V of the complaint based on the theory that the burglaries constituted a single course of conduct with a single intent, and that, therefore, the district court's preliminary hearing finding of probable cause on both counts was erroneous. The circuit court of the second circuit (the court) denied Defendant's motion.
At the close of the evidence of Plaintiff-Appellee State of Hawai`i (the prosecution) at trial, the defense orally moved for acquittal "as to Count 1 and/or Count 5." In the course of his oral motion, Defendant argued that the lanai "was part of the unit, and there is no testimony whatsoever that [Defendant] ever left that perimeter, so there is an argument to be made that the unit itself was never exited to be re-entered." The court denied this motion.Because, for the reasons stated herein, Sifferman's lanai constituted part of a "dwelling" for the purposes of the burglary statute, Defendant cannot be viewed as having entered the premises twice, as alleged in the amended complaint, but only once. The latter being the case, Defendant should have been acquitted of the second burglary count. Thus, with respect to Count V, the court erred in denying Defendant's motion for judgment of acquittal and subsequent motion to set aside the verdict.
The question of whether a particular structure or area is part of a dwelling is initially a question of law, because the answer requires us to interpret the burglary statute. State v. Putnam, 93 Hawai`i 362, 366, 3 P.3d 1239, 1243 (2000) (stating that the interpretation of a statute is a question of law reviewable de novo); see also State v. Wang, 91 Hawai`i 140, 141, 981 P.2d 230, 231, reconsideration denied, 90 Hawai`i 441, 978 P.2d 879 (1999); Gray v. Admin. Dir. of the Court, 84 Hawai`i 138, 144, 931 P.2d 580, 586 (1997). Other jurisdictions considering whether various structures fell within their respective burglary statutes have also concluded that this issue is one of statutory interpretation and, thus, is a question of law. See Johnson v. Commonwealth, 875 S.W.2d 105, 107 (Ky. Ct. App. 1994) ("The question of whether the porch constituted part of the 'dwelling' . . . was a question of law[.]"); Commonwealth v. Ott, 649 A.2d 716, 718 (Pa. Super. Ct. 1994) (labeling the question of "whether burglary of an attached garage" constitutes burglary of a "building or occupied structure" or burglary of a structure "not adapted for overnight accommodation" an "interesting question of law"); State v. Ranieri, 560 A.2d 350, 353 (R.I. 1989) ("The status of the particular common hallway [as a possible part of the dwelling house] . . . was and is a question of law[.]" (Citation omitted.)).
HRS § 708-810, the first degree burglary statute, reads, in pertinent part as follows:
(1) 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:
. . . .
(Emphases added). "Building" is defined as "includ[ing] any structure[;] . . . each unit of a building consisting of two or more units separately secured or occupied is a separate building." HRS § 708-800 (1993) (emphasis added). "'Dwelling' means a building which is used or usually used by a person for lodging." Id. Lodging is not defined in the statutes. However, "[r]esort to legal or other well accepted dictionaries is one way to determine the ordinary meanings of certain terms[ ]" in a statute. State v. Chen, 77 Hawai`i 329, 377, 884 P.2d 399, 400 (App. 1994) (internal quotation marks and citation omitted). In that regard, among its meanings, "lodging" is defined as "a place to live[.]" Webster's Third New Int'l Dictionary 1329 (1961).
In State v. Duldulao, 86 Hawai`i 143, 948 P.2d 564 (1997), the Intermediate Court of Appeals (ICA) addressed the question of how to determine whether a structure is part of a dwelling. In that case, a man was seen rummaging through a storage shed within a garage, which "shared a common roof and a common wall" with a house. Id. at 144, 948 P.2d at 565. The defendant was charged with burglary in the first degree. (4) The ICA relied primarily on People v. Ingram, 40 Cal. App. 4th 1397, 48 Cal. Rptr. 2d 256 (1996), overruled on other grounds by People v. Dotson, 16 Cal. 4th 547, 560 n.8, 941 P.2d 56, 64 n.8 (1997). In Ingram, the California Court of Appeals was faced with the question of whether the defendant's admitted burglary of a garage constituted burglary of a "dwelling house" (5) for the purposes of first degree burglary. Id. at 1402. In Duldulao, the ICA adopted what amounted to a legal "test" from Ingram to determine whether a structure is a part of a dwelling:
Ingram stated, and we agree, that
the close proximity of an attached structure is precisely what increases the potential for confrontation and threatens the safety of residents. The proper focus is whether the attached structure is an integral part of the dwelling; that is, functionally interconnected with and immediately contiguous to other portions of the house.
