FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO.
R. Vincent, Deputy City and County of Honolulu, for
S. Tabe, Deputy Public Defender, for Defendant-Appellee.
Fujise, Presiding Judge, Leonard and Chan, JJ.
SUMMARY DISPOSITION ORDER
the State of Hawai'i (State) appeals from the Order
Granting, in Part, and Denying in Part, Defendant's
Motion to Dismiss Count 5 for Unconstitutionally Broad,
Vague, and Punitive Statute, and for Violation of Due
Process, filed on July 12, 2016 in the Circuit Court of the
First Circuit (Circuit Court)
December 16, 2015 Defendant-Appellee Curtis K. Love (Love)
was charged with fraudulent use of a credit card and
unauthorized possession of confidential personal information
(UPCPI) pursuant to Hawaii Revised Statutes (HRS) §
708-839.55, which stated in part, as follows:
COUNT 5: On or about August 27, 2015, in the City and County
of Honolulu, State of Hawaii, CURTIS K. LOVE, did
intentionally or knowingly possess, without authorization,
any confidential personal information of [Complaining
Witness], in any form, including but not limited to mail,
physical documents, identification cards, or information
stored in digital form, thereby committing the offense of
Unauthorized Possession of Confidential Personal Information,
in violation of Section 708-839.55 of the Hawaii Revised
Statutes. On July 12, 2016, Count 5 was dismissed by the
Circuit Court with prejudice.
appeal, the State contends the Circuit Court erred in
concluding HRS § 708-839.55 (2014) was
unconstitutionally overbroad, vague, and a violation of due
careful review of the record and the briefs submitted by the
parties and having given due consideration to the arguments
advanced and the issues raised by the parties, we resolve the
State's point of error as follows:
March 29, 2016 Motion to Dismiss sought dismissal of Count 5
on three grounds: (1) the UPCPI was unconstitutionally
overbroad and vague, thus, in violation of the Due Process
Clause of the United States Constitution and Hawai'i
Constitution; (2) the statute criminalized "mere
possession of information absent any malicious intent to
misuse that information, " in violation of the Due
Process Clause of the United States Constitution and
Hawai'i Constitution; and (3) the charging instrument did
not define the element of "confidential personal
information" and the term is not readily comprehensible
to persons of common understanding, in violation of his due
process rights, i.e. the charge was insufficient.
Motion to Dismiss was granted on the basis that HRS §
708-839.55 was unconstitutionally overbroad, vague, and a
violation of due process but denied on the ground that the
charge was insufficient.
State v. Pacquing, 139 Hawai'i 302, 310-17, 389
P.3d 897, 905-12 (2016) (Pacquing II), the court held that
HRS § 708-839.55 was not unconstitutionally overbroad.
The court also held that a portion of HRS § 708-839.55
was vague and ordered that the phrase "a password or
other information that is used for accessing information, or
any other name, number, or code that is used, alone or in
conjunction with other information, to confirm the identity
of a person, " be stricken from that statute.
Id. at 319, 389 P.3d at 914. The Pacquing
II court did not strike "a driver's license, a
social security number, an identifying number of a depository
account, [or] a bank account number" from the definition
of confidential personal information. Id.
did not specify the type of confidential personal information
that Love possessed in violation of HRS § 708-839.55.
However, based upon Love's Motion to Dismiss and the
State's Memorandum in Opposition, it appears the charge
was related to Love's possession of the complaining
witness's credit or debit cards. Possession of
another's individual credit or debit card information
constitutes unauthorized possession of information that is
similar in nature to a bank account number or identifying
number of a depository account. State v. Mank,
CAAP-16-0000342 (App. January 31, 2017)(SDO) at 6 (possession
of another's credit card number constitutes unauthorized
possession of information that is similar in nature and
character to a bank account number or the identifying number
of a depository account). Therefore, the Circuit Court erred
by concluding that HRS § 708-839.55 was
unconstitutionally overbroad, vague, and a violation of
Love's due process rights.
in light of these circumstances, we vacate the Order
Dismissing UPCPI Charge, and we remand the case to the
Circuit Court for further proceedings ...