CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000765; FC-CR. NO. 11-1-1241)
Brandon H. Ito for petitioner
Harrison Kiehm for respondent
Recktenwald, C.J., Nakayama, and McKenna, JJ., with Acoba, J., dissenting separately, with whom Pollack, J., joins
SUMMARY DISPOSITION ORDER
Petitioner/plaintiff-appellee State of Hawai'i seeks review of the Intermediate Court of Appeals's April 8, 2013 Judgment on Appeal, entered pursuant to its February 26, 2013 Summary Disposition Order. The ICA's judgment vacated the Family Court of the First Circuit's September 28, 2011 Judgment of Conviction and Sentence,  which convicted Matthew Lockey of Harassment in violation of Hawai'i Revised Statutes § 711-1106(1) (a) . On certiorari, the State contends that the ICA erred in holding that (1) the complaint did not sufficiently apprise Lockey of what he must be prepared to meet because the language was worded in the disjunctive; and (2) Lockey's untimely objection was not waived.
We recently addressed this precise issue in State v. Codiamat, ___Hawai'i___, ___P.3d___ (2013) (holding that a charge worded disjunctively in the language of the statute provides sufficient notice so long as the acts charged are contained in a single subsection of a statute and are reasonably related).
Lockey was charged under the same statute as the defendant in Codiamat, and the language of the charge was virtually identical to the language upheld as valid in Codiamat. See id. at *1. Applying the holding of Codiamat to the present case, the State's HRS § 711-1106(1) (a) charge provided Lockey with sufficient notice of what he must be prepared to meet. Accordingly, the ICA erred in vacating Lockey's judgment of conviction and sentence on the ground that the charge was pled in the disjunctive.
Because we are vacating the ICA's judgment on other grounds, we need not reach the issue of whether Lockey's untimely objection was waived.
Accordingly, we vacate the ICA's April 8, 2013 Judgment on Appeal and affirm the family court's September 28, 2011 Judgment of Conviction and Sentence.
ACOBA, J., IN WHICH POLLACK, J., JOINS
The Complaint filed by Petitioner/Plaintiff-Appellee State of Hawai'i (the State) herein charged Respondent/Defendant-Appellant Matthew Lockey (Defendant) with Harassment HRS § 711-1106(1) (a) (Supp. 2009) in that he allegedly "did strike, shove, kick, car otherwise touch [Complainant] in an offensive manner or subject [Complainant] to offensive physical contact[.]"
(Emphasis added.) Defendant's oral motion to dismiss the Complaint because it failed to provide him adequate notice of the charge was denied by the Family Court of the First Circuit (the court) at the time of arraignment.
However, as this court indicated in State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977), "[i]n charging the defendant in the disjunctive rather than in the conjunctive, [the Complaint] left the defendant uncertain as to which of the acts charged was being relied upon as the basis for the accusation against him. Where a statute specifies several ways in which its violation may occur, the charge may be laid in the conjunctive but not in the disjunctive." Jendrusch, 58 Haw. at 282 n.4, 567 P.2d at 1245 n.4 (citing Territory v. Lii, 39 Haw. 574, 579 (1952)) (emphases added). Indeed, "the use of the word , or' would indicate to a lay person that he or she was charged with one of the acts described in the statute, but would not indicatewhich one." State v. ...