Ingram[, 40 Cal. App. 4th] at 1404, 48 Cal. Rptr. 2d at 261.[ (6)]
Duldulao, 86 Hawai`i at 147, 948 P.2d at 568 (brackets and ellipsis points omitted) (emphasis added). Applying the foregoing rationale, the ICA determined that the garage was part of the dwelling. See id.The Ingram test was more fully explicated in California case law as follows:
"Functionally interconnected" means used in related or complementary ways. "Contiguous" means adjacent, adjoining, nearby or close. (See Webster's New Internat. Dict. (3d ed. 1986) p. 492 ["Adjacent . . . next or adjoining with nothing similar intervening . . . not distant . . . touching or connected throughout"]; see also Black's Law Dict. (6th ed. 1990) p. 320, col.2 ["[i]n close proximity; neighboring; adjoining; . . . in actual close contact"].)
People v. Rodriguez, 77 Cal. App. 4th 1101, 1107 (2000) (brackets and ellipsis points in original); see also Gaunt v. State, 457 N.E.2d 211, 214 (Ind. 1983) (using the "functionally interconnected with and immediately contiguous to" factors to determine that an attached garage served "a purpose connected with family living" and thus, "the [fact that] breaking into the garage did not afford [d]efendant immediate access to the actual living quarters is immaterial" (internal quotation marks and citation omitted)), overruled in part and on other grounds by Modesitt v. State, 578 N.E.2d 649, 652 (Ind. 1991).The view expressed in Ingram as to the purpose of the burglary statute is the same as that underlying our burglary statutes, that is, to protect residents from threats resulting from an intrusion into premises considered a part of their dwelling. "It has been said that the essence of the offense of burglary is the 'invasion of premises under circumstances specially likely to terrorize occupants.' . . . [This] view implies that the offense is conceived of, in part, although not necessarily defined in terms of harm to personal dignity and sense of safety." Commentary to HRS §§ 708-810 and -811 (quoting Model Penal Code Tentative Draft No. 11, comments at 57 (1960)). Accordingly, the "immediately contiguous to" and "functionally interconnected with" legal test is appropriately employed to assess whether a structure or an area constitutes part of a dwelling. As Ingram said, and the Gaunt court confirmed, "[t]he close physical proximity of an attached structure is precisely what increases the potential for confrontation and threatens the safety of residents." 40 Cal. App. 4th at 1404.
Lanais are an integral part of residential living in our year-round tropical climate. (7) A lanai is "a living room open in part to the outdoors[;] an outdoor space used as a living room[;] a lounging terrace[.]" Webster's Third New Int'l Dictionary at 126 (emphasis added). Indeed, the word lanai is of Hawaiian language origin. See M.K. Pukui and S.H. Elbert, Hawaiian Dictionary 193 (1986) (defining "lanai" as a "[p]orch, veranda, balcony, booth, shed; temporary roofed construction with open sides near a house"). Lanais are common to many residences in our state and typically adjoin and are adjacent to the primary living area. In our shared experience, lanais are used in Hawai`i for everything from storage, to barbeque cooking, to entertaining or, as in this case, sunbathing. See infra. It is evident that, because of our temperate environment, indoor activities often extend to outdoor living areas. Inasmuch as a lanai is such an outdoor area that complements indoor activities, it is "functionally interconnected with" a dwelling. Rodriguez, 77 Cal. App. 4th at 1107.
