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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-13-0005863
                                                              09-MAY-2016
                                                              09:04 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                  ---o0o---


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

                                     vs.

                           MAX C.K. BOWMAN,
                   Petitioner/Defendant-Appellant.


                            SCWC-13-0005863

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-13-0005863; CASE NO. 3DTC-13-067572)

                                 MAY 9, 2016

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

               OPINION OF THE COURT BY NAKAYAMA, J.

                            I.    Introduction

          Petitioner/Defendant-Appellant Max C.K. Bowman (Bowman)

applied for a writ of certiorari from the Intermediate Court of

Appeals’ (ICA) March 25, 2015 judgment on appeal entered pursuant

to its February 27, 2015 opinion (opinion).          The ICA affirmed the

District Court of the Third Circuit’s (district court)
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November 7, 2013 judgment of conviction.

            Bowman is a farmer who was transporting cabbages

following a harvest in the back of his uncovered truck.            When he

was on the highway, some of the produce spilled out onto the

road.   A police officer cited Bowman under Hawai#i Revised

Statutes (HRS) § 291C-131, which prohibits spilling loads on

highways.

            During his bench trial, Bowman testified that he fell

under an exemption for vehicles carrying agricultural produce,

which is contained in subsection (c) of HRS § 291C-131.            Although

the exemption requires that the owner of the vehicle provide for

the reasonable removal of all produce spilled on the highway,

Bowman testified that he felt that it would not have been

reasonable in this case to risk life and limb in order to

retrieve a few leaves of cabbage in the middle of the highway.

The State did not present any evidence rebutting this testimony.

At the end of the trial, the district court found Bowman guilty

and issued him a fine, stating that if Bowman had picked up the

cabbage he would have been acquitted.

            The ICA affirmed the district court’s holding.          On

appeal before this court, Bowman argues that the ICA gravely

erred in holding that he was required to present evidence on

every element of the defense before he met his burden of

production.    Bowman also argues that the ICA erred in upholding


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the district court’s ruling that the prosecution met its burden

of proof.

            We conclude that the ICA did not err in holding that

evidence needed to be adduced as to every element of the defense

in order for Bowman to meet his burden of production.              However,

because we conclude that “reasonable removal” under HRS § 291C-

131(c) requires removal of spilled agricultural produce only when

the removal is reasonable, we hold that Bowman met his burden of

production.     Further, there is no evidence that the prosecution

met its burden of proof in negating the elements of Bowman’s

defense.    Thus, the ICA erred in affirming the district court’s

holding that there was sufficient evidence to support Bowman’s

conviction.     Therefore, the ICA’s judgment on appeal and the

district court’s judgment of conviction are reversed.

                              II.   BACKGROUND

A.    Proceedings Before the District Court

            On November 7, 2013, Bowman was orally arraigned in

court as follows:
            On or about the 28th day of August, 2013, in Hamakua, state
            and county of Hawai#i, Max Bowman was the operator of a
            motor vehicle being moved on a highway, which vehicle was
            not so constructed, covered, or loaded as to prevent any of
            its load from dropping, sifting, leaking, blowing, spilling,
            or otherwise escaping therefrom, thereby a violation of
            Section 291C-101(a) (sic), Hawai#i Revised Statutes as
            Amended.

HRS § 291C-131 (2007 Repl.) states in full:
            (a) No vehicle shall be moved on any highway, unless the


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       vehicle is so constructed, covered, or loaded as to prevent
       any of its load other than clear water or feathers from live
       birds from dropping, sifting, leaking, blowing, spilling, or
       otherwise escaping therefrom, except that sand may be
       dropped for the purpose of securing traction, or water or
       other substance may be sprinkled on a highway in cleaning or
       maintaining the highway.

       (b) No vehicle shall be driven or moved on any highway when
       any load thereon is not entirely within the body of the
       vehicle; provided that this prohibition shall not apply if
       the load is securely fastened by means of clamps, ropes,
       straps, cargo nets, or other suitable mechanical device to
       prevent such load from dropping onto the highway or from
       shifting in any manner and, further, no vehicle shall be
       operated on any highway with any load thereon projecting
       beyond the extreme width of the vehicle.

