June 19, 2013
STATE OF HAWAI'I, Plaintiff-Appellee,
SUSHIL BASNET, Defendant-Appellant
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT (FC-CRIMINAL NO. 11-1-1675)
Steven T. Barta, Defendant-Appellant.
James M. Anderson Presiding Judge, Deputy Prosecuting Attorney, City and County of Honolulu for Plaintiff-Appellee.
Foley, Presiding J., Leonard and Ginoza, JJ.
Defendant-Appellant Sushil Basnet (Basnet) appeals from the September 23, 2011 Judgment entered in the Family Court of the First Circuit (circuit family court) convicting Basnet on one count of Abuse of Family or Household Members in violation of Hawaii Revised Statutes (HRS) § 709-906(1) (Supp. 2012).
On appeal, Basnet contends the circuit family court erred in denying his motion to dismiss the complaint because (1) his arraignment proceeding failed to comply with the requirements of the Hawai'i Rules of Penal Procedure (HRPP), and (2) the complaint insufficiently alleged the essential elements of the offense.
On June 9, 2011, Plaintiff-Appellee State of Hawai'i (State) charged Basnet with "intentionally, knowingly, or recklessly physically abus[ing the complaining witness (Wife)], a family or household member, " in violation of HRS § 709-906(1). The complaint's caption stated: "IN THE DISTRICT COURT OF THE FIRST CIRCUIT[, ] HONOLULU DIVISION[, ] STATE OF HAWAII."
On June 21, 2011, Basnet appeared before the Honorable Darryl Y.C. Choy for an arraignment and plea hearing. The pretrial order from that hearing indicates Basnet waived reading of the charge and entered a plea of not guilty. The pre-trial order also stated: "Jury trial demanded, case committed to [c]ircuit [family] [c]ourt." The record indicates this was the only arraignment proceeding conducted in this case.
The circuit family court held a calendar call on September 20, 2011, during which the State made an oral motion to amend the complaint's caption to state that the complaint was filed in the circuit family court. Basnet objected, and two days later, the circuit family court heard argument on the State's motion. The State argued the complaint's heading reflected a typographical error. Basnet responded by orally moving to dismiss the case. Basnet first argued the circuit family court lacked jurisdiction because his arraignment failed to comply with the HRPP's requirements. Basnet also argued the complaint was deficient because it failed to define the terms "physical abuse" and "family or household member." The circuit family court concluded it had jurisdiction, and it granted the State's oral motion to amend the complaint's caption.
At the conclusion of the trial, a jury found Basnet guilty as charged. The circuit family court entered its judgment of conviction against Basnet on September 23, 2011. Basnet filed a timely notice of appeal on October 18, 2011.
II. STANDARDS OF REVIEW
A. Interpretation Of Court Rules
The interpretation of a court rule is reviewed de novo. Sierra Club v. Dep't of Transp., 120 Hawai'i 181, 197, 202 P.3d 1226, 1242 (2009).
B. Harmless Error
Hawai'i Rules of Penal Procedure (HRPP) Rule 52(a) provides, in relevant part, that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." The Hawai'i Supreme Court has stated that "[sjuch error, however, should not be viewed in isolation and considered purely in the abstract. It must be examined in light of the entire proceedings and given the effect to which the whole record shows it is entitled." State v. Sprattling, 99 Hawai'i 312, 320, 55 P.3d 276, 284 (2002) (internal quotation marks and brackets in original omitted). Under the harmless error standard, the appellate court "must determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. Pauline, 100 Hawai'i 356, 378, 60 P.3d 306, 328 (2002) (internal quotation marks omitted). "If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside." State v. Gano, 92 Hawai'i 161, 176, 988 P.2d 1153, 1168 (1999) (internal quotation marks omitted).
C. Sufficiency Of Charge
"Whether a charge sets forth all the essential elements of a charged offense is a question of law, which we review under the de novo, or right/wrong, standard." State v. Mita, 124 Hawai'i 385, 389, 245 P.3d 458, 462 (2010) (internal quotation marks, citation, brackets, and ellipsis omitted).
