State v. Sher

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUN-2020
08:09 AM

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellant,
v.
CYNTHIA L. SHER, Defendant-Appellee

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CR. NO. 3FFC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Plaintiff-Appellant State of Hawai#i (State) appeals
from the "Order Granting Defendant's Motion to Dismiss For Penal
Summons Issued Absent Probable Cause Supported By Oath or
Affirmation, Complaint Lacking Supporting Affidavit, and Improper
Arraignment" (Dismissal Order), entered on July 11, 2017, by the
Family Court of the Third Circuit (Family Court).1 The Dismissal
Order dismissed the Complaint against Defendant-Appellee Cynthia
L. Sher (Sher) without prejudice.
On February 13, 2017, the State filed the Complaint
charging Sher with Abuse of a Family or Household Member, in

1
The Honorable Aley K. Auna presided.
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violation of Hawaii Revised Statutes (HRS) § 709-906(1) (2014 &
Supp. 2019) (Complaint). A penal summons was also issued to
Sher. Following Sher's appearance in court and a subsequent
motion, the Family Court dismissed the Complaint without
prejudice on the grounds that the Complaint was not signed by the
complainant under oath or made by declaration under the rules of
court, in violation of HRS § 805-12 and Hawai#i Rules of Penal
Procedure (HRPP) Rule 5(b)(1).3

2
HRS § 805-1 (2014) provides:
Complaint; form of warrant. When a complaint is
made to any prosecuting officer of the commission of
any offense, the prosecuting officer shall examine the
complainant, shall reduce the substance of the
complaint to writing, and shall cause the complaint to
be subscribed by the complainant under oath, which the
prosecuting officer is hereby authorized to
administer, or the complaint shall be made by
declaration in accordance with the rules of court. If
the original complaint results from the issuance of a
traffic summons or a citation in lieu of an arrest
pursuant to section 803-6, by a police officer, the
oath may be administered by any police officer whose
name has been submitted to the prosecuting officer and
who has been designated by the chief of police to
administer the oath, or the complaint may be submitted
by declaration in accordance with the rules of court.
Upon presentation of the written complaint to the
judge in whose circuit the offense allegedly has been
committed, the judge shall issue a warrant, reciting
the complaint and requiring the sheriff, or other
officer to whom it is directed, except as provided in
section 805-3, to arrest the accused and to bring the
accused before the judge to be dealt with according to
law; and in the same warrant the judge may require the
officer to summon such witnesses as are named in the
warrant to appear and give evidence at the trial. The
warrant may be in the form established by the usage
and practice of the issuing court.
3
HRPP Rule 5(b)(1) provides, in relevant part:
ARRAIGNMENT. In the district court, if the
offense charged against the defendant is other than a
felony, the complaint shall be filed and proceedings
shall be had in accordance with this section (b). A
copy of the complaint, including any affidavits in
support thereof, and a copy of the appropriate order,
if any, shall be furnished to the defendant. . . .
When the offense is charged by complaint, arraignment
shall be in open court, or by video conference when
permitted by Rule 43. The arraignment shall consist
of the reading of the complaint to the defendant and
(continued...)

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The State contends that the Family Court erred in
dismissing the Complaint on the stated grounds. The State argues
that: (1) the Complaint complied with HRS § 805-1 and HRPP Rule 7
because it was signed by the prosecutor;4 (2) an affidavit in
support of the Complaint was not required under HRPP Rule
5(b)(1); and (3) a penal summons is distinguishable from a
warrant, as a penal summons does not require a probable cause
determination in accordance with HRPP Rules 5 and 9.5
Upon careful review of the record and briefs submitted
by the parties and having given due consideration to the
arguments and issues they raise, as well as the relevant legal

3
(...continued)
calling upon the defendant to plead thereto. . . . The
defendant may waive the reading of the complaint . . .
at arraignment . . . . In addition to the
requirements of Rule 10(e), the court shall, in
appropriate cases, inform the defendant of the right
to jury trial in the circuit court and that the
defendant may elect to be tried without a jury in the
district court.
4
HRPP Rule 7(d) provides, in relevant part:

Nature and contents. The charge shall be a
plain, concise and definite statement of the essential
facts constituting the offense charged. . . . A
complaint shall be signed by the prosecutor. The
charge need not contain a formal conclusion or any
other matter not necessary to such statement. . . .
Formal defects . . . shall not be ground for dismissal
of the charge or for reversal of a conviction if the
defect did not prejudice the defendant.
5
HRPP Rule 9(a) provides, in relevant part:
(1) SUMMONS. Upon request of the prosecutor, the
clerk shall issue a summons for a defendant named (i) in the
complaint. . . .
(2) WARRANT. The court may order issuance of a
warrant instead of a summons upon request of the prosecutor;
provided however, that no warrant shall issue: (i) Upon a
complaint unless it appears from the sworn complaint, or
from affidavit(s) or declaration(s) filed with the
complaint, that there is probable cause to believe that an
offense has been committed and that the defendant has
committed it. . . .

