State v. Blyenburg.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
23-NOV-2022
08:20 AM
Dkt. 27 OPA

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

GEORGE VAN BLYENBURG,
Petitioner/Defendant-Appellant.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1CPC-XX-XXXXXXX)

NOVEMBER 23, 2022

RECKTENWALD, C.J., NAKAYAMA, AND EDDINS, JJ.,
AND WILSON, J., DISSENTING, WITH WHOM McKENNA, J., JOINS

OPINION OF THE COURT BY EDDINS, J.

I.

While driving on ʻAiea Heights Road, George Van Blyenburg

hit a man who was weed whacking next to the street. Van

Blyenburg kept driving, but several motorists stopped and tried
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to help the man. Shortly after Van Blyenburg hit him, the man

died.

Van Blyenburg did not return to the scene of the collision.

Instead, he drove to his friend’s house nearby and parked in his

friend’s garage. He covered the damaged front end of his Honda

CRV with blankets and boxes. Then, he went with his friend, in

his friend’s car, to Turtle Bay.

The State indicted Van Blyenburg for two crimes: (1)

leaving the scene of an accident involving death or serious

bodily injury, HRS § 291C-12 (2007 & Supp. 2015) (Count 1); and

(2) negligent homicide in the second degree, HRS § 707-703(1)(b)

(2014) (Count 2).

At trial, Van Blyenburg testified to “blacking out.” He

remembers driving and then “just nothing” before being

“jerk[ed]” awake by a “kind of metal bang.” Van Blyenburg said

that he looked in his rearview mirror but did not see the man.

He thought he’d hit a metal sign. And he drove off because he

didn’t want to get stuck with paying to fix it.

The jury found Van Blyenburg guilty on both Count 1 and

Count 2.

After the verdict, but before sentencing, Van Blyenburg

moved to dismiss both counts.

Van Blyenburg argued Count 1 was defective because it was

missing an essential element of the offense it charged.

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HRS § 291C-12(a) requires drivers of vehicles involved in

collisions resulting in serious bodily injury or death to

“immediately stop the vehicle at the scene of the collision or

as close thereto as possible.” The statute also provides that

stops “shall be made without obstructing traffic more than is

necessary.” 1 This “shall be made without obstructing traffic

1
HRS § 291C-12(a) reads:

The driver of any vehicle involved in a collision resulting
in serious bodily injury to or death of any person shall
immediately stop the vehicle at the scene of the collision
or as close thereto as possible but shall then forthwith
return to and in every event shall remain at the scene of
the collision until the driver has fulfilled the
requirements of section 291C-14. Every stop shall be made
without obstructing traffic more than is necessary.

HRS § 291C-14 (2007 & Supp. 2015) reads:

(a) The driver of any vehicle involved in a collision
resulting in injury to or death of any person or damage to
any vehicle or other property that is driven or attended by
any person shall give the driver’s name, address, and the
registration number of the vehicle the driver is driving,
and shall upon request and if available exhibit the
driver’s license or permit to drive to any person injured
in the collision or to the driver or occupant of or person
attending any vehicle or other property damaged in the
collision and shall give the information and upon request
exhibit the license or permit to any police officer at the
scene of the collision or who is investigating the
collision and shall render to any person injured in the
collision reasonable assistance, including the carrying, or
the making of arrangements for the carrying, of the person
to a physician, surgeon, or hospital for medical or
surgical treatment if it is apparent that treatment is
necessary, or if the carrying is requested by the injured
person; provided that if the vehicle involved in the
collision is a bicycle, the driver of the bicycle need not
exhibit a license or permit to drive.

(b) In the event that none of the persons specified is in
condition to receive the information to which they
otherwise would be entitled under subsection (a), and no
police officer is present, the driver of any vehicle
involved in the collision after fulfilling all other
requirements of section 291C-12, 291C-12.5, or 291C-12.6,

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more than is necessary” language (the Traffic Proviso) was

missing from the indictment. Relying on State v. Baker, 146

Hawai‘i 299, 463 P.3d 956 (2020), Van Blyenburg argued this

omission violated his due process rights because the proviso

that stops “shall be made without obstructing traffic more than

is necessary” is an attendant circumstance element of HRS

§ 291C-12(a).

