State v. Tran.

• Court: Hawaii Supreme Court
• Decided: June 4, 2024
• Docket: SCAP-23-0000063
• Status: Published

Opinion

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 04-JUN-2024 08:43 AM Dkt. 41 OP

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

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STATE OF HAWAI‘I, Plaintiff-Appellant/Cross-Appellee,

vs.

ALVIN TRAN, Defendant-Appellee/Cross-Appellant.

SCAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-XX-XXXXXXX; CASE NO. 1CPC-XX-XXXXXXX)

JUNE 4, 2024

RECKTENWALD, C.J., McKENNA, AND EDDINS, JJ., AND CIRCUIT JUDGE MALINAO, ASSIGNED BY REASON OF VACANCY 1

OPINION OF THE COURT BY RECKTENWALD, C.J.

This case centers on whether the statute regarding

continuous sexual assault of a minor under the age of fourteen

years, Hawai‘i Revised Statutes (HRS) § 707-733.6 (2014), and a

1 Circuit Judge Jeffrey P. Crabtree, who was a member of the Court, assigned by reason of vacancy, retired from the bench on January 31, 2024. *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

related provision of the Hawai‘i Constitution, article I,

section 25, comport with the U.S. Constitution. For the reasons

stated below, we conclude that they do. We further conclude

that the indictment against defendant Alvin Tran, charging a

violation of HRS § 707-733.6, was sufficiently specific when

construed under the liberal construction standard announced in

State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983), and modified

by State v. Wells, 78 Hawai‘i 373, 894 P.2d 70 (1995).

Accordingly, we (1) vacate the circuit court’s order

granting in part and denying in part Tran’s motion to dismiss;

(2) affirm the circuit court’s denial of Tran’s supplemented new

trial motion; and (3) remand the case to the circuit court for

further proceedings.

I. BACKGROUND

In July 2020, a grand jury returned a single-count

indictment against Tran as follows:

On or about January 1, 2015 to and including January 31, 2020, in the City and County of Honolulu, State of Hawai‘i, ALVIN TRAN, a person who either resided in the same home with [minor child], a minor under the age of fourteen years, or had recurring access to [minor child], with intent or knowledge that [minor child] was such a person, did intentionally or knowingly engage in three or more acts of sexual penetration and/or sexual contact with [minor child] over a period of time, while [minor child] was under the age of fourteen years, and was not married to [minor child], and knew he was not married to [minor child], thereby committing the offense of Continuous Sexual Assault

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of a Minor Under the Age of Fourteen Years, in violation of Section 707-733.6 of the [HRS].[2]

Pursuant to Section 707-700 of the [HRS (2014)], “married” includes persons legally married, and a male and female living together as husband and wife, but does not include spouses living apart.

Pursuant to Section 707-700 of the [HRS], “sexual penetration” means:

(1) Vaginal intercourse, anal intercourse, fellatio, deviate sexual intercourse, or any intrusion of any part of a person’s body or of any object into the genital or anal opening of another person’s body; it occurs upon any penetration, however slight, but emission is not required. As used in this definition,

2 HRS § 707-733.6 (2014) states:

(1) A person commits the offense of continuous sexual assault of a minor under the age of fourteen years if the person:

(a) Either resides in the same home with a minor under the age of fourteen years or has recurring access to the minor; and

(b) Engages in three or more acts of sexual penetration or sexual contact with the minor over a period of time, while the minor is under the age of fourteen years.

(2) To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the requisite number.

(3) No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section, unless the other charged offense occurred outside the period of the offense charged under this section, or the other offense is charged in the alternative. A defendant may be charged with only one count under this section, unless more than one victim is involved, in which case a separate count may be charged for each victim.

(4) Continuous sexual assault of a minor under the age of fourteen years is a class A felony.

(Emphasis added.)

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“genital opening” includes the anterior surface of the vulva or labia majora; or

(2) Cunnilingus or anilingus, whether or not actual penetration has occurred.

Pursuant to Section 707-700 of the [HRS], “deviate sexual intercourse” means any act of sexual gratification between a person and an animal or a corpse, involving the sex organs of one and the mouth, anus or sex organs of the other.

Pursuant to Section 707-700 of the [HRS], “sexual contact” means any touching, other than acts of “sexual penetration”, of the sexual or other intimate parts of a person not married to the actor, or of the sexual or other intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts.

During trial in April 2022, the State presented

testimony from (1) minor child, (2) minor child’s mother,

(3) minor child’s father, (4) a pediatrician who interviewed

minor child, (5) a clinical psychologist, (6) a Honolulu Police

Department (HPD) evidence specialist, (7) a homeland security

special agent, and (8) an HPD detective with the sex crimes

detail. Tran presented testimony from (1) a sex assault nurse

examiner, (2) Tran’s brother, and (3) Tran’s sister, but did not

testify himself.

Minor child testified at trial that Tran was her

father’s best friend and that she had known Tran “[s]ince I was

born.” According to minor child, Tran lived with her father at

times, and she would see Tran at her father’s house when she was

staying with her father. Minor child testified further that

from ages eight to twelve, Tran, among other things, “rub[bed]

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my lower private areas,” “touch[ed] my breasts” with “[h]is hand

and his mouth,” “put his lips on my lips and . . . swirl[ed] his

tongue in my mouth,” and “suck[ed] . . . and lick[ed] . . . and

touch[ed] . . . with his hand” minor child’s lower private area.

Tran argued in closing, among other things, that an

inexperienced detective had “rush[ed] to judgment” and was “not

focused on a fair investigation.” He also contended that minor

child was “not credible,” was “seeking out attention,” and came

from “a broken home.”

At the close of the evidence, the circuit court 3

instructed the jury on continuous sexual assault of a minor

under the age of fourteen, under HRS § 707-733.6. The circuit

court stated the offense’s material elements: (1) “[t]hat, on or

about January 1, 2015, to and including January 31, 2020, in the

City and County of Honolulu, State of Hawai‘i, the defendant,

[Tran], intentionally or knowingly engaged in three or more acts

of sexual penetration or sexual contact with [minor child]”;

(2) “[t]hat [Tran] intentionally or knowingly resided in the

same house with [minor child] or had recurring access to [minor

child] at that time”; (3) “[t]hat [Tran] knew he was not married

to [minor child] at that time”; and (4) “[t]hat [minor child]

was less than fourteen years old at that time.”

3 The Honorable Catherine H. Remigio presided.

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The circuit court then instructed the jury that, “[a]s

to Element No. 1, you need to unanimously agree only that the

requisite number of acts have occurred; you need not agree on

which acts constitute the requisite number.” This instruction

tracked HRS § 707-733.6(2)’s language, which states that “the

trier of fact, if a jury, need unanimously agree only that the

requisite number of acts have occurred; the jury need not agree

on which acts constitute the requisite number.”

