State v. Jardine.

508 P.3d 1182, 151 Haw. 96

• Court: Hawaii Supreme Court
• Decided: April 29, 2022
• Docket: SCWC-20-0000153
• Status: Published

Opinion

*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Electronically Filed Supreme Court SCWC-XX-XXXXXXX 29-APR-2022 09:44 AM Dkt. 13 OPA

IN THE SUPREME COURT OF THE STATE OF HAWAII

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STATE OF HAWAII, Petitioner/Plaintiff-Appellant,

vs.

JOHN KEONI JARDINE, also known as JOHN KEONI JARDINE III and JOHN JARDINE III, Respondent/Defendant-Appellee.

SCWC-XX-XXXXXXX

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

APRIL 29, 2022

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY NAKAYAMA, J.

This case calls upon the court to determine whether a

charging document alleging that a defendant committed second-

degree assault by intentionally, knowingly, or recklessly

causing substantial bodily injury must provide the defendant

with the statutory definition of “substantial bodily injury.”

As this court has explained, where the definition of an offense *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

includes generic terms, it must state the species and descend to

particulars.

Here, the term “substantial bodily injury” is a

generic term. A charging document must therefore identify the

species of “substantial bodily injury” alleged, and provide a

defendant with particulars. The Intermediate Court of Appeals

(ICA) therefore correctly determined that the State of Hawaiʻi

(the State) should have provided the statutory definition of

“substantial bodily injury” in the charging document at issue.

We therefore affirm the ICA’s judgment.

I. BACKGROUND

A. Factual Background

On the evening of August 25, 2019, Paul and Tish Costa

(collectively, the Costas; individually, Paul or Tish) and

Respondent/Defendant-Appellee John Keoni Jardine (Jardine)

resided in two separate units at a residence on Nalu Street in

Waimānalo. The Costas lived in the unit that fronted the

street, while Jardine lived in the rear unit.

Around 8:45 P.M. that night, Paul and Jardine engaged

in an altercation in front of the Costas’ unit. Although it is

unclear how the confrontation began, it is undisputed that

Jardine struck Paul in the head using a metal baseball bat.

Paul allegedly suffered a “left occipital skull fracture” and an

“epidural hematoma, pneumocephale.” 2 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

B. Circuit Court Proceedings.1

On August 28, 2019, Petitioner/Plaintiff-Appellant the

State charged Jardine by felony information. The body of the

charging document read:

The Department of the Prosecuting Attorney charges:

On or about August 25, 2019, in the City and County of Honolulu, State of Hawaii, JOHN KEONI JARDINE, also known as John Keoni Jardine III and John Jardine III, did intentionally, knowingly, or recklessly cause substantial bodily injury to Paul Costa, and/or did intentionally or knowingly cause bodily injury to Paul Costa with a dangerous instrument, thereby committing the offense of Assault in the Second Degree, in violation of Section 707- 711(1)(a) and/or Section 707-711(1)(d) of the Hawaii Revised Statutes.2

On January 27, 2020, Jardine filed a Motion to Dismiss

Felony Information Based Upon a Defective Charge. Jardine

alleged that the felony information did not “provide notice as

to one of the elements of the offense, to wit, the definitions

of a ‘substantial bodily injury’ or ‘dangerous instrument’, and

therefore the charge is a defective charge.” According to

1 The Honorable Karen T. Nakasone presided.

2 Hawaiʻi Revised Statutes (HRS) § 707-711 (Supp. 2016) provides in relevant part:

Assault in the second degree. (1) A person commits the offense of assault in the second degree if:

(a) The person intentionally, knowingly, or recklessly causes substantial bodily injury to another; [or]

. . .

(d) The person intentionally or knowingly causes bodily injury to another with a dangerous instrument[.]

3 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Jardine, the felony information should have included the

following statutory definition to be effective:

“Substantial bodily injury” means bodily injury which causes

(1) A major avulsion, laceration, or penetration of the skin; (2) A burn of at least second degree severity; (3) A bone fracture; (4) A serious concussion; or (5) A tearing, rupture, or corrosive damage to the esophagus, viscera, or other internal organs.

HRS § 707-700 (2014).

The State opposed Jardine’s motion. Citing State v.

Mita, 124 Hawaiʻi 385, 391-92, 245 P.3d 458, 464-65 (2010), the

State responded that it only needs to provide a statutory

definition “where 1) the definition creates an additional

element of an offense and 2) the term itself does not provide a

person of common understanding with fair notice of that

element.” Here, the State argued, the term “substantial bodily

injury” did not include any hidden essential element.

Following a hearing on February 18, 2020, the circuit

court granted Jardine’s motion and dismissed the case without

prejudice. The circuit court reasoned that “the lay or common

understanding of a ‘substantial’ bodily injury does not convey

the extent or limits of the five specific types of ‘substantial’

bodily injury under the statutory definition,” and so the

charging document should have included the five statutory

categories. In turn, the felony information “did not provide

4 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

[Jardine] with adequate notice and must be dismissed without

prejudice.”

