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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2026
08:12 AM
Dkt. 44 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellant,
v.
DONAVAN KAMAKA, also known as Donovan Kamaka,
Defendant-Appellee, and
ALLEN LABRADOR, Defendant.

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and McCullen, JJ.)

Plaintiff-Appellant State of Hawaiʻi appeals from the

Circuit Court of the First Circuit's September 3, 2024 order

granting Defendant-Appellee Donavan Kamaka's motion to dismiss

due to a defective charge (Dismissal Order). 1

On appeal, the State argues that its April 26, 2024

Indictment was sufficient or, alternatively, that the

1 The Honorable Catherine H. Remigio presided.
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information provided to Kamaka adequately apprised him of the

nature and cause of the accusations against him.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below and affirm.

A grand jury indicted Kamaka on one count of Robbery

in the Second Degree in violation of Hawaiʻi Revised Statutes

(HRS) § 708-841(1)(a) (2014) as follows:

COUNT 1: On or about April 8, 2024, in the City and
County of Honolulu, State of Hawaiʻi, DONAVAN KAMAKA, while
in the course of committing theft from Saks Fifth Avenue,
LLC, doing business as Saks Off Fifth, did use force
against the person of Rhyder Kealoha, a person who was
present, with the intent to overcome Rhyder Kealoha's
physical resistance or physical power of resistance,
thereby committing the offense of Robbery in the Second
Degree, in violation of Section 708-841(1)(a) of the Hawaiʻi
Revised Statutes.

An act shall be deemed "in the course of committing a
theft or non-consensual taking of a motor vehicle" if it
occurs in an attempt to commit theft or non-consensual
taking of a motor vehicle, in the commission of theft or
non-consensual taking of a motor vehicle, or in the flight
after the attempt or commission.

If convicted of this offense or any included felony
offense, DONAVAN KAMAKA may be subject to sentencing in
accordance with Section 706-661 and Section 706-662(1) of
the [Hawaiʻi] Revised Statutes where he is a persistent
offender in that he has previously been convicted of two or
more felonies committed at different times when he was
eighteen years of age or older, and an extended term of
imprisonment is necessary for the protection of the public.

(Emphases added.)

The circuit court dismissed Count 1 against Kamaka,

explaining that the "State failed to provide the eight (8)

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statutory definitions of 'theft' and/or failed to specify and

provide notice as to how [Kamaka] was alleged to have committed

theft, and as such the failure causes Count 1 to fail to state

an offense and renders the charge defective."

In State v. Gouge, this court held that "the State

must specify the particular type of theft Defendants will be

expected to defend against. And as the supreme court noted,

including a 'to wit' clause would be prudent." 156 Hawaiʻi 106,

569 P.3d 1290, No. CAAP-XX-XXXXXXX, 2025 WL 1640714, at *3 (App.

June 10, 2025) (SDO) (citing State v. Jardine, 151 Hawaiʻi 96,

101, 508 P.3d 1182, 1187 (2022)).

Thus, to the extent the circuit court dismissed

Count 1 for failing to identify the species of theft, it did not

err. See id.

The State counters that, because Count 1 indicated the

theft was from Saks Fifth Avenue, LLC, doing business as Saks

Off Fifth, "the Indictment made clear that the 'theft' was the

stealing of property from a store or retail establishment." As

such, the State appears to argue that only subsection (8) of HRS

§ 708-830 (2014), which sets forth the offense of Shoplifting,

would apply, as Shoplifting is the only subsection involving a

"store or retail establishment."

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However, Shoplifting may be proved in three different

ways:

§708-830 Theft. A person commits theft if the
person does any of the following:

. . . .

(8) Shoplifting.

(a) A person conceals or takes possession of
the goods or merchandise of any store or
retail establishment, with intent to
defraud.

(b) A person alters the price tag or other
price marking on goods or merchandise of
any store or retail establishment, with
intent to defraud.

(c) A person transfers the goods or
merchandise of any store or retail
establishment from one container to
another, with intent to defraud.

HRS § 708-830(8) (some formatting altered and emphases added).

Each of the three ways includes the state of mind of "intent to

defraud," which is defined as "[a]n intent to use deception to

injure another's interest which has value" or "[k]nowledge by

the defendant that the defendant is facilitating an injury to

another's interest which has value." HRS § 708-800 (2014)

(emphases added).

The Indictment in this case includes an intentional

state of mind, but nothing in the Indictment alerts Kamaka of a

knowing state of mind. Although the Indictment tracks the

language of the Robbery in the Second Degree statute, as to

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Shoplifting, "[a] defendant does not learn the offense's

intentional and knowing states of mind after reading its

statutory language. Only if defendants trace the meaning of

intent to defraud to HRS § 708-800 will they discover intent to

defraud has a knowing state of mind." State v. Garcia, 152

Hawaiʻi 3, 6, 518 P.3d 1153, 1156 (2022).

"State of mind is a component of every element in

every crime. If the proper states of mind are not alleged, the

charging document fails to state an offense and is

constitutionally deficient." Id. at 7, 518 P.3d at 1157 (citing

State v. Elliott, 77 Hawaiʻi 309, 313, 884 P.2d 372, 376 (1994)).

Thus, even if Kamaka was on notice that the theft in

the Indictment was for Shoplifting as the State asserts, the

Indictment fails to define "intent to defraud" and, thus, fails

to notify Kamaka that Shoplifting may be proved by demonstrating

a knowing state of mind. Because the knowing state of mind was

not alleged, the Indictment failed to state an offense and was

constitutionally deficient. See id. Where the Indictment

failed to state an offense, we need not address the State's

alternative argument that the information provided to Kamaka

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apprised him of the nature and cause of the accusations against

him. See id. at 6, 518 P.3d at 1156.

Based on the foregoing, we affirm the circuit court's

September 3, 2024 Dismissal Order.

DATED: Honolulu, Hawaiʻi, April 29, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
City and County of Honolulu, Associate Judge
for Plaintiff-Appellant.
/s/ Sonja M.P. McCullen
Emmanuel G. Guerrero, Associate Judge
for Defendant-Appellee.