Finally, the circuit court provided the statutory

definitions of “sexual penetration,” “sexual contact,” “deviate

sexual intercourse,” and “married.” See HRS § 707-700.

All members of the jury agreed to a guilty verdict.

The circuit court asked the jury foreperson, “has the jury

reached a unanimous verdict in this case?” The foreperson

replied “Yes, ma’am.” At Tran’s request, the circuit court

polled the jury, noting that “the purpose of a jury poll is to

ensure that the verdict just announced is unanimous and

represents the true verdict of the jury.” The circuit court

then instructed the jurors to “answer yes if you agree with the

verdict, answer no if you do not agree with the verdict.” Each

juror, when asked individually, answered “Yes.” The circuit

court concluded that “[t]he verdict is unanimous. And

consistent with the jury’s verdict, which has been

received, . . . the [c]ourt adjudges Mr. Tran guilty of the

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offense of Continuous Sexual Assault of a Minor Under the Age of

Fourteen Years.”

In May 2022, after the verdict but before sentencing,

Tran moved for a new trial, alleging several errors, including

improperly excluded evidence and prosecutorial misconduct.

Later that month, the circuit court allowed Tran to supplement

his new trial motion over the State’s opposition.

Specifically, Tran added an argument to his new trial

motion based on the U.S. Supreme Court’s decision in Ramos v.

Louisiana, which held that the Sixth Amendment to the U.S.

Constitution requires verdicts from unanimous juries to support

convictions. See 140 S. Ct. 1390, 1397 (2020). Tran argued

that “the federal constitution, by way of its Sixth and

Fourteenth Amendments, does not allow a state to alter the

verdict unanimity that the Sixth Amendment’s jury trial clause

requires to convict on a criminal offense.”

Tran argued first that article I, section 25(2) of the

Hawaiʻi Constitution, providing that, “[i]n continuous sexual

assault crimes against minors younger than fourteen years of

age, the legislature may define . . . [w]hat constitutes the

jury unanimity that is required for a conviction,” is

unconstitutional under the Sixth and Fourteenth Amendments to

the U.S. Constitution. Second, without the benefit of this

constitutional provision, HRS § 707-733.6 is unconstitutional

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under the Hawaiʻi Constitution and the Fourteenth Amendment to

the U.S. Constitution. Third, without HRS § 707-733.6, Hawai‘i

law requires unanimous jury agreement on each of the three acts

required by HRS § 707-733.6(1)(b) (2014). Fourth, the circuit

court’s jury instruction on HRS § 707-733.6(2) (2014)’s

unanimity rule, requiring jury unanimity only as to whether a

minimum of three acts occurred and not requiring unanimity as to

which three acts occurred, permitted the jury to convict Tran on

an invalid and unconstitutional legal theory. Fifth, the jury’s

guilty verdict must be vacated because it might rest upon the

aforementioned theory. Finally, Tran argued he was entitled to

a new trial where the jury would be instructed that all jurors

must agree on at least three specific acts to return a guilty

verdict under HRS § 707-733.6.

In April 2022, one week after Tran was convicted, we

issued our decision in State v. Jardine, which clarified the

specificity required in criminal charges. 151 Hawai‘i 96, 508

P.3d 1182 (2022). Specifically, we held that, because

“‘substantial bodily 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,” the “felony information against

[the defendant] was insufficient because it did not state the

species of [the victim’s] substantial bodily injuries or descend 8 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

to the particulars of [the victim’s] injuries.” Id. at 99, 102,

508 P.3d at 1185, 1188.

In May 2022, Tran moved to dismiss based on Jardine,

arguing that the July 2020 indictment “did not provide the

details that Jardine requires, beyond identifying who [Tran] was

accused of sexually assaulting.” “Instead,” Tran argued, the

“indictment used [HRS § 707-]733.6(1)’s generic language to

accuse Tran of violating the statute and set forth the full

statutory definitions of the terms” used in the relevant

statutes. The indictment should have stated which of the

“various forms of sexual intercourse, intrusions, and lingus”

included in the definition of “sexual penetration” and which

specific kinds of touching or other contact included in the

definition of “sexual contact” Tran allegedly committed. The

indictment, in Tran’s view, should therefore have been dismissed

with prejudice because the State’s interest in prosecuting HRS

§ 707-733.6 cases “is outweighed by the constellation of

constitutional and statutory rights that the State’s prosecution

of Tran, on a defective [HRS § 707-]733.6 indictment, has

violated.” Tran argued that the error was “structural and

systemic,” and that “doing anything less [than dismissing with

prejudice] will compound and perpetuate that systemic structural

error.”

The State opposed Tran’s motions.

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The circuit court denied the new trial motion and

continued sentencing, concluding that article I, section 25 of

the Hawai‘i Constitution, “on its face, does not permit a [jury]

vote other than 12-0 to secure a conviction.” The circuit court

reasoned that “[u]nanimity, or the state of being unanimous,

requires the agreement and consent of all involved,” and, “[i]n

the context of a jury trial, it means all 12 jurors must agree.

It does not mean anything less than 12 (such as 10-2 or 9-3).”

(Internal quotation marks omitted.) Finally, “[a] 10-2 jury

vote,” for example, “by definition, is NOT unanimous.” The

court therefore “decline[d] to read [article I,] section [25,]

subsection (2) to authorize the legislature to declare jury

unanimity to be anything but 12-0. There is no other reasonable

definition of unanimity.”

Next, the circuit court addressed Tran’s

constitutional challenge to HRS § 707-733.6, beginning with the

Intermediate Court of Appeals’ (ICA) decision in State v. Young,

150 Hawaiʻi 365, 502 P.3d 45 (App. 2021), an HRS § 707-733.6 case

decided after Ramos. The circuit court noted that the ICA

concluded in Young that “Ramos did not address the issue

presented by [the defendant] in this appeal: whether the juror

unanimity requirement extends to deciding which of several

possible means the defendant used to commit an element of the

crime.” Id. at 370, 502 P.3d at 50. The circuit court then

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concluded that “HRS § 707-733.6(2) does not violate [Tran’s]

constitutional right to an impartial jury (unanimous verdict) or

due process under either the U.S. or Hawaiʻi Constitutions” and

accordingly denied Tran’s new trial motion.

The circuit court granted in part and denied in part

Tran’s dismissal motion, dismissing the case because, “[f]irst,

the indictment does not narrowly tailor generic statutory

terms,” and “[t]he terms ‘sexual contact’ and ‘sexual

penetration’ are generic terms because they are statutorily

defined to mean more than one type of sexual act.” “Second, the

indictment against Tran also fails to set forth factual details

circumscribing the core of criminality in which he allegedly

engaged.” While “[t]he indictment identifies the who,” it does

not identify “what specific sexual acts occurred, where they

occurred, and how they occurred,” the court wrote. Thus, the

court concluded, “the indictment fails to ensure that the trial

jury did not convict Tran on the basis of a factual theory of

guilt that the State did not present to the grand jury or that

the grand jury rejected.” However, the court dismissed the case

without prejudice, instead of with prejudice, “in light of the

evidence adduced at trial, the jury’s verdict, the seriousness

of the offense, and the lack of any statute of limitations.”

