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NO. CAAP-20-0000714

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

GEORGE VAN BLYENBURG, Defendant-Appellant 

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1CPC-17-0000902)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant George Van Blyenburg appeals from

the "Judgment of Conviction and Sentence" entered by the Circuit

Court of the First Circuit on October 28, 2020.1 For the reasons

explained below, we affirm the Judgment.

On August 6, 2016, a vehicle driven by Van Blyenburg

struck and killed Brandon Kishida. On July 6, 2017, a grand jury

indicted Van Blyenburg for Accidents Involving Death or Serious

Bodily Injury in violation of Hawaii Revised Statutes (HRS)

§ 291C-122 (Count 1) and Negligent Homicide in the Second Degree

1 The Honorable Fa'auuga L. To'oto'o presided.

2 HRS § 291C-12 (2007) provided, in relevant part:

Accidents involving death or serious bodily injury. (a) The

driver of any vehicle involved in an accident resulting in

serious bodily injury to or death of any person shall

immediately stop the vehicle at the scene of the accident or

as close thereto as possible but shall then forthwith return

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000714

19-NOV-2021

07:49 AM

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in violation of HRS § 707-703(1)(b)3 (Count 2). Van Blyenburg

pleaded not guilty.

Jury trial began on Tuesday, March 3, 2020, and

continued on Wednesday. The State rested on Thursday. That

afternoon, Van Blyenburg called his first witness. Trial was

then recessed for the day.

On Friday morning, March 6, 2020, the State filed its

"Amended Jury Instructions Requested by the State of Hawai#i[.]" 

Van Blyenburg testified in his own defense that afternoon.

On Monday, March 9, 2020, the circuit court instructed

the jury. Counsel made their closing arguments. The jury

returned a verdict that afternoon. Van Blyenburg was found

guilty as charged on both counts.

On October 20, 2020, Van Blyenburg filed a motion to

dismiss Counts 1 and 2 of the indictment based on insufficiency

of the charges.4 The motion was heard on October 28, 2020,

2(...continued)

to and in every event shall remain at the scene of the

accident until the driver has fulfilled the requirements of

section 291C-14. Every such stop shall be made without

obstructing traffic more than is necessary.

(Emphasis added.)

3 HRS § 707-703 (2014) provides, in relevant part:

Negligent homicide in the second degree. (1) A person

commits the offense of negligent homicide in the second

degree if that person causes the death of:

. . . .

(b) A vulnerable user by the operation of a vehicle

in a manner that constitutes simple negligence

as defined in section 707-704(2).

"Vulnerable user" includes "[a] pedestrian legally within a street or public

highway[.]" HRS § 707-700 (Supp. 2015).

4 "Due to the significant consequences associated with omitting an

essential and material element in [a charge], an objection to this deficiency

may be raised 'at any time during the pendency of the proceeding.'" State v.

Sprattling, 99 Hawai#i 312, 318, 55 P.3d 276, 282 (2002) (citing State v.

Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1020 (1983)) (cleaned up); accord Rule

12(b)(2) of the Hawai#i Rules of Penal Procedure ("The following must be

raised prior to trial: . . . (2) defenses and objections based on defects in

the charge (other than that it fails to show jurisdiction in the court or to

charge an offense which objections shall be noticed by the court at any time

(continued...)

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before the scheduled sentencing hearing. The circuit court

orally denied the motion to dismiss. Van Blyenburg was then

sentenced to 10 years in prison on Count 1 and 5 years in prison

on Count 2, to run concurrently. On November 2, 2020, the

circuit court entered its "Findings of Fact[], Conclusions of

Law, and Order Denying Defendant's Motion to Dismiss Counts 1

and 2 of the Indictment[.]" This appeal followed.

Van Blyenburg contends that the circuit court erred by

denying his motion to dismiss because: (1) Count 1 "failed to

charge, allege, or provide notice of the attendant circumstances

element that '[e]very such stop shall be made without obstructing

traffic more than is necessary[]'"; and (2) Count 2 "does not

define and give notice as to the element of conduct of 'simple

negligence,' which is defined under § 707-704(2) of the Hawaii

Revised Statutes in four varying and separate ways[.]"

1. The circuit court did not err by denying

the motion to dismiss Count 1.

Count 1 of the indictment alleged, in relevant part:

On or about August 6, 2016, in the City and County of

Honolulu, State of Hawai#i, GEORGE VAN BLYENBURG, as the

driver of a vehicle involved in an accident resulting in

serious bodily injury to or death of Brandon Kishida, with

intent, knowledge, or reckless disregard of the substantial

and unjustifiable risk that he was such a driver, did

intentionally, knowingly, or recklessly fail to immediately

stop the vehicle at the scene of the accident or as close

thereto as possible, and did intentionally, knowingly, or

recklessly fail to forthwith return to and in every event

remain at the scene of the accident . . . thereby committing

the offense of Accidents Involving Death or Serious Bodily

Injury, in violation of Section 291C-12 of the Hawai#i

Revised Statutes.

Citing State v. Baker, 146 Hawai#i 299, 463 P.3d 956 (2020), Van

Blyenburg argues that Count 1 was defective because it did not

allege that he failed to stop his vehicle "without obstructing

traffic more than is necessary." Whether a charge sets forth all

the essential elements of a charged offense is a question of law,

4(...continued)

during the pendency of the proceedings[.])") (emphasis added). 

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which we review under the de novo, or right/wrong, standard. 