Given the use of lanais in our island community, an unauthorized intrusion into a lanai increases the potential for widespread confrontation and threat to the safety of the occupants of dwellings--risks against which the burglary statute was intended to protect. See supra Part III. Considering the residential purposes of lanais, a contrary view would nullify the protected interest against "invasion of premises under circumstances likely to terrorize occupants[.]" Model Penal Code Tentative Draft No. 11, comments at 57. Unauthorized entries into lanais to commit crimes, then, would be unrebuffed by the deterrence afforded by a potential burglary charge.Sifferman's lanai was plainly part of her dwelling; her lanai was an extension of the living space of her apartment, and, as is further evidenced by the furniture on her lanai, she apparently used it as a living area. See State v. Pace, 602 N.W.2d 764, 771 (Iowa 1999) ("[O]utdoor furniture located on a deck or patio, or a bench located on a porch or stoop, would be indicia of the type of occupancy that could bring an appurtenance into the definition of an occupied structure." (Citation omitted.)). Under the foregoing circumstances, her sense of security would have been violated by a person making an unauthorized entry into her lanai. Sifferman's lanai was "contiguous to other portions of the house" and an "integral part of the dwelling," being functionally interconnected with her living room. Duldulao, 86 Hawai`i at 147, 948 P.2d at 568. Hence, there can be no reasonable doubt, under the facts in this case, that the lanai is part of Sifferman's dwelling under the provisions of HRS § 708-810.
VI.
We review jury instructions to determine whether, "when read and considered as a whole, the instruction[] given [was] prejudicially insufficient, erroneous, inconsistent, or misleading." State v. Aganon, 97 Hawai`i 299, 302, 36 P.3d 1269, 1272 (2001) (quoting State v. Balanza, 93 Hawai`i 279, 283, 1 P.3d 281, 285 (2000) (citation and internal quotation marks omitted)). In light of Duldulao, the court's instruction defining dwelling was insufficient. See In re Estate of Herbert, 90 Hawai`i 443, 467, 979 P.2d 39, 63 (1993) (explaining that the purpose of jury instructions "is to inform the jury of the law applicable" and that judges are "oblig[ed] to give sufficient instructions" (quoting Tittle v. Hurlbutt, 53 Haw. 526, 530-31, 497 P.2d 1354, 1357 (1972)); see also State v. Timoteo, 87 Hawai`i 108, 124-25, 952 P.2d 865, 881-82 (1997) ("[I]t is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are to decide, and he or she shall state to them fully the law applicable to the facts." (Internal quotation marks, emphasis, and citations omitted.)).
Accordingly, in the event a disputed
question at trial arises as to whether a structure is part of a
dwelling, trial courts should
instruct juries that a structure or area is part of a dwelling if it is
(1) functionally interconnected with the dwelling and
(2) immediately contiguous to it. See
Duldulao, 86 Hawai`i
at 147,
948 P.2d at 568 and Part III., supra. Similarly, if there
is a disputed question at trial as to whether an area claimed to be a
lanai is part of a dwelling, trial courts should instruct
juries that the premises purported to be a lanai is a part of the
dwelling if it is (1) functionally interconnected with the
dwelling, and (2) immediately contiguous to it. See
id. Finally, if there
is no
disputed question at trial that the area at
issue is a lanai and, thus, part of the dwelling, or that no reasonable
juror could conclude otherwise, see id.
at 146, 948 P.2d
567 (appellate courts review rulings on motions for judgments of
acquittal to determine whether "a reasonable mind might
fairly conclude guilt beyond a reasonable doubt" (internal quotation
marks and citation omitted)), trial courts should
instruct the jury that, as a matter of law, the lanai is a part of the
dwelling. (9)
In this case, while the court's instruction defining a dwelling was insufficient and, thus, error, under the uncontroverted evidence, Defendant could not have been convicted under Count V, see infra Part VII., even assuming the correct instruction had been given.
VII.
Generally the question of whether a
structure is part of a dwelling under HRS § 708-810 would
ordinarily be one of fact for
the jury, applying an appropriate instruction by the court as set forth
in part VI., supra.
However, it is plain
here, based on
the unchallenged evidence, that no reasonable juror could determine the
lanai was not a part of
Sifferman's dwelling. (10) See Duldulao, 86
Hawai`i at 146,
948 P.2d at 567 (appellate
courts review rulings on motions for judgment of acquittal by
considering "the evidence viewed in the light most favorable
to the prosecution and in full recognition of the province of the trier
of fact" in order to determine whether "a reasonable
mind might fairly conclude guilt beyond a reasonable doubt" (quoting
State v. Pone, 78
Hawai`i
262, 265, 892 P.2d 455,
458 (1995)). In
sum, under the evidence, the lanai in this case is part of Sifferman's
dwelling. See supra Part V.