Regarding Count 2, Van Blyenburg argued it was defective

because it did not define “simple negligence.”

A person commits negligent homicide in the second degree if

they cause the death of “[a] vulnerable user by the operation of

a vehicle in a manner that constitutes simple negligence as

defined in section 707-704(2).” HRS § 707-703(1)(b) (emphasis

added). The indictment said as much. But it didn’t spell out

the definition of “simple negligence.” Van Blyenburg

characterized “simple negligence” as an element of HRS § 707-

703. 2 And he argued the indictment should have defined that

and subsection (a), insofar as possible on the driver’s
part to be performed, shall forthwith report the collision
to the nearest police officer and submit thereto the
information specified in subsection (a).

2 HRS § 707-703(1) reads:

(1) A person commits the offense of negligent homicide in
the second degree if that person causes the death of:

(a) Another person by the operation of a vehicle in a
negligent manner; or

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element in simple terms since its meaning is “not readily

comprehensible to persons of common understanding.”

The circuit court was not persuaded by Van Blyenburg’s

arguments. It denied Van Blyenburg’s motion to dismiss as to

both Counts 1 and 2.

Van Blyenburg appealed.

The Intermediate Court of Appeals (ICA) affirmed the

circuit court in a summary disposition order.

In evaluating whether Van Blyenburg was adequately

informed of the charges against him in Count 1 and Count 2, the

ICA considered not only the indictment, but also the State’s

requested jury instructions, which were filed before Van

Blyenburg’s motion to dismiss. 3 The ICA’s analysis was the same

(b) A vulnerable user by the operation of a vehicle
in a manner that constitutes simple negligence as
defined in section 707-704(2).

3 We have recognized “that in determining whether a defendant has been
adequately informed of the charges against [them], the appellate court can
consider other information in addition to the charge that may have been
provided to the defendant . . . until the time defendant objected to the
sufficiency of the charges.” State v. Wheeler, 121 Hawai‘i 383, 396, 219 P.3d
1170, 1183 (2009). The ICA relied on this principle in considering
information provided to Van Blyenburg by the State’s requested jury
instructions in determining whether Van Blyenburg was adequately informed of
the charges against him. This reliance was misplaced with respect to Count
1.

Charging documents “must sufficiently allege all of the essential
elements of the offense charged.” See State v. Jendrusch, 58 Haw. 279, 281,
567 P.2d 1242, 1244 (1977). If a charging document omits an essential
element of an offense, it “fail[s] to state an offense, and a conviction
based upon it cannot be sustained” no matter what other information the
defendant may have received from the State. See id.; see also State v.
Israel, 78 Hawai‘i 66, 73, 890 P.2d 303, 310 (1995) (“Just as the State must
prove beyond a reasonable doubt all of the essential elements of the offense
charged, the State is also required to sufficiently allege them and that

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as to both counts. The State’s requested jury instructions

included HRS § 291C-12(a)’s “[e]very stop shall be made without

obstructing traffic more than is necessary” caveat and the

complete statutory definition of “simple negligence.” 4 So, the

ICA reasoned, Van Blyenburg had notice of what he had to defend

against. And the circuit court did not err in denying his

motion to dismiss.

requirement is not satisfied by the fact that the accused actually knew them
and was not misled by the failure to sufficiently allege all of them.”
(Cleaned up.)).

Given that the ICA treated the Traffic Proviso as an attendant
circumstances element of HRS § 291C-12(a), it should not have looked beyond
the four corners of the indictment in evaluating Van Blyenburg’s arguments as
to Count 1. Only when a defendant alleges that a charging document which
states an offense is nonetheless deficient because it inadequately informs
the defendant of the nature and cause of the charges against them – as, for
example, Van Blyenburg does with respect to Count 2 — may courts “consider
other information in addition to the charge that may have been provided to
the defendant . . . until the time defendant objected to the sufficiency of
the charges.” Wheeler, 121 Hawai‘i at 396, 219 P.3d at 1183.