The State appealed from the circuit court’s dismissal

order, arguing that the circuit court erred by (1) declining to

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apply the Motta/Wells liberal construction standard to Tran’s

postconviction challenge to the sufficiency of the charge,

(2) concluding that “sexual penetration” and “sexual contact”

are generic terms as used in HRS § 707-733.6, and (3) requiring

that the indictment specify the predicate acts of the charged

continuing offense.

Tran cross-appealed, arguing that the circuit court

should have dismissed the case with prejudice, rather than

without prejudice. Tran also challenged the denial of his new

trial motion, raising five points of error: (1) article I,

section 25(2) of the Hawaiʻi Constitution is unconstitutional

under the U.S. Constitution in light of Ramos; (2) HRS § 707-

733.6(2) is unconstitutional without the safe harbor granted by

the aforementioned constitutional provision; (3) because the

aforementioned constitutional and statutory provisions are both

unconstitutional, the rule requiring juror unanimity as to which

specific acts constituted the three acts required, which those

provisions overturned, applies to HRS § 707-733.6 cases;

(4) Tran’s guilty verdict must be set aside; and (5) if Tran is

retried, the circuit court must instruct jurors in accordance

with the rule requiring unanimity as to the specific acts

required to convict under HRS § 707-733.6.

We transferred the case.

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II. STANDARDS OF REVIEW

A. Constitutional Law

“Questions of constitutional law are reviewed

de[]novo, under the right/wrong standard.” In re Gas Co., 147

Hawaiʻi 186, 198, 465 P.3d 633, 645 (2020).

B. Charge Sufficiency

“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.”

Jardine, 151 Hawai‘i at 99, 508 P.3d at 1185.

III. DISCUSSION

The main issue in this case is whether article I,

section 25(2) of the Hawai‘i Constitution authorizes nonunanimous

jury verdicts for HRS § 707-733.6 cases in violation of the

Sixth Amendment to the U.S. Constitution as explained in Ramos.

Tran argues that jurors in HRS § 707-733.6 cases must

unanimously agree about three specific acts prohibited by the

statute. The State argues that Ramos did not disturb laws

permitting juries to return guilty verdicts where all jurors

agree with the verdict but do not necessarily agree on specific

predicate acts.

While Ramos proscribes laws allowing nonunanimous

juries to return guilty verdicts, article I, section 25(2) of

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the Hawai‘i Constitution plainly does not empower the legislature

to enact such laws, and HRS § 707-733.6(2) plainly does not

permit nonunanimous juries to return guilty verdicts. We

therefore conclude that these provisions do not violate the

Sixth Amendment to the U.S. Constitution.

Regarding Tran’s equal protection claims, because both

article I, section 25(2) and HRS § 707-733.6(2) are rationally

related to the legitimate legislative end of enhancing public

safety, neither provision violates the Equal Protection Clause

of the Fourteenth Amendment to the U.S. Constitution.

We also clarify when courts must liberally construe

charge challenges and what our recent decision in Jardine

requires of indictments charging HRS § 707-733.6 violations when

so construed. Under our precedents, we must liberally construe

an indictment challenged after a jury verdict, as was the case

here. When so construed, the indictment against Tran stated an

offense because it included all essential elements of the

charged crime and relevant statutory definitions, and he did not

show he was prejudiced by the charge. We accordingly conclude

that the circuit court incorrectly dismissed the charge against

Tran.

We therefore (1) vacate the circuit court’s grant in

part and denial in part of Tran’s dismissal motion, (2) affirm

the circuit court’s denial of Tran’s supplemented new trial

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motion, and (3) remand the case to the circuit court for further

proceedings.

A. Article I, Section 25 of the Hawai‘i Constitution Does Not Violate Tran’s Right to a Jury Trial Under the Sixth Amendment to the U.S. Constitution

Tran argues that, under Ramos, both article I,

section 25 of the Hawaiʻi Constitution and HRS § 707-733.6

violate the Sixth Amendment to the U.S. Constitution, as

incorporated against the states by the Fourteenth Amendment to

the U.S. Constitution. According to Tran, Ramos “unequivocally

held that states may not experiment with unanimity among trial

jurors as to the truth of every accusation required to convict

in a criminal case.” Tran further argues that the plain

language of article I, section 25(2) “expressly authorizes

experimentation that Ramos expressly precludes.” We disagree.

Ramos does not reach the issues that Tran claims it

does. Ramos held that the Sixth Amendment proscribes laws

allowing nonunanimous juries to return guilty verdicts. See 140

S. Ct. at 1397. Thus, Ramos requires all jurors to agree with a

given guilty verdict. However, Ramos is silent regarding what

Tran calls “experimentation with . . . unanimity.” Nothing in

Ramos suggests that the U.S. Supreme Court sought to prohibit

the people of a state from empowering juries to return guilty

verdicts where all jurors agree as to guilt but do not

necessarily agree on which specific acts that guilt is

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predicated on. As a result, Ramos does not support the

proposition that the Sixth Amendment invalidates either article

I, section 25(2) or HRS § 707-733.6(2). Further, article I,

section 25(2) comports with the Sixth and Fourteenth Amendments

because it does not authorize nonunanimous jury verdicts.

Because article I, section 25 does not authorize the legislature

to empower nonunanimous juries to return guilty verdicts, we

need not address Tran’s argument that HRS § 707-733.6 violates

the Hawai‘i Constitution without article I, section 25’s

authorization.

1. The U.S. Supreme Court’s decision in Ramos does not proscribe unanimous juries from returning guilty verdicts notwithstanding potential juror disagreement on which specific acts satisfy elements of an offense

The U.S. Supreme Court determined in Ramos that the

right to a jury trial guaranteed by the Sixth Amendment to the

U.S. Constitution, as incorporated against the states by the

Fourteenth Amendment to the U.S. Constitution, requires juries

to return unanimous guilty verdicts to convict defendants of

serious crimes. In so holding, that Court overruled its

companion decisions in Apodaca v. Oregon, 406 U.S. 404 (1972),

and Johnson v. Louisiana, 406 U.S. 356 (1972), which upheld laws

allowing nonunanimous juries to return guilty verdicts in Oregon

and Louisiana, respectively.

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When Ramos was decided, article I, section 11 of the

Oregon Constitution expressly permitted convictions by a

nonunanimous jury verdict of 10-2, providing in relevant part

that “ten members of the jury may render a verdict of guilty or

not guilty, save and except a verdict of guilty of first degree

murder, which shall be found only by a unanimous verdict, and

not otherwise.” Or. Const. art. I, § 11.

