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Electronically Filed
Supreme Court
SCWC-11-0000540
27-DEC-2013
11:39 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Petitioner/Plaintiff-Appellant,
vs.
MARIANNE L. CODIAMAT,
Respondent/Defendant-Appellee.
SCWC-11-0000540
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000540; CASE NO. 1P311-00173/REP. NO. 11008255)
DECEMBER 27, 2013
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ.,
WITH ACOBA, J., DISSENTING, WITH WHOM POLLACK, J., JOINS
OPINION OF THE COURT BY NAKAYAMA, J.
Petitioner/Plaintiff-Appellant State of Hawai#i (State)
asks us to consider whether its complaint against
Respondent/Defendant-Appellee Marianne L. Codiamat (Codiamat)
provided sufficient notice to Codiamat of the charged offense to
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meet the constitutional requirements of due process. The State’s
complaint charged Codiamat with harassment, in violation of
Hawai#i Revised Statutes (HRS) § 711-1106(1)(a) (Supp. 2010).1
Before the commencement of trial, the District Court of the First
Circuit (district court)2 granted Codiamat’s motion to dismiss
the State’s complaint on the ground that it left the defendant
unsure of what offense was charged because it was pleaded in the
disjunctive using the conjunction “or.”
On application for writ of certiorari to this court,
the State argues: (1) that the Intermediate Court of Appeals
(ICA) erred in affirming the dismissal because the State did not
charge non-synonymous alternative means disjunctively; (2) that
the ICA’s dismissal is inconsistent with Hawai#i precedent
allowing some use of the disjunctive in charging documents; and
(3) that Hawai#i precedent limiting the use of disjunctive
charging should be overturned.
We hold that the complaint in this case met due process
requirements, regardless of whether one concludes that the
1
On the date of the alleged incident, as it does now, HRS § 711-
1106(1)(a) defined harassment as follows:
(1) A person commits the offense of harassment if, with
intent to harass, annoy, or alarm any other person, that
person:
(a) Strikes, shoves, kicks, or otherwise touches
another person in an offensive manner or subjects the
other person to offensive physical contact[.]
2
The Honorable Clarence A. Pacarro presided.
2
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disjunctively charged acts were synonymous or non-synonymous.
Therefore, it is unnecessary for us to reach the question of
whether the acts charged disjunctively were synonymous. The acts
charged disjunctively were contained within a single subsection
of a statute and were reasonably related so that the complaint
sufficiently apprised the defendant of the nature of the charged
acts and allowed the defendant to prepare a defense.
We vacate the judgment of the ICA affirming the
district court’s notice of entry of judgment and/or order and
remand this case to the district court for further proceedings.
I. BACKGROUND
On January 24, 2011, the State charged Codiamat with
harassment in violation of HRS § 711-1106(1)(a).3 The complaint
stated:
On or about the 6th day of January, 2011, in the City and
County of Honolulu, State of Hawaii, MARIANNE L. CODIAMAT,
with intent to harass, annoy, or alarm [Complainant], did
strike, shove, kick, or otherwise touch [Complainant] in an
3
The Dissent asserts that the State conceded that “only the
‘[s]trikes, shoves, kicks, or otherwise touches another person in an offensive
manner’ portion of HRS § 711-1106(1)(a) will be tried in this case” and
therefore “the reference to ‘subjects the other person to offensive physical
contact’ in the charge . . . has no relevance at all for pleading, trial, or
appeal purposes.” Dissenting Opinion at 4 (emphasis in original). In its
application for writ of certiorari, the State asserts that, “[it] is neither
alleging nor proving that [Codiamat] committed the same offense in two
entirely different ways, because the only act being charged here is an
offensive touching of another person.” However, the State’s admission must be
read in the context of its continuing assertion that “the charge’s words of
‘touch[ing Complainant] in an offensive manner’ are factually synonymous with
the words ‘subject[ing Complainant] to offensive physical contact.’”
Although the State maintains that it is only charging the defendant with
committing a single act, this act’s nature and breadth are unclear.
3
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offensive manner or subject [Complainant] to offensive
physical contact, thereby committing the offense of
Harassment, in violation of Section 711-1106(1)(a) of the
Hawaii Revised Statutes.
(Emphasis added).
On June 15, 2011, at a pretrial hearing, Codiamat
orally moved to dismiss the complaint based on State v. McCarthy,
No. 29701, 2010 WL 3433722 (App. Aug. 31, 2010) (mem. op.),4
arguing that the disjunctive wording in the complaint made it
difficult to prepare a defense.5 Over the State’s objection, the
district court granted Codiamat’s motion and dismissed the
complaint without prejudice.