       (c) Vehicles carrying agricultural produce from fields
       during harvesting shall be exempt from the requirements of
       this section but the owner of the vehicle must provide for
       the reasonable removal of all such produce spilled or
       dropped on the highway.

       (d) No vehicle shall be driven or moved on any highway with
       any load if the load is not entirely covered by a cargo net,
       tarpaulin, canopy, or other material designed to cover the
       load to prevent the load from escaping from the vehicle,
       where the load consists partially or entirely of loose
       paper, loose rubbish, plastics, empty cartons, dirt, sand,
       or gravel.

       (e) Vehicles transporting a granular load consisting of
       dirt, sand, or gravel on any highway shall not be required
       to cover their granular load if the granular load does not
       extend, at its peak, above any point on a horizontal plane
       equal in height to the top of the side, front, or rear part
       of the cargo container area that is the least in height.

       (f) No vehicle shall be driven or moved on any highway with
       a load consisting of rocks, stones, or boulders if the load,
       at its peak, extends above any point on a horizontal plane
       equal in height to the top of the side, front, or rear part
       of the cargo container area that is the least in height.

       (g) Violation of this section shall be considered an offense
       as defined in section 701-107(5), shall not be subject to
       the provisions of chapter 291D, and shall subject the owner
       or driver of the vehicle, or both, to the following
       penalties without possibility of probation or suspension of
       sentence:

             (1) For a first violation, by a fine of not less than
             $250 and not more than $500.

             (2) For a second violation involving a vehicle or
             driver previously cited under this section within one

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                year:

                        (A) Suspension of the vehicle registration or
                        suspension of the license of the driver, or
                        both, for not less than five working days but
                        not more than ten working days; and

                        (B) A fine of not less than $500 and not more
                        than $750.

                (3) For a third or subsequent violation involving a
                vehicle or driver previously cited under this section
                within one year:

                        (A) Suspension of the vehicle registration or
                        suspension of the license of the driver, or
                        both, for a period of thirty calendar days; and

                        (B) A fine of not less than $750 and not more
                        than $1,000.

          In imposing a fine under this subsection, the court, in its
          discretion, may apportion payment of the fine between the
          driver of the vehicle and the owner of the vehicle according
          to the court’s determination of the degree of fault for the
          violation.

          For the purposes of this subsection, a truck-trailer
          combination and tractor-semitrailer combination, as they are
          defined in section 286-2, shall be considered as one
          vehicle.

          During the bench trial,1 Officer Romeo Fuiava (Officer

Fuiava) testified that on August 28, 2013 at around 2:00 p.m., he

was driving on Route 19 toward Hilo.         Officer Fuiava observed a

green flatbed pickup truck driving past him with a load of open

containers filled with either cabbage or lettuce.            Officer Fuiava

later determined that Bowman was the person operating the truck.

Officer Fuiava passed Bowman, and about a half a mile to a mile

up the road, Officer Fuiava began seeing cabbage or lettuce on

and to the side of the road.        Officer Fuiava testified that he


     1
          The Honorable Melvin H. Fujino presided.

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had passed this same location about a half hour to forty-five

minutes earlier and there had not been any cabbage.           Officer

Fuiava did not see any other vehicles with lettuce or cabbage.

Officer Fuiava then turned around and caught up to Bowman in

Pa#auilo at Earl’s store.     Officer Fuiava stopped Bowman and

wrote him a citation.     The State did not call any other

witnesses.

           Bowman then took the stand and testified as follows:
           Well, with, you know, respect to our prosecuting attorney, I
           just feel like I’ve been mischarged. It was referred under
           Section 291C-131(a), which is where he got the no vehicle
           shall be moved on any highway unless the vehicle is so
           constructed, dropping, sifting. Anyway, the provision I
           feel is more applicable is 131(c): “Vehicles carrying
           agricultural produce from fields during harvesting shall be
           exempt from the requirements of this section, but the owner
           of the vehicle must provide for the reasonable removal of
           all such produce spilled or dropped on the highway.”