Similarly, article I, section 17 of the Louisiana

Constitution expressly permitted convictions by nonunanimous

juries, stating in relevant part: “[a] case for an offense

committed prior to January 1, 2019, in which the punishment is

necessarily confinement at hard labor shall be tried before a

jury of twelve persons, ten of whom must concur to render a

verdict.” La. Const. art. I, § 17.(A).

Ramos clarified that “the Sixth Amendment's unanimity

requirement applies to state and federal criminal trials

equally.” 140 S. Ct. at 1397. Contrary to Tran’s claims,

however, Ramos contains no language or analysis concerning any

Sixth Amendment issue regarding the longstanding practice of

permitting a unanimous jury to return a guilty verdict even

where jurors might disagree about the specific acts satisfying

an element of a crime. See id.

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The U.S. Supreme Court has long recognized this

practice. In Richardson v. United States, the Court explained

the rule as follows:

The question before us arises because a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime . . . . Where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement — a disagreement about means — would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely, that the defendant had threatened force.

526 U.S. 813, 817 (1999) (citations omitted).

The growing body of post-Ramos state and federal case

law confirms that Ramos did not disturb the well-established

doctrine that the Sixth Amendment to the U.S. Constitution does

not require jury unanimity as to specific underlying facts or

“means” to convict a defendant of a continuing course of conduct

offense, such as that which is at issue here.

Notably, the ICA recently addressed this issue in

Young. The defendant in that case argued that HRS § 707-

733.6(2) violated the Sixth and Fourteenth Amendments to the

U.S. Constitution under Ramos. 150 Hawai‘i at 368, 502 P.3d at

48. With reference to article I, section 25’s history, HRS

§ 707-733.6’s history, this court’s precedent, and U.S. Supreme

Court precedent, the ICA concluded that “Ramos did not address

the issue presented by [the defendant] in this appeal: whether

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the juror unanimity requirement extends to deciding which of

several possible means the defendant used to commit an element

of the crime.” Young, 150 Hawaiʻi at 370, 502 P.3d at 50. That

the Young defendant did not advance Tran’s argument regarding

whether article I, section 25 comports with the U.S.

Constitution does not change this analysis because of the two

provisions’ interrelated histories, discussed infra, Section

III(B).

Moreover, as the Young court pointed out, pre-Ramos

“courts in other jurisdictions have held that their respective

continuous sexual assault statutes do not require jury unanimity

on the specific predicate acts.” Id. at 376, 502 P.3d at 56.

These include courts in Arizona, California, Texas, and

Wisconsin. See, e.g., State v. Ramsey, 124 P.3d 756, 764 (Ariz.

Ct. App. 2005) (concluding that, under Arizona continuous sexual

assault of minor statute, “the specific, individual acts that

constitute the requisite number of predicate acts . . . clearly

constitute the underlying brute facts or means rather than

elements of the crime on which the jury must agree unanimously

and separately” (brackets, citation, and quotation omitted));

People v. Gear, 19 Cal. App. 4th 86, 92 (Cal. Ct. App.

1993) (noting that “[t]he crime of continuous sexual abuse of a

child . . . is a continuous-course-of-conduct crime and

therefore falls within the exception to the rule that jurors

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must agree on the particular criminal acts committed by the

defendant before convicting him,” in upholding California

continuous sexual assault of minor statute against jury

unanimity challenge (citation omitted)); Jacobsen v. State, 325

S.W.3d 733, 737 (Tex. App. 2010) (concluding that, under Texas

continuous sexual assault of minor statute, “it is the

commission of two or more acts of sexual abuse over the

specified time period – that is, the pattern of behavior or the

series of acts – that is the actus reus element of the offense

as to which the jurors must be unanimous in order to convict.”);

State v. Johnson, 627 N.W.2d 455, 460 (Wis. 2001) (concluding

that, under Wisconsin continuous sexual assault of minor

statute, “the predicate acts of sexual assault are not

themselves elements of the offense, about which the jury must be

unanimous before convicting the defendant. Rather, to convict

under this statute, the jury need only unanimously agree that

the defendant committed at least three acts of sexual assault of

the same child within the specified time period.”). Nothing in

Ramos changes these holdings.

Federal courts have interpreted Ramos similarly. One

federal magistrate judge wrote that

[t]he [U.S.] Supreme Court has recently held that in state court proceedings for serious crimes, there is a right to have all twelve jurors agree that a defendant is guilty, so that one single vote to acquit renders a guilty verdict unconstitutional. Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020). However, the Court has never held that

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the jury must also be unanimous as to the means by which a defendant committed the crime, in a case where alternative means are argued to the jury. Indeed, the Court has distinguished between unanimity that [a] defendant committed the crime of conviction (required by Ramos) and unanimity as to how [a] defendant committed the crime (not required by Ramos).

Crow v. Haynes, No. 3:16-cv-05277-RJB-JRC, 2020 WL 5371375, at

*18 (W.D. Wash. Aug. 20, 2020), report and recommendation

adopted, No. 3:16-cv-05277-RJB-JRC, 2020 WL 5369350 (W.D. Wash.

Sept. 8, 2020), aff’d, No. 20-35911, 2021 WL 5122171 (9th Cir.

Nov. 4, 2021).

Other federal courts have likewise interpreted Ramos.

See Anderson v. Davis, No. 3:19-CV-2915-C-BK, 2021 WL 3040771,

at *7 n.3 (N.D. Tex. May 13, 2021) (“Ramos dealt only with the

issue of who the unanimity requirement applied to — not what the

requirement entailed.”), findings, conclusions, and

recommendation adopted by 2021 WL 3039015 (N.D. Tex. July 19,

2021), Anderson v. Lumpkin, No. 21-10773, 2022 WL 3134315 (5th

Cir. Mar. 30, 2022); Campos-Lopez v. Konieg, No. 8:21-cv-00416,

2021 WL 6805698 at *4 (C.D. Cal Dec. 27, 2021) (noting that,

notwithstanding Ramos, “[t]here is . . . no federal

constitutional right that a jury decide unanimously which of

several possible sets of underlying facts make up a particular

element.” (ellipsis and quotation omitted)), findings and

recommendation accepted by No. 821CV00416ODWSHK, 2022 WL 344970

(C.D. Cal. Feb. 3, 2022); Hernandez v. Dir., No. 4:19CV713, 2022

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WL 16753872 at *8 (E.D. Tex. July 13, 2022) (noting that,

notwithstanding Ramos, “[a] disagreement about which of several

possible sets of underlying brute facts make up a particular

element . . . does not matter as long as all 12 jurors

unanimously conclude that the Government has proved the

necessary related element”) (brackets and quotations omitted),

report and recommendation adopted by No. 4:19-CV-00713-RWS, 2022

WL 16748597 (E.D. Tex. Nov. 7, 2022), Hernandez v. Lumpkin, No.