Defendant
made but one entry into the lanai, therefore he could not be convicted
of making two entries into a "dwelling." See infra Part VIII. The trial
court thus erred in denying Defendant's motion for a judgment of
acquittal and subsequent
motion to set aside the verdict. See
State
v. Jhun, 83 Hawai`
472, 481, 927 P.2d 1355, 1364 (1996) ("[Defendant]'s
motion for 'judgment notwithstanding the verdict' was, in effect, a
post-verdict motion for judgment of acquittal[,]" thus,
the standard to be applied to such motion is "whether, upon the
evidence viewed in the light most favorable
to the prosecution and in full recognition of the
province of the trier of fact, the evidence was sufficient to support a
prima
facie case so that a reasonable mind might fairly conclude guilt beyond
a reasonable doubt." (Citations omitted.)).
"[T]he [burglary] statute requires both an entry and an intent to commit [a crime]." State v. Kahinu, 53 Haw. 646, 647, 500 P.2d 747, 749 (1972) (emphasis added). Consequently, a person commits but one burglary if there is only one entry, despite what may be viewed as an intent to commit more than one crime therein or appurtenant intents with respect to two or more crimes committed. (11) See Walker v. State, 394 N.W.2d 192, 198 (Minn. Ct. App. 1986) ("the burglarious entry of one dwelling should justify only one burglary conviction" (citation omitted)); Commonwealth v. Gordon, 678 N.E.2d 1341, 1344 (Mass. App. Ct. 1997) ("[T]here can be only one conviction . . . for armed burglary, regardless of how many people the perpetrator assaults once inside the dwelling."); Green v. State, 694 So. 2d 876, 877 (Fla. Dist. Ct. App. 1997) ("Because the evidence showed only one illegal entry by Green, one of his two burglary convictions must
be reversed." (Citation omitted.)); Bowman v. United States, 652 A.2d 64, 70 (D.C. 1994) ("A burglary with intent to commit two assaults . . . is still a single, unitary burglary."); People v. Griswold, 572 N.Y.S.2d 202, 203 (4th Dept. 1991) ("Where, as here, there is but one unlawful entry and the indictment charges two counts of burglary in the first degree under the same subdivision of the statute, defendant may be convicted of only one count of burglary." (Citation omitted.)); Warrick v. United States, 528 A.2d 438, 439 (D.C. 1987) (reversing one count of burglary where defendant charged with two counts of burglary "for one entry into [a] home" -- one count for an intent to steal, and another for an intent to assault; and explaining that "societal interest served by burglary statute was offended only once" (citation omitted)); Cf. People v. Newbern, 659 N.E.2d 6, 11 (Ill. App. Ct. 1995) ("[T]he home invasion count and the residential burglary count were predicated on the same unlawful entry into a person's dwelling. . . . [O]nly the home invasion conviction will be upheld since there was one physical act of entry." (Citation omitted.)). This is in consonance with HRS § 708-810(1)(c). Because the burglary statute is intended, in part, to prohibit an "invasion of premises," see Commentary to HRS §§ 708-810 and -811, HRS § 708-810 does not, by its terms, permit several burglary convictions for a single invasion of a premises, even if the accused intended several crimes contemporaneous with the entry. (12)
Hence, Defendant's second conviction for the burglary charge based
on his step into the apartment doorway under Count V
must be reversed. See
State v. Shamp, 86
Hawai`i 331, 332, 949 P.2d 171, 172 (App. 1997) (reversing the
defendant's
conviction "on the ground that the court committed plain error because
the State of Hawai`i . . . did not prove all of the
elements necessary for conviction"), overruled in part on other grounds
in State v. Lee,
90 Hawai`i 130, 976 P.2d 444
(1999); Walker, 394
N.W.2d at 197 (vacating two of three convictions for burglary where
there was only one entry); Green,
694 So.2d at 877 (reversing one of two burglary convictions where
defendant committed only one entry); Warrick, 528
A.2d at 439 (reversing one count of burglary where defendant charged
with two counts for single entry into a home). After
having made an unauthorized entry into the lanai, Defendant never left
the lanai or its contiguous indoor living area before
committing the two related underlying crimes for which he was
convicted. Having made only one entry into the dwelling,
Defendant could not be charged with two counts of burglary.