           . . .

           I’m a farmer. I was carrying agricultural produce from my
           field during harvesting, at which point some of it did spill
           on the highway. As far as the reasonable removal section
           goes, it couldn’t have been much. It was trimmings. I
           actually drove past that section of the road later in the
           day, did not see any of it. I can only imagine the wind
           blew it off the road to decompose in a matter of days on the
           side, or it had been run over sufficiently and evaporated on
           the road. It could not have been more than one pound or two
           pounds of cabbage, maybe 20 leaves. And if reasonable
           removal is any indication, I feel risk of life and limb,
           running onto the road, grabbing three or four leaves of
           cabbage as opposed to letting it decompose naturally does
           not sound reasonable to me.

On cross-examination, Bowman testified that it was about 5:45 or

6:00 p.m. when he returned to look into the removal of the

cabbage.

           At the end of the hearing, the following was stated:

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            THE COURT: . . . The Court will find in this case that under
            Section 291C-131(c), that there’s no doubt in this Court’s
            mind that the items that are alleged to have been blown from
            the truck was – the officer testified that it was lettuce,
            but it’s actually cabbage. Section 291C-131(c) applies to
            you’re exempt as far as the requirement from storing these
            items as stated by covering your load basically, if you have
            any type of canvas or anything like that. That’s what the
            exemption is.

            Now, in this case the next step that the Court would ask is
            whether or not you reasonably removed all of these products
            that were spilled or dropped on the highway, and in this
            case the Court will find that you didn’t. You just left it
            on the road. So had you gone and picked it up, you would
            have been acquitted of this charge. You understand?

            MR. BOWMAN: All right.

            THE COURT: That’s what the law is. You’re pretty much
            except [sic] from having to cover this load, but if it
            falls, you’re going to have to go and pick it up.

            MR. BOWMAN: Sure. Again if in the Court’s opinion
            reasonable removal entails running onto the highway to pick
            up 20 leaves of cabbage, then absolutely.

The district court found that the State proved its case beyond a

reasonable doubt and entered judgment in favor of the State.

Bowman received a $250 fine plus a $7 driver education fee.

B.    Proceedings Before the ICA

            In his opening brief before the ICA, Bowman argued that

the oral charge was insufficient because it charged him under HRS

§ 231C-131(a) and did not include the elements of subsection (c)

that he was convicted of.        Bowman asserted that because he put

forth evidence that he was exempt under HRS § 231C-131(c), the

burden was shifted to the prosecution to prove beyond a

reasonable doubt that his effort to remove spilled produce was

not reasonable.      Bowman also argued that the prosecution had

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failed to prove beyond a reasonable doubt all the elements of HRS

§ 231C-131(c) because there was no evidence that Bowman was the

owner of the truck, the prosecution did not dispute Bowman’s

assertion that running into the highway to remove the cabbage

rather than leaving it to decompose was not reasonable, and the

prosecution did not show that leaving the cabbage to disintegrate

on the highway was not reasonable removal.         And because there was

no evidence that Bowman owned the vehicle, he questioned whether

he could be convicted for a criminal offense for the failure of

some other person to act.

          In its answering brief, the State argued that it did

not need to charge Bowman with HRS § 291C-131(c) because it is a

defense and not a separate offense.        The State then argued that

because subsection (c) is a non-affirmative defense, the initial

burden to raise the defense was on the defendant.           And, although

the State was then required to prove beyond a reasonable doubt

facts negativing the defense, it did not have to introduce

further evidence or call additional witnesses to do so.            The

State asserted that Bowman never claimed that he was the owner or

took steps to remove the cabbage from the road.          The State argued

that it disproved Bowman’s defense under HRS § 291C-131(c) by

demonstrating that he did not make any effort to remove the

cabbage from the road.


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          In his reply brief, Bowman argued that interpreting

subsection (c) as a defense would mean that a driver could be

convicted for the failure of a third party (the owner) to provide

reasonable removal.     Bowman argued that it was more logical to

interpret the statute as a violation against the owner of the

vehicle for his/her failure to remove the produce.           Bowman also

re-asserted that risking life and limb to retrieve the cabbage

leaves was unreasonable, and that the State did not dispute this.

