77 Hawai'i 309, State v. Elliott

• Decision Date: 07 November 1994
• Docket Number: No. 16343,16343
• Citation: 77 Hawaii 309,884 P.2d 372
• Parties: 77 Hawai'i 309 STATE of Hawai'i, Respondent-Appellee, v. Marian Lois ELLIOTT, Petitioner-Appellant.
• Court: Hawaii Supreme Court

Page 372

884 P.2d 372

77 Hawai'i 309

STATE of Hawai'i, Respondent-Appellee, v. Marian Lois ELLIOTT, Petitioner-Appellant.

No. 16343.

Supreme Court of Hawai'i.

Nov. 7, 1994.

Theodore Y.H. Chinn, Deputy Public Defender, on the brief, Honolulu, for petitioner-appellant.

Before MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, JJ. and YIM, Circuit Court Judge, in place of RAMIL, J., Recused.

KLEIN, Justice.

Petitioner-Appellant Marian Lois Elliott was convicted of resisting arrest in violation of Hawai'i Revised Statutes (HRS) § 710-1026(1)(a) (1985), assault against a police officer in violation of HRS § 707-712.5 (Supp.1992), and disorderly conduct in violation of HRS § 711-1101(1)(b) (1985). The Intermediate Court of Appeals (ICA) in a published opinion reversed Elliott's disorderly conduct conviction and affirmed her resisting arrest and assault against a police officer convictions. State v. Elliott, 77 Hawai'i 314, 884 P.2d 377 (1994), cert. granted, 76 Hawai'i 247, 871 P.2d 795 (1994).

We granted certiorari to review the ICA's decision regarding the resisting arrest and assault against a police officer convictions. ¹

I. BACKGROUND

This case arose out of an incident that occurred on June 28, 1991 at a Kailua-Kona apartment building. The factual details of what transpired that day are set out in the ICA's opinion and there is no need for us to reiterate them all here. Only a few facts are relevant to our discussion in the instant case. When Hawai'i County Police Officer Paula Watai was attempting to place Elliott under arrest for disorderly conduct, Officer Belinda Kahiwa came to her assistance. While the officers attempted to handcuff Elliott, Elliott first unsuccessfully tried to bite Officer Watai and subsequently bit Officer Kahiwa. Elliott was consequently charged with resisting arrest and assault against a police officer in addition to disorderly conduct.

The resisting arrest and assault against a police officer counts of the three-count oral charge against Elliott read:

On or about the 28th day of June, 1991 in Kona, County and State of [Hawai'i], Marian Lois Elliott attempted to prevent a Peace Officer acting under color of his official authority from effecting an arrest by using or threatening to use physical force against the peace officer or another thereby committing the offense of resisting arrest in violation of Section 710-1026(1)(a) [Hawai'i] Revised Statutes as [a]mended. ²

On or about the 28th day of June, 1991 in Kona, County and State of [Hawai'i] Marian Lois Elliott intentionally, knowingly [or] recklessly caused bodily injury to Officer Belinda Kahiwa by biting her thereby committing the offense of assault in the third degree, assault of police office [sic] violation of Section 707-712.5 [Hawai'i] Revised Statutes as [a]mended. ³

(Emphasis added.)

The ICA ruled that a "liberal construction standard" is applicable when a charge is challenged for the first time on appeal and held that under that standard the resisting arrest and assault against a police officer counts of the oral charge sufficiently stated the offenses charged.

Elliott argues that the ICA misapplied the relevant case law and that our holdings in State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977), and State v. Yonaha, 68 Haw. 586, 723 P.2d 185 (1986), require that her convictions be overturned. We agree. Accordingly, for the reasons set forth below, we reverse the resisting arrest and assault against a police officer convictions. However, because the oral charge alleged all of the essential elements of the offense of assault in the third degree as defined by HRS § 707-712(1)(a) ⁴ and the circuit court found that all of those elements were proven beyond a reasonable doubt, we remand for entry of judgment of conviction of that offense and for resentencing in accordance therewith. II. DISCUSSION

Elliott contends that the resisting arrest and assault against a police officer counts of the oral charge were flawed because (1) with respect to resisting arrest, the State failed to allege that Elliott "intentionally prevent[ed]" a police officer acting under color of authority from effectuating an arrest, and (2) with respect to assault against a police officer, the State failed to allege that the assault was against "a police officer who [was] engaged in the performance of duty."

