State v. Thompson

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-SEP-2024
08:18 AM
Dkt. 64 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAII, Plaintiff-Appellee,
v.
THAD JARVIS THOMPSON, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

In this appeal, Defendant-Appellant Thad Jarvis
Thompson (Thompson) challenges the pre-trial amendment of a
defective Felony Information on the basis that Hawaiʻi Rules of
Penal Procedure (HRPP) Rule 7(f) 1 conflicts with Hawaii Revised

1 HRPP Rule 7(f) liberally permits pre-trial amendment of non-
indictment charging instruments like the information in this case. HRPP Rule
7, entitled "Indictment, Information, or Complaint," provides in pertinent
part: "(f) Amendment. (1) The court may permit a charge other than an
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Statutes (HRS) § 806-9. 2 We conclude that the amendment was
permissible and affirm.
Thompson appeals from the November 16, 2023 "Judgment
of Conviction and Sentence" (Judgment) entered by the Circuit
Court of the First Circuit (Circuit Court), 3 in which Thompson
was found guilty of Assault in the Second Degree. Thompson
contends that the Circuit Court erred by "granting the State's
Motion to Amend the Felony Information because HRPP Rule 7(f)(1)
and HRS § 806-9 prohibit amendments." 4
Upon 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, we resolve
Thompson's point of error as follows, and affirm.
The initial Felony Information in this case stated in
pertinent part:
On or about June 21, 2020, in the City and County of
Honolulu, State of Hawaiʻi, THAD JARVIS THOMPSON did

indictment to be amended at any time before trial commences if substantial
rights of the defendant are not prejudiced."

2 HRS § 806-9 (2014), entitled "Information, laws applicable,"
provides that laws applicable to prosecutions by indictments apply "to the
same extent as near as may be," to prosecutions by informations, as follows:

All provisions of law applying to prosecutions upon
indictments, to writs and process therein, and the issuing
and service thereof, to motions, pleadings, trials, and
punishments, or the passing or execution of any sentence,
and to all proceedings in cases of indictment, whether in
the court of original or appellate jurisdiction, shall in
the same manner and to the same extent as near as may be,
apply to information and all prosecutions and proceedings
thereon.

(Emphases added.)

3 The Honorable Judge Kevin A. Souza presided.

4 In light of our disposition that the amendment was permissible,
we need not address Thompson's additional contention that the motion to
dismiss the defective initial information was erroneously denied.

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intentionally, knowingly, or recklessly cause substantial
bodily injury to [Complaining Witness (CW)], thereby
committing the offense of Assault in the Second Degree, in
violation of Section 707-71l(l)(a) of the [HRS].

Thompson filed a "Motion to Dismiss Based Upon a Defective
Charge" (Motion to Dismiss), arguing that "the charge [was]
defective as the State failed to provide notice as to the
particulars of the element of 'substantial bodily injury.'"
Citing State v. Jardine, 151 Hawaiʻi 96, 508 P.3d 1182 (2022), 5
Thompson asserted that "the State should include a 'to wit'
clause identifying the injuries suffered in charges alleging
defendant had caused substantial bodily injury[.]" The State
filed an opposition conceding the defect, but argued it was not
fatal because the Felony Information "together with the
discovery provided to [Thompson], sufficiently inform[ed]
[Thompson] of the nature and cause of the accusation against
him."
On November 7, 2022, while the hearing on Thompson's
Motion to Dismiss was pending, the State filed a "Motion to
Amend Felony Information" (Motion to Amend Information) pursuant
to HRPP Rule 7(f), requesting to amend the Felony Information by
adding the following underlined language:
On or about June 21, 2020, in the City and County of
Honolulu, State of Hawaiʻi, THAD JARVIS THOMPSON did
intentionally, knowingly, or recklessly cause substantial
bodily injury, to wit, a nasal bone fracture, to [CW],
thereby committing the offense of Assault in the Second

5 In Jardine, the defendant was charged with second-degree assault,
in which the charging document did not define "substantial bodily injury" and
did not specify the injury that the complainant suffered. 151 Hawaiʻi at 97-
98, 508 P.3d at 1183-84. The Hawaiʻi Supreme Court held that the State was
required to include the statutory definition of "substantial bodily injury";
and that because "substantial bodily injury" was a generic term, the State
was required to "identify the species of injury by alleging that the alleged
substantial bodily injury consisted of 'a bone fracture' and 'a serious
concussion' in order to provide sufficient notice." Id. at 100-01, 508 P.3d
at 1186-87 (citation omitted).