          On February 27, 2015, the ICA issued an opinion

affirming the district court’s judgment.         The ICA began its

analysis by considering whether HRS § 291C-131(c) constitutes an

offense or a defense.     It first noted that under the plain

language of the statute, HRS § 291C-131(a) represents a general

requirement that all vehicles be constructed or covered to

prevent spilling and subsection (c) is an exception to these

requirements for vehicles transporting produce after harvest.

The ICA then examined the legislative history of HRS § 291C-131

and noted that its purpose was to prevent the spilling of loads

from vehicles on highways and that the agricultural exception was

included in the original statute because the legislature believed

that the application of HRS § 291C-131 would cause great hardship

to the agricultural industry.

          The ICA further noted that although the legislature


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later enacted subsection (g) in 1986, which states that a

violation of HRS § 291C-131 is an offense that subjects the

owner, driver of the vehicle, or both to graduated penalties,

there was nothing to support the conclusion that the legislature

intended subsection (c) to be an offense.         The ICA stated that it

would lead to an absurd result if it were to interpret subsection

(c) as an offense because some of the factual elements of the

subsection, such as whether the vehicle was carrying produce

during harvest, are within the knowledge and control of the

defendant, and the State would not have the information necessary

to properly charge the defendant.        The ICA also noted that under

this court’s case law, subsection (c) is a defense rather than an

offense because it is an exception that appears somewhere other

than in the enacting clause of the criminal statute.            Therefore,

the ICA held that “subsection (c) constitutes a defense for which

Bowman carried the initial burden of production.”

          Because the ICA concluded that subsection (c) is a

defense, it held that the State was not required to include its

elements in the oral charge.      The ICA then held that “there was

sufficient evidence to support the district court’s finding that

Bowman did not reasonably remove the spilled produce and,

therefore, did not avail himself of the subsection (c) defense to

his subsection (a) charge.”      In response to Bowman’s contention


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that the State failed to present any evidence that Bowman was the

owner of the vehicle or that it was reasonable for Bowman to

remove the cabbage, the ICA stated the following:
            Because subsection (c) constitutes a defense, Bowman carried
            the burden of production to produce evidence in support of
            his subsection (c) defense. Thus, any failure to present
            evidence as to one of the elements of subsection (c) is
            fatal to Bowman’s defense and not the State’s case-in-chief.
                  There was sufficient evidence to support Bowman’s
            conviction. The district court did not make a ruling as to
            whether Bowman satisfied the “owner” requirement of
            subsection (c), as defined under HRS § 291C-1 (2007 Repl.).
            Instead, the district court determined that Bowman’s
            subsection (c) defense failed because Bowman failed to
            reasonably remove the spilled produce.
                  During his trial, Bowman testified that when he
            returned to the location where he spilled his cabbage
            trimmings three to four hours after receiving his citation,
            he “did not see any of [the trimmings]” on the road and felt
            that “risk of life and limb, running onto the road, grabbing
            three or four leaves of cabbage as opposed to letting it
            decompose naturally [did] not sound reasonable . . . .” In
            response, the district court found that Bowman did not act
            reasonably when he “just left [the trimmings] on the road.”
            The district court reasoned that “had [Bowman] gone and
            picked it up, [he] would have been acquitted of this
            charge.”

In a footnote, the ICA noted that because it “affirm[ed] the

district court’s determination that Bowman did not provide for

the reasonable removal of the spilled produce, [it] need not

determine whether Bowman produced evidence as to the “owner” of

the vehicle so to overcome his burden of production.”

                        III.    STANDARDS OF REVIEW

A.    Statutory Interpretation

                  The interpretation of a statute is a question of law
            that we review de novo. Similarly, a trial court's
            conclusions of law are reviewable de novo under the
            right/wrong standard. Under the de novo standard, [the
            appellate] court must examine the facts and answer the
            pertinent question of law without being required to give any
            weight or deference to the trial court's answer to the

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            question. In other words, we are free to review a trial
            court's conclusion of law for its correctness.

