State v. Garcia

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-MAR-2022
07:52 AM
Dkt. 47 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellant,
v.
RANDY GARCIA, Defendant-Appellee,
and
CHRISTOPHER REAMS, Defendant

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

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

Plaintiff-Appellant State of Hawai#i appeals from the
"Findings of Fact, Conclusions of Law, and Order Granting
Defendant[-Appellee Randy] Garcia's Motion to Dismiss Counts 4-7
for Failure to Charge an Offense, Filed April 1, 2021," entered
by the Circuit Court of the First Circuit on April 21, 2021.1
For the reasons explained below, we vacate the Order and remand
for further proceedings.
On May 20, 2020, Garcia was charged with four counts of
Forgery in the Second Degree (Counts 4-7) (among other things).
Count 4 alleged, in relevant part:

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The Honorable Kevin A. Souza presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On or about October 9, 2019, in the City and County of
Honolulu, State of Hawai#i, RANDY GARCIA did, with intent to
defraud, utter a forged instrument, to wit, First Hawaiian
Bank check #1877, drawn on the account of EAH Inc., made
payable to Randy Garcia in the amount of Two Thousand Two
Hundred Fifty Dollars ($2,250.00), which is or purports to
be, or which is calculated to become or to represent if
completed, a deed, will, codicil, contract, assignment,
commercial instrument, or other instrument which does or may
evidence, create, transfer, terminate, or otherwise affect a
legal right, interest, obligation, or status, thereby
committing the offense of Forgery in the Second Degree, in
violation of Section 708-852 of the [Hawaii] Revised
Statutes.

(Emphasis added.) Counts 5-7 contained similar allegations,
differing only as to the dates of the alleged offense, the check
numbers, and the check amounts.
Garcia pleaded not guilty. He moved to dismiss Counts
4-7. He argued that "the charging language in [Counts 4-7] fails
[sic] to allege the requisite state of mind . . . in violation of
[his] due process rights."
Garcia's motion was heard on April 5, 2021. The
circuit court orally granted the motion to dismiss. The Order
was entered on April 21, 2021. The circuit court found and
concluded:

9. This Court finds that the Felony Information is
not sufficiently clear that the requisite state of mind for
the offenses charged in Counts 4 to 7 is "intentionally."
10. This Court concludes that the Defendant's due
process rights have been violated based on the omission of
the requisite states of mind listed under the definition of
"intent to defraud."

11. This Court concludes that the failure to include
the requisite states of mind in the Felony Information does
not provide Defendant with fair notice of what he needs to
defend against to avoid a conviction and, therefore, is a
violation of Defendant's due process rights.

12. Because the Felony Information is deficient,
Counts 4 to 7 are to be dismissed without prejudice.

This appeal by the State followed. The State raises a
single point of error:

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"The circuit court erred in concluding that the
[charge] in this case did not provide Garcia with fair
notice of the state of mind that he needed to defend against
to avoid conviction for the Forgery in the Second Degree
charges against him[.]"

"Whether a charge sets forth all the essential elements
of a charged offense is a question of law, which we review under
the de novo, or 'right/wrong,' standard." State v. Mita, 124
Hawai#i 385, 389, 245 P.3d 458, 462 (2010) (cleaned up).
The statute under which Garcia was charged, Hawaii
Revised Statutes (HRS) Section 708-852 (2014), provides in
relevant part:

Forgery in the second degree. (1) A person commits the
offense of forgery in the second degree if, with intent to
defraud, the person falsely makes, completes, endorses, or
alters a written instrument, or utters a forged instrument,
. . . which is or purports to be, or which is calculated to
become or to represent if completed, a . . . commercial
instrument[.]

(Emphasis added.)
HRS § 708-800 (2014) provides, in relevant part:

"Intent to defraud" means:

(1) An intent to use deception to injure another's
interest which has value; or

(2) Knowledge by the defendant that the defendant is
facilitating an injury to another's interest which has
value.