Basnet contends the circuit family court lacked subject matter jurisdiction because his arraignment did not comply with the requirements of the HRPP. He alleges he was arraigned only in the district family court without a second arraignment in the circuit family court, in violation of HRPP Rule 10(a). He further alleges the district family court committed him to the circuit family court without an order of commitment, in violation of HRPP Rule 5(b)(3).
Although the State argues otherwise, Basnet correctly asserts he was arraigned in the district family court, not the circuit family court. The presiding judge at the arraignment hearing was a per diem judge,  and per diem judges serve as district judges only. See HRS §§ 604-2 (Supp. 2012) ("Appointment and tenure of district judges; per diem district judges "), 571-8 (2006 Repl.) ("District family courts; district family judges; appointment; sessions.").
However, we conclude any impropriety constituted harmless error and did not warrant dismissal. The purpose of arraignment is to inform the defendant of the charges and of their rights and to give the opportunity to plead. See HRPP Rule 10(d) (e) . Here, Basnet waived reading of the charge, entered a plea of not guilty, and elected jury trial during his arraignment in the district family court. Upon commitment to the circuit family court, the complaint was amended in form only, and the charge was not amended. Moreover, although the district family court did not enter a separate commitment order, the pre-trial order it entered specifically noted the case was committed to the circuit family* court for jury trial. Because Basnet has not plausibly shown the above alleged irregularities affected his substantial rights, the circuit family court did not err in denying his motion to dismiss. See HRPP Rule 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.").
Basnet's second point of error challenges the sufficiency of the charges. Relying on State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), Basnet claims the complaint charging him under HRS § 709-906(1) was deficient because it failed to define the terms "physical abuse" and "family or household member."
In Mita, the Hawai'i Supreme Court held the oral charge against Mita was sufficient based on two factors distinguishing that case from the insufficient charge in Wheeler. First, the definition of "animal nuisance" at issue in Mita "[did] not create an additional essential element of the offense[.]" Mita, 124 Hawai'i at 391, 245 P.3d at 464. Second, "in any event, the definition of 'animal nuisance' [was] consistent with its commonly understood meaning and therefore Mita had fair notice of the offense charged." Id. In other words, "the State need only allege the statutory definition of a term when it creates an additional essential element of the offense, and the term itself does not provide a person of common understanding with fair notice of that element." Id. at 392, 246 P.3d at 465.
Here, the complaint specified:
On or about the 7th day of June, 2011, in the City and County of Honolulu, State of Hawaii, SUSHIL BASNET did intentionally, knowingly, or recklessly physically abuse [Wife], a family or household member, thereby committing the offense of Abuse of Family or Household Members, in violation of Section 709-906(1) of the Hawaii Revised Statutes. SUSHIL BASNET is subject to sentencing in accordance with Section 709-906(5) (a) of the Hawaii Revised Statutes.
Basnet does not contend that either of the terms created an additional essential element of the offense. Rather, he argues the complaint's failure to define the terms deprived him of fair notice of the offense. We disagree and conclude the charge was sufficient because both "physical abuse" and "family or household member" were sufficiently consistent with their commonly understood meanings to provide fair notice.
Although HRS § 709-906(1) does not define the term "physical abuse, " the Hawai'i Supreme Court has held the term's ordinary reading gives sufficient notice of the prohibited conduct. See State v. Kameenui, 69 Haw. 620, 623, 753 P.2d 1250, 1252 (1988) (holding HRS § 709-906(1) is not void for vagueness despite the lack of a statutory definition of "physical abuse"). The complaint's use of "family or household member" was likewise consistent with the term's ordinary meaning, and it adequately informed Basnet of the nature and cause of the accusation against him. The complaint did not need to set forth the full statutory definition of "family or household member" to alert Basnet of what he needed to defend against to avoid conviction. Under the circumstances of this case, we conclude the charge against Basnet was sufficient.
The September 23, 2011 Judgment entered in the Family Court of the First Circuit is affirmed.