22-40782, 2023 WL 8371953 (5th Cir. July 6, 2023) (per curiam).

Tran’s contention that Ramos addresses potential juror

disagreements regarding predicate acts turns on Ramos’s use of

the phrase “the truth of every accusation.” 140 S. Ct. at 1395

(quotation omitted). However, the full quotation makes clear

that the phrase “the truth of every accusation” referred to

agreement with a given guilty verdict:

[t]he requirement of juror unanimity emerged in 14th century England and was soon accepted as a vital right protected by the common law. As Blackstone explained, no person could be found guilty of a serious crime unless the truth of every accusation should be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion. A verdict, taken from eleven, was no verdict at all.

Id. (quotations, footnotes, and ellipses omitted).

Thus, the phrase “the truth of every accusation”

underscores that the Sixth Amendment requires a guilty verdict

on which all twelve jurors — rather than fewer than twelve

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jurors — agree and says nothing about potential juror

disagreement as to specific predicate acts.

For the above reasons, we conclude that Ramos does not

address guilty verdicts returned by all jurors, notwithstanding

potential disagreement as to the means by which a defendant

committed an element of a charged continuing offense.

2. Because article I, section 25(2) of the Hawai‘i Constitution does not authorize nonunanimous jury verdicts, it comports with the Sixth and Fourteenth Amendments to the U.S. Constitution

Tran argues that article I, section 25 of the Hawai‘i

Constitution authorizes the legislature to empower nonunanimous

juries to return guilty verdicts and that it is therefore

invalid under the U.S. Constitution. For the reasons set forth

below, we disagree. Tran further argues that without the “safe

harbor” provided by article I, section 25, HRS § 707-733.6

violates the Hawai‘i Constitution. Since we conclude that

article I, section 25 does not authorize the legislature to so

empower nonunanimous juries and that provision therefore

comports with the U.S. Constitution, we need not address Tran’s

argument that HRS § 707-733 violates the Hawai‘i Constitution

without article I, section 25’s authorization.

Because Tran concedes that article I, section 25 is

unambiguous, we construe this provision according to its plain

meaning.

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“[W]e have long recognized that the Hawai‘i

Constitution must be construed with due regard to the intent of

the framers and the people adopting it, and the fundamental

principle in interpreting a constitutional provision is to give

effect to that intent,” and “[t]his intent is to be found in the

instrument itself.” Hawai‘i State AFL-CIO v. Yoshina, 84 Hawai‘i

374, 376, 935 P.2d 89, 91 (1997) (quotations omitted).

Moreover, “the general rule is that, if the words used in a

constitutional provision are clear and unambiguous, they are to

be construed as they are written.” Id. (brackets, ellipsis, and

quotation omitted)). “[T]he words of the [Hawai‘i] constitution

are presumed to be used in their natural sense unless the

context furnishes some ground to control, qualify or enlarge

them.” Malahoff v. Saito, 111 Hawai‘i 168, 181, 140 P.3d 401,

414 (ellipsis and quotation omitted). As with statutes, we “may

resort to legal or other well accepted dictionaries as one way

to determine the ordinary meaning[s] of certain terms” not

otherwise defined. State v. Pacquing, 139 Hawai‘i 302, 312, 389

P.3d 897, 907 (2016) (quotation omitted).

Article I, section 25 of the Hawai‘i Constitution

provides:

In continuous sexual assault crimes against minors younger than fourteen years of age, the legislature may define:

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1. What behavior constitutes a continuing course of conduct; and

2. What constitutes the jury unanimity that is required for a conviction.

Merriam-Webster’s Dictionary defines “unanimity” as

“the quality or state of being unanimous,” and, in turn, defines

“unanimous” as "having the agreement and consent of all.”

Unanimity, Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/unanimity

[https://perma.cc/8LDV-7Z4V]; Unanimous, Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/dictionary/unanimous

[https://perma.cc/4LP9-QGCV]. Thus, for a twelve-member jury to

unanimously return a guilty verdict, all twelve members must

agree with the verdict, just as the jury did here. As the

circuit court noted in its order denying Tran’s supplemented new

trial motion, “[i]n the context of a jury trial, [unanimity]

means all 12 jurors must agree.” Because “unanimity” means the

agreement of all, article I, section 25 of the Hawai‘i

Constitution is in no way incongruous with Ramos.

Article I, section 25 cannot be read to empower the

legislature to authorize juries to return nonunanimous guilty

verdicts. Indeed, the provision forecloses this possibility by

using the term “unanimity.” In contrast, article I, section 11

of the Oregon Constitution and article I, section 17 of the

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Louisiana Constitution expressly permitted nonunanimous jury

verdicts of 10-2. See Or. Const. art. I, § 11. (“[T]en members

of the jury may render a verdict of guilty or not guilty, save

and except a verdict of guilty of first degree murder, which

shall be found only by a unanimous verdict.”); La. Const. art.

I, § 17.(A) (“A case for an offense committed prior to January

1, 2019, in which the punishment is necessarily confinement at

hard labor shall be tried before a jury of twelve persons, ten

of whom must concur to render a verdict.”).

Because this “constitutional provision is not

ambiguous, the court, in construing it, is not at liberty to

search for its meaning beyond the instrument.” Malahoff, 111

Hawai‘i at 181, 140 P.3d at 414 (quotation omitted). Our inquiry

therefore begins and ends with article I, section 25’s text,

which we may not construe to mean anything other than what it

says.

B. Neither Article I, Section 25 nor HRS § 707-733.6 Violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution

Tran argues that article I, section 25 of the Hawaiʻi

Constitution and HRS § 707-733.6 violate the Equal Protection

Clause of the U.S. Constitution. Tran argues that those

prosecuted under HRS § 707-733.6 are treated differently than

those prosecuted under other criminal statutes, and that the

difference in treatment is not rationally based. Specifically,

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Tran contends that defendants prosecuted under HRS § 707-733.6

are denied equal access to the rule announced in our decision in

State v. Arceo, 84 Hawai‘i 1, 928 P.2d 843 (1996), and that

because this denial is based on a presumption of guilt, article

I, section 25 of the Hawai‘i Constitution and HRS § 707-733.6

lack a rational basis. Because both provisions are rationally

based on the legitimate legislative end of enhancing public

safety, we disagree.

“The Equal Protection Clause of the Fourteenth

Amendment [to the U.S. Constitution] commands that no State

shall deny to any person within its jurisdiction the equal

protection of the laws, which is essentially a direction that

all persons similarly situated should be treated alike.” City

of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439

(1985) (quotation omitted). However, “[t]he Equal Protection

Clause does not prohibit the State from passing laws which treat

classes of people differently, but only from treating classes

differently when the basis of the discrimination does not bear a

rational relationship to a legitimate statutory objective.”

