Opinion
NO. CAAP-16-0000281
03-15-2017
STATE of Hawai‘i, Plaintiff-Appellant, v. Candi KIHANO, Defendant-Appellee.
On the briefs: Stephen K. Tsushima, Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellant. Taryn R. Tomasa, Deputy Public Defender for Defendant-Appellee.
On the briefs:
Stephen K. Tsushima, Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellant.
Taryn R. Tomasa, Deputy Public Defender for Defendant-Appellee.
(By: Nakamura, Chief Judge, and Fujise and Ginoza, JJ.)
Plaintiff-Appellant State of Hawai‘i (State) charged Defendant-Appellee Candi Kihano (Kihano) with second-degree burglary, in violation of Hawaii Revised Statutes (HRS) § 708-811 (2014). Kihano's burglary charge was based on her violation of a trespass warning previously issued by Walmart pursuant to HRS § 708-814(1)(b) (2014).
The State appeals from the "Findings of Fact, Conclusions of Law and Order Granting, in Part, Defendant's Motion to Dismiss Felony Information for Lack of Probable Cause as a Matter of Law" (Dismissal Order) entered by the Circuit Court of the First Circuit (Circuit Court) on March 2, 2016. The Circuit Court dismissed the case without prejudice.
The Honorable Dean E. Ochiai 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.