On appeal to the ICA, the State argued that McCarthy
only prohibits charging in the disjunctive when the acts, or the
results of the acts, charged disjunctively are non-synonymous.
It maintained that the acts described in Codiamat’s complaint –-
“strike, shove, kick, or otherwise touch in an offensive manner
or subject to offensive physical contact” –- are simply multiple
descriptions of “an offensive touching.” The State reasoned that
the disjunctive charging did not deprive Codiamat of fair notice
because the disjunctive was only used to link synonymous words.
In her answering brief, Codiamat argued that the
4
See infra Part III. A. 1 (discussing McCarthy).
5
Defense counsel stated that the State had recently filed amended
complaints in the majority of its pending harassment cases to comply with
McCarthy and that the State had not taken the opportunity to do so here.
4
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reasoning in McCarthy applied here to prohibit disjunctive
charging. Specifically, Codiamat argued that (1) strike, (2)
shove, (3) kick, (4) otherwise touch in an offensive manner, and
(5) subject to offensive physical contact each have a distinct
meaning. Codiamat concluded that by charging these acts
disjunctively, “[She] was not given proper notice of what she was
actually being charged with doing.”6
The ICA affirmed the district court’s judgment,
concluding that “[b]ecause the charge was pleaded in the
disjunctive, it did not sufficiently apprise Codiamat of what she
must be prepared to meet.” See State v. Codiamat, No. CAAP-11-
0000540, 2012 WL 3113898, at *1 (App. July 31, 2012) (SDO). The
ICA first established that “touching another person in an
offensive manner” is not synonymous with “subjecting the other
person to offensive physical contact.” Id. at *1-2. Relying
upon its earlier holding in State v. Pesentheiner, 95 Hawai#i
290, 22 P.3d 86 (App. 2001), the ICA clarified that
“‘subject[ing] the other person to offensive physical contact’”
has a separate meaning from offensive touching, namely, “‘contact
with an item physically appurtenant to the body.’” Id. at *2
(quoting Pesentheiner, 95 Hawai#i at 294-95, 22 P.3d at 90-91).
The ICA then cited State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242
6
Codiamat also alleges that the complaint lacked sufficient details
regarding the factual allegations of the alleged incident.
5
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(1977), for the principal that “‘[w]here a statute specifies
several ways in which its violation may occur, the charge may be
laid in the conjunctive but not in the disjunctive.’” Id. at *2-
3 (quoting Jendrusch, 58 Haw. at 283 n.4, 567 P.2d at 1245 n.4).
The ICA therefore concluded that the disjunctive phrasing in the
complaint constituted a fatal defect and held that the district
court did not err in dismissing the case without prejudice. Id.
at *3.
Chief Judge Nakamura filed a concurring opinion in
which he argued that the “Jendrusch rule[7] cannot withstand
rational scrutiny.” Id. at *4 (Nakamura, C.J., concurring). He
contended that charging in the conjunctive provides no greater
notice to the defendant than charging in the disjunctive,
explaining that “[b]ecause the State can establish the harassment
offense against Codiamat by proving either of the charged
alternative means of committing the offense, charging her in the
disjunctive clearly provided her with fair notice of the
accusation and what she was required to meet.” Id. at *4. Chief
Judge Nakamura opined that he believed this court should re-
examine and overturn its precedent limiting the use of
7
The term “Jendrusch rule” was first used by Chief Judge Nakamura
in this concurring opinion. He noted that “[a]lthough the Jendrusch footnote
is arguably dicta, it has been cited with approval in other cases by the
Hawai#i Supreme Court.” Codiamat, 2012 WL 3113898, at *4 n.1 (Nakamura, C.J.,
concurring).
6
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disjunctive pleading. Id. at *5-6.
Codiamat timely filed an application for writ of
certiorari on September 7, 2012. This court accepted Codiamat’s
application on October 22, 2012, and oral argument was heard on
November 29, 2012.
II. STANDARD OF REVIEW
A. Sufficiency of a Complaint
The issue of whether a complaint provides sufficient
notice to a defendant is reviewed under the de novo, or
right/wrong, standard. State v. Merino, 81 Hawai#i 198, 212, 915
P.2d 672, 686 (1996).