State v. Bloss, 62 Haw. 147, 153, 613 P.2d 354, 358 (1980).

Because Tran does not claim protected class membership, we

review for rational basis. See Lee v. City of Los Angeles, 250

F.3d 668, 687 (9th Cir. 2001) (noting that policy treating

classes of people differently “need only be rationally related

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to legitimate legislative goals to pass constitutional muster”

(quotation omitted)). Doing so here, we hold that both

provisions comport with the Fourteenth Amendment’s Equal

Protection Clause.

In Arceo, a case involving a two-count indictment of

child sexual assault, we held that

when separate and distinct culpable acts are subsumed within a single count charging a sexual assault — any one of which could support a conviction thereunder — and the defendant is ultimately convicted by a jury of the charged offense, the defendant’s constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (1) at or before the close of its case- in-chief, the prosecution is required to elect the specific act upon which it is relying to establish the “conduct” element of the charged offense; or (2) the trial court gives the jury a specific unanimity instruction, i.e., an instruction that advises the jury that all twelve of its members must agree that the same underlying criminal act has been proved beyond a reasonable doubt.

Arceo, 84 Hawaiʻi at 32–33, 928 P.2d at 874–75.

Under Arceo’s rule, jurors had to unanimously agree on

the specific criminal acts proven at trial when returning guilty

verdicts. However, the people of Hawai‘i narrowed the Arceo

decision when they incorporated article I, section 25 into the

Hawai‘i Constitution. Because their reasons for doing so are

rationally related to a legitimate legislative end, this

provision and its companion legislation, HRS § 707-733.6,

comport with the Equal Protection Clause of the Fourteenth

Amendment to the U.S. Constitution.

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In arguing that article I, section 25 and HRS § 707-

733.6 discriminate against defendants prosecuted under HRS

§ 707-733.6 by denying them the protection of Arceo’s rule, Tran

cites legislative materials indicating that the provisions would

“make it easier to prosecute those who repeatedly sexually

assault a child.” See, e.g., S.B. 2246, 23rd Leg., Reg. Sess.

(2006) (proposing amendment to article I of Hawai‘i Constitution

relating to sexual assault and noting “[t]his would make it

easier to prosecute those who repeatedly sexually assault a

child”),

https://www.capitol.hawaii.gov/slh/AllIndex/All_Acts_SLH2006.pdf

[https://perma.cc/J7SF-3JSX]; S. Stand. Comm. Rep. No. 3010, in

2006 Senate Journal, at 1458 (noting that proposed legislation

would “mak[e] it easier to prosecute those who repeatedly

sexually assault children”),

https://www.capitol.hawaii.gov/journal/senate/2006/Senate_Journa

l_2006_Committee_Reports.pdf [https://perma.cc/6TLH-7VYL].

While these provisions are not ambiguous, we turn to

the relevant legislative history because “an examination of the

debates, proceedings and committee reports is useful” in

addressing Tran’s arguments here. Nelson v. Hawaiian Homes

Comm’n, 127 Hawaiʻi 185, 198, 277 P.3d 279, 292 (2012) (quotation

omitted).

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Article I, section 25 was enacted “to provide that the

legislature may define what behavior constitutes a continuing

course of conduct in continuous sexual assault crimes against

minors younger than fourteen years of age and what constitutes

the jury unanimity that is required for a conviction.” S.B.

2246, 23rd Leg., Reg. Sess. (2006).

A 2006 Senate Standing Committee report regarding the

legislation that would become HRS § 707-733.6 noted that,

[u]nder the current law, it is difficult to prosecute those who repeatedly sexually assault young children, because of the difficulty young children have in remembering the individual dates on which they were sexually assaulted.

S. Stand. Comm. Rep. No. 3010, in 2006 Senate Journal, at 1458.

Enhancing public health, safety, and welfare are

recognized as rationally-based legislative ends. State v.

Mallan, 86 Hawai‘i 440, 452, 950 P.2d 178, 190 (1998) (“[T]he

police power issue is subsumed within the rational basis test.

In other words, under minimum rationality due process analysis,

a statute must be rationally related to the public health,

safety, or welfare.”).

This legislative history makes clear that these

provisions were intended to protect children from repeated

sexual assault, given the unique challenges that child victims

might face under these circumstances. Together, these

provisions aim to enhance public safety by permitting unanimous

juries to return guilty verdicts in HRS § 707-733.6 cases 30 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

without requiring agreement on which specific acts were proven

beyond a reasonable doubt at trial. As noted above, one

specific reason for permitting juries to return verdicts in this

manner was that children have a difficult time “remembering the

individual dates on which they were sexually assaulted.” S.

Stand. Comm. Rep. No. 3010, in 2006 Senate Journal, at 1458.

These provisions neither authorize nonunanimous juries

to return guilty verdicts nor implicate the presumption of

innocence, as demonstrated by the record here. The relevant

legislative history reveals an intent to allow unanimous juries

to return guilty verdicts in HRS § 707-733.6 cases without

necessarily agreeing on which three acts were proven at trial.

For example, a Senate Standing Committee report regarding the

bill that would become HRS § 707-733.6 stated that the measure

would permit juries to return guilty verdicts “if each member of

the jury was convinced beyond a reasonable doubt that the

defendant had sexually assaulted the child the required minimum

number of times, even if there were no unanimity as to the

individual assaults.” Id. The bill was not intended to permit

nonunanimous jury verdicts or to alter the presumption of

innocence. Here, Tran was presumed innocent and convicted only

after a seven-day trial which concluded with all twelve jurors,

who were individually polled at Tran’s request, and all answered

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“Yes” when the circuit court asked “if [they] agree[d] with the

verdict.”

Because article I, section 25 of the Hawai‘i Constitution

and HRS § 707-733.6 are rationally related to the legitimate

legislative end of enhancing public safety, neither provision

violates the Equal Protection Clause of the Fourteenth Amendment

to the U.S. Constitution.

C. The Indictment was Sufficient

The Motta/Wells liberal construction rule applies to

Tran’s indictment challenge because he raised this claim after

the jury’s verdict. The indictment was sufficient because it

charged a crime and Tran was not prejudiced by the allegedly

defective charge. We therefore vacate the circuit court’s

dismissal order.

1. Tran’s defective charge challenge was untimely and the Motta/Wells liberal construction rule applies

After trial, Tran challenged the charge’s sufficiency

on the grounds that it did not define the specific acts alleged

against him. To comply with Jardine, Tran contends that

statutory terms included in indictments “must be narrowed down

to the pertinent species from [their] (often capacious)

statutory definition[s].” He argues that his indictment defined

only the generic terms “sexual penetration” and “sexual

contact,” but did not state what types of acts he allegedly

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engaged in. Thus, Tran contends, the indictment was so

generalized that it did not state an offense.

