NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-21-0000328

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-20-0000586)

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:

1 The Honorable Kevin A. Souza presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-21-0000328

17-MAR-2022

07:52 AM

Dkt. 47 SO
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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-13-0000068, 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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