State v. Cichy

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-APR-2025
08:16 AM
Dkt. 69 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
DAVID S. CICHY, also known as Dave Scott Cichy,
Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CASE NO. 1FFC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)

David S. Cichy, also known as David Scott Cichy,
appeals from the June 23, 2022 Judgment of Conviction and
Sentence entered by the Family Court of the First Circuit.1 We
affirm.
On October 18, 2021, the complaining witness (CW)
petitioned the family court for an order for protection against
Cichy. A temporary restraining order against Cichy was entered
the same day. An order to show cause hearing was set for
November 2, 2021. Cichy was served with the temporary
restraining order on October 19, 2021. He didn't appear for the
November 2, 2021 hearing. The family court entered an Order for
Protection against Cichy. Cichy was served with the Order for
Protection the same day.

1
The Honorable Andrew T. Park presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On March 17, 2022, Cichy was charged by Complaint with
violating the Order for Protection on February 13, 2022
(Count 1), February 18, 2022 (Count 2), February 20, 2022
(Count 3), and February 22, 2022 (Count 4). He pleaded not
guilty.
Cichy moved to dismiss the Complaint on April 25, 2022.
He argued the Complaint didn't comply with Hawaii Revised
Statutes (HRS) § 805-1, citing State v. Thompson, 150 Hawai#i
262, 500 P.3d 447 (2021). The family court entered findings of
fact and conclusions of law and an order denying the motion.2
Jury trial began on June 22, 2022. Cichy orally moved
to dismiss. He argued the Complaint did not give him notice of
which specific terms in the Order of Protection he allegedly
violated. The family court denied the motion. On June 23, 2022,
the jury found Cichy guilty as charged on all counts. The
Judgment of Conviction and Sentence was entered on June 23, 2022.
This appeal followed.
Cichy states three points of error: (1) the Complaint
failed to allege Cichy had notice of the Order for Protection;
(2) the Complaint failed to allege what conduct by Cichy violated
the Order for Protection; and (3) the family court erred by
denying Cichy's Thompson motion. Whether a charge contains all
essential elements of a charged offense is a question of law we
review de novo under the right/wrong standard. State v. Wheeler,
121 Hawai#i 383, 390, 219 P.3d 1170, 1177 (2009).
(1) Cichy contends the Complaint didn't allege he had
"notice" of the Order for Protection under HRS § 586-6. The
argument is being made for the first time on appeal, so the
Motta/Wells post-conviction liberal construction rule applies.3
Under that rule we will not reverse a conviction based on a
defective complaint unless the defendant shows prejudice, or that

2
The Honorable Shanlyn A.S. Park presided.
3
See State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983); State v.
Wells, 78 Hawai#i 373, 894 P.2d 70 (1995).

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the complaint "cannot within reason be construed to charge a
crime." Wheeler, 121 Hawai#i at 400, 219 P.3d at 1187.
Cichy stipulated he was served with the Order for
Protection on November 2, 2021. The family court conducted a
colloquy and found that Cichy "intelligently, knowingly, and
voluntarily waived his right to confront the State's witnesses
with regard to this essential element of the offense -- the
offenses." Cichy cannot show prejudice.
Cichy also hasn't shown the complaint cannot within
reason be construed to charge a crime. The criminal statute
under which Cichy was charged provided, in relevant part:

(a) Whenever an order for protection is granted pursuant to
this chapter, a respondent or person to be restrained who
knowingly or intentionally violates the order for protection
is guilty of a misdemeanor.

HRS § 586-11 (2018).
"Where the statute sets forth with reasonable clarity
all essential elements of the crime intended to be punished, and
fully defines the offense in unmistakable terms readily
comprehensible to persons of common understanding, a charge drawn
in the language of the statute is sufficient." State v. Merino,
81 Hawai#i 198, 214, 915 P.2d 672, 688 (1996) (brackets omitted).
Here, each count of the complaint alleged:

On or about [date of offense], in the City and County of
Honolulu, State of Hawai#i, DAVID S. CICHY, also known as
Dave Scott Cichy, did intentionally or knowingly violate the
Order for Protection issued in FC-DA No. 21-1-2311 on
November 2, 2021 by the Honorable Rebecca A. Copeland, Judge
of the Family Court of the First Circuit, State of Hawai#i,
pursuant to Chapter 586 of the Hawai#i Revised Statutes,
thereby committing the offense of Violation of an Order for
Protection in violation of Section 586-5.5 and Section
586-11(a) of the Hawai#i Revised Statutes.