III. DISCUSSION
A. The complaint was sufficient to meet the requirements of due
process
Hawai#i takes a nontechnical approach to pleading
standards. The Sixth Amendment to the United States Constitution
and article I, section 14 of the Hawai#i Constitution mandate
that a “charge must be worded in a manner such that the nature
and cause of the accusation could be understood by a person of
common understanding.” State v. Sprattling, 99 Hawai#i 312, 318,
55 P.3d 276, 282 (2002) (internal quotation marks and alterations
omitted) (quoting State v. Israel, 78 Hawai#i 66, 71, 890 P.2d
303, 308 (1995)). The complaint must “inform[] the accused
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‘fully’ of the nature and cause of the accusation against him or
her, and sufficiently appris[e] the defendant of what he or she
must be prepared to meet to defend against the charges.” State
v. Nesmith, 127 Hawai#i 48, 66, 276 P.3d 617, 635 (2012) (Acoba,
J., concurring and dissenting).
1. Hawai#i precedent regarding disjunctive charging
Hawai#i courts have never enforced a strict rule
against charging in the disjunctive. “The rule against
disjunctive allegations has been modified and relaxed in Hawaii
in cases of offenses which are ‘constituted of one or more of
several acts or which may be committed by one or more of several
means or with one or more of several intents or which may produce
one or more of several results.’” Territory v. Tamashiro, 37
Haw. 552, 553 (1947) (quoting Revised Laws of Hawai#i (RLH) §
10804 (1945)).
In Jendrusch, the first modern case in which this court
addressed the issue of disjunctive charging, the defendant was
charged with disorderly conduct in violation of HRS § 711-
1101(1).8 58 Haw. at 280, 567 P.2d at 1243. The complaint
8
At the time of the alleged incident, HRS § 711-1101 (Supp. 1974)
provided in pertinent part:
“(1) A person commits the offense of disorderly conduct if,
with intent to cause physical inconvenience or alarm by a
member or members of the public, or recklessly creating a
(continued...)
8
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charged the defendant disjunctively with violating subsection
(1)(b) or subsection (1)(c) of the statute.9 Jendrusch, 58 Haw.
at 280, 567 P.2d at 1243-44. The court held that the complaint
was insufficient on other grounds.10 Id. at 282, 567 P.2d at
1245. But, in dicta, the court stated:
The type of conduct proscribed by subsection (1)(b) is not
factually synonymous with that proscribed by subsection
(1)(c). In charging the defendant in the disjunctive rather
than in the conjunctive, it left the defendant uncertain as
to which of the acts charged was being relied upon as the
basis for the accusation against him. Where a statute
specifies several ways in which its violation may occur, the
8
(...continued)
risk thereof, he:
. . . .
(b) Makes unreasonable noise; or
(c) Makes any offensively coarse utterance, gesture,
or display, or addresses abusive language to any
person present, which is likely to provoke a violent
response[.]”
Jendrusch, 58 Haw. at 280, 567 P.2d at 1243 (emphasis omitted) (quoting HRS §
711-1101).
9
The complaint read:
You [Jendrusch] are hereby charged that in the City and
County of Honolulu, State of Hawaii, on or about the 14th
day of September, 1974, with intent to cause public
inconvenience, annoyance or alarm by members of the public
or recklessly creating a risk thereof, you did make
unreasonable noise or offensively coarse utterance, gesture
or display or address abusive language to any person
present, thereby committing the offense of Disorderly
Conduct . . . .
Id. at 280, 567 P.2d at 1243-44 (emphasis omitted; brackets in original).
10
The court held that the complaint failed to charge an offense
because it was drawn from an outdated version of the statute and did not
account for subsequent amendments. Jendrusch, 58 Haw. at 283, 567 P.2d at
1245.
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charge may be laid in the conjunctive but not in the
disjunctive.
Id. at 283 n.4, 567 P.2d at 1245 n.4 (citing Territory v. Lii, 39
Haw. 574 (1952)).
Later cases clarified permissible means of charging a
defendant in the alternative. In an indictment for an offense
that may be committed by a variety of acts, two or more of those
acts may be charged in multiple counts or conjunctively in one
count. See State v. Lemalu, 72 Haw. 130, 134, 809 P.2d 442, 444
(1991) (approving of charging in several counts); see also Lii,
39 Haw. at 578-79 (approving of charging conjunctively in one
count). However, the preferred method for charging an offense
that may be committed in more than one way is to charge in the
conjunctive/disjunctive -- alleging that the defendant committed
the offense in one way and/or in another way. State v. Batson,
73 Haw. 236, 250, 831 P.2d 924, 932 (1992) (citing State v.
Cabral, 8 Haw. App. 506, 510, 810 P.2d 672, 675 (1991)).
