F5
`:l’§j' 5 ="z*'
""~"*’M`Y*~"‘"~“v P'.;§§,`
NOT FOR PUBLICATION IN WEST'S HAWAI»‘I REPORTS AND PACIFIC REPORTER
NO. 2970l
IN THE INTERMEDIATE COURT OF APPEALS
guns
0F THE sTATE oF HAwArI
sTATE oF HAwAi‘I, plaintiff-Appe1lee, jl;§; ~~
KIRK McCARTHY, Defendant-Appellant j“y@: is
APPEAL FRoM THE DIsTR:cT c0URT oF THE F:RsT cIRcbiT id
KANEoHE DIv1sIoN
(HPD cR1MINAL N0. 064007e9 (1P407001130>)
MEMORANDUM OPINION
(By: Fujise, Presiding Judge, Leonard, and Reifurth, JJ.)
Defendant-Appellant Kirk McCarthy (McCarthy) appeals
from the Notice of Entry of Judgment and/or Order (Judgment)
filed on January l5, 2009 in the District Court of the First
Circuit, Kan€ohe Division (district court).y McCarthy was
convicted of Harassment in violation of section 711-llO6(l)(b),
Hawaii Revised Statutes (Section 711-llO6(l)(b)),W and sentenced
to probation for six months, seventy-five hours of community
service, anger management assessment and treatment, mental health
assessment and treatment, and various fees. By Complaint and
Penal Summons (complaint), the State charged McCarthy with
Harassment as follows:
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
l/ The Honorable Fa‘auuga To'oto‘o presided.
3/ Section 711-1lO6(1)(b) provides, as follows:
(1) A person commits the offense of harassment if, with
intent to harass, annoy, or alarm another person, that
pers0n:
(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[J
HAw. REv. STAT. § 711-l106(l)(b) (Supp. 2009).
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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, thereby committing the offense of
Harassment in violation of Section 711-1106(1)(b) of the
Hawaii Revised Statutes.
On appeal, McCarthy contends that the district court
erred: (l) in denying his motion to dismiss the complaint; (2) in
finding him guilty of Harassment when there was insufficient
credible evidence that he violated the law; and (3) in denying
his Motion for Judgment of Acquittal or in the Alternative New
Trial. h
We agree with McCarthy that the district court erred in
denying his motion to dismiss the complaint. Accordinglyy we
find it unnecessary to consider McCarthy's other arguments on
appeal.
I. Background
According to the complaining witness, Scott Akau
(Akau), he and his children returned home from volleyball
practice on October 4, 2006, at approximately 5:3O p.m. while
unloading the back of his pickup truck, Akau claims to have
observed his neighbor, McCarthy, standing on his own property,
"sticking his middle finder up at me[,]" and "proceeded to use
the F word repeatedly."
with his children standing near the pick up truck, Akau
approached McCarthy's driveway. According to Akau, McCarthy was
smacking his fist into the palm of his hand, saying, "Oh, yeah,
come in my property. I'm going to rip your head off. I'm going
to kill you." According to McCarthy, he attempted to close the
gate to his driveway.
McCarthy, on the other hand, contended that Akau
initiated the incident that evening. According to McCarthy, he
observed Akau passing by in his vehicle while McCarthy was
cleaning a dog crate in his front yard. ApproXimately two
minutes later, Akau allegedly "came stomping over very
aggressively, angrily, very agitated screaming out . . . [']I'm
going to clear the air. I'm going to clear the F'en air. You
are going to listen to me[,']" and kept repeating those words.
2
NOT FOR PUBLICATION lN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Akau testified that before approaching McCarthy, Akau
instructed his son to telephone 911. within a few minutes the
police arrived. McCarthy did not file a report.'
On October 6, 2006, at Akau's request, the court issued
va temporary restraining order and injunction against McCarthy.
According to the State, on October 9, 2006, Akau filed a
complaint against McCarthy for the offense of second degree
terroristic threatening, and on June 19, 2007 an amended charge
for the offense of harassment was accepted for prosecution. On
October 4, 2007, one year from the date of the incident, the
State filed the complaint charging McCarthy with harassment.