4 The State filed and served its amended requested jury instructions on
March 6, 2020, before Van Blyenburg testified. Those amended requested jury
instructions indicated that one of the four statutory elements of the offense
of “Accidents Involving Death or Serious Bodily Injury” is that:

The Defendant failed to immediately stop his vehicle at the
scene of the accident, or as close thereto as possible and
return to and remain at the scene of the accident, provided
that every stop shall be made without obstructing traffic
more than necessary . . . .

(Emphasis added.) The ICA based its conclusion that Van Blyenburg knew what
the State charged him with in Count 1 on these amended requested jury
instructions.

The State’s amended requested jury instructions – like its original
requested jury instructions, filed in May 2018 — also recited the statutory
definition of “simple negligence” found in HRS § 707-704(2) (2014). The ICA
based its conclusion that Van Blyenburg knew what the State charged him with
in Count 2 on the original requested jury instructions.

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Because the ICA held that the State’s requested jury

instructions apprised Van Blyenburg of the charges against him,

it did not decide whether the indictment, standing alone,

sufficiently informed Van Blyenburg of the crimes the State

alleged he’d committed.

We do so now.

We hold that both Count 1 and Count 2 of the indictment

gave Van Blyenburg adequate notice of what he had to defend

against.

Regarding Count 1, Van Blyenburg is correct that without

the Traffic Proviso the indictment cannot state a HRS § 291C-

12(a) offense premised on the theory that Van Blyenburg stopped

near — but not “as close as possible to” — the collision scene.

But the Traffic Proviso is irrelevant to the question of whether

Van Blyenburg violated HRS § 291C-12(a) by not stopping at all

or by failing to comply with HRS § 291C-14. And the indictment

— even without the Traffic Proviso — adequately states a HRS

§ 291C-12(a) violation premised on allegations that Van

Blyenburg violated HRS § 291C-12 by altogether failing to stop

(as opposed to stopping too far from the scene of the collision)

and by failing to comply with HRS § 291C-14.

Count 2 is sufficient because “simple negligence” is a

state of mind, not an element of HRS § 707-703. The State must

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identify the requisite states of mind for each crime it charges.

But it need not define them.

II.

HRS § 291C-12(a) reads:

The driver of any vehicle involved in a collision resulting
in serious bodily injury to or death of any person shall
immediately stop the vehicle at the scene of the collision
or as close thereto as possible but shall then forthwith
return to and in every event shall remain at the scene of
the collision until the driver has fulfilled the
requirements of section 291C-14. Every stop shall be made
without obstructing traffic more than is necessary.

This statute “proscribes an offense that can be committed

by factually alternative types of conduct.” See State v.

Batson, 73 Haw. 236, 249–50, 831 P.2d 924, 932 (1992). A driver

could stop at the scene of the collision, but then transgress

HRS § 291C-12(a)’s commands by refusing, for example, to share

their name and vehicle registration information with an

investigating police officer. A driver could also violate HRS

§ 291C-12(a) by stopping a ways away from a collision site and

then taking a long time to return to the collision site for

reasons other than the need to avoid obstructing traffic more

than necessary. Or, like Van Blyenburg, a driver could break

this law by failing to stop altogether.

Defendants “can be charged with having committed an offense

in two different ways when [they are] alleged to have committed

it in both ways.” Batson, 73 Haw. at 250, 831 P.2d at 932.

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Here, Count 1 of the State’s wordy indictment 5 charged three

alternative theories of how Van Blyenburg violated HRS § 291C-

12(a):