Under article I, section 14 of the Hawaiʻi

Constitution, those accused of crimes have the right “to be

informed of the nature and cause of the accusation” against

them. Defendants may challenge indictments for failure to

charge an offense “at any time during the pendency of the

proceeding” because of “the significant consequences associated

with omitting an essential and material element in an oral

charge” or indictment. State v. Sprattling, 99 Hawai‘i 312, 318,

55 P.3d 276, 282 (2002) (quotation omitted).

While indictments can be challenged at any point

during the proceeding, different standards apply to “post-

conviction challenges.” Motta, 66 Haw. at 91, 657 P.2d at 1020.

Under the Motta/Wells framework, “we will not reverse a

conviction based upon a defective indictment unless the

defendant can show prejudice or that the indictment cannot

within reason be construed to charge a crime.” Id. The liberal

construction standard “essentially prescribes a presumption of

validity on indictments that are challenged subsequent to a

conviction.” Sprattling, 99 Hawai‘i at 318, 55 P.3d at 282.

Tran argues that the Motta/Wells liberal construction

standard does not apply here because he challenged the

indictment before sentencing. According to Tran, the liberal 33 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

construction standard applies only when the challenge is raised

even later in the process, i.e., on appeal or in a Hawai‘i Rules

of Penal Procedure (HRPP) Rule 40 proceeding. In support of

that argument, he cites cases in which we have referred to the

Motta/Wells rule as applying when an indictment is challenged

for the first time on appeal. See, e.g., State v. Kauhane, 145

Hawai‘i 362, 370, 452 P.3d 359, 367 (2019) (“[W]hen a defendant

challenges the sufficiency of a charge for the first time on

appeal, an appellate court will apply a more liberal standard of

review, called the Motta/Wells rule.”).

The State argues that the Motta/Wells rule should

apply once there is a finding of guilt. It points out that this

court has consistently applied the Motta/Wells liberal

construction rule when charge challenges are raised “for the

first time on appeal.” State v. Walker, 126 Hawai‘i 475, 491,

273 P.3d 1161, 1177 (2012) (quotation omitted), overruled on

other grounds by Schwartz v. State, 136 Hawai‘i 258, 361 P.3d

1161 (2015). The State highlights that this court in Motta

adopted the liberal construction rule for indictment challenges

raised “after trial.” Motta, 66 Haw. at 94, 657 P.2d at 1022

(emphasis omitted). Because Tran first challenged the

indictment a month after the jury’s verdict and the end of

trial, the State argues the Motta/Wells rule applies.

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While we have occasionally described the Motta/Wells

rule as applying to challenges raised for the first time on

appeal, we have never held that it applies only to challenges

raised on appeal. See, e.g., Sprattling, 99 Hawai‘i at 318, 55

P.3d at 282 (recognizing Motta/Wells rule “essentially

prescribes a presumption of validity on indictments that are

challenged subsequent to a conviction”).

Motta itself is a good example. The defendant there

was convicted of burglary, and subsequently claimed that the

indictment was deficient for failing to allege the specific

crime that he intended to commit when entering the building.

Motta, 66 Haw. at 90, 657 P.2d at 1019. The defendant objected

to the indictment by moving to dismiss more than two months

after a jury returned a guilty verdict against him. Id. at 90

n.1, 657 P.2d at 1019 n.1. Drawing on federal cases, we adopted

a “liberal construction standard for post-conviction challenges

to indictments,” under which “we will not reverse a conviction

based upon a defective indictment unless the defendant can show

prejudice or that the indictment cannot within reason be

construed to charge a crime.” Id. at 91, 657 P.2d at 1020.

Applying those principles to the Motta defendant, we rejected

his challenge. We wrote that

[b]y adopting this liberal standard for post-trial challenges, we do not mean to condone or encourage the prosecutors in failing to take greater care expressly to

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include all the elements of the offense being charged. Fifteen minutes to an hour more thought and effort spent on the drafting of indictments, would save the prosecutor, as well as our crowded courts, hours of time having to deal with these vexatious challenges to carelessly drawn indictments.

Our adoption of this liberal standard should also put an end to what appears to be a pattern and practice on the part of the criminal defense bar, of waiting until after conviction before raising any objections to indictments.

Id. at 94 n.3, 657 P.2d at 1022 n.3 (emphases omitted).

The circumstances in Motta are analogous to those

here, that is, a motion to dismiss made “after trial.” Id. at

90, 657 P.2d at 1019. Moreover, the rationale set forth in

Motta - disincentivizing the “pattern and practice” of

defendants deliberately waiting until after the jury’s verdict

before moving to dismiss - applies equally here. Id. at 94 n.3,

657 P.2d at 1022 n.3.

Tran argues that the liberal construction rule does

not apply until after a defendant has been sentenced and a court

has entered a final judgment. See, e.g., State v. Wheeler, 121

Hawai‘i 383, 400, 219 P.3d 1170, 1187 (2009) (observing that

Motta/Wells rule applies when defendants challenge charges

“subsequent to a conviction”). However, these cases have not

excluded the possibility of applying the rule to challenges

raised post-verdict, but prior to sentencing. As we noted in

State v. Akana, “[t]he meaning of the term ‘convicted’ or

‘conviction’ varies according to the context in which it appears

and the purpose to which it relates.” 68 Haw. 164, 166, 706

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P.2d 1300, 1303 (1985). While the “technical definition [of

‘conviction’] includes the judgment or sentence rendered

pursuant to an ascertainment of guilt,” the term is “more

commonly used and understood to mean a verdict of guilty or a

plea of guilty.” Id. Tran was convicted when the circuit court

“adjudge[d] Mr. Tran guilty” immediately after receiving the

jury’s unanimous verdict.

Further, the rationale we cited in Motta applies with

equal force whether the motion is made after a guilty verdict or

after a final judgment of conviction is entered. Cf. State v.

Bautista, 153 Hawai‘i 284, 289, 535 P.3d 1029, 1034

(2023) (“[D]efendants awaiting sentencing, or those challenging

a charging instrument’s validity for the first time on

appeal . . . or even later per HRPP Rule 40, are foreclosed from

having their pleas nullified or their trial convictions

overturned per HRS § 801-1 [2014].”).

We therefore hold that where, as here, a charge

challenge is raised after a guilty verdict has been returned (or

after a court has adjudicated a defendant guilty in a bench

trial), the Motta/Wells rule applies.

2. Under the Motta/Wells rule, the indictment was not defective because Tran was not prejudiced and the charge stated a crime

Applying the liberal construction rule, we conclude

that the circuit court incorrectly dismissed the indictment.