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Degree, in violation of Section 707-711(1)(a) of the [HRS].
Pursuant to Section 707-700 of the [HRS], "substantial
bodily injury" means bodily injury which causes: (1) a
major avulsion, laceration, or penetration of the skin; (2)
a burn of at least second degree severity; (3) a bone
fracture; (4) a serious concussion; or (5) a tearing,
rupture, or corrosive damage to the esophagus, viscera, or
other internal organs.

The proposed amendment appeared to address the Jardine defect
that Thompson raised in the Motion to Dismiss. Thompson filed
an opposition to the Motion to Amend Information, presenting the
same arguments he advances in this appeal: that HRPP Rule
7(f)(1) does not permit the amendment of an information because
it only allows "a charge other than an indictment" to be amended
before trial; and an information and indictment must be treated
the same pursuant to HRS § 806-9.
On December 5, 2022, a hearing was held on both the
Motion to Dismiss and Motion to Amend Information.
On December 14, 2022, the Circuit Court filed its
order denying the Motion to Dismiss, and its "Findings of Facts
[sic], Conclusions of Law, and Order Granting State's Motion to
Amend Felony Information" (Order Granting Motion to Amend
Information). In the Order Granting Motion to Amend
Information, the Circuit Court concluded that: HRPP Rule 7(f)
permitted the amendment of a "'charge other than an indictment
to be amended at any time before trial commences if substantial
rights of the defendant are not prejudiced'"; that HRS § 806-9
"does not bar the State from amending a Felony Information"; and
that there was "no legitimate basis to [Thompson's] claim that
the State's proposed amendment of the Felony Information
prejudice[d] his substantial rights."

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Following a jury trial on May 9 and 10, 2023,
Thompson was found guilty as charged, and sentenced to five
years of imprisonment. Thompson timely appealed the
Judgment.
"When interpreting rules promulgated by the court,
principles of statutory construction apply." State v.
Michaeledes, 152 Hawaiʻi 217, 220, 524 P.3d 1241, 1244 (2023)
(citation omitted). "The interpretation of a statute
or court rule is a question of law which this court
reviews de novo." State v. James, 153 Hawaiʻi 503, 510, 541 P.3d
1266, 1273 (2024) (cleaned up). "[T]he fundamental starting
point for statutory interpretation is the language of the
statute itself." Id. (citation omitted). "[W]here the
statutory language is plain and unambiguous, our sole duty is to
give effect to its plain and obvious meaning." Id. (citation
omitted).
HRS § 806-9 does not conflict with HRPP Rule 7(f)(1),
and does not require that informations be treated
exactly the same as indictments in all respects. 6
Thompson argues the amendment to the information was
improper because although HRPP Rule 7(f)(1) allows for "a charge
other than an indictment" to be amended before trial, HRS § 806-
9 "provides that all provisions of law applying to indictments
shall apply to informations." The State argues that the "plain
meaning of HRS § 806-9 does not require the law on informations
to be exactly the same as for indictments in all respects." The
State's argument has merit.