State v. Kelekolio, 94 Hawai#i 354, 356, 14 P.3d 364, 366 (App.

2000) (citations omitted).

            This court has repeatedly stated that, when

interpreting a statute, an appellate court’s
            foremost obligation is to ascertain and give effect to the
            intention of the legislature, which is to be obtained
            primarily from the language contained in the statute itself.
            And where the language of the statute is plain and
            unambiguous, [a court's] only duty is to give effect to [the
            statute's] plain and obvious meaning.

State v. Wells, 78 Hawai#i 373, 376, 894 P.2d 70, 73 (1995)

(internal quotation marks, citations, and brackets in original

omitted).    Accordingly,
            we must read statutory language in the context of the entire
            statute and construe it in a manner consistent with its
            purpose.

            When there is doubt, doubleness of meaning, or
            indistinctiveness or uncertainty of an expression used in a
            statute, an ambiguity exists[.]

            In construing an ambiguous statute, the meaning of the
            ambiguous words may be sought by examining the context, with
            which the ambiguous words, phrases, and sentences may be
            compared, in order to ascertain their true meaning.
            Moreover, the courts may resort to extrinsic aids in
            determining legislative intent. One avenue is the use of
            legislative history as an interpretive tool.

            [The appellate] court may also consider the reason and
            spirit of the law, and the cause which induced the
            legislature to enact it to discover its true meaning. Laws
            in pari materia, or upon the same subject matter, shall be
            construed with reference to each other. What is clear in
            one statute may be called upon in aid to explain what is
            doubtful in another.

State v. Young, 107 Hawai#i 36, 39-40, 109 P.3d 677, 680-81

(2005) (internal quotation marks, citations, brackets, and


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ellipses in original omitted; formatting altered) (quoting State

v. Kaua, 102 Hawai#i 1, 8, 72 P.3d 473, 480 (2003)).

B.    Sufficiency of the Evidence

                  The standard of review for sufficiency of the evidence
            is well established; namely, whether, upon the evidence
            viewed in the light most favorable to the prosecution and in
            full recognition of the province of the trier of fact, the
            evidence is sufficient to support a prima facie case so that
            a reasonable mind might fairly conclude guilt beyond a
            reasonable doubt. Sufficient evidence to support a prima
            facie case requires substantial evidence as to every
            material element of the offense charged. Substantial
            evidence as to every material element of the offense charged
            is credible evidence which is of sufficient quality and
            probative value to enable a person of reasonable caution to
            support a conclusion. Under such a review, we give full play
            to the right of the fact finder to determine credibility,
            weigh the evidence, and draw justifiable inferences of fact.

State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34 (App. 2005)

(formatting altered) (quoting State v. Ferrer, 95 Hawai#i 409,

422, 23 P.3d 744, 757 (App. 2001)).

                              IV.   DISCUSSION

            There are two issues before this court.           The first is

whether the ICA erred when it concluded that evidence needed to

be presented as to every element of the defense in order for

Bowman to carry his burden of production.           The second is whether

the ICA erred when it upheld the district court’s ruling that the

prosecution met its burden of proof in negating the elements of

Bowman’s defense.




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A.    The ICA did not err in holding that evidence needed to be
      adduced as to every element of the defense in order for
      Bowman to carry his burden of production.

            In his application for writ of certiorari, Bowman

argues that because HRS § 291C-131(c) is a non-affirmative

defense, pursuant to State v. Stocker, 90 Hawai#i 85, 976 P.2d

399 (1999), he only needed to put forth some evidence, no matter

how weak or inconclusive, in order to meet his burden of

production.     Bowman argues that the ICA gravely erred when it

stated that a failure “to present evidence as to one of the

elements in subsection (c) is fatal to Bowman’s defense and not

the State’s case-in-chief” because this court “has never required

the defendant to provide evidence for each and every element of a

defense as part of its burden of production.”

