State v. Jardine.

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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
---o0o---
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
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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.”
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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[.]
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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
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[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
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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
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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.
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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
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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).
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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
76-77.
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
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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
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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
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