NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-JUN-2021
08:10 AM
Dkt. 60 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
LUTZ HOFFMAN, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
NORTH AND SOUTH KONA DIVISION
(CASE NO. 3FFC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Lutz Hoffman appeals from the
"Judgment of Conviction and Sentence" entered by the Family Court
of the Third Circuit on May 2, 2019.1 We affirm.
On July 21, 2017, in Hoffman v. Hoffman, FC-DA No. 17-
1-230K, the family court issued a temporary restraining order
(TRO) against Hoffman. The petitioner was Analyn Hoffman (now
known as Analyn Fernandez). The TRO ordered, among other things:
5. Do not visit or approach within 100 yards of any place
where [Analyn] . . . works[.]
Analyn worked at the Safeway in Kona.
Hoffman was served with the TRO on July 27, 2017. On
August 13, 2017, Hoffman went into the Kona Safeway. Analyn saw
him inside the store.
1
The Honorable Melvin H. Fujino presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On February 8, 2018, Hoffman was charged by complaint
with violating the TRO under Hawaii Revised Statutes (HRS) § 586-
4. A jury found him guilty as charged. He was sentenced to one
year in prison.2 This appeal followed.
Hoffman contends: (1) the criminal complaint was
defective; (2) the State did not prove the TRO was in effect on
the date it was allegedly violated; and (3) the violation was
de minimis.
1. The complaint was not defective.
A criminal complaint must allege all of the essential
elements of the offense charged and sufficiently apprise the
defendant of what they must be prepared to meet. State v. Baker,
146 Hawai#i 299, 306, 463 P.3d 956, 963 (2020). "Whether a
charge sets forth all the essential elements of a charged offense
is a question of law, which we review under the de novo, or
right/wrong, standard." Id. at 305, 463 P.3d at 962 (citation
omitted).
Hoffman was charged with violating HRS § 586-4 (Supp.
2016). The statute provides, in relevant part:
(e) When a temporary restraining order is granted
and the respondent or person to be restrained knows of the
order, a knowing or intentional violation of the restraining
order is a misdemeanor.
Hoffman's criminal complaint alleged:
On or about August 13, 2017, in Kona, County and State
of Hawai#i, LUTZ HOFFMAN knowingly or intentionally violated
a temporary restraining order granted pursuant to Chapter
586 of the Hawaii Revised Statutes, said order being issued
in FC-DA No. 17-1-230K, by coming into ANALYN HOFFMAN's
place of work, the Kona Safeway, thereby committing the
offense of Violation of a Temporary Restraining Order, in
violation of Section 586-4, Hawaii Revised Statutes, as
amended.
2
The sentence was stayed pending this appeal.
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The criminal complaint alleged that a temporary
restraining order had been granted and Hoffman knowingly or
intentionally violated it; the allegation of a knowing or
intentional state of mind necessarily includes knowledge of the
TRO, because Hoffman could not have "knowingly or intentionally"
violated the TRO if he did not know of the order. The complaint
alleged all of the essential elements of the offense charged.
The complaint also alleged the offense occurred on
August 13, 2017, when Hoffman went into the Kona Safeway where
Analyn worked. This was sufficient to apprise Hoffman of what he
must be prepared to meet.
Hoffman's contention that the criminal complaint was
defective is without merit.
2. The evidence established the TRO was in
effect on the date of the alleged violation.
The TRO was admitted into evidence as State's
Exhibit 14. The TRO was file-stamped July 21, 2017. The TRO
stated:
Respondent: These orders apply right now to you and anyone
acting for you. Read carefully.
The TRO also stated:
This Order expires on: January 16, 2018[.]
State's Exhibit 3, also admitted into evidence, was the Proof of
Service showing Hoffman was served at 1:05 p.m. on July 27, 2017.
Hoffman was alleged to have violated the TRO on
August 13, 2017, before the expiration date stated on the TRO.
Hoffman's contention that there was no evidence showing the TRO
was in effect on the date of his alleged violation is without
merit.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
3. Hoffman did not argue to the family court
that his violation was de minimis, and there
was no plain error.
Hoffman contends his violation of the TRO was de
minimis and the charge should have been dismissed under HRS
§ 702-236. Had Hoffman raised a de minimis defense under HRS
§ 702-236, the family court's decision would be reviewed for
abuse of discretion. State v. Enos, 147 Hawai#i 150, 159, 465
P.3d 597, 606 (2020). But Hoffman did not make this argument to
the family court. Accordingly, we review for plain error.
We will recognize plain error only "to correct errors
which seriously affect the fairness, integrity, or public
reputation of judicial proceedings, to serve the ends of justice,
and to prevent the denial of fundamental rights." State v.
Miller, 122 Hawai#i 92, 100, 223 P.3d 157, 165 (2010) (cleaned
up).
HRS § 702-236 (2014) provides, in relevant part:
De minimis infractions. (1) The court may dismiss a
prosecution if, having regard to the nature of the conduct
alleged and the nature of the attendant circumstances, it
finds that the defendant's conduct:
(a) Was within a customary license or tolerance,
which was not expressly refused by the person
whose interest was infringed and which is not
inconsistent with the purpose of the law
defining the offense;
(b) Did not actually cause or threaten the harm or
evil sought to be prevented by the law defining
the offense or did so only to an extent too
trivial to warrant the condemnation of
conviction; or
(c) Presents such other extenuations that it cannot
reasonably be regarded as envisaged by the
legislature in forbidding the offense.
"The purpose of a [TRO] is to prevent acts of abuse, or
a recurrence of actual domestic abuse, and assure a period of
separation of the parties involved." State v. Grindling, 96
Hawai#i 402, 404, 31 P.3d 915, 917 (2001) (cleaned up) (emphasis
added). The TRO prohibited Hoffman from being "within 100 yards
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
of any place where [Analyn] . . . works[.]" This is not a case
where Hoffman accidentally went within 99 yards of Analyn's
workplace and was never seen by Analyn. Hoffman went into the
Kona Safeway. Analyn saw Hoffman in her workplace while the TRO
was in effect, and "got scared." Substantial evidence showed
Hoffman's violation of the period of separation ordered by the
TRO was not de minimis. The family court did not plainly err by
not sua sponte dismissing the charge against Hoffman as de
minimis. See State v. Wise, 107 Hawai#i 67, 71, 109 P.3d 708,
712 (App. 2005).
For the foregoing reasons, we affirm the "Judgment of
Conviction and Sentence" entered by the family court on May 2,
2019.
DATED: Honolulu, Hawai#i, June 3, 2021.
On the briefs:
/s/ Katherine G. Leonard
Kori A. Weinberger, Presiding Judge
Deputy Prosecuting Attorney,
County of Hawai#i, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge
Megan McDonald, /s/ Clyde J. Wadsworth
Deputy Public Defender, Associate Judge
State of Hawai#i,
for Defendant-Appellant.
5