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authority, we resolve the State's points of error as follows, and
we vacate and remand.6
Sher argued, and the Family Court ruled, that the
Complaint was fatally defective under HRS § 805-1 because it was
not signed by the complainant under oath or made by declaration
in accordance with the rules of court. The State argues that the
Complaint complied with HRS § 805-1 and HRPP Rule 7(d) because it
was signed by the prosecutor. This court recently examined this
issue in State v. Thompson, No. CAAP-XX-XXXXXXX, 2020 WL 1970772
(Hawai#i App. Apr. 24, 2020). In Thompson, we considered the
legislative intent of HRS § 805-1 and concluded the Family Court
erred in dismissing the complaint on the ground that it was
neither signed by the complainant under oath nor made by
declaration in accordance with the rules of court. Id. at *4-6.
This case has nearly identical facts as Thompson.
Here, as in Thompson, it is undisputed that Sher was
served a copy of the Complaint and a penal summons, and appeared
at Family Court for arraignment. It is undisputed that the
Complaint was not subscribed by a complainant under oath.
However, as in Thompson, we conclude the Family Court erred by
dismissing the Complaint on the ground that it was neither signed
by the complainant under oath nor made by declaration in
accordance with the rules of court. As Thompson held, a
complaint is not fatally defective where there was no arrest
warrant issued and the complaint was signed by the prosecutor in

6
As raised by Sher in her answering brief, the State's opening brief
is deficient in regard to the requirements of Rule 28 of the Hawai #i Rules of
Appellate Procedure (HRAP). The State failed to identify the allegedly
erroneous finding or conclusion of the Family Court in its points of error,
and failed to provide citations to the record relied upon in the argument, in
accordance with HRAP Rule 28(b)(4)(C) and 28(b)(7), respectively. In
addition, the State appended the incorrect order for an unrelated case instead
of the Dismissal Order at issue in its appeal. However, Hawai #i appellate
courts seek to address appeals on the merits to the extent that we can discern
the arguments raised. See Marvin v. Pflueger, 127 Hawai #i 490, 496, 280 P.3d
88, 94 (2012).

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compliance with HRPP Rule 7(d). See Thompson, 2020 WL 1970772,
at *5-6.
It is also undisputed that no affidavits or
declarations in support of the Complaint were provided to Sher at
arraignment. Again, as in Thompson, the Complaint was not the
basis for an arrest warrant and no arrest warrant was issued.
Neither HRPP Rule 5(b)(1) nor HRPP Rule 9 required the State to
furnish Sher with an affidavit under the circumstances. The
Family Court erred in dismissing the Complaint on the ground that
no supporting affidavit was provided to Sher at the time of her
arraignment. See Thompson, 2020 WL 1970772, at *7.
Finally, the State argues that the Family Court erred
in dismissing this case for lack of a probable cause
determination and for considering a penal summons case similar to
a case where an arrest warrant was issued. As discussed in
Thompson, HRPP Rule 9(a) distinguishes a penal summons from an
arrest warrant and requires a probable cause showing for issuance
of a warrant, but not for issuance of a penal summons. Thompson,
2020 WL 1970772, at *7 (noting the complaint was not the basis
for an arrest warrant, and no arrest warrant was issued). Here,
Sher was issued a penal summons, and not an arrest warrant.
Hence, as in Thompson, we conclude the Family Court erred in
dismissing the case for lack of a probable cause determination
when none was required.7
Therefore, we vacate the "Order Granting Defendant's
Motion to Dismiss For Penal Summons Issued Absent Probable Cause
Supported By Oath or Affirmation, Complaint Lacking Supporting
Affidavit, and Improper Arraignment," entered on July 11, 2017,

7
We note that the penal summons in this case states, in part: "If you
fail to appear, a warrant of arrest shall be issued for you." In making their
arguments on appeal, neither party relies on or references this language in
the penal summons. Moreover, the record reflects that no arrest was made and
no warrant was issued. We therefore do not address any issue regarding this
language in the penal summons.

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by the Family Court of the Third Circuit. We remand this case
for proceedings consistent with this order.
DATED: Honolulu, Hawai#i, June 29, 2020.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Charles E. Murray, III,
Deputy Prosecuting Attorney, /s/ Katherine G. Leonard
for Plaintiff-Appellee. Associate Judge

Phyllis J. Hironaka, /s/ Clyde J. Wadsworth
Deputy Public Defender, Associate Judge
for Defendant-Appellee.

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