State v. Amasiu

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-NOV-2024
08:50 AM
Dkt. 65 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee, v.
ALIKA K. AMASIU, Defendant-Appellant.

APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NO. 2FFC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

Defendant-Appellant Alika K. Amasiu, appeals from the

Family Court of the Second Circuit's 1 August 19, 2021 "Findings

of Fact, Conclusions of Law, and Order" denying his "Motion to

Dismiss for Violation of Statute of Limitations" (Order Denying

Motion to Dismiss).

1 The Honorable Richard T. Bissen, Jr. presided.
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On appeal, Amasiu challenges the family court's

determination that the statute of limitations did not require

dismissal of the Second Felony Information. 2

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.

For a brief background, Amasiu's four-month-old Son

suffered multiple injuries - "a left frontal skull fracture, a

bi-lateral occipital skull fracture, a subdural hematoma, and a

posterior right rib fracture." According to Maui Police

Department Detective Mary-Lee Sagawinit, a doctor who treated

Son at Maui Memorial Medical Center stated that Son was reported

to have fallen off the bed after Amasiu saw a centipede on Son's

head and hit the centipede. Due to the severity of his

injuries, Son was transported to O‘ahu.

On November 28, 2014, Rupert Chang, M.D. (Dr. Chang)

of Kapi‘olani Medical Center noted Son suffered "skull and rib

fractures," "an altered level of consciousness," and "brain

swelling with an elevation of pressures in his head." Dr. Chang

also noted that Son "required support on a breathing machine,"

2 Amasiu also challenges findings of fact numbers 1, 2, and 4, and
conclusions of law numbers 4-10. However, the challenged findings were not
clearly erroneous and the challenged conclusions were not wrong.

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and "was at risk of life-long mental impairment from his brain

injury."

On November 22, 2017, the State charged Amasiu by

information (First Felony Information) for Assault in the First

Degree in the Circuit Court of the Second Circuit. The First

Felony Information was filed approximately five days before the

three-year statute of limitations for the prosecution of a class

B felony (which includes First Degree Assault) would have run.

See generally Hawaiʻi Revised Statutes (HRS) §§ 701-

108(2)(d)(2014); 707-710(2) (2014).

That same day, the circuit court, the Honorable

Blaine J. Kobayashi presiding, determined there was "sufficient

evidence to support a finding of probable cause for the

Information and Complaint[.]" 3 The circuit court issued a

warrant of arrest for Amasiu with bail set at $50,000.00.

About a month later, on December 21, 2017, the State

filed the Second Felony Information in family court charging

Amasiu with the same offense as the First Felony Information.

The family court found probable cause to support the Second

Felony Information and issued a warrant of arrest with bail set

at $50,000.00. 4

3 The Honorable Blaine J. Kobayashi (District Court Judge) presided.

4 The Honorable Adrianne N. Heely (District Court Judge) presided.

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On December 26, 2017, the State filed an "Ex-Parte

Motion to Recall Bench Warrant and Motion to Dismiss Without

Prejudice" as to the First Felony Information in circuit court,

which was granted. 5

Amasiu moved to dismiss his case as the Second Felony

Information was "filed outside the statute of limitations

provided for in [Hawai‘i] Revised Statute Section 701-108." The

family court denied the motion to dismiss, and permitted an

interlocutory appeal.

(1) In his first point of error on appeal, Amasiu

contends the family court erred in denying his motion to dismiss

because the First Felony information "was dismissed prior to

being served." Amasiu relies on HRS § 701-108(5) (2014), and

argues "[a]ssuming an Information is within the definition of

'other process' within the meaning of [HRS §] 701-108(5), and

thus can commence a prosecution, then for an Information to

commence a prosecution it must be served without unreasonable

delay." Amasiu concludes that because the First Felony

Information was never served, it did not commence the

prosecution and did not toll the statute of limitations.

Amasiu was charged with Assault in the First Degree,

which is a class B felony. HRS § 707-710 (2014). A prosecution

5 The Honorable Joseph E. Cardoza (Circuit Court Judge) presided.

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for a class B felony "must be commenced within three years after

it is committed[.]" HRS § 701-108(2)(d). This "period of

limitation does not run . . . [d]uring any time when a

prosecution against the accused for the same conduct is pending

in this State[.]" HRS § 701-108(6)(b) (2014). "A prosecution

is commenced either when an indictment is found or a complaint

filed, or when an arrest warrant or other process is issued,

provided that such warrant or process is executed without

unreasonable delay." HRS § 701-108(5) (2014).

Relatedly, HRS § 806-9 (2014) instructs that laws

applying to indictments apply to an information charging:

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); State v. Sulenta, 151 Hawaiʻi 372, 514 P.3d

339, No. CAAP-XX-XXXXXXX, 2022 WL 2967240 at *5 (App. July 27,

2022) (SDO) (explaining that "[l]egal precedent and authorities

pertaining to complaints and indictments similarly apply to a

felony information"). Because laws applying to indictments

apply to information, a charge by information is not treated as

an "other process" as Amasiu contends.

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In prosecuting a felony by information, the written

information must be "signed by a legal prosecuting officer and

filed in the court having jurisdiction thereof . . . ." HRS

§ 806-82 (2014). Furthermore, "[t]he information shall be filed

in the circuit court[.]" HRS § 806-84(g) (2014); see Hawai‘i

Rules of Penal Procedure Rule 7(h)(1) ("An indictment or

information shall be filed in the circuit court."). And the

"family courts shall be divisions of the circuit courts of the

State." HRS § 571-3 (2018).