COUNT 1: On or about August 6, 2016, in the City and
County of Honolulu, State of Hawaiʻi, GEORGE VAN
BLYENBURG, as the driver of a vehicle involved in an
accident resulting in serious bodily injury to or death
of [decedent], with intent, knowledge, or reckless
disregard of the substantial and unjustifiable risk that
he was such a driver, did intentionally, knowingly, or
recklessly [1] fail to immediately stop the vehicle at
the scene of the accident or [2] as close thereto as
possible, and did intentionally, knowingly, or recklessly
fail to forthwith return to and in every event remain at
the scene of the accident and [3] fulfill the
requirements of [3a] Section 291C-14(a) of the Hawaiʻi
Revised Statutes and/or [3b] Section 291C-14(b) of the
Hawaiʻi Revised Statutes, thereby committing the offense
of Accidents Involving Death or Serious Bodily Injury, in
violation of Section 291C-12 of the Hawaiʻi Revised
Statutes. 6

5 As we recently put it:

Charging documents are often rife with superfluous and
unwieldy statutory language. When it comes to informing
defendants of the accusations they face, this legalese
(though sometimes unavoidable) is no substitute for
meaningful factual information about the charged violation.
Details about the who, what, where, when, and how of the
alleged offense help ensure defendants are properly
informed of the charge they must defend against, and this
court endorses these facts’ inclusion in charging
documents.

State v. Garcia, 152 Hawaiʻi 3, 8, 518 P.3d 1153, 1158 (2022).

6 Count 1 of the indictment concluded with the following discussion of
Section 291C-14:

Section 291C-14(a) of the Hawaiʻi Revised Statutes
requires that the driver of any vehicle involved in an
accident resulting in injury to or death of any person or
damage to any vehicle or other property which is driven
or attended by any person shall give the driver’s name,
address, and the registration number of the vehicle the
driver is driving, and shall upon request and if
available exhibit the driver’s license or permit to drive
to any person injured in the accident or to the driver or
occupant of or person attending any vehicle or other
property damaged in the accident and shall give such

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(Emphasis added.)

Van Blyenburg argues this indictment is inadequate because

it did not inform him that the stops required by HRS § 291C-

12(a) “shall be made without obstructing traffic more than is

necessary.”

In a very limited sense, we agree. To the extent that

Count 1 alleges Van Blyenburg violated HRS § 291C-12(a) by

stopping near the scene of the collision, but not near enough,

it is inadequate.

Because of the Traffic Proviso, the phrase “as close

thereto as possible” in HRS § 291C-12(a) has a statutory meaning

that differs from its common definition. “As close thereto as

information and upon request exhibit such license or
permit to any police officer at the scene of the accident
or who is investigating the accident and shall render to
any person injured in the accident reasonable assistance,
including the carrying, or the making of arrangements for
the carrying, of the person to a physician, surgeon, or
hospital for medical or surgical treatment if it is
apparent that such treatment is necessary, or if such
carrying is requested by the injured person; provided
that if the vehicle involved in the accident is a
bicycle, the driver of the bicycle need not exhibit a
license or permit to drive. S ection 291C-l4(b) of the
Hawaiʻi Revised Statutes requires that in the event that
none of the persons specified is in condition to receive
the information to which they otherwise would be entitled
under Section 291C-14(a) of the Hawaiʻi Revised Statutes
and no police officer is present, the driver of any
vehicle involved in the accident after fulfilling all
other requirements of Section 291C-12 of the Hawaiʻi
Revised Statutes and Section 291C-14(a) of the Hawaiʻi
Revised Statutes, insofar as possible on the driver’s
part to be performed, shall forthwith report the accident
to the nearest police officer and submit thereto the
information specified in Section 291C-14(a) of the
Hawaiʻi Revised Statutes.

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possible” as used in the statute may sometimes mean “the closest

location to the accident scene that does not result in an

unnecessary traffic obstruction.” See Baker, 146 Hawai‘i at 307,

463 P.3d at 964. This discrepancy means that the State cannot

charge a violation of HRS § 291C-12(a) predicated on the theory

that the defendant stopped near the scene of a collision, just

not as near as the statute requires, without informing the

defendant that stops mandated by HRS § 291C-12(a) “shall be made

without obstructing traffic more than is necessary.” See id. at

305-08, 463 P.3d at 962-65. Because Count 1 didn’t advise Van

Blyenburg of the Traffic Proviso, it did not state an HRS

§ 291C-12(a) offense based on the theory that Van Blyenburg

stopped further from the collision than the law requires.