6 Because we hold that HRPP Rule 7(f)(1) and HRS § 806-9 do not
conflict, we do not address Thompson's argument premised on the existence of
a conflict——urging us to apply "State v. Obrero and the Rule of Lenity" to
conclude that "HRPP Rule 7(f)(1) exempts felony informations, like
indictments, from being amended."
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HRS § 806-9 provides that "[a]ll provisions of law
applying to prosecutions [by] indictments, . . . shall in the
same manner and to the same extent as near as may be, apply to
information and all prosecutions and proceedings thereon."
(Emphasis added.) The plain language of the statute, "as near
as may be," clearly recognizes that there are situations where
the law of indictments will not apply to informations. See
James, 153 Hawaiʻi at 510, 541 P.3d at 1273. Thus, HRS § 806-9
does not require that an information be treated exactly the same
as an indictment in all respects, and explicitly recognizes that
there may be situations where the law of indictments cannot be
applied in the exact same manner to informations, and the "as
near as may be" language covers those situations. Thus, the
Circuit Court did not err in concluding that HRS § 806-9 "does
not bar the State from amending a Felony Information." See id.
The language of HRPP Rule 7(f)(1) is plain and
unambiguous, and permits the pre-trial amendment of an
information, where the defense is not prejudiced.
Thompson argues that even if HRPP Rule 7(f)(1) permits
the amendment of felony informations, the Amended Felony
Information prejudiced his substantial rights because the State
did not initially "comply with the constitutional requirements
as demanded in Jardine." The State argues that the "plain
meaning of HRPP Rule 7(f)(1) clearly allows for informations to
be amended"; that "[n]umerous Hawaiʻi cases have also allowed
amendment of charging documents, including felony informations,
if the charges are deficient"; and that Thompson's substantial
rights were not violated where he "had more than enough time to
prepare for a trial based on the amended charge." The State's
argument has merit.

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HRPP Rule 7(f)(1) plainly and unambiguously "permit[s]
a change other than an indictment to be amended at any time
before trial commences if substantial rights of the defendant
are not prejudiced." See James, 153 Hawaiʻi at 510, 541 P.3d at
1273; see also State v. Alcos, No. CAAP-XX-XXXXXXX, 2017 WL
4325871, at *1, *4-5 (Sept. 29, 2017) (SDO) (holding that the
felony information was deficient, but that the State should be
given an opportunity to amend the felony information pursuant to
HRPP Rule 7(f)(1) on remand). HRPP Rule 7(f)(1)'s sole
exception to allowing liberal pre-trial amendment of charging
instruments is where a grand jury indictment is at issue. This
makes sense as "an indictment is an action of the grand jury and
not subject to change by either the court or prosecution, except
to correct formalistic errors[.]" Barbara E. Bergman et al.,
Wharton's Criminal Procedure § 5:15 (14th ed. 2002). In State
v. Kam, we explained that: "Where the State's pre-trial
amendment of a charge in a complaint does not prejudice a
defendant's substantial rights, there seems to be little
justification for denying the amendment and good reasons for
granting it. Permitting the amendment prevents delay, avoids
inconvenience to the parties, and conserves judicial resources."
134 Hawaiʻi 280, 286-87, 339 P.3d 1081, 1087-88 (App. 2014),
aff'd, No. SCWC-XX-XXXXXXX, 2016 WL 770253 (Haw. Feb. 25, 2016)
(SDO).
Here, the Circuit Court granted the Motion to Amend
Information by a December 14, 2022 order, approximately five
months before the May 2023 trial. Thompson presents no argument
explaining how his substantial rights were prejudiced where the
amendment occurred several months before trial. The Circuit
Court did not err by granting the Motion to Amend Information

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under HRPP Rule 7(f)(1). See James, 153 Hawaiʻi at 510, 541 P.3d
at 1273.
For the foregoing reasons, we affirm the November 16,
2023 "Judgment of Conviction and Sentence" entered by the Circuit
Court of the First Circuit.
DATED: Honolulu, Hawai‘i, September 4, 2024.
On the briefs:
/s/ Keith K. Hiraoka
Emmanuel G. Guerrero,
Presiding Judge
for Defendant-Appellant.
/s/ Karen T. Nakasone
Robert T. Nakatsuji,
Associate Judge
Deputy Prosecuting Attorney
for Plaintiff-Appellee.
/s/ Sonja M.P. McCullen
Associate Judge

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