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### SCWC-13-0002691
IN THE SUPREME COURT OF THE STATE OF HAWAI # I

STATE OF HAWAI # I, Respondent/Plaintiff-Appellee,

vs. ROSS COLLINS aka RIP COLLINS, Petitioner/Defendant-Appellant.

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0002691; CR. NO. 13-1-0133)
SUMMARY DISPOSITION ORDER ( B y : Re c k t e n w a l d , C . J . , N a k a y ama , M c K e n n a , P o l l a c k , a n d W i l s o n , J J . )

Petitioner/Defendant-Appellant Ross Collins aka Rip Collins (Collins) applied for a writ of certiorari from the Intermediate Court of Appeals’ (ICA) December 9, 2016 Judgment on Appeal filed pursuant to its October 25, 2016 unpublished Summary Disposition Order (SDO). The ICA affirmed the Circuit Court of the First Circuit’s (circuit court) Judgment of Conviction and Sentence as to Count I and Judgment of Conviction and Sentence as to Count II, both of which were entered on July 10, 2013, in Electronically Filed Supreme Court SCWC-13-0002691 10-MAY-2017 08:02 AM*** NOT FOR PUB LICAT ION I N WES T’S HAWAI # I REPORTS AND PACIFI C REPORTER *** 

### favor of Respondent/Plaintiff-Appellee State of Hawai # i (the State). On January 28, 2013, Collins entered a Tesoro gas station and convenience store located at 1529 Dillingham Boulevard in Honolulu, Hawai # i (Tesoro gas station) in violation of a written trespass warning previously issued to him on 1 

### October 3, 2012 pursuant to Hawai # i Revised Statutes (HRS) § 708- 814(1)(b). Upon entering the Tesoro gas station, Collins took a 2 

### can of beer and exited the premises without paying for it. He was then arrested and charged with one count of burglary in the

The w ritte n tre spass warn ing s tated , in perti nent part: 1
You a re he reby advis ed th at yo ur pr esenc e is no lo nger

desir ed on the premi ses o r pro perty : 152 9 Dil lingh am Blvd. , Hon ., HI , 968 19 (T esoro ) 832 -1369 for a per iod of on e yea r fro m dat e of notic e. This serve s as notic e tha t youare not t o ret urn t o said premi ses o r pro perty . Vi olati on ofthis warn ing will subje ct yo u to arres t andpros ecuti on fo r Tresp assin g pur suant to s ectio n 708 -814( 1)(b) of t he Hawai i Rev ised Statu tes.

HRS § 708- 814(1 )(b) (Supp . 201 0) st ates: 2 (1) Apers on co mmits the offen se ofcrim inal tresp ass

in th e sec ond d egree if: (b) T he pe rson enter s or remai ns un lawfu lly i n or upon comme rcial prem ises aftera re asona ble w arnin g or reque st to leav e by the o wner or le ssee of th e comme rcial prem ises, the owner ’s orless ee’s autho rizedagen t, ora po lice offic er; p rovid ed th at this parag raph shall not applyto a ny co nduct or activ ity s ubjec t to regul ation by t he Na tiona l Lab or Relat ions Act. 

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### second degree in violation of HRS § 708-811 (Count I), and one 3 

### count of resisting arrest in violation of HRS §§ 710-1026(1)(a) and/or 710-1026(1)(b) (Count II). 4 

### At trial, the State’s theory of the case was that Collins had committed burglary in the second degree because he unlawfully entered and remained in the Tesoro gas station by entering the premises in contravention of the previously issued written trespass warning, with the intent to steal a beer, and thereby commit a crime against a person or property rights. Following the State’s case-in-chief, Collins orally moved for a judgment of acquittal on Count I, arguing that the State failed to prove that Collins had unlawfully entered the Tesoro gas

HRS § 708- 811 ( 1993) prov ides: 3 (1) Apers on co mmits the offen se ofburg lary in th e sec ond d egree if t he perso n int entio nallyente rs orrema ins u nlawf ully in a build ing w ith inten t to commi t the rein a cri me ag ainst a pe rson or ag ainst prop erty right s. (2) B urgla ry in the secon d deg ree i s a c lass C fel ony. HRS § 710- 1026 (Supp . 201 0) st ates: 4 (1) Apers on co mmits the offen se ofresi stingarre st

if th e per son i ntent ional ly pr event s a l aw en force ment offic er ac ting undercolo r of the l aw en force ment offic er’s offic ial a uthor ity f rom e ffect ing a n arr est by: (a) U sing or th reate ning to us e phy sical forc e again st th e lawenfo rceme nt of ficeror a nothe r; or (b) U sing any o ther means crea ting a sub stant ial risk of ca usingbodi ly in jury to th e law enfor cemen t off icer or an other
. (2) R esist ing a rrest is a misd emean or. 