C. ICA Proceedings

The State appealed the circuit court’s order granting

Jardine’s motion to dismiss to the ICA.

On appeal, the State reiterated its assertion that it

did not need to include the statutory definition of “substantial

bodily injury” because the definition did not create any

additional essential element. The State added that the

statutory definition of “substantial bodily injury” is readily

comprehensible to a person of common understanding because

“[t]he common meaning of the term ‘substantial bodily injury’ is

sufficiently broad enough to encompass the component parts of

its definition.”

Jardine responded that the definition of “substantial

bodily injury” is an essential element of a charge of assault in

the second degree because it identifies the requisite “result-

of-conduct element.” Jardine further argued that the statutory

definition of “substantial bodily injury” is not readily

comprehensible because the common understanding of the term is

“immensely broad, expansive, and would include more conduct than

the statutory definition.”

On June 22, 2021, the ICA issued a summary disposition

order affirming the circuit court’s order granting Jardine’s 5 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

motion to dismiss. The ICA reasoned that “where the statutory

definition of an element of the crime ‘does not necessarily

coincide with its common meaning[,]’ the statutory definition

must be included in the charge.” Applying this standard to the

statutory definition of “substantial bodily injury,” the ICA

explained that “the common meaning of ‘substantial bodily

injury’ is broader than the statutory definition, [so] the

charge against Jardine was defective.” The ICA therefore

affirmed the circuit court’s order.

This application for writ of certiorari followed.

II. STANDARD OF REVIEW

A. Sufficiency of the Charge

The question of whether a charge sets forth all the

essential elements of a charged offense is a question of law

that this court reviews de novo under the right/wrong standard.

State v. Wheeler, 121 Hawaiʻi 383, 390, 219 P.3d 1170, 1177

(2009) (quoting State v. Wells, 78 Hawaiʻi 373, 379, 894 P.2d 70,

76 (1995)).

III. DISCUSSION

On certiorari, the State seeks clarification of

whether a document charging a defendant with second-degree

assault under HRS § 707-711(a) or (d) should include the

statutory definitions of “substantial bodily injury” and

“dangerous instrument.” We hold that “substantial bodily 6 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

injury” is a generic term for which the State must include the

statutory definition by stating the species of injury allegedly

inflicted, and/or a “to wit” clause specifying the alleged

injury. We therefore affirm the ICA’s summary disposition order

on a different ground.3

A. The State must include the statutory definition of “substantial bodily injury” in a charge of second-degree assault under HRS § 707-711(a).

Pursuant to article I, section 14 of the Hawaiʻi

Constitution, an accused possesses the right “to be informed of

the nature and cause of the accusation” against him. In

considering whether a charging document complies with this

constitutional requirement, this court has stated that

It is well settled that an “accusation must sufficiently allege all of the essential elements of the offense charged,” a requirement that “obtains whether an 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). Put differently, 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[.]” State v. Wells, 78 Hawaiʻi 373, 379-80, 894 P.2d 70, 76-77 (1995) (citations and internal quotation marks omitted) (brackets in original). “A charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process.” Jendrusch, 58 Haw. at 281, 567 P.2d at 1244 (citations omitted).

State v. Merino, 81 Hawaiʻi 198, 212, 915 P.2d 672, 686 (1996).

3 Because the ICA did not reach the merits of the State’s arguments on the statutory definition of “dangerous weapon,” we decline the State’s invitation to address the same. 7 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Throughout these proceedings, the parties have

disputed whether the State was required to include the full

statutory definition of the term “substantial bodily injury” in

the charging document to inform Jardine of the nature and cause

of the accusation against him. However, this inquiry falls one

step short because including the full statutory definition would

not sufficiently apprise the defendant of what he must be

prepared to meet. Wells, 78 Hawaiʻi at 379-80, 894 P.2d at 76-

77.

In general, “[w]here the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient.” [Jendrusch, 58 Haw. at 282, 567 P.2d at 1245]; [State v. Cummings, 101 Hawaiʻi 139, 143, 63 P.3d 1109, 1113 (2003)] (citations omitted); see [Hawaiʻi Rules of Penal Procedure] Rules 5 and 7 (2007). However, “where the definition of an offense . . . includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species . . . [and] descend to particulars.” State v. Israel, 78 Hawaiʻi 66, 73, 890 P.2d 303, 310 [(1995)] (quoting Russell v. United States, 369 U.S. 749, 765 (1962)).

Wheeler, 121 Hawaiʻi at 393, 219 P.3d at 1181.

The statutory definition of “substantial bodily

injury” is generic. A term is “generic” if it “relat[es] to or

[is] characteristic of a whole group or class.” Webster’s

Seventh New Collegiate Dictionary 348 (1965).4 As statutorily

4 The New Oxford American Dictionary similarly defines “generic” as “characteristic of or relating to a class or group of things; not specific.” The New Oxford American Dictionary 706 (2001). The Random House Webster’s unabridged dictionary defines “generic” as “of, applicable to, or referring 8 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

defined, “substantial bodily injury” is a generic term that

covers five “classes” of injuries:

(1) A major avulsion, laceration, or penetration of the skin; (2) A burn of at least second degree severity; (3) A bone fracture; (4) A serious concussion; or (5) A tearing, rupture, or corrosive damage to the esophagus, viscera, or other internal organs.