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Tran argues that his case is similar to Jardine, in

which this court held that the indictment against the defendant

in that case was insufficient because it tracked the generic

statutory language of second-degree assault, but did not include

the specific details about the type of assault that the

defendant allegedly committed. 151 Hawai‘i at 97-98, 508 P.3d at

1183-84. In Jardine, we stated that when strictly construing an

indictment containing generic language, a charge should “descend

to the particulars” because including “such information would

apprise a defendant of what the defendant must be prepared to

meet.” Id. at 101-02, 508 P.3d at 1187-88. But in Jardine the

defendant filed a motion to dismiss before trial, and the

Motta/Wells liberal construction rule therefore did not apply.

Id. at 98, 508 P.3d at 1184.

Here, Tran has not established that he was prejudiced

by the indictment. There is nothing in the record to suggest

that he was misled or would have defended the case differently

if the indictment contained the additional detail he proposes.

Thus, we are not convinced that he was prejudiced by the

indictment at hand. Cf. Motta, 66 Haw. at 94, 657 P.2d at

1022 (upholding defendant’s conviction of burglary even where

indictment failed to include crime that was allegedly committed

when defendant entered building because he had “shown no

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prejudice in the outcome of his trial from the failure of the

indictment to specify the underlying offense”).

Second, when liberally construed, the indictment was

sufficiently detailed to charge a crime. The indictment alleged

in relevant part that

[o]n or about January 1, 2015 to and including January 31, 2020, in the City and County of Honolulu, State of Hawai‘i, ALVIN TRAN, a person who either resided in the same home with [minor child], a minor under the age of fourteen years, or had recurring access to [minor child], with intent or knowledge that [minor child] was such a person, did intentionally or knowingly engage in three or more acts of sexual penetration and/or sexual contact with [minor child] over a period of time, while [minor child] was under the age of fourteen years, and was not married to [minor child], and knew he was not married to [minor child], thereby committing the offense of Continuous Sexual Assault of a Minor Under the Age of Fourteen Years, in violation of Section 707-733.6 of [HRS].

The indictment included all material elements outlined

in HRS § 707-733.6, citing that statute specifically. It also

provided the statutory definitions of “sexual penetration,”

“sexual contact,” and related terms.

Generally, “[w]here [a] 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.”

State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242, 1245

(1977). Tran argues that because the indictment only included

the statutory language of HRS §§ 707-733.6 (Continuous Sexual

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Assault of a Minor Under the Age of Fourteen Years) and 707-700

(“sexual penetration,” “deviate sexual intercourse,” and “sexual

contact”), it was too generic to state a crime.

We do not agree that the indictment cannot, “within

reason,” be construed to state an offense. See Motta, 66 Haw.

at 91, 657 P.2d at 1020. As the State points out, when

reviewing “whether an offense has been sufficiently pleaded,”

this court “interpret[s] a charge as a whole, employing

practical considerations and common sense.” Sprattling, 99

Hawai‘i at 318-19, 55 P.3d at 282-83.

Here, the indictment included the material elements of

the offense and all the relevant statutory definitions. A

person of common understanding would know from reading the

indictment against Tran that he was accused of violating HRS

§ 707-733.6 by intentionally or knowingly engaging in (1) three

or more acts of sexual penetration and/or sexual contact

(2) with minor child, to whom he was not married (3) between

2015-2020 (4) in the City and County of Honolulu. The

indictment outlined the requisite mens rea and properly defined

sexual penetration and sexual contact according to their

statutory definitions. See Wheeler, 121 Hawai‘i at 393, 219 P.3d

at 1180 (“[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

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comprehensible to persons of common understanding, a charge

drawn in the language of the statute [will be] sufficient.”).

Therefore, the indictment charged a crime when liberally

construed. See id.

Tran argues further that “[e]lisions of necessary

information to establish the crime of conviction precludes

reasonably construing the charge to state an offense.” He

asserts that the indictment should have included the specific

types of sexual penetration or contact that he allegedly engaged

in. Again, he analogizes to Jardine, where we upheld the

dismissal of a second-degree assault indictment that neither

defined “substantial bodily injury” nor specified the type of

injury that the defendant allegedly inflicted. 151 Hawai‘i at

98, 508 P.3d at 1184. But, again, Jardine involved a pretrial

motion to dismiss, and we did not consider the adequacy of the

charge in light of the liberal construction standard. Id. at

101-02, 508 P.3d at 1187-88.

A more apt analogy would be to Motta, where the

defendant challenged a burglary indictment on the grounds that

it did not specify the crime that the defendant intended to

commit when he entered the building. 66 Haw. at 92, 657 P.2d at

1021. We noted there that, while the “general rule” in certain

other jurisdictions was that such an indictment would be

defective, under the liberal construction standard, we were,

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“within reason,” able to construe the charge as stating the

offense of burglary. Id. at 93-94, 657 P.2d at 1021-22. In

Motta, the defendant did not show that the indictment against

him was “so obviously defective that by no reasonable

construction can it be said to charge the offense for which

conviction was had.” Id. at 94, 657 P.2d at 1022 (quotation

marks omitted).

Similarly, the charge here can be construed as

alleging the offense charged “within reason.” See Motta, 66

Haw. at 91, 657 P.2d at 1020. All of HRS § 707-733.6’s

essential elements and relevant statutory definitions were

included in the indictment. The indictment therefore

“sufficiently apprise[d]” Tran of what he needed to “be prepared

to meet,” Wells, 78 Hawai‘i at 379-80, 894 P.2d at 76-77, and

“provided [him] with fair notice of the offense’s essential

elements,” Kauhane, 145 Hawai‘i at 370, 452 P.3d at 367 (brackets

and quotation omitted).

Because the indictment must be liberally construed,

and, when so construed, was sufficient to apprise Tran of what

he had to prepare to meet at trial, the circuit court

incorrectly dismissed the indictment. The circuit court’s

dismissal order is therefore vacated. Because we conclude that

the circuit court incorrectly dismissed the indictment, we do

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not address whether it should have been dismissed with

prejudice.

IV. CONCLUSION

For the foregoing reasons, we (1) vacate the circuit

court’s January 9, 2023 Order Granting in Part and Denying in

Part Defendant’s Motion to Dismiss; (2) affirm the circuit

court’s October 6, 2022 Order Denying Defendant’s Motion for New

Trial, Pursuant to Supplemental Argument, Filed May 25, 2022;

and (3) remand the case to the circuit court for further

proceedings consistent with this opinion.

Daniel Hugo /s/ Mark E. Recktenwald for Plaintiff-Appellant/ Cross-Appellee /s/ Sabrina S. McKenna

Thomas M. Otake /s/ Todd W. Eddins for Defendant-Appellee/ Cross-Appellant /s/ Clarissa Y. Malinao

Robert T. Nakatsuji (on the briefs) for Amicus Curiae