No. 28369 (May 7, 2009)
Opinion pdf
OPINION OF THE COURT BY NAKAMURA, J.
Defendant-Appellant Mariko Davis Bereday (Bereday) appeals from two December 18, 2006, Judgments entered by the District Court of the First Circuit (district court). Bereday was orally charged with two counts of negligent failure to control a dangerous dog, in violation of the Revised Ordinances Of Honolulu (ROH) § 7-7.2 {1990 & Supp. No. 7, 8-05 & Supp. No. 12, 2-08). The charges were based on allegations that Bereday negligently failed to prevent her dog, a Rottweiler named "Bobo," from attacking and biting a two-year-old boy and a five-year-old girl in separate incidents on May 8, 2005, and May 13, 2005, at a beach in Kahala.
After a bench trial, Bereday was found guilty as charged on both counts. With respect to the May 8th offense (Case No. 1P105-07481), the district court sentenced Bereday to six months of probation, with the condition that she perform 100 hours of community service, and ordered her to pay a $2,000 fine. The district court further ordered the humane destruction of Bobo. With respect to the May 13th offense (Case No. 1P105-07480), the district court sentenced Bereday to six months of probation, with the conditions that she serve five days in jail and perform 200 hours of community service, and ordered her to pay a $2,000 fine. The district court stayed Bereday's sentence pending appeal.
On appeal, Bereday argues that: 1) the City and County of Honolulu (the City) lacked enforcement jurisdiction over her offenses; 2) there was insufficient evidence to support her convictions; 3) ROH § 7-7.2(a), the ordinance under which she was convicted, is unconstitutionally vague and ambiguous; 4) the district court erred in denying her motion to sever the charges; and 5) the district court's imposition of a jail sentence and ordering the destruction of Bobo were unduly harsh and constituted an abuse of discretion.
For the reasons set forth in greater detail below, we Conclude that Bereday's first four arguments are without merit, and we therefore affirm her convictions. With respect to Bereday's sentencing claims, we conclude that for Bereday's May 13th offense, the district court was authorized to impose either a term of probation or imprisonment, but not both. The district court therefore erred in ordering Bereday to serve five days in jail as a condition of her six-month term of probation. We vacate Bereday's sentence on the May 13th offense and remand the case for resentencing on that offense. During the pendency of this appeal, we received notice that Bobo had died of natural causes. Thus, Bereday's claim that the district court erred in ordering the humane destruction of Bobo is moot. We affirm Bereday's sentence on the May 8th offense. [footnotes omitted]