            In its response brief, the State argues that the ICA

did not gravely err because it did not heighten the defendant’s

burden of production but simply pointed out that “if a defense

has certain elements, Defendant has the initial burden to produce

that evidence - no matter how weak, inconclusive, or

unsatisfactory - that places a defense in issue.”             The State also

notes that in Stocker, this court addressed the parental

discipline defense and identified the specific elements of the

defense that a defendant needed to produce.            The State argues

that “[t]hus, this Court has essentially ruled that a defendant

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bears the initial burden to produce some evidence of each element

of a defense before the burden shifts to the prosecution to

disprove a defense beyond a reasonable doubt.”

            Bowman’s argument that this court “has never required

the defendant to provide evidence for each and every element of a

defense” is unsupported.      Although the defendant is not required

to provide evidence for each and every element of a defense, the

record must contain some evidence thereof.         For example, in

Stocker, the defendant was charged with harassment for slapping

his son and claimed that his actions were justified by the

parental discipline defense under HRS § 703-309(1) (1993), which

states in relevant part:

          Use of force by persons with special responsibility for
          care, discipline, or safety of others. The use of force
          upon or toward the person of another is justifiable under
          the following circumstances:

                (1) The actor is the parent or guardian or other
                person similarly responsible for the general care and
                supervision of a minor, or a person acting at the
                request of the parent, guardian, or other responsible
                person, and:

                      (a) The force is employed with due regard for
                      the age and size of the minor and is reasonably
                      related to the purpose of safeguarding or
                      promoting the welfare of the minor, including
                      the prevention or punishment of the minor’s
                      misconduct[.]

This court then stated that the parental discipline defense was

          available to Stocker so long as some evidence was adduced,
          no matter how weak, inconclusive, or unsatisfactory it might
          be . . . which was probative of the facts that (1) Stocker
          had parental authority over [the child], . . . (2) the force
          at issue was employed with due regard for the age and size


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            of the minor, . . . and (3) the force was reasonably
            proportional to the misconduct being punished and reasonably
            believed necessary to protect the welfare of the
            recipient[.]

90 Hawai#i at 95, 976 P.2d at 409 (internal quotation marks and

citations omitted) (emphasis in original).           Therefore, this court

required that there be some kind of evidence adduced as to every

element of the defense before the State was required to disprove

the defense beyond a reasonable doubt.           See also State v.

Crouser, 81 Hawai#i 5, 10, 911 P.2d 725, 730 (1996) (“Crouser was

charged with abuse of a family or household member, in violation

of HRS § 709-906. . . . To invoke the defense of justification

under HRS § 703-309, Crouser was required to make a showing that

the record contained evidence supporting the following elements .

. .”) (emphasis added).

            Thus, while Bowman was only required to make a showing

that the record contained some evidence, no matter how weak or

inconclusive, evidence needed to be adduced as to every element

of the defense.      The ICA did not err or deviate from the burden

of production standard when it held that the failure to present

evidence as to one of the elements of the defense would be fatal

to Bowman’s case.

B.    The ICA erred when it affirmed the district court’s holding
      that the prosecution met its burden of proof.

            Although Bowman was required to make a showing that the


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record contained some evidence as to every element of the defense

under HRS § 291C-131(c), the question still remains as to whether

the ICA gravely erred by upholding the district court’s ruling

that the prosecution met its burden of proof.          Bowman argues that

the district court failed to shift the burden onto the

prosecution to disprove that his conduct was reasonable once he

met the burden of production.

          The defense under subsection (c) can be broken down

into four basic parts:     1) vehicle carrying agricultural produce,

2) from fields, 3) during harvesting, and 4) owner of the vehicle

must provide for the reasonable removal of all such produce

spilled or dropped on the highway.        As stated above, Bowman

simply needed to put forth some evidence as to every element of

the defense to meet the burden of production.          Bowman

specifically testified that:      1) he was a farmer, and his truck

was carrying cabbages; 2) he was coming from his field; and 3) he

had just harvested his cabbages.         As for the fourth element, even

though there was no direct evidence from either witness as to

whether Bowman was the owner of the vehicle, Bowman was the

driver of the truck, he was carrying his own cabbages, and he

raised this particular defense.       Therefore, there seems to be

some circumstantial evidence that Bowman was the owner of the




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vehicle.2

            The difficult issue is whether Bowman provided for the

reasonable removal of the cabbages spilled on the highway.