But Count 1 did adequately state a HRS § 291C-12(a) offense

premised on allegations that Van Blyenburg: (1) altogether

failed to stop in the proximity of the collision scene; and (2)

failed to comply with HRS § 291C-14. The Traffic Proviso is

irrelevant to these theories of the offense. The obstruction or

non-obstruction of traffic has nothing to do, for example, with

the State’s ability to prove Van Blyenburg violated HRS § 291C-

12(a) by failing to comply with HRS § 291C-14. For this reason,

the indictment contained all of the “elements of the offense

intended to be charged, and sufficiently apprise[d] the

defendant of what [they] must be prepared to meet” despite its

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omission of the Traffic Proviso. See State v. Hitchcock, 123

Hawai‘i 369, 376, 235 P.3d 365, 372 (2010). 7

7 With this holding, we clarify and limit Baker’s scope.

Baker concerned HRS § 291C-13 (2007 & Supp. 2015), which prohibits
leaving the scene of an accident involving vehicle or property damage.
Compare HRS § 291C-13 (“Collisions involving damage to vehicle or property”)
with HRS § 291C-12 (“Collisions involving death or serious bodily injury”).
HRS § 291C-13’s mandates are identical to those of HRS § 291C-12(a). It
requires drivers to stop, to stay at, or return to, the scene of a collision,
and to comply with HRS § 291C-14. And like HRS § 291C-12(a), HRS § 291C-13
states that the stops it requires “shall be made without obstructing traffic
more than is necessary.”

The facts at issue in Baker were very different than those of this
case. And not just because the collision in Baker involved property damage,
not loss of life. Baker wasn’t a traditional hit-and-run. The State’s
evidence showed that though Baker hadn’t stopped and remained at the accident
scene, she did eventually stop, away from the scene, and out of traffic. And
at trial, the State didn’t prove that Baker shirked her responsibilities
under HRS § 291C-14: the evidence showed Baker had called the police and
spoke with an officer after the crash.

With these unusual facts in the background, the Baker court held that
the State’s complaint failed to state an offense because it did not specify
“that Baker did not stop either at the accident scene or stop at the location
closest to the accident scene and forthwith return thereto without
obstructing traffic more than is necessary.” 146 Hawai‘i at 308, 463 P.3d at
965 (emphasis added). Though our holding that the omission of the “without
obstructing traffic more than is necessary” language rendered the complaint
inadequate was made in general terms, the specifics of Baker’s facts infused
our analysis. For instance, in explaining the complaint’s failure to state
an offense, we noted that “[t]he State must prove that the defendant, by
failing to stop as close to the scene of the accident as possible or
forthwith return, could have done so without obstructing traffic more than is
necessary.” Id. This analysis is inapplicable in a case like Van
Blyenburg’s where the State’s evidence and allegations concern neither the
location of a defendant’s stop (because the State alleges there was no stop)
nor the timing of the defendant’s return to the accident scene (because the
State alleges there was no return).

Because our analysis of the sufficiency of the complaint in Baker was
animated by the fine points of that case, it did not adequately account for
the fact that HRS § 291C-13 (like HRS § 291C-12(a)) “proscribes an offense
that can be committed by factually alternative types of conduct.” See
Batson, 73 Haw. at 249–50, 831 P.2d at 932. Baker cogently explains why a
charging document alleging a violation of HRS § 291C-13 (or HRS § 291C-12(a))
predicated on a defendant’s failure to either stop as close as possible to a
collision scene or forthwith return to a collision scene must indicate that
stops required by the relevant statute are to be made “without obstructing
traffic more than is necessary.” But its context-specific analysis provides
no justification for extending this requirement to situations where the State

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III.

Van Blyenburg argues that “simple negligence” is an element

of negligent homicide in the second degree. And that because

the meaning of “simple negligence” is unintuitive, Count 2

should have defined it. The indictment’s omission of a

definition for “simple negligence,” Van Blyenburg maintains,

violated his right to due process.

Van Blyenburg is wrong.