These later cases extrapolated a rule from Jendrusch:
“[W]here a statute proscribes an offense that can be committed by
factually alternative types of conduct, ‘the charge may be laid
[out] in the conjunctive but not in the disjunctive.’” Batson,
73 Haw. at 249-50, 831 P.2d at 932 (first brackets added, second
brackets in original) (quoting Lemalu, 72 Haw. at 134, 809 P.2d
10
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at 444); accord Jendrusch, 58 Haw. at 283 n.4, 567 P.2d at 1245
n.4. Though this court quoted the Jendrusch rule in Batson and
Lemalu, we have never relied upon the rule in reaching the
holding of a case.
The ICA previously construed the Jendrusch rule
narrowly, to forbid disjunctive charging only where a defendant
is charged with committing an offense under multiple sections of
a statute. See State v. Freitas, No. 28430, 2010 WL 2862051, at
*3 (App. July 22, 2010) (SDO) (“Jendrusch is inapposite because
[defendant] was not charged with engaging in conduct proscribed
by different sections of [the statute] . . . .”). The ICA’s
decision in McCarthy represented a departure from its earlier
interpretation of the Jendrusch rule.
McCarthy was convicted of harassment in violation of
HRS § 711-1106(1)(b).11 McCarthy, 2010 WL 3433722, at *1. On
appeal, McCarthy alleged that the trial court erred in denying
11
HRS § 711-1106(1)(b) (Supp. 2005) provided then, as it does now:
(1) A person commits the offense of harassment if, with
intent to harass, annoy, or alarm another person, that
person:
. . . .
(b) Insults, taunts, or challenges another person in a
manner likely to provoke an immediate violent response
or that would cause the other person to reasonably
believe that the actor intends to cause bodily injury
to the recipient or another, or damage to the property
of the recipient or another[.]
11
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his motion to dismiss the complaint for lack of specificity. Id.
at *1-2. McCarthy’s complaint read:
On or about the 4th day of October, 2006, in the City and
County of Honolulu, State of Hawaii, KIRK MCCARTHY, with
intent to harass, annoy, or alarm SCOTT AKAU, did insult,
taunt, or challenge SCOTT AKAU in a manner likely to provoke
an immediate violent response or that would cause SCOTT AKAU
to reasonably believe that KIRK MCCARTHY intended to cause
bodily injury to him or another or damage to the property of
SCOTT AKAU or another . . . .
Id. at *1 (emphasis added). Relying upon the Jendrusch rule and
federal pleading standards, the ICA held that “[t]he complaint is
insufficient because it charges the results of the conduct in the
disjunctive (‘or’), rather than in the conjunctive (‘and’).” Id.
at *2 (emphasis added). The court noted that by charging two
non-synonymous results disjunctively -- provoking a violent
response or causing fear of injury -- the defendant was left
uncertain as to which acts were alleged. Id. at *3. The court
also recommended using the conjunctive/disjunctive (“and/or”)
construction established in Batson.12 Id. at *4.
12
Based on the ICA’s use of capital letters to emphasize certain
uses of “or,” it appears that the ICA recommended amending the complaint to
read:
On or about the 4th day of October, 2006, in the City and
County of Honolulu, State of Hawaii, KIRK MCCARTHY, with
intent to harass, annoy, or alarm SCOTT AKAU, did insult,
taunt, or challenge SCOTT AKAU in a manner likely to provoke
an immediate violent response [and/]or that would cause
SCOTT AKAU to reasonably believe that KIRK MCCARTHY intended
to cause bodily injury to him [and/]or another [and/]or
damage to the property of SCOTT AKAU [and/]or
another . . . .
(continued...)
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Despite the ICA’s apparent assertion that disjunctive
charging of non-synonymous acts violates due process, the court
itself was doubtful of this conclusion. In the final footnote of
McCarthy, the ICA stated: “The case law notwithstanding, it is
not clear to us that phrasing the charge in the conjunctive
provides any additional notice over a charge phrased in the
disjunctive.” Id. at *4 n.4.
2. Applying Hawai#i precedent to the complaint here
The ICA relied upon Jendrusch to conclude that because
the complaint against Codiamat charged two forms of non-
synonymous conduct disjunctively, the charge did not provide the
defendant with adequate notice. See Codiamat, 2012 WL 3113898,
at *1-2. As discussed above, the Jendrusch rule suggests that
complaints charging non-synonymous acts disjunctively may not
provide adequate notice. However, a closer examination of
Jendrusch demonstrates that not all uses of the disjunctive, even
when joining non-synonymous acts, constitute a fatal flaw.