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### station. The circuit court denied Collins’ motion. The jury 5 

### found Collins guilty as charged on Counts I and II.

The ICA affirmed, holding, inter alia, that there was 6 

### sufficient evidence for a rational juror to conclude that Collins understood the trespass warning when it was issued, and that Collins purposefully disregarded the warning when he entered the Tesoro gas station in January 2013. This court accepted Collins’ application for writ of certiorari on March 13, 2017.

In his application for writ of certiorari, Collins presents one question for review: whether the ICA erred in affirming the circuit court’s denial of his motion for a judgment of acquittal as to Count I. Collins argues that pursuant to this court’s decision in State v. King, 139 Hawai # i 249, 386 P.3d 886 (2016), Collins’ burglary conviction was, as a matter of law, improperly premised upon his violation of the October 2012 written trespass warning.

The H onora ble G lenn J. Ki m pre sided
. 5 On ap peal, Coll ins a lso a rguedthat the circu it co urt e rred in de nying 6 Colli ns’ m otion for a jud gment of a cquit tal o n Cou nt II beca use “ there was no subst antia l evi dence that Coll ins h ad in tenti onall y pre vent [sic] Offi cer Neves fromeffe ctinghis arres t by eithe r int entio nallyusin g phy sical forc e again st Of ficerNeve s or inten tiona lly u sing means that crea ted a subs tanti al risk of ca usingbodi ly in jury to Of ficerNeve s.” On th is po int, the I CA he ld that “the jury couldhave conc ludedbeyo nd a reaso nable doub t tha t Col lins eithe r use d phy sical forc e or put O ffice r Nev es at a su bstan tial risk of bodil y inj ury. Acco rding ly, t he Ci rcuit Cour t didnot err i n den ying Colli ns’ motio n forjudgment of ac quitt al wi th re gard to Co unt I I.” In hi s app licat ion for w rit o f cer tiora ri, C ollin s didnot raise any quest ions regar ding this point . Co nsequ ently , we do no t add ress Colli ns’ s econdpoin t of erroron appea l bef ore t he IC A. S ee Ha wai # i Rul es ofAppe llate Proc edure (HRA P) Ru le 40.1( d) (2 015). 

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### In King, we determined that the violation of a trespass warning issued pursuant to HRS § 708-814(1)(b) does not constitute the defiance of a “lawful order personally communicated to the defendant” within the meaning of HRS § 708- 800. 139 Hawai # i at 257, 386 P.3d at 894. Thus, we held that

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### the violation of a trespass warning issued under HRS § 708- 814(1)(b) cannot support a charge for burglary in the second degree under HRS § 708-811. Id.

Applying the principles in King to the present case, Collins’ contravention of the written trespass warning did not constitute an unlawful entry for the purposes of burglary in the second degree. See id. Besides his violation of the written trespass warning, the State did not present any other evidence that Collins had otherwise “enter[ed] or remain[ed] unlawfully” in the Tesoro gas station on January 28, 2013. See HRS § 708-

HRS § 708- 800 ( 1993) defi nes “ enteror r emain unla wfull y” as foll ows: 7
‘Ente r or remai n unl awful ly’ m eans to en ter o r rem ain

in orupon prem ises when the p erson is n ot li cense d, invit ed, o r oth erwis e pri vileg ed to do s o. Apers on who, regar dless of t he pe rson’ s int ent, enter s or remai ns in or u pon p remis es wh ich a re at the time open to th e pub lic d oes s o wit h lic ense and p rivil ege unles s the pers on de fies a law ful o rder not t o ent er or re main, pers onall y communic ated to th e per son b y the o wner of th e pre mises or s ome o ther autho rized perso n. Alice nse o r pri vileg e to enteror r emain in a bui ldingwhic h is only partl y ope n to the p ublic is not a lice nse o r pri vileg e to enteror r emain in t hat part of th e bui ldingwhic h is not o pen t o the publ ic. (Emph asis added .) 

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### 811. Therefore, a reasonable juror could not have concluded, based on the evidence viewed in the light most favorable to the State, that Collins was guilty of burglary in the second degree. Accordingly,

IT IS HEREBY ORDERED that the ICA’s December 9, 2016 Judgment on Appeal is affirmed in part and reversed in part. The circuit court’s July 10, 2013 Judgment of Conviction and Sentence as to Count I is reversed. The circuit court’s July 10, 2013 Judgment of Conviction and Sentence as to Count II is affirmed.

DATED: Honolulu, Hawai # i, May 10, 2017. /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Sabrina S. McKenna /s/ Richard W. Pollack /s/ Michael D. Wilson

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