State v. Tsukiyama

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUN-2022
07:47 AM
Dkt. 43 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
SANDRA A. TSUKIYAMA, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DCC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Sandra A. Tsukiyama (Tsukiyama)
appeals from the June 1, 2021 Notice of Entry of Judgment and/or
Order (Judgment) entered by the District Court of the First
Circuit, Honolulu Division (District Court)1 convicting her of
negligent failure to control a dangerous dog (NFCDD), in
violation of Revised Ordinances of Honolulu (ROH) § 7-7.2.2
1
The Honorable Karin L. Holma presided.
2
ROH § 7-7.2(a) (1990 & Supp. No. 12, 2-08) provides, in relevant
part:
A dog owner commits the offense of negligent
failure to control a dangerous dog, if the owner
negligently fails to take reasonable measures to
prevent the dog from attacking, without provocation, a
person or animal and such attack results in: (1) the
maiming or causing of serious injury to or the
destruction of an animal or (2) bodily injury to a
person other than the owner. A person convicted under
this subsection shall be guilty of a petty misdemeanor
for a first offense . . . .
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Tsukiyama seeks reversal3 of the Judgment, contending that
Plaintiff-Appellee State of Hawai#i (State) provided no
substantial evidence to convict her of NFCDD because it failed to
prove she was the offending dogs' "owner" as defined in ROH § 7-
7.1 or that she acted negligently in failing to prevent the
attack. The State concedes her arguments.4
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we reverse the
Judgment for the following reasons.
Complaining witness Yumiko Martinez (CW) testified
that: she was standing in front of her house when the dogs
approached, pushed her down, and one of them bit her leg; the
dogs belonged to Tsukiyama and they came from her property, which
was directly next door; Alvin Shiraishi (Shiraishi), who lives
with Tsukiyama, was tending the dogs at the time, and they were
unleashed and in Tsukiyama's garage; Tsukiyama was not home;
Shirashi offered to pay her medical bills; and she never intended
to press charges. Shiraishi testified that: Tsukiyama was not
home, and he was taking care of the dogs for her; the incident
was his "fault" because he lacked full control of the dogs;
though they were collared and leashed, he let go of the leashes
to put the dogs' feces in the nearby dumpster; and he did not
realize they ran towards CW until he heard the commotion.
In a sufficiency-of-the-evidence challenge, "[t]he test
on appeal is not whether guilt is established beyond a reasonable
doubt, but whether there was substantial evidence to support the
conclusion of the trier of fact." State v. Matavale, 115 Hawai#i
149, 157-58, 166 P.3d 322, 330-31 (2007). "'Substantial
evidence' as to every material element of the offense charged is
3
Tsukiyama requests that this court vacate and remand the Judgment
for entry of a not guilty verdict, which we construe as a request for a
reversal. See Hawai#i Rules of Appellate Procedure Rule 35(e).
4
We "give due consideration" to the State's concession of error, as
"[a] prosecutor's confession, although not binding on an appellate court, is
'entitled to great weight.'" State v. Eduwensuyi, 141 Hawai #i 328, 337, 409
P.3d 732, 741 (2018) (quoting Territory v. Kogami, 37 Haw. 174, 175 (Haw.
Terr. 1945)).
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
credible evidence which is of sufficient quality and probative
value to enable a person of reasonable caution to support a
conclusion." Id. at 158, 166 P.3d at 331.
Under ROH § 7-7.2(a), "[a] dog owner commits the
offense of [NFCDD], if the owner negligently fails to take
reasonable measures to prevent the dog from attacking" a person,
and that "such attack results in . . . bodily injury to a person
other than the owner."
Assuming arguendo Tsukiyama is the dogs' owner,5 there
is no substantial evidence that she negligently failed to take
reasonable measures to prevent them from attacking.
Under ROH § 7-7.1, "negligently" has "the same meaning
as is ascribed to the term in [Hawaii Revised Statutes (HRS)]
Section 702–206." HRS § 702–206(4) (2014) defines "negligently"
as follows:
(a) A person acts negligently with respect to his [or
her] conduct when he [or she] should be aware of a
substantial and unjustifiable risk taken that the
person's conduct is of the specified nature.