Baker, 146 Hawai#i at 305, 463 P.3d at 962.

The defendant in Baker was convicted of failure to stop

at the scene of an accident involving vehicle damage, in

violation of HRS § 291C-13.5 The version of HRS § 291C-13 at

issue in Baker stated, in relevant part:

Accidents involving damage to vehicle or property. The

driver of any vehicle involved in an accident resulting only

in damage to a vehicle or other property that is driven or

attended by any person shall immediately stop such vehicle

at the scene of the accident or as close thereto as

possible, but shall forthwith return to, and in every event

shall remain at, the scene of the accident until the driver

has fulfilled the requirements of section 291C-14. Every

such stop shall be made without obstructing traffic more

than is necessary.

Baker, 146 Hawai#i at 302 n.1, 463 P.3d at 959 n.1 (citing HRS

§ 291C-13 (Supp. 2008)) (emphasis added). The charge in Baker

"did not include any reference to the language 'without

obstructing traffic more than is necessary' or include language

similar to it." Id. at 308, 463 P.3d at 965. The supreme court

held that the charge "failed to give Baker proper notice of the

elements of the offense with which she was charged[.]" Id.

Van Blyenburg challenges the following conclusions of

law made by the circuit court:

2. As to Count 1 of the Indictment:

. . . .

e. Baker contains no indication that the decision

should apply retroactively.[6]

. . . .

g. Given the foregoing, Baker is inapplicable to

the instant case.

5 The relevant provisions of HRS § 291C-13 substantially mirror

those of HRS § 291C-12. State v. Armitage, No. CAAP-19-0000814, 2021 WL

4936967, at *2 (Haw. App. Oct. 22, 2021) (SDO).

6 Baker was published on March 13, 2020, four days after the jury

found Van Blyenburg guilty.

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h. As such, the Court finds Defendant's contention

that Count 1 of the Indictment is defective to be without

merit.

Conclusions of law are reviewed under the right/wrong

standard. State v. Alvarez, 138 Hawai#i 173, 181, 378 P.3d 889,

897 (2016). The circuit court's conclusions of law were wrong. 

In Baker, after ruling that the charge was defective, the supreme

court vacated Baker's conviction. If the supreme court had

intended that its decision have prospective effect only, it would

not have vacated Baker's conviction. Cf. State v. Jones, 148

Hawai#i 152, 174-76, 468 P.3d 166, 188-90 (2020) (applying a

holding prospectively and not to the case at bar); State v.

Torres, 144 Hawai#i 282, 292-95, 439 P.3d 234, 244-47 (2019)

(same); State v. Jess, 117 Hawai#i 381, 404, 184 P.3d 133, 156

(2008) (same).

Although the circuit court's conclusion that Baker did

not "apply retroactively" was wrong, the circuit court did not

err by denying the motion to dismiss Count 1.7 In Baker the

defendant challenged the sufficiency of the charge for the first

time on appeal; accordingly, the supreme court applied the

"liberal construction" standard in reviewing the charge. 146

Hawai#i at 308, 463 P.3d at 965. In this case, Van Blyenburg

challenged the sufficiency of the charge at the trial level. 

Accordingly, "in determining whether [Van Blyenburg] has been

adequately informed of the charges against him, [we] can consider

other information in addition to the charge that may have been

provided to [him] during the course of the case up until the time

[he] objected to the sufficiency of the charges against him." 

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

(2009); State v. Treat, 67 Haw. 119, 120, 680 P.2d 250, 251

(1984); see also State v. Hitchcock, 123 Hawai#i 369, 379, 235

P.3d 365, 375 (2010) (in case where defendant argued the charge

was defective for the first time on appeal, supreme court

7 The circuit court's ruling "will not be disturbed on the ground

that the circuit court gave the wrong reasons for the ruling." Flores v.

Ballard, 149 Hawai#i 81, 88, 482 P.3d 544, 551 (App. 2021) (citation omitted).

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"examine[d] the information provided or 'supplied' by the

prosecution to Hitchcock prior to appeal.").

The State filed and served its amended requested jury

instructions before Van Blyenburg testified at trial. State's

amended instruction no. 1 stated:

In Count 1, the Defendant, GEORGE VAN BLYENBURG, is

charged with the offense of Accidents Involving Death or

Serious Bodily Injury.

A person commits the offense of Accidents Involving

Death or Serious Bodily Injury if he intentionally,

knowingly, or recklessly, as the driver of any vehicle

involved in an accident resulting in serious bodily injury

to, or death of, any person, did not immediately stop the

vehicle at the scene of the accident, or as close thereto as

possible and return to and remain at the scene of the

accident, and fulfill the Duty to Give Information and

Render Aid.

There are four material elements of the offense of

Accidents Involving Death or Serious Bodily Injury, each of

which the prosecution must prove beyond a reasonable doubt.

These four elements are:

1. That on or about August 6, 2016, in the City and

County of Honolulu, State of Hawai#i, the

Defendant was the driver of a vehicle involved

in an accident resulting in serious bodily

injury to, or the death of, Brandon Kishida; and

2. The Defendant failed to immediately stop his

vehicle at the scene of the accident, or as

close thereto as possible and return to and

remain at the scene of the accident, provided

that every stop shall be made without

obstructing traffic more than necessary; and

3. The Defendant failed to fulfill the Duty to Give

Information and Render Aid; and

4. The Defendant acted intentionally, knