State v. Gouge

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-JUN-2025
08:38 AM
Dkt. 77 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellant, v.
RODERICK RAMON GOUGE and RODERICH JOSE LUNA,
Defendants-Appellees.

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

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

Plaintiff-Appellant State of Hawai‘i appeals from the

Circuit Court of the First Circuit's April 26, 2024 "Findings of

Fact, Conclusions of Law, and Order Granting Defenses' Motion to

Dismiss Due to Defective Charge" (April 26, 2024 Order). 1

(Formatting altered.)

1 The Honorable Catherine H. Remigio presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

The State charged Defendant-Appellee Roderick R. Gouge

with Robbery in the First Degree (Count 1) and Defendant-

Appellee Roderich J. Luna with Accomplice to Robbery in the

First Degree (Count 2) via indictment.

Two days after filing the indictment, the State filed

the first of several pretrial bail reports that detailed the

nature of the offense including identifying who pulled the gun

and who took what from the complaining witness.

About three months after the first pretrial bail

report was filed, Gouge and Luna moved to dismiss the indictment

as defective because it did not include the "statutory

definitions" of theft. Luna similarly argued that Defendants

had the right "to be informed of the nature and cause of the

accusation" and the State's failure to define theft rendered the

charge defective. Defendants primarily rely on State v.

Jardine, 151 Hawai‘i 96, 100, 508 P.3d 1182, 1186 (2022).

The State argued the indictment was sufficient,

distinguishing Jardine. In the alternative, the State argued

the police reports provided through discovery in November 2023,

three months before Defendants' motions to dismiss, apprised

them of the nature and cause of the accusations.

The circuit court ultimately concluded the State

"failed to provide the eight (8) statutory definitions of

'theft' and/or to specify and provide notice as to how Defendant

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was alleged to have committed theft, and as such the failure

causes Counts 1 and 2 to fail to state an offense and renders

the charges defective." The circuit court dismissed the case.

The State appeals the dismissal. 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 the

points of error as discussed below and vacate and remand.

(1) The State contends the circuit court erred

because the charging document included the essential elements of

the charged offenses. The State argues the "Indictment was not

defective where the 'theft' was specified as 'the taking of or

escaping with the property' of 'L.V. (a minor)[.]'" The State

further argues that this case is different from Jardine.

In Jardine, the parties disputed whether the State had

to include the entire statutory definition of "substantial

bodily injury." 151 Hawai‘i at 100, 508 P.3d at 1186. The

supreme court explained that providing the full definition

"would not sufficiently apprise the defendant of what he must be

prepared to meet" as there were five different ways substantial

bodily injury could be proven. Id. Thus, the supreme court

2 The State reindicted Defendants on May 7, 2024. The May 7, 2024
Reindictment defined "theft" under Hawaiʻi Revised Statutes (HRS) § 708-830(1)
(2014).

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held that the State must "identify the species of injury" for

sufficient notice. Id. at 101, 508 P.3d at 1187.

At minimum, "a constitutionally sound charge" must

"specify the offense's proper states of mind" and its elements.

E.g., State v. Garcia, 152 Hawai‘i 3, 6-7, 518 P.3d 1153, 1156-57

(2022). "Generally if a charging document tracks an offense's

statutory language, then the State doesn't need to load it with

definitions of words defined elsewhere." Id. at 8, 518 P.3d at

1158. However, "where the definition of an offense . . .

includes generic terms, it is not sufficient that the indictment

shall charge the offense in the same generic terms as in the

definition; but it must state the species . . . [and] descend to

particulars." State v. Israel, 78 Hawai‘i 66, 73, 890 P.2d 303,

310 (1995) (citation omitted).

Under Hawaiʻi Revised Statutes (HRS) § 708-

840(1)(b)(ii) (Supp. 2022), a person commits Robbery in the

First Degree if (1) "in the course of committing theft[,]"

(2) while "armed with a dangerous instrument," (3) the person

"threatens the imminent use of force against the person of

anyone present with intent to compel acquiescence to the taking

of or escaping with the property[.]" "In the course of

committing a theft" is its own term of art:

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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.

HRS § 708-842 (2014).

Here, the indictment tracked the language of the

statute:

COUNT 1: On or about October 11, 2023, . . .
RODERICK RAMON GOUGE, while in the course of committing
theft from L.V. (a minor), and while armed with a dangerous
instrument, to wit, a firearm as defined in Section 706-
660.1 of the [Hawaiʻi] Revised Statutes [(2014)], and/or
while armed with a simulated firearm, did threaten the
imminent use of force against the person of L.V. . . . with
intent to compel acquiescence to the taking of or escaping
with the property, thereby committing the offense of
Robbery in the First Degree, in violation of Section 708-
840(1)(b)(ii) of the [Hawaiʻi] Revised Statutes. An act
shall be deemed "in the course of committing a theft" if it
occurs in an attempt to commit theft, in the commission of
theft, or in the flight after the attempt or commission.

. . . .

COUNT 2: On or about October 11, 2023, . . .
RODERICH JOSE LUNA, with the intention of promoting or
facilitating the commission of the offense of Robbery in
the First Degree, did aid or agree or attempt to aid in the
planning of or the commission of the offense of Robbery in
the First Degree, by Roderick Ramon Gouge, who on or about
October 11, 2023, . . . while in the course of committing
theft from L.V. (a minor), and while armed with a dangerous
instrument, to wit, a firearm . . . and/or while armed with
a simulated firearm, did threaten the imminent use of force
against the person of L.V. . . . with intent to compel
acquiescence to the taking of or escaping with the
property, thereby committing the offense of Accomplice to
Robbery in the First Degree, in violation of Sections 702-
221(2)(c) [(2014)], 702-222(1)(b) [(2014)], and 708-
840(1)(b)(ii) of the [Hawaiʻi] Revised Statutes. An act
shall be deemed "in the course of committing a theft" if it
occurs in an attempt to commit theft, in the commission of
theft, or in the flight after the attempt or commission.

(Emphases added.)

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But similar to the element of substantial bodily

injury in Jardine, the element of theft may be proved eight

different ways. See HRS § 708-830(1)-(8) (2014). And simply

reciting all eight subsections of theft in the charging

instrument does not provide Defendants with sufficient notice or

comport with the rules requiring the "charge [to] be a plain,

concise and definite statement of the essential facts

constituting the offense charged." Hawai‘i Rules of Penal

Procedure Rule 7(d).

Instead, 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. See Jardine, 151 Hawai‘i at 101, 508 P.3d at 1187.

Thus, to the extent the circuit court concluded the

indictment was defective because the State failed to identify

the species of theft, the circuit court did not err.

(2) The State alternatively contends "[t]he discovery

materials provided to the defendants sufficiently apprised them

of the nature and cause of the accusations against them and what

they must be prepared to meet[.]" (Formatting altered.)

In Jardine, the supreme court left unanswered whether

other materials provided to defendants prior to challenging the

felony information could have cured the failure to identify the

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species of substantial bodily injury saying the State waived

that argument. Jardine, 151 Hawai‘i at 101, 508 P.3d at 1187.

Here, the State raised the argument before the circuit court and

raises it before this court.

"If a charging document omits an essential element of

an offense, it 'fail[s] to state an offense, and a conviction

based upon it cannot be sustained' no matter what other

information the defendant may have received from the State."

State v. Van Blyenburg, 152 Hawai‘i 66, 70 n.3, 520 P.3d 264, 268

n.3 (2022) (citations omitted). Where a charge does not omit an

essential element, the supreme court "recognized that in

determining whether a defendant has been adequately informed of

the charges against them, the appellate court can consider other

information in addition to the charge that may have been

provided to the defendant until the time the defendant objected

to the sufficiency of the charges." Id. (cleaned up) (quoting

State v. Wheeler, 121 Hawai‘i 383, 396, 219 P.3d 1170, 1183

(2009)).

Although the indictment did not include the species of

theft, it did track the language of the Robbery in the First

Degree statute and included the essential element of theft.

Because the essential element of theft was provided in the

indictment, we turn to the information available to Defendants

prior to challenging the indictment to determine whether

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Defendants were adequately informed of the species of theft they

were required to defend against.

The pretrial bail reports were filed (and according to

the State, the police reports were provided to Defendants) at

least three months prior to their motions to dismiss. The

pretrial bail reports identified the date, location, and alleged

conduct underlying the charged offense.

Based on these reports, only one subsection of the

theft statute would apply - HRS § 708-830(1). HRS § 708-830(1)

provides that a person commits theft if the person

"[o]btains or exerts unauthorized control over
property. A person obtains or exerts
unauthorized control over the property of another
with intent to deprive the other of the
property."

Nothing in HRS § 708-830(1) injects a new state of mind or

essential element into the Robbery in the First Degree offense.

Under the particular circumstances of this case,

Defendants were adequately informed of the species of theft they

were required to defend against and, thus, the circuit court

went beyond its discretion by dismissing the indictment. We

nevertheless emphasize that "[d]etails about the who, what,

where, when, and how of the alleged offense help ensure

defendants are properly informed of the charge they must defend

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against, and this court endorses these facts' inclusion in

charging documents." Garcia, 152 Hawai‘i at 8, 518 P.3d at 1158.

Based on the foregoing, we vacate the court's

April 26, 2024 Order and remand for proceedings consistent with

this summary disposition order.

DATED: Honolulu, Hawaiʻi, June 10, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka
City and County of Honolulu, Associate Judge
for Plaintiff-Appellant.
/s/ Sonja M.P. McCullen
Emmanuel G. Guerrero, Associate Judge
for Defendant-Appellee
Roderick Ramon Gouge.

David S.H. Cho,
Deputy Public Defender,
for Defendant-Appellee
Roderich Jose Luna.

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