Based on the transcript of the bench trial, it is difficult to

determine whether the district court found that Bowman met his

burden of production as to this element.          After Officer Fuiava

and Bowman testified, the court stated:
            Section 291C-131(c) applies to you’re exempt as far as the
            requirement from storing these items as stated by covering
            your load basically, if you have any type of canvas or
            anything like that. That’s what the exemption is.

                  Now, in this case the next step that the Court would
            ask is whether or not you reasonably removed all of these
            products that were spilled or dropped on the highway, and in
            this case the Court will find that you didn’t. You just
            left it on the road. So had you gone and picked it up, you
            would have been acquitted of this charge.

            . . .

                  That’s what the law is. You’re pretty much except
            [sic] from having to cover this load, but if it falls,
            you’re going to have to go and pick it up.

It is unclear whether the district court made these statements in

finding:    1) that Bowman had not met the burden of production on

this element because the statute required that he make some kind


     2
            Additionally, despite the wording of subsection (c), it appears
that the driver of a vehicle could benefit from this defense based on the
penalty provision in the statute that includes “driver.”   See HRS § 291C-
131(g) (providing that “[v]iolation of this section shall be considered an
offense . . . and shall subject the owner or driver of the vehicle, or both,
to the following penalties”) (emphasis added). Because both the owner and/or
the driver of the vehicle can be subject to penalties for violating this
statute, it follows that a driver of the vehicle could also qualify for the
defense. It is undisputed that Bowman was driving the vehicle. Thus, Bowman
qualifies for this defense without having to adduce evidence that he was the
owner of the vehicle.

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of removal and he did not and, therefore, the defense did not

apply, or 2) that Bowman met the burden of production but the

State disproved it beyond a reasonable doubt because, in this

case, it would have been reasonable for Bowman to remove the

cabbage.   We address both of these possibilities in turn.

           1.    Bowman met his burden of production on this
                 element because we understand HRS § 291C-131(c) to
                 require removal only when reasonable.

           First, the district court appears to have interpreted

HRS § 291C-131(c) to require that some kind of removal of spilled

produce be performed in every case before the defense could be

raised.    This is evidenced by the court’s comment that if Bowman

had “gone and picked [the trimmings] up, [he] would have been

acquitted of this charge.”      However, there seems to be at least

two understandings of “reasonable removal of all such produce

spilled or dropped.”     The first, adopted by the district court

and the ICA, is that there must be removal of some kind, but it

need only be to an extent that is reasonable.          The second, as

proposed by Bowman, is that the phrase means that removal is only

necessary when it is reasonable.

           We believe that the district court’s interpretation of

“reasonable removal” is too narrow, and are persuaded by Bowman’s

argument that it was unreasonable for Bowman to risk “life and

limb” on a busy highway in order to pick up cabbage trimmings,

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especially if the trimmings posed no threat to the safety of

other motorists and would naturally decompose on their own.             This

interpretation of the statutory language is supported by its

legislative history.

          As the ICA notes, the purpose of HRS § 291C-131 was to

“prevent the spilling of loads from vehicles on highways” because

“vehicles with uncovered cargo are . . . posing potential traffic

hazards and damage to other vehicles.”         H. Stand. Comm. Rep. No.

346-76, in 1976 House Journal, at 1431.         Thus, the main stimulus

behind this legislation appears to be the “potential traffic

hazards” posed by uncovered loads.

          Subsection (c) of this statute provides an exemption to

the general requirement for vehicles transporting cargo, allowing

vehicles carrying agricultural produce from fields to travel

uncovered as long as there is a reasonable removal of spilled

produce from the highway.      This subsection was enacted so as not

to “cause great hardship to the agricultural industry” and

specifically “the Hawai#i sugar industry.”         S. Stand. Comm. Rep.

No. 308, in 1977 Senate Journal, at 986-87.          One logical

conclusion that can be drawn from this commentary is that

subsection (c) was added so that the sugar industry could

transport uncovered sugar cane stalks from the fields after

harvest as long as the industry provided “reasonable removal” of


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the stalks that fell off the trucks in order to prevent

“potential traffic hazards and damage to other vehicles.”