II. The Complaint Did Not Provide McCarthy with Sufficient
Notice Of The Charge
we review the denial of McCarthy's motion to dismiss de
novo. "whether an indictment or complaint 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."
State v. Merino, 81 Hawafi 198, 212, 915 P.2d 672, 686 (l996)
(internal quotation marks, citations, and brackets omitted).
McCarthy argues that the complaint did not sufficiently
inform him of the specific charge against him. Article I,
section 14 of the Hawafi Constitution provides in relevant part
that, "[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be informed of the nature and cause of the
accusation." See also U.S. Const. amend. VI.
"The accusation must sufficiently allege all of the
essential elements of the offense charged," whether the
accusation is in the nature of an oral charge, information,
indictment, or complaint. State v. JendruSch, 58 Haw. 279, 281,
567 P.2d 1242, 1244 (1977). As such, "the sufficiency of the
charging instrument is measured, inter alia, by 'whether it
contains the elements of the offense intended to be charged, and
sufficiently apprises the defendant of what he or she must be
prepared to meet."A State v. Ruggiero, 114 HawaiH.227, 239, 160
P.3d 703, 715 (2007) (citing State v. Wells, 78 Hawafi 373, 379-
80, 894 P.2d 70, 76-77 (1995)) (internal brackets omitted).
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
The complaint is insufficient because it charges the
results of the conduct in the disjunctive ("or"), rather than in
the conjunctive ("and"). In charging harassment under Section
711-1106(1)(b), the State is required to prove, beyond a
reasonable doubt, three material elements:W (1) that the
defendant insulted, taunted, or challenged another person (i.e.,
the prohibited conduct); (2) that the defendant did so in a
manner (a) likely to provoke an immediate violent response on the
part of the other person, or (b) that would cause the other
person to reasonably believe that the defendant intends to cause
bodily injury or property damage to the other person or another
(i.e., the probable result of the prohibited conduct); and (3)
that the defendant did so with the intent to harass, annoy, or
alarm the other person (i.e., the requisite state of mind). See
State v. Taliferro, 77 HawaiT.196, 200, 881 P.2d 1264, 1268
(App. 1994); In re John Doe, 76 HawaiU.85, 92, 869 P.2d 1304,
1311 (1994).
The complaint alleges that McCarthy, with intent to
harass, annoy or alarm (state of mind), insulted, taunted or
challenged (prohibited conduct) Akau in a manner:
(l) likely to provoke an immediate violent response, OR
(2) that would cause Akau to reasonably believe that McCarthy
intended to cause:
(a) bodily injury to (i) him OR (ii) another, OR
(b) damage to the property of (i) Akau OR (ii) another
(probable result of the prohibited conduct).
Use of the disjunctive to combine multiple forms of conduct,p
having multiple potential consequences, into a single count of
harassment violates the requirements of due process because
provoking someone to fight and causing fear of injury are not
§/ The elements of an offense are such (l) conduct, (2) attendant
circumstances, and (3) results of the conduct, as:
(a) Are specified by the definition of the offense, and
(b) Negative a defense (other than a defense based on the
statute of limitations, lack of venue, or lack of
jurisdiction).
HAw. REv. STAT. § 702-205 (1993).
NOT FOR PUBLICATION ]N WEST'S HAWAI°I REPORTS AND PACIFIC REPORTER
synonymous terms; hence, McCarthy was not put on notice of what
he was charged with doing.
The supreme court has held that "[g]enerally speaking,
a charge drawn from the language of the statute proscribing the
offense is not fatally defective." State v. Cordeiro, 99 HawaiH
390, 406, 56 P.3d 692, 708 (2002). Nevertheless, "[a]lthough the
detailed and technical niceties of previous pleading and practice
are no longer required, a charge must still be in a legally
sufficient form which correctly advises the defendant about the
allegations against him or her." State v. Israel, 78 Hawafi 66,
69, 890 P.2d 303, 306 (1995) (quoting State v. CaduS, 70 Haw.
314, 318, 769 P.2d 1105, 1109 (1989)) (internal quotation marks
omitted).
Stating the charge in the form of the statute, standing
alone, does not satisfy due process. See 2 Wharton's Criminal
Procedure § 291 (12th ed. 1975) ("it is fatal for an indictment
or information to charge disjunctively in the words of the
statute, if the disjunctive renders it uncertain which
alternative is intended"); Charles Alan wright & Andrew D.