Cichy argues the complaint omits "an entire element of
the [violating order of protection] charges — the notice
requirement of HRS § 586-6." HRS § 586-6 (2018) provides, in
relevant part:

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(a) Any order issued under this chapter shall either be
personally served upon the respondent, or served by
certified mail, unless the respondent was present at the
hearing in which case the respondent shall be deemed to have
notice of the order.

Cichy cites State v. Medina, 72 Haw. 493, 824 P.2d 106
(1992), to support his argument. There, Medina was charged under
HRS § 586-11 with violating a family court restraining order.
The family court dismissed the charge after finding that Medina
had not been personally served with the order. The State
appealed. The supreme court affirmed. Medina recognized a
service requirement for enforcing a restraining order; it did not
create an element of a violation under HRS § 586-11. "Notice" is
not an element of HRS § 586-11(a). Cichy's first point of error
lacks merit.
(2) Cichy contends the Complaint "failed to allege or
[give] notice [of] the specific term(s) of the order for
protection Cichy allegedly violated." We may consider
information, other than the Complaint, provided to Cichy before
he objected to the sufficiency of the charges. See State v. Van
Blyenburg, 152 Hawai#i 66, 70 n.3, 520 P.3d 264, 268 n.3 (2022).
The Order for Protection prohibited Cichy from, among
other things, "electronically communicating (for example: no
recorded message, pager, email, text message, instant message,
etc.)" with CW. The Complaint was supported by exhibits showing
CW informed a police officer on February 13, 2022, that "Cichy
left her three voicemails saying Happy Birthday, that he was sick
to his stomach that she was involved with someone else so
quickly, she wasn't a person of her word, and that tell her new
boyfriend, tell him he said Congratulations." Another exhibit to
the complaint was a police officer's report that on February 22,
2022:

[CW] stated that on 02-18-2022, at about 2101 hours she
received a voicemail that said "Aw, see, its Waikiki
tonight. Hmph". [CW] stated that she was in Waikiki that
night and thinks that CICHY was following her. [CW] stated
that the voicemail was from a private number but recognized
the voice to be CICHY's.

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

. . . .
[CW] stated that on 02-20-2022, at about 1721 hours she
received a voicemail saying "I miss you and still love you."
[CW] stated that the voicemail came from a private number
but recognized the voice to be CICHY's.

[CW] stated that on 02-22-2022, at about 0805 hours she
received a voicemail saying "Just to let you know I'm kind
of weak right now but I just came from out of the hospital
but just let you know I love you and that I miss you and
that I'm probably not going to be around much longer. Maybe
I outta just jump off the Kuhio Plaza." [CW] stated that
the voicemail came from a private number but recognized the
voice to be CICHY's.

We conclude Cichy had notice of which specific terms of the Order
of Protection he allegedly violated. His second point lacks
merit.
(3) Cichy's written motion to dismiss argued the
Complaint didn't comply with HRS § 805-1 because it was not
subscribed under oath by a complainant or accompanied by a
declaration in lieu of affidavit, citing State v. Thompson, 150
Hawai#i 262, 500 P.3d 447 (2021). The supreme court explained
that its "holding in Thompson was limited to complaints seeking a
penal summons or an arrest warrant." State v. Mortensen-Young,
152 Hawai#i 385, 395, 526 P.3d 362, 372 (2023). Cichy was
arrested on March 10, 2022, a week before the Complaint was
filed. Thompson doesn't apply here. His third point lacks
merit.
The Judgment of Conviction and Sentence entered by the
family court on June 23, 2022, is affirmed.
DATED: Honolulu, Hawai#i, April 7, 2025.

On the briefs:
/s/ Katherine G. Leonard
Henry P. Ting, Acting Chief Judge
Deputy Public Defender,
State of Hawai#i, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Stephen K. Tsushima, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.

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