NOT FOR PUBLICATION
NO. 25111
IN THE INTERMEDIATE COURT OF APPEALS
STATE
OF HAWAI`I, Plaintiff-Appellee, v.
GEORGE GARY PEABODY, Defendant-Appellant
APPEAL
FROM THE DISTRICT COURT OF THE SECOND CIRCUIT,
MOLOKA`I DIVISION
(CASE NOS.: CTR3-6,8,9:5/16/00)
On appeal, (5) Peabody contends (1) there was insufficient evidence that Peabody violated MCC § 6.04.040; (2) there was insufficient evidence that Peabody violated HRS § 711-1106; (3) there was insufficient evidence to substantiate the district court's factual finding regarding credibility; (4) the district court erred in not finding that Animal Control Officer Mark Marting (Marting) was trespassing on Peabody's property when Marting came to pick up a stray dog at Peabody's request; (5) the district court erred in not finding that Marting should have obtained a search warrant; (6) the district court erred in not finding that Peabody could use force to protect his property; (7) the district court erred by not finding that Peabody could use force to prevent the commission of a crime; (8) there was insufficient evidence to convict Peabody of violating HRS § 134-3(b); (9) there was insufficient evidence to support the district court's finding that Peabody had the requisite state of mind to violate HRS § 134-3(b); (10) the district court erred by not making a legal ruling that the offense was of a de minimis nature; (11) the district court erred by not finding that there was entrapment; (12) the district court erred by not finding that there was ignorance or mistake of fact; (13) the district court erred by imposing its sentence pursuant to HRS § 134-17(c) (Supp. 2004) (6); and (14) his trial counsel did not provide effective assistance of counsel. (7)
Upon careful review of the record and the briefs submitted by the parties, we hold:
(1) There was sufficient evidence that Peabody violated MCC § 6.04.040 because he admitted that the dogs were not kept under restraint, the dogs were not being used by law enforcement, he was not hunting, and he was not training the dogs for an organized competition, but rather engaging them in a general exercise regime.
(2) There was sufficient evidence that Peabody violated HRS § 711-1106 because his intent to harass, annoy, or alarm could be substantially inferred from the circumstances. State v. Hopkins, 60 Haw. 540, 544, 592 P.2d 810, 812-13 (1979).
(3) Peabody's protection of property argument is without merit since he admitted at trial that the dog was not his dog and he had called the police to come and get the dog.
(4) There was sufficient evidence to support the district court's finding that Peabody violated HRS § 134-3(b) with the reckless state of mind. HRS § 702-206 (1993).
(5) Peabody was properly sentenced under HRS § 134-17(c).
(6) Peabody has failed to fulfill his burden of proving that his trial counsel did not provide effective assistance of counsel. Briones v. State, 74 Haw. 442, 462, 848 P.2d 966, 976 (1993).
(7) We do not address Peabody's point (3) because, as the Hawai`i Supreme Court stated in State v. Eastman, 81 Hawai`i 131, 913 P.2d 57 (1996), "[a]n appellate court will not pass upon the trial judge's decisions with respect to the credibility of witnesses and the weight of the evidence, because this is the province of the trial judge." Id. at 139, 913 P.2d at 65.
Therefore,
IT IS HEREBY ORDERED that the Judgments filed on January 12, 2004 in the District Court of the Second Circuit, Moloka`i Division, are affirmed.
DATED: Honolulu, Hawai`i, April 7, 2005.
David
W. Cain
for defendant-appellant
(George Gary Peabody
on the reply brief).
Peter
A. Hanano,
Deputy Prosecuting Attorney,
County of Maui,
for plaintiff-appellee.
1. The Honorable Rhonda I.L. Loo presided.
2. Maui County Code § 6.04.040 (eff. 1997) states in relevant part:
6.04.040 Animal regulations--General.
A.
An owner of a dog shall keep the dog under
restraint, except the following:
1. A dog being used by law enforcement agencies for law enforcement purposes;
2.
A dog used during hunting; accompanied by its owner,
and used with the consent
of the owner of the real property upon which the hunting occurs; and
4. HRS § 711-1106 (Supp.
2004) states in relevant part:
§711-1106
Harassment. (1) A person commits the offense of harassment if,
with intent to harass, annoy, or alarm any
other 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[.]
5. This court notes that Peabody's
opening brief does not comply with the following Hawaii Rules of
Appellate Procedure
(HRAP):
HRAP
Rule 28(a) -- counsel failed to serve a copy of the opening brief on
the attorney alleged to have been ineffective
when an ineffective assistance of counsel claim was raised on appeal.
HRAP
Rule 28(b)(4) -- counsel fails to state where in the record the alleged
error occurred, was objected to, or was brought
to the court's attention.
HRAP
Rule 28(b)(10), which states in relevant part that "[a]nything that is
not part of the record shall not be appended to
the brief, except as provided in this rule[,]" -- counsel appended an
11-page "Supplemental Argument by Appellant" to the
opening brief (which will not be considered by this court).
HRAP
Rule 32(a) -- "[e]ach sheet shall have a margin at the top and bottom
of not less than 1 inch[.]"
Counsel
is warned that any future violations of HRAP Rules 28 or 32 may result
in sanctions against him.
6. HRS § 134-17 (Supp. 2004)
states in relevant part:
§134-17
Penalties.
. . . .
7.
On June 16, 2004, Peabody's court-appointed counsel
filed Peabody's opening brief. On June 22, 2004, Peabody filed a
pro se ex-officio opening brief. We hereby strike the June 22, 2004 pro
se brief of Peabody because a criminal defendant
does not have a constitutional right to "hybrid representation," State v. Hirano, 8 Haw.
App. 330, 333-35, 802 P.2d 482,
484- 85 (1990), and we consider only the arguments raised in the June
16, 2004 opening brief.