Leipold, l Federal Practice and Procedure § 125 at 555-57 (4th
ed. 2008) ("Many statutes specify a variety of ways a particular
crime can be committed, and if so, the indictment may allege
commission of the offense by all the acts mentioned if it uses
the conjunctive 'and' where the statute uses the disjunctive
’or.' But if the pleading alleges several acts in the
disjunctive, it fails to give the defendant notice of the acts he
allegedly committed and should be found insufficient.").
without identifying the specific conduct alleged to
violate the statute, the complaint here alleges several acts in
the disjunctive. lt exacerbates that problem by alleging several
consequences, also in the disjunctive. Three possible acts
performed so as to cause three potential consequences produce
nine different permutations against which McCarthy was obliged to
defend. The concern is not merely academic, nor is it newly-
raised. The need to charge in the conjunctive, irrespective of
the language of the statute, has long been recognized. "If there
is no inconsistency in the matters alleged, there is no reason
5
NOT FOR PUBLICATION ]N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
why they may not all be alleged - in the conjunctive, of course,
if they are set forth in the statute in the disjunctive."
Territory v. Richardson, 16 Haw. 358, 360 (1904); see also
Territory v. Lii, 39 Haw. 574, 579 (1952) ("where a statute
denounces several things as a crime and connects them with the
disjunctive 'or', the pleader, in drawing the indictment, should
connect them by the conjunctive 'and'.").
"Phrasing a complaint in the disjunctive would not
provide [sufficient] notice as it would leave the defendant
'uncertain as to which of the acts charged was being relied upon
as the basis for the accusation against him.'" State v. Lemalu,
72 Haw. 130, 134, 809 P.2d 442, 444 (1991) (quoting Jendrusch, 58y
Haw. at 283 n.4, 567 P.2d at 1245 n.4). The pleader needs only
to phrase the complaint in the conjunctive to avoid the problem.
Lii, 39 Haw. at 579. Accord United States v. UCO Oil Co., 546
F.2d 833, 838 (9th Cir. 1976) ("Once it is determined that the
statute defines but a single offense, it becomes proper to charge
the different means, denounced disjunctively in the statute,
conjunctively in each count of the indictment.") (citing United
States v. Alsop, 479 F.2d 65, 66 (9th Cir. 1973)); United States
v. McGinnis, 783 F.2d 755, 757 (8th Cir. 1986) ("Federal pleading
requires . . . that an indictment charge in the conjunctive to-
inform the accused fully of the charges.")
Alternatively, this court has recommended that the
better approach is to phrase the complaint in both the
conjunctive and the disjunctive. "[T]he most appropriate method
to allege one offense committed in two different ways is to
allege in one count that the defendant committed the offense (a)
in one way 'and/or' (b) in a second way." State v. Cabral, 8
Haw. App. 506, 511, 810 P.2d 672, 675-76 (1991). The supreme
court has expressed agreement. State v. Batson, 73 Haw. 236,
250, 331 P.za 924, 932 <1992).$/
i/ 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. The Texas Court of Appeals has commented that:
"It appears to us that the prohibition on disjunctive pleading, in
a case such as the instant one, is a hyper-technical rule such as
6
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
III. Conclusion
The charge against McCarthy was improperly pled in the
disjunctive. As a result, we need not address McCarthy's other
points of error.
Therefore, the Judgment filed on January 15, 2009 in
the District Court of the First Circuit, Kan€ohe Division, is
vacated and the case is remanded to the district court with
instructions to dismiss the charge without prejudice.
DATED: Honolulu, Hawafi, August 31, 2010.
On the briefs:
for Defendant -Appellant .
Jack Schweigert
Anne K. Clarkin,
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee.
OJJ
`Associate Judge
might be found in a 19th Century pleading book. lt has overtones of
the old forms of action, such as trespass, case, debt, detinue,
trover, etc. The prohibition of disjunctive p1eading, such as that
used in the instant case, has no place in the pleading of criminal
cases in the 20th Century."
Hunter v. State, 576 S.w.2d 395, 399 (Tex. Crim. App. 1979).
7