“Simple negligence” is the state of mind for negligent

homicide in the second degree, HRS § 707-703(1)(b). 8 Drivers

commit the crime when they cause the death of a “vulnerable

user. . . in a manner that constitutes simple negligence as

defined in [HRS] section 707-704(2).” HRS § 707-703(1)(b).

Like the four familiar states of mind defined in HRS § 702-206 –

intentionally, knowingly, recklessly, and negligently - simple

negligence is styled as a mental disposition that animates a

crime’s conduct, attendant circumstance, and result of conduct

elements. 9 But it is not itself an element.

alleges an HRS § 291C-13 (or HRS § 291C-12(a)) offense predicated on either a
defendant’s alleged total failure to stop in proximity to the accident scene
or non-compliance with HRS § 291C-14.

8 See HRS § 702-206 (2014) cmt. (“[T]he legislature also added to the
Code the offense of negligent homicide in the second degree, set forth in
[HRS] § 707-704, which introduces a less culpable state of mind called
‘simple negligence’ – essentially a civil standard of negligence.” (Emphasis
added.))

9 HRS § 707-704(2) reads:

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A charging document must allege the correct state of mind

for each element of a crime. 10 See State v. Nesmith, 127 Hawai‘i

48, 56, 276 P.3d 617, 625 (2012) (holding that state of mind,

“though not an ‘element of an offense,’” must be included in the

charges “to alert the defendants of precisely what they needed

to defend against to avoid a conviction”). But it need not

separately declaim the statutory definitions of these states of

mind.

(2) “Simple negligence” as used in this section:

(a) A person acts with simple negligence with respect
to the person’s conduct when the person should be
aware of a risk that the person engages in that
conduct.

(b) A person acts with simple negligence with respect
to attendant circumstances when the person should
be aware of a risk that those circumstances
exist.

(c) A person acts with simple negligence with respect
to a result of the person’s conduct when the
person should be aware of a risk that the
person’s conduct will cause that result.

(d) A risk is within the meaning of this subsection
if the person’s failure to perceive it,
considering the nature and purpose of the
person’s conduct and the circumstances known to
the person, involves a deviation from the
standard of care that a law-abiding person would
observe in the same situation.

10 See State v. Maharaj, 131 Hawai‘i 215, 219, 317 P.3d 659, 663 (2013)
(observing that “state of mind is an ‘essential fact’ that must be pled under
HRPP Rule 7(d)” and that “if a charge is insufficient under HRPP Rule 7(d),
then a conviction based upon the charge cannot be sustained, for that would
constitute a denial of due process” (cleaned up)).

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We hold that the State did not need to recite the

definition of simple negligence in its indictment. Count 2

withstands challenge.

IV.

Notice plays the central role in our analyses of charging

documents’ adequacy. The Fifth Amendment’s Due Process Clause

and article I, section 5 of the Hawaiʻi Constitution protect

defendants’ right to be aware of both the charges they face and

the nature of the proof necessary to sustain those charges. The

Sixth Amendment and article I, section 14 of the Hawaiʻi

Constitution likewise require that defendants “be informed of

the nature and cause” of the accusations they face.

The purpose of these notice requirements is not to

facilitate obtuse technical arguments about what is and what is

not an element of a crime, or about what complex statutory

definitions should or should not be included in a charging

document. It is, rather, to safeguard an accused’s fundamental

right to know what they must defend against to avoid conviction.

Van Blyenburg knew this was a hit and run case. The

indictment told him so. He also knew that, to prove his guilt,

the State would have to show he caused the death of a

“vulnerable user by the operation of a vehicle in a manner that

constitutes simple negligence as defined in section 707-704(2).”

Van Blyenburg has not shown the State’s indictment violated his

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right to know the “nature and cause” of the accusations against

him. Haw. Const. art. 1, § 14. For this reason, we affirm the

ICA’s January 10, 2022 Judgment on Appeal and the October 28,

2020 Judgment of Conviction and Sentence in the Circuit Court of

the First Circuit.

Emmanuel G. Guerrero /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Donn Fudo /s/ Todd W. Eddins
for respondent

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