          Here, Bowman’s cabbage trimmings are arguably not

potential traffic hazards, especially when compared with the

sugar cane stalks originally contemplated under this statute.

And while it would be reasonable to remove sugar cane stalks from

a highway in order to prevent an accident or vehicle damage, it

might not be reasonable to remove cabbage trimmings, especially

if the attempted removal is on a busy highway and is itself risky

for both the person attempting the removal and the motorists

driving on the highway.

          For these reasons, we hold that “reasonable removal”

means that removal of spilled produce is only necessary when

reasonable.   Such factors as the type and amount of agricultural

produce spilled, the danger of the spilled produce to motorists

traveling on the highway, and the risk to the person removing the

produce should be considered when determining whether removal is

reasonable.

          Based on this understanding of the meaning of

“reasonable removal,” the next step is to determine whether

Bowman produced some evidence as to this element to satisfy his

burden of production.     Bowman testified that he could not have

spilled more than two pounds of cabbage, or approximately twenty


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leaves, and that when he returned to the highway between two and

three hours later, he did not see any of it.          He also testified

that he did not think it was reasonable to go onto the road and

risk life and limb in order to recover cabbage leaves instead of

letting them decompose naturally.        Therefore, Bowman adduced some

evidence that he did not need to pick up the cabbage trimmings

because it would not have been reasonable, and by allowing the

cabbage to decompose naturally, he did provide for reasonable

removal.

            As such, Bowman met his burden of production under

HRS § 291C-131(c) to show “reasonable removal.”          To the extent

that the district court and the ICA held otherwise, they erred.

            2.   The evidence does not support a finding that the
                 State disproved Bowman’s defense beyond a
                 reasonable doubt.

            Second, if the district court found that the defense

could be raised even when there was no removal, but nonetheless

found that the State had disproved the defense beyond a

reasonable doubt, this finding is not supported by substantial

evidence.

            As Bowman has contended, the State did not present

additional evidence after Bowman testified that he did not think

it was reasonable to risk life or limb in order to pick up

cabbage trimmings that decomposed naturally.          The State did not


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re-call Officer Fuiava to describe whether the highway was busy

or empty at the time of the citation.         Nor did the State

introduce any other evidence that would disprove Bowman’s claim

that it would not have been reasonable to go back and remove the

cabbage trimmings.      Therefore, absent any evidence of that

nature, and without more specific findings by the district court

on the record, it does not appear that the State carried its

burden of disproving the defense beyond a reasonable doubt.

            Therefore, even though it is difficult to determine if

the district court based its holding on a determination that

Bowman did not meet his burden of production or on a

determination that the State carried its burden of disproving

Bowman’s defense, the ultimate result is that the district court

erred under either possibility.        For this reason, we reverse the

ICA and the district court’s holding that there was sufficient

evidence to support Bowman’s conviction.3

                              V.   CONCLUSION

            In sum, we conclude that under HRS § 291C-131(c),

“reasonable removal” should be interpreted to mean that removal

of spilled agricultural produce on a highway is only necessary

when the removal is reasonable.        Because Bowman adduced some



      3
            As a result of this holding, Bowman is entitled to a refund of
$257 in fines paid.

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evidence to show that his removal of cabbage trimmings from the

highway would have been unreasonable, and because the State did

not produce evidence disproving this defense beyond a reasonable

doubt, we hold that the ICA erred in affirming the district

court’s determination that there was sufficient evidence to

convict Bowman under HRS § 291C-131.        For these reasons, the

ICA’s judgment on appeal, which affirmed the district court’s

judgment of conviction, is reversed.

Benjamin E. Lowenthal                 /s/ Mark E. Recktenwald
and Jo Kim for petitioner
                                      /s/ Paula A. Nakayama
Dale Y. Ross
for respondent                        /s/ Sabrina S. McKenna

                                      /s/ Richard W. Pollack

                                      /s/ Michael D. Wilson




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