77 Hawai'i 314, State v. Elliott, 16343

• Decision Date: 11 January 1994
• Docket Number: No. 16343,16343
• Parties: 77 Hawai'i 314 STATE of Hawai'i, Plaintiff-Appellee, v. Marian Lois ELLIOTT, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 377

884 P.2d 377

77 Hawai'i 314

STATE of Hawai'i, Plaintiff-Appellee, v. Marian Lois ELLIOTT, Defendant-Appellant.

No. 16343.

Intermediate Court of Appeals of Hawai'i.

Jan. 11, 1994.

Certiorari Granted Jan. 31, 1994.

[77 Hawai'i 315] Syllabus by the Court

1. Oral or written charges which are tardily challenged after conviction are liberally construed in favor of validity.

2. In applying the liberal construction standard for post-conviction challenges to oral charges, courts will not reverse a conviction based upon a defective oral charge unless defendant can show prejudice or that the oral charge cannot within reason be construed to charge a crime.

3. An indictment, information, or charge is sufficient if it is specific enough to allow the defendant to prepare his or her defense and to protect him or her against future jeopardy for the same offense.

4. Where the charge fails to set forth all elements of the offense but specifically refers to the correct statutory citations outlining the offense charged, the charge can reasonably be construed to charge defendant with the offense and is sufficient to provide the necessary missing elements as long as defendant was not prejudiced in any way.

5. In reviewing a claim that the evidence was insufficient to support a conviction, the rule is whether, viewing the evidence in the light most favorable to the State, there is substantial evidence to support the conclusion of the trier of fact. Even if it appears that the verdict might be deemed contrary to the weight of the evidence as so considered, the verdict will be upheld if there is substantial evidence to support it.

6. Substantial evidence is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to reach a conclusion.

7. To convict a defendant under the disorderly conduct statute, HRS § 711-1101(1)(b), the State has the burden of proving beyond a reasonable doubt that the defendant made unreasonable noise with the intent to cause physical inconvenience or alarm by a member or members of the public, or recklessly created a risk thereof.

8. To convict a defendant of assault against a police officer in violation of HRS § 707-712.5(1)(a), the State has the burden of proving beyond a reasonable doubt that the defendant intentionally, knowingly, or recklessly caused bodily injury to a police officer who was engaged in the performance of the officer's duty.

Walter J. Rodby, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellant.

Melvin H. Fujino, Deputy Pros. Atty., County of Hawai'i, on the brief, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and WATANABE, JJ.

HEEN, Judge.

Defendant-Appellant Marian Lois Elliott (Defendant) appeals from her bench trial convictions for the offenses of Disorderly Conduct (Disorderly), Hawai'i Revised Statutes (HRS) § 711-1101(1)(b) (1985), Resisting Arrest (Resisting), HRS § 710-1026(1)(a) (1985), and Assault Against a Police Officer (Assault), HRS § 707-712.5(1)(a) (Supp.1992). ¹ We reverse the Disorderly conviction and affirm the Resisting and Assault convictions.

Defendant argues on appeal that (1) the oral charges against her for the Resisting and Assault offenses were legally insufficient,

[77 Hawai'i 316] and (2) the evidence was insufficient to support the Disorderly and Assault convictions. ²

THE EVIDENCE

Late on the night of June 27-28, 1991, Hawai'i County Police Officer Paula Watai (Officer Watai) responded to a police radio communication that a fight was occurring among a group of males at a Kailua-Kona apartment building. A second dispatch indicated that a gun might be involved. Officer Belinda Kahiwa (Officer Kahiwa) also responded to the communication and arrived at the scene at almost the same time. Although Officer Watai was on duty and in uniform, Officer Kahiwa was neither on duty nor in uniform. Upon arriving, Officer Watai saw Defendant and her husband (Husband) engaged in a loud argument on the walkway outside of their apartment (the apartment). Defendant was yelling and screaming obscenities in a loud voice, and a crowd of about ten people had congregated at the scene.

Officer Kahiwa recognized Defendant and Husband from previous experiences with them. Addressing Husband by name, Officer Kahiwa took his hand and directed him into the apartment in order to separate him from Defendant. As Husband was walking backwards into the apartment, Officer Watai noticed that Husband took a "black and silver" object out of his back pocket and tossed it behind the apartment door. At the same time, Officer Kahiwa heard something hit the inside of the door. Because of the possibility that the object might be the gun reported in the police dispatch, Officer Kahiwa directed Husband back out of the apartment.

Officer Watai entered the apartment to retrieve the object that Husband had tossed behind the door and recovered a pair of nunchaku sticks. Defendant then entered the apartment and grabbed the sticks from Officer Watai. "[A]fter a long struggle[,]" Officer Watai managed to recover the sticks.

During the struggle for the sticks, Defendant yelled profanities very loudly at Officer Watai. Officer Watai then put one handcuff over Defendant's right wrist and told her she was under arrest for disorderly conduct. However, Officer Watai was not able to handcuff Defendant's left wrist because Defendant continually pulled her left arm away and braced her back against the apartment wall. Officer Kahiwa attempted to assist Officer Watai; however, the two officers were still unable to handcuff Defendant. While the officers were trying to handcuff her, Defendant bit Officer Kahiwa's right wrist and attempted to bite Officer Watai. Shortly thereafter, three more police officers arrived and assisted in completing the arrest.

INSUFFICIENCY OF THE CHARGES

Defendant 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 Defendant'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.

Generally, where an indictment or information is challenged, the question is whether the charge is specific enough to allow the defendant to prepare his or her defense and to protect him or her against future jeopardy for the same offense. Carvalho v. Olim, 55 Haw. 336, 519 P.2d 892 (1974). Where the defendant challenges the charge after trial, and the record shows that the defendant was neither surprised nor Defendant's arraignment proceeded as follows:

[77 Hawai'i 317] prejudiced by the claimed omission in the wording of the charge, the charge will be upheld. See State v. Smith, 66 Haw. 95, 657 P.2d 1022 (1983).

[PROSECUTOR]: State of Hawai[']i versus Marian Lois Elliott and Paul Anthony Elliott.

THE COURT: Are you Marian Lois Elliott?

[DEFENDANT]: Yes.

THE COURT: Read the charges.

[PROSECUTOR]: Mrs. Marian Elliott on or about the 28th day of June, 1991 in Kona, County and State of Hawai[']i Marian Lois Elliott did cause physical inconvenience or alarm to member or members of the public by recklessly creating a risk thereof or making unreasonable noise thereby committing the offense of disorderly conduct in violation of Section 711-1101(1)(b) Hawai[']i Revised Statutes as amended.

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.

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.

THE COURT: Do you understand those charges Ma'am?

[DEFENDANT]: Yes.

Defendant argues that (1) the Resisting charge was required to but did not allege that she "intentionally resisted arrest[;]" and (2) the Assault charge was required to but did not allege that the police officer who was assaulted was engaged in the performance of her duties. Therefore, Defendant contends, those convictions must be reversed. We disagree.

First, Defendant has not indicated how she was surprised or prejudiced by the omissions, and the record does not show that she was hampered in her defense.

The question, then, is whether the oral charges can reasonably be construed to charge Defendant with the offenses of Resisting ³ and Assault. ⁴ We conclude that they can.

We have found no precedent in this jurisdiction directly on point. However, in our view, the ruling in 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), is applicable here. In Petrone, the trial court's rejection of defendant's pretrial challenge to the indictment, which was based on the failure to allege the essential element of scienter, was affirmed. The Supreme Court of Wisconsin held that the...