12
(...continued)
McCarthy, 2010 WL 3433722, at *1-3. But, the ICA also criticized the “[u]se
of the disjunctive to combine multiple forms of conduct.” Id. at *3 (emphasis
added). It is therefore unclear why the ICA did not, or if it perhaps did,
recommend charging the conduct in the conjunctive/disjunctive as well: insult,
taunt, and/or challenge.
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Jendrusch involved a charge of disorderly conduct under
HRS § 711-1101(1), subsections (b) and (c).13 Jendrusch, 58 Haw.
at 280, 567 P.2d at 1243. The disorderly conduct codified in
subsection (b) is: “unreasonable noise.” HRS § 711-1101(1)(b).
The disorderly conduct codified in subsection (c) is, generally,
rude conduct: “offensively coarse utterance[s], gesture[s], or
display[s], or . . . abusive language . . . likely to provoke a
violent response.” HRS § 711-1101(1)(c). Notably, the acts of
subsection (c) were charged disjunctively as they appear in the
statute -- “mak[ing] offensively coarse utterance, gesture, or
display, or address[ing] abusive language to any person present.”
Jendrusch, 58 Haw. at 280, 567 P.2d at 1243-44 (emphasis added).
The Jendrusch court expressed no concern as to charging these
non-synonymous acts disjunctively. The court stated only that
charging subsection (b) and subsection (c) disjunctively deprived
the defendant of notice.14 Id. at 283, 567 P.2d at 1245.
In this case, the State charged Codiamat under a single
subsection of the harassment statute, HRS § 711-1106(1)(a). The
ICA construed the language of HRS § 711-1106(1)(a) as
13
See supra note 10.
14
From the text of Jendrusch, it is unclear if the use of the
disjunctive was impermissible because it joined acts from two different
subsections of the statute, or if it was impermissible because it joined two
different categories of behavior.
14
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constituting two distinct forms of conduct: direct offensive
touching and indirect offensive contact. But, whether Codiamat
was charged with direct offensive touching or indirect offensive
contact is relatively inconsequential because the actions are
closely related, falling within the same category of behavior.
Because Codiamat was charged with violating only one subsection
of the statute, codifying a single category of harassing
behavior, the complaint does not violate the Jendrusch rule.
B. Hawaii’s disjunctive charging rule strikes the appropriate
balance between ease of administration and protection of
defendants’ rights
The State argues that Hawai#i precedent limiting the
use of disjunctive in charging documents should be reexamined and
overturned. The State adopts Chief Judge Nakamura’s reasoning
from his concurring opinion and argues for “a reasonable
approach.” The State’s argument relies upon the principle that
Hawaii’s courts “interpret a charge as a whole, employing
practical considerations and common sense.” Sprattling, 99
Hawai#i at 318, 55 P.3d at 282.
The State encourages us to adopt Alaska’s approach for
determining the sufficiency of a charge. In Christian v. State,
513 P.2d 664 (Alaska 1973), the Alaska Supreme Court determined
that a complaint provided sufficient notice when it charged the
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defendant with “mak[ing] false statements, conceal[ing] material
facts or otherwise commit[ting] fraud in application for
registration of a vehicle.” 513 P.2d at 667 (emphasis added).
The Christian court explained that “under modern principles of
criminal procedure an indictment should not be construed
hypertechnically in an effort to find fatal flaws when, by a
reasonable approach, it can be read as fulfilling the basic
criteria of sufficiency.” Id. It reasoned that the charge
provided fair notice to the defendant where it “named the
defendant, gave the date and place of the offense, stated the
essential elements of the offense, cited the precise number of
the certificate of title, and named several methods by which the
offense was perpetrated.” Id.
Codiamat disagrees, arguing that disjunctive pleading
does not provide adequate notice to the defendant. She claims
that the disjunctively worded complaint left her unsure of how to
prepare a defense.15 Codiamat takes issue with Chief Judge
15
In its reply to Codiamat’s response, the State contends that the
procedural history of the case demonstrates that Codiamat was not hindered in
preparing her defense. The State notes that at the first trial setting for
this case, Codiamat “objected to the State’s request for a continuance
ostensibly because she was ready to proceed to trial.” This theorizing is
irrelevant. The standard for evaluating the sufficiency of a complaint
challenged before trial is “whether the nature and cause of the accusation
could be understood by a person of common understanding,” not whether the
defendant understood the accusation. Sprattling, 99 Hawai#i at 318, 55 P.3d
at 282 (brackets omitted; emphasis added).