Therefore, when reading HRS § 701-108(5) (prosecution

commences when indictment found) in pari materia with HRS

§§ 806-9 (laws regarding indictment apply to information), 806-

82 (informations are filed in court), 806-84(g) (informations

shall be filed in circuit court), and 571-3 (family courts are

divisions of circuit courts), we construe a prosecution by

information as commencing when the information is filed with the

circuit (or family) court.

(2) In his second point of error, Amasiu contends the

First Felony Information did not toll the statute of limitations

because (a) the circuit court lacked jurisdiction, and (b) the

district court judge was not authorized to preside over the

matter.

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(a) Jurisdiction. Amasiu argues the First Felony

Information did not toll the statute of limitations pursuant to

HRS § 701-108(6)(b) because it was "filed in a court that lacked

jurisdiction" over the case. Relying on HRS §§ 571-14(a)(1)

(2018) and 806-82, Amasiu maintains the family court had

exclusive jurisdiction, and the circuit court was without

jurisdiction.

HRS § 571-14(a)(1) governs family courts and provides

in relevant part that "[e]xcept as provided in sections 603-21.5

. . . , the court shall have exclusive original jurisdiction . .

. [t]o try any offense committed against a child by the child's

parent . . . ." 6 As mentioned above, HRS § 806-82 requires the

written information be "signed by a legal prosecuting officer

and filed in the court having jurisdiction thereof . . . ."

But the family courts "are not separate and distinct

courts from the circuit courts of the State." Winterborne v.

State, 104 Hawai‘i 311, 314, 88 P.3d 683, 686 (App. 2004).

Instead, the family courts are divisions of the circuit courts.

HRS § 571-3 (providing that "family courts shall be divisions of

the circuit courts of the State").

6 HRS § 603-21.5(b) governs when the circuit court has concurrent
jurisdiction with the family court.

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Here, the First Felony Information was filed in the

circuit court. About a month later, the Second Felony

Information was filed in family court and the First Felony

Information was dismissed. Because the family courts are

divisions of the circuit court, any potential jurisdictional

defect in filing the First Felony Information in circuit court

for purposes of tolling the statute of limitations was

immaterial. See State v. Pedro, 149 Hawai‘i 256, 263 n.2, 488

P.3d 1235, 1242 n.2 (2021) (explaining "[a]ny potential

jurisdictional defect [was] immaterial" because the circuit

court "had jurisdiction under HRS § 603-21.5, and family courts

are divisions of the circuit courts of the State") (citation and

internal quotation marks omitted).

(b) District Court Judge. Amasiu next argues that to

toll the statute of limitations, a circuit court judge, not a

district court judge, was required to determine probable cause

of the First Felony Information.

HRS § 806-85(a) (2014) provides that "[w]hen an

information is filed, the court having jurisdiction shall review

the information and its exhibit to determine whether there is

probable cause to believe that the offense charged was committed

and that the defendant committed the offense charged."

(Emphasis added.) HRS § 806-85(d) (2014) defines "court having

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jurisdiction" and "court" as the circuit court, "provided that

the chief justice may by order authorize district court judges

to make probable cause determinations, set bail, and direct the

issuance of arrest warrants[.]"

On February 15, 2005, Chief Justice Ronald T.Y. Moon

(Ret.) ordered, in the matter of information charging, "that the

District Judges of the First, Second, Third, and Fifth Circuits

of the State of Hawai‘i are hereby authorized to make probable

cause determinations, set bail, and direct the issuance of

arrest warrants[.]" 7 Also relevant is Chief Justice Moon's

October 29, 1996 order assigning district court judges "to

temporarily preside in the circuit courts of their respective

circuits, on an as needed basis." 8 (Emphasis omitted.)

Here, the order finding probable cause was captioned

as "IN THE CIRCUIT COURT OF THE SECOND CIRCUIT" and signed by

7 Moon, C.J., Order Authorizing Action by District Judges, Supreme
Court of the State of Hawai‘i (Feb. 15, 2005) (Order),
https://www.courts.state.hi.us/docs/sct_various_orders/order21.pdf
[https://perma.cc/EHT9-PSBN].

The February 15, 2005 order refers to Act 62, section 1 "of the 2004
Hawai‘i Session Laws, and the provisions of [HRS] § 806-E(d)." The referenced
HRS § 806-E(d) is identical to HRS § 806-85(d), which defines "court having
jurisdiction" and "court" as the circuit court, "provided that the chief
justice may by order authorize district court judges to make probable cause
determinations, set bail, and direct the issuance of arrest warrants, as
provided by this section."

8 Moon, C.J., Assignment of District and District Family Court Judges,
Supreme Court of the State of Hawai‘i (Oct. 29, 1996) (Order),
https://www.courts.state.hi.us/docs/sct_various_orders/order19a.pdf
[https://perma.cc/P4HQ-MJRS].

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Judge Kobayashi as "Judge of the above-captioned Court" on

November 22, 2017. We take judicial notice that Judge Kobayashi

was sworn in as a judge of the District Court of the Second

Circuit on October 12, 2010. Hawai‘i Rules of Evidence Rule 201.

Although Judge Kobayashi was a district court judge,

the chief justice may authorize district court judges to make

probable cause determinations where the charge is by information

pursuant to HRS § 806-85(d). And Chief Justice Moon did so in

the February 15, 2005 order. Thus, that the probable cause

determination was made by a district court judge does not

support Amasiu's contention that the statute of limitation did

not toll.

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

August 19, 2021 Order Denying Motion to Dismiss.

DATED: Honolulu, Hawai‘i, November 15, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Matthew Nardi,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Joanne S.C. Hicks,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Plaintiff-Appellee.

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