The ICA recognized that the two counts of the oral charge omitted essential elements of the offenses charged, but ruled that a "liberal construction standard" applied and, relying on State v. Petrone, 161 Wis.2d 530, 468 N.W.2d 676, cert. denied, 502 U.S. 925, 112 S.Ct. 339, 116 L.Ed.2d 279 (1991), held that under that standard, because the two otherwise flawed counts "specifically referred to the statutes defining the offenses, and [Elliott] has claimed no prejudice resulting from the deficiencies in the oral charge," the omission of essential elements did not require reversal. Elliott, 77 Hawai'i at 318, 884 P.2d at 381.

We agree with the ICA's determination that the "liberal construction standard" applies in the instant case. As the ICA stated:

[Elliott] did not challenge the sufficiency of the charges in the lower court. Therefore, our review is governed by the rule that " '[charges] which are tardily challenged [after conviction] are liberally construed in favor of validity.' " State v. Motta, 66 Haw. 89, 91, 657 P.2d 1019, 1020 (1983) (quoting United States v. Pheaster, 544 F.2d 353, 361 (9th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977)). Contrary to [Elliott]'s argument, the rule applies to oral charges. State v. Vallejo, 9 Haw.App. 73, 823 P.2d 154 (1992). The "liberal construction standard for post-conviction challenges to [oral charges] means we will not reverse a conviction based upon a defective [oral charge] unless the defendant can show prejudice or that the [oral charge] cannot within reason be construed to charge a crime." Motta, 66 Haw. at 91, 657 P.2d at 1020.

Id., 77 Hawai'i at 316, 884 P.2d at 379.

We also agree with the ICA that because Elliott

has not indicated how she was surprised or prejudiced by the omissions [in the resisting arrest and assault against a police officer counts of the oral charge], and the record does not show that she was hampered in her defense[, t]he question, then, is whether the oral charges can reasonably be construed to charge [Elliott] with the offenses of [resisting arrest] and [assault against a police officer].

Id. at 317, 884 P.2d at 380 (footnotes omitted).

We cannot agree, however, that "the statutory reference was sufficient, in accordance with the liberal rule of construction outlined above, to provide the necessary element missing from the charges so as to sufficiently state the offenses charged against [Elliott]." Id. at 318, 884 P.2d at 381. To allow a mere statutory reference to cure the omission of essential elements would completely vitiate the rule of law developed in Jendrusch, Motta, and Yonaha.

In Jendrusch, we held that the failure to allege an essential element of an offense made a charge "fatally defective." We stated:

The accusation must sufficiently allege all of the essential elements of the offense charged. This requirement obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint, and the omission of an essential element of the crime charged is a defect in substance rather than of form. 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. This requirement may not be waived or dispensed with, and the defect is ground for reversal, even when raised for the first time on appeal.

58 Haw. at 281, 567 P.2d at 1244 (citations omitted); see also Yonaha, 68 Haw. at 586 723 P.2d at 186 (following Jendrusch and holding that "the [oral] charge was fatally defective for failure to allege a necessary element").

In Motta, we refined the Jendrusch rule by adopting the "liberal construction standard" for post-conviction challenges as discussed above. 66 Haw. at 91, 657 P.2d at 1020. We expressly noted, however, that even under that standard, the charge in Jendrusch would be fatally defective for failing to allege an essential element of the offense. Id. at 92, 657 P.2d at 1020-21. We reached that conclusion despite the fact that the charge at issue in Jendrusch had referred to the statute defining the offense. See Jendrusch, 58 Haw. at 280, 567 P.2d at 1243-44.

Thus, we hold that the statutory references in the oral charge at issue in the instant case did not cure the omission of essential elements in the challenged counts of the charge. Therefore, unless the challenged counts can otherwise "within reason be construed to charge [crimes]," the resisting arrest and assault against a police officer convictions must be reversed.

One way in which an otherwise deficient count can be reasonably construed to charge a crime is by examination of the charge as a whole. In a related context, we recently held in State v. Schroeder, 76 Hawai'i 517, 530, 880 P.2d 192, 205 (Haw.1994), that the kidnapping count of a two-count indictment that alleged that the defendant "did intentionally restrain Phillip M. Richards with intent to facilitate the commission of a felony or flight after the commission of a felony," id. at 519, 880 P.2d at 194 (emphasis in original), implicitly alleged the use of a handgun in that count because: (1) "[t]he 'felony' referred to in [the kidnapping count] must reasonably be construed as the robbery charged in Count I," id. at 530, 880 P.2d at 205; and (2) the robbery count alleged that the defendant, "while in the course of committing theft, and while armed with a dangerous instrument, to wit, a handgun, did threaten the imminent use of force against Phillip M. Richards, a person who was present, with the intent to compel acquiescence to the taking of or...