(Emphasis added.)
HRS § 702-204 (2014) provides:

State of mind required. Except as provided in section
702-212,[2] a person is not guilty of an offense unless the
person acted intentionally, knowingly, recklessly, or
negligently, as the law specifies, with respect to each
element of the offense. When the state of mind required to
establish an element of an offense is not specified by the
law, that element is established if, with respect thereto, a
person acts intentionally, knowingly, or recklessly.

2
HRS § 702-212 (2014) pertains to violations and to strict
liability crimes defined by statutes other than the Hawaii Penal Code.

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The charging document was required to allege Garcia's
state of mind. The State alleged that Garcia acted with "intent
to defraud[.]" The charge did not recite the definition of
"intent to defraud" contained in HRS § 708-800. However, the
State is not required to provide a statutory definition in every
charge which "tracks the language of a statute that includes
terms defined elsewhere in the [penal] code." Mita, 124 Hawai#i
at 391-92, 245 P.3d at 464-65. "[T]he State need only allege the
statutory definition of a term when it creates an additional
essential element of the offense, and the term itself does not
provide a person of common understanding with fair notice of that
element." Id. at 392, 245 P.3d at 465.
In State v. Anzai, No. CAAP-XX-XXXXXXX, 2015 WL 2170449
(Haw. App. May 8, 2015) (SDO), cert. rejected, No. SCWC-13-
0000068, 2015 WL 5123489 (Haw. Aug. 28, 2015), we held that the
term "intent to defraud" as defined by HRS § 708-800 did not
create an additional element of the offense of shoplifting, and
that the statutory definition was consistent with its commonly
understood meaning. Id. at *1. The shoplifting statute, HRS
§ 708-830(8) (2014), provided in relevant part:

(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.

(Emphasis added.) The charge in Anzai stated:

On or about the 21st day of May, 2012, in the District of
South Kohala, County and State of Hawai#i, KANIAULONO ANZAI,
with intent to defraud, concealed or took possession of the
goods or merchandise of a store or retail establishment,
that is amaretto liquor belonging to ISLAND GOURMET MARKET,
and the value of said property did not exceed $100, thereby
committing the offense of Theft in the Fourth Degree

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(Shoplifting), in violation of Sections 708–830(8) and
708–833(1), [Hawaii] Revised Statutes, as amended.

Anzai, 2015 WL 2170449, at *1. (Emphasis added.) The defendant
claimed the charge failed to inform him of the nature and cause
of the accusation against him because it failed to state an
essential element of the offense — the statutory definition of
"intent to defraud[.]" We rejected the defendant's claim,
stating:

The statutory definition of "intent to defraud," does
not create an additional element of the offense. The intent
requirement itself is an element of the offense. Similar to
the crime charged in Mita, the definition of "intent to
defraud" is consistent with its commonly understood meaning
and sufficiently provided Anzai with notice of what was
being charged. Id. . . . Therefore, the charge was not
deficient.

Id. at *1 (emphasis added) (citing Mita, 124 Hawai#i at 392, 245
P.3d at 465).
Similarly, in this case the charge against Garcia
recited the "intent to defraud" element of HRS § 708-852 by
tracking the language of the statute. The statutory definition
of "intent to defraud" is consistent with its commonly understood
meaning and does not create an additional element of the offense
of Forgery in the Second Degree. Accordingly, the charge was
sufficient.
Based upon the foregoing, we vacate the Order entered
by the circuit court on April 21, 2021, and remand for further
proceedings.
DATED: Honolulu, Hawai#i, March 17, 2022.

On the briefs:
/s/ Lisa M. Ginoza
Brian R. Vincent, Chief Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Keith K. Hiraoka
for Plaintiff-Appellant. Associate Judge

Phyllis J. Hironaka, /s/ Clyde J. Wadsworth
Deputy Public Defender, Associate Judge
State of Hawai#i,
for Defendant-Appellee.

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