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Nakamura’s conclusion that charging in the conjunctive is
misleading because it suggests that the State must prove both
means charged while in actuality proof of either means will
suffice. Codiamat maintains that charging in the conjunctive
provides notice to the defendant that he or she is accused of
committing the offense by each means charged. At oral argument,
Codiamat also suggested that the most important aspect of notice
is informing the defendant of the nature of the charge, and that
informing the defendant of what is necessary to prepare a defense
is secondary.
We disagree with Codiamat’s weighing of the dual
purposes of notice. It is equally important that the defendant
first, understand the acts with which he or she is charged and
second, be provided with sufficient information to prepare a
defense. We agree, in part, with Chief Judge Nakamura: the use
of the disjunctive may be appropriate when it provides notice to
the defendant that the State may attempt to prove guilt by
showing that the defendant committed any one of multiple related
acts. This alerts the defendant that he or she must be prepared
to defend against each of the charged alternatives. However, the
disjunctive may not provide adequate notice to the defendant when
used to join charges of violations of multiple sections or
subsections of a statute. In these instances, the use of the
17
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disjunctive may confuse the defendant as to the number of
disparate acts with which he or she is charged. This conclusion
is supported by our precedent.
As discussed above, the disjunctive charging rule in
Hawai#i has evolved over time. The earliest Hawai#i precedent
provided that analogous terms, or terms used merely for
illustrative purposes, could be charged disjunctively, but that
all other uses of the disjunctive were impermissible. Kim Ung
Pil, 26 Haw. at 726. By 1947, the rule came to allow some
disjunctive charging of acts, means, intents, and results. See
Tamashiro, 37 Haw. at 553. If dicta from Jendrusch is
interpreted as precedent, then charges brought under separate
sections or subsections of a statute may not be worded
disjunctively. Jendrusch, 58 Haw. at 283 n.4, 567 P.2d at 1245
n.4. However, states of mind may be charged disjunctively. See,
e.g., Batson, 73 Haw. at 248, 831 P.2d at 931 (charging defendant
“intentionally or knowingly”); Jendrusch, 58 Haw. at 280, 567
P.2d at 1243 (charging defendant with “intent to cause public
inconvenience, annoyance or alarm by members of the public or
recklessly creating a risk thereof”). Furthermore, acts may be
charged disjunctively when the words used charge similar or
analogous forms of conduct that are codified in a single
subsection of a statute. See, e.g., Nesmith, 127 Hawai#i at 51,
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276 P.3d at 620 (charging defendant with “operat[ing] or
assum[ing] actual physical control of a vehicle upon a public
way, street, road, or highway while under the influence of
alcohol”); Jendrusch, 58 Haw. at 280, 567 P.2d at 1243-44
(charging defendant with “mak[ing] offensively coarse utterance,
gesture, or display, or address[ing] abusive language to any
person present”).
These principles strike a balance between a more common
sense, less technical, approach to charging while still
protecting defendants’ rights to notice and due process.
IV. CONCLUSION
We hold that when charging a defendant under a single
subsection of a statute, the charge may be worded disjunctively
in the language of the statute as long as the acts charged are
reasonably related so that the charge provides sufficient notice
to the defendant.16 We therefore vacate the ICA’s August 30,
16
This holding does not disturb our earlier precedent that when
charging an offense that may be committed in more than one way, the State may
charge in separate counts, in the conjunctive, or, preferably, in the
conjunctive/disjunctive. See Batson, 73 Haw. at 250, 831 P.2d at 932; Lemalu,
72 Haw. at 134, 809 P.2d at 444; Lii, 39 Haw. at 578-79. Furthermore, while
the State may charge in the alternative, the State may not charge a defendant
with any offense, or any alternative, that is not supported by probable cause.
See Hawai#i Rules of Professional Conduct (HRPC) Rule 3.8(a) (1994) (“A public
prosecutor or other government lawyer shall . . . not institute or cause to be
instituted criminal charges when [the prosecutor or government lawyer] knows
or it is obvious that the charges are not supported by probable cause . . . .”
(brackets in original))
19
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
2012 judgment affirming the district court’s June 15, 2011 notice
of entry of judgment and/or order and remand to the district
court for further proceedings.
Brandon H. Ito /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
James S. Tabe
and Craig W. Jerome /s/ Sabrina S. McKenna
for respondent
20