1. I believe this decision should be published because it presents a question of first impression with respect to whether a lanai is part of a "dwelling" and lanais are common to many residences within our state. See State v. Uyesugi, 100 Hawai`i 442, 473-74, 60 P.3d 843, 874-75 (2002) (explaining that "[i]t is in the nature of stare decisis that, when this court . . . decides matters of first impression we in fact establish precedent and, therefore, should publish our opinion) (Acoba, J., concurring, joined by Ramil, J.).
2. Defendant was also charged with Assault in the Third Degree, HRS § 707-712(1)(a) (Count II), for his altercation with Sifferman; Abuse of a Family or Household Member, HRS § 709-906 (Count III), for his attack upon Ogawa; and Criminal Property Damage in the Fourth Degree, HRS § 708-823(1) (Count IV), for damaging Ogawa's property at her home that Defendant and Ogawa shared. The jury found Defendant guilty as charged on these counts.
3. This argument, of course, still assumes that the lanai was not part of the dwelling, inasmuch as the prosecution argues that the step into the living area was a second entry.
4. At trial, the prosecution could not prove whether it was the defendant or his co-defendant who was seen in the garage.
5. In California, "[e]very burglary of an inhabited dwelling house . . . is burglary in the first degree." California Penal Code (CPC) § 460(a) (West Supp. 1996). With a few exceptions, "[a]ll other kinds of burglary are of the second degree." CPC § 460(b).
6. Ingram was subsequently reversed on other grounds. See People v. Dotson, 16 Cal. 4th 547, 559 (1997); see also People v. Ochoa, 57 Cal. Rptr. 2d 112, 118 (1996) (involving Ingram's analysis regarding sentencing enhancements).
7. This case occurred on Maui. The average annual precipitation in inches and average warmest month temperatures, in Fahrenheit, for several of our major cities are as follows: on the island of Hawaii at Hilo (as measured at the Hilo Airport) -- 129 inches, 83.6 degrees and at Kailua, Kona -- 25 inches, 77.3 degrees; on Maui at Lahaina -- 15 inches, 78 degrees; on Molokai at Kaunakakai -- 14 inches, 77.6 degrees (temperature average as measured at the Molokai airport); on Lana`i, Lana`i City -- 37 inches, 72.8 degrees; on Oahu at Honolulu (as measured at the Honolulu International Airport) -- 22 inches, 88 degrees; and on Kauai at Kekaha -- 21 inches, 78.5 degrees. The Department of Business, Economic Development & Tourism, State of Hawai`i. See The State of Hawaii Data Book 2000: A Statistical Abstract 175-76 (2001). We may take judicial notice of facts "not subject to reasonable dispute that [are] . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Hawai`i Rules of Evidence Rule 201(b) (1993).
9. Of course, as in any other case, a wayward verdict may be remedied by the granting of a motion for judgment of acquittal. See State v. Gabrillo, 10 Haw. App. 448, 453, 877 P.2d 891, 894 (1994) (explaining that a judgment of acquittal is appropriate where the evidence presented did not "'enable a reasonable mind fairly to conclude guilt beyond a reasonable doubt'" (quoting State v. Smith, 59 Haw. 456, 460, 583 P.2d 337, 341 (1978) (quoting State v. Rocker, 52 Haw. 336, 245-46, 475 P.2d 684, 690 (1970)))); State v. Miyashiro, 3 Haw. App. 229, 232-33, 647 P.2d 302, 305 (1982) (explaining that court was required to acquit defendant under Hawai`i Rules of Penal Procedure (HRPP) Rule 29 regarding motions for judgment of acquittal, where "the government failed to meet its burden . . . [e]ven if [d]efendant had not made any [such] motion"); see also HRPP Rule 29(c) (allowing for motions for judgment of acquittal post-verdict.)
10. Applying the Duldulao test, it would appear that the normal and expected use of a lanai would make it part of a dwelling in most cases, but there may be a particular case in which some unusual circumstance would make this matter one of disputed fact under a reasonable juror standard. See Duldulao, 86 Hawai`i at 146, 948 P.2d at 567; State v. Crail, 97 Hawai`i 170, 183, 35 P.3d 197, 210 (2001) ("view[ing the evidence] in the light most favorable to the prosecution . . . , the evidence is sufficient to support a prima facie case so that a reasonable mind might fairly conclude guilt beyond a reasonable doubt" (quoting State v. Vliet, 91 Hawai`i 288, 292, 983 P.2d 189, 193 (1999)).