HRS § 707-700. Thus, it is incumbent upon the State to “state

the species . . . [and] descend to particulars.” Israel, 78

Hawaiʻi at 73, 890 P.2d at 310; see also United States v.

Donovan, 339 F.2d 404, 407-08 (7th Cir. 1964) (explaining that

the charging document must specify the offense charged “where

the statute . . . proscribes different types of conduct in the

disjunctive.”). Applied to the present case, this standard

requires the State to identify the species of injury by alleging

that the alleged substantial bodily injury consisted of “a bone

fracture” and “a serious concussion” in order to provide

sufficient notice. See Wells, 78 Hawaiʻi at 379-80, 894 P.2d at

76-77.

Furthermore, it would be prudent for the State to

incorporate a “to wit” clause identifying the specific injuries

suffered – here, a “left occipital skull fracture” and an

“epidural hematoma, pneumocephale” – in charges alleging that a

to all the members of a genus, class, group, or kind; general.” Random House Webster’s unabridged dictionary 796 (2d ed. 2001). 9 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

defendant has caused substantial bodily injury. See State v.

Pacquing, 139 Hawaiʻi 302, 308, 389 P.3d 897, 903 (2016) (holding

the State should have “at least specified in the charge the

items of information that allegedly were unlawfully

possessed.”). As we have previously noted, “the charge ‘must be

specific enough to ensure that the grand jury [or the court

before which a preliminary hearing is held] had before it all

the facts necessary to find probable cause.’” Israel, 78 Hawaiʻi

at 70, 890 P.2d at 307 (quoting State v. Daly, 4 Haw. App. 52,

54 n.6, 659 P.2d 83, 85 n.6 (1983)). The inclusion of such

information would apprise a defendant of what the defendant must

be prepared to meet. Wells, 78 Hawaiʻi at 379-80, 894 P.2d at

This detailed approach has been endorsed by other

courts. For instance, federal courts have required that

statutory language “must be accompanied with such a statement of

the facts and circumstances as will inform the accused of the

specific offense, coming under the general description, with

which he is charged,” when the “very core of criminality”

“depends so crucially upon such a specific identification of

fact.” Russell, 369 U.S. at 765 (quoting United States v. Hess,

124 U.S. 483, 487 (1888)); see also, e.g., United States v.

Williamson, 903 F.3d 124, 131-32 (D.C. Cir. 2018); United States

v. Quinn, 359 F.3d 666, 672-73 (4th Cir. 2004). The Colorado 10 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Supreme Court has similarly adopted a requirement that “the

indictment must answer the questions of ‘who, what, where, and

how.’” People v. Tucker, 631 P.2d 162, 163-64 (Colo. 1981) (En

Banc).

In light of the foregoing, the ICA correctly

determined that the State should have included the statutory

definition of substantial bodily injury in the charging

document. However, we affirm because “substantial bodily

injury” is a generic term. We therefore do not address the

issue of whether the statutory definition of “substantial bodily

injury” coincides with its common meaning or the merits of the

ICA’s reasoning that “where the statutory definition of an

element of the crime ‘does not necessarily coincide with its

common meaning,’ the statutory definition must be included in

the charge.” Agsalud v. Lee, 66 Haw. 425, 430, 664 P.2d 734,

738 (1983).

B. The State waived its argument that discovery materials provided Jardine with actual knowledge of the charges against him.

During oral argument, the State argued that even if

the charging document was insufficient, the discovery materials

it gave Jardine provided him with sufficient notice of the

charges against him. Although the State made this claim before

the circuit court, it expressly abandoned any such argument

before the ICA. Furthermore, the State did not brief the matter 11 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

before this court. We therefore do not address the merits of

the State’s actual knowledge argument. Hawaiʻi Rules of

Appellate Procedure Rule 28(b)(4), (7) (2016).

IV. CONCLUSION

In light of the foregoing, the circuit court correctly

determined that the felony information against Jardine was

insufficient because it did not state the species of Paul’s

substantial bodily injuries or descend to the particulars of

Paul’s injuries. Israel, 78 Hawaiʻi at 73, 890 P.2d at 310. In

turn, the ICA did not err in affirming the circuit court’s

decision.

Accordingly, we affirm the ICA’s July 20, 2021

Judgment on Appeal, which affirmed the circuit court’s

February 20, 2020 Findings of Fact, Conclusions of Law, and

Order Granting Defendant’s Motion to Dismiss Felony Information

Based Upon a Defective Charge, Filed 1/27/20.

Stephen K. Tsushima /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Emmanuel G. Guerrero /s/ Sabrina S. McKenna for respondent /s/ Michael D. Wilson

/s/ Todd W. Eddins