(b) A person acts negligently with respect to
attendant circumstances when he [or she] should be
aware of a substantial and unjustifiable risk that
such circumstances exist.
(c) A person acts negligently with respect to a result
of his [or her] conduct when he [or she] should be
aware of a substantial and unjustifiable risk that his
[or her] conduct will cause such a result.
(d) A risk is substantial and unjustifiable within the
meaning of this subsection if the person's failure to
perceive it, considering the nature and purpose of his
[or her] conduct and the circumstances known to him
[or her], involves a gross deviation from the standard
of care that a law-abiding person would observe in the
same situation.
Negligence involves "the inadvertent creation . . . of a risk of
which the defendant would have been aware had the defendant not
deviated grossly from the standard of care that a law-abiding
person would have observed in the same situation." HRS § 702-206
5
Under ROH § 7-7.1, "Owner" is defined as "any person owning,
harboring or keeping a dog."
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
cmt. (2014). "[T]he risk . . . must be 'substantial and
unjustifiable.'" Id.
ROH § 7-7.2(b) defines "reasonable measures to prevent
the dog from attacking" as including, inter alia, measures
required "to prevent the dog from becoming a stray[.]" A "stray"
dog is any untethered dog in a "public place." ROH § 7-4.1 (1990
& Supp. No. 19, 7-2011).6
Here, the record does not reflect that Tsukiyama or
Shiraishi left the dogs unleashed in a public area. Cf. State v.
Argus, No. CAAP-XX-XXXXXXX, 2019 WL 3384851, at *3 (App. July 26,
2019) (SDO); State v. Benson, No. CAAP-XX-XXXXXXX, 2022 WL
1799132, at *1 (App. June 2, 2022) (SDO).7 Though Shiraishi
temporarily let go of the dogs' leashes while the dogs were still
on Tsukiyama's property or in her garage, the dogs escaped and
approached CW as she stood in front of her home. Nothing in the
record indicates that Tsukiyama gave Shiraishi permission or
authority to allow the dogs to be unleashed while on her property
or in her garage. Indeed, Shiraishi's admission that the
incident was his fault suggests he knew the dogs were to remain
leashed. Moreover, the incident happened unexpectedly and
without time to react; and most importantly, because Tsukiyama
was not at home, there was nothing she could do to prevent the
dogs from becoming "stray[s]." ROH § 7-7.2(b). This is similar
to the circumstances in State v. MacDonald, No. 28793, 2009 WL
245436, at *5 (App. Jan. 30, 2009) (SDO), and State v. Hironaka,
No. CAAP-XX-XXXXXXX, 2019 WL 2366370, at *3, (App. June 5, 2019)
(SDO), where we found no substantial evidence that the defendants
negligently failed to take reasonable measures to prevent the
6
ROH § 7-4.1 provides that a "stray" dog is any dog in a "public
place, except when under the control of the owner by leash, cord, chain or
other similar means of physical restraint . . . ."
7
In Argus, we affirmed a conviction where the defendant's dog was
unleashed when it bit a person walking on a public sidewalk. 2019 WL 3384851,
at *3. In Benson, we similarly affirmed a conviction where the defendant left
her unleashed dog in her car in a public parking lot with the windows
partially down; when the complaining witness walked by, the dog leaned out of
the window and bit him. 2022 WL 1799132, at *1.
4
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dogs from attacking. Given further the State's concession of
error, we make the same finding here.8
For the foregoing reasons, the June 1, 2021 Notice of
Entry of Judgment and/or Order entered by the District Court of
the First Circuit, Honolulu Division, is reversed.
DATED: Honolulu, Hawai#i, June 27, 2022.
On the briefs:
/s/ Katherine G. Leonard
William A. Harrison, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Donn Fudo, Associate Judge
Deputy Attorney General,
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge
8
Accordingly, we need not reach Tsukiyama's argument that she was
not the dogs' "owner" under ROH § 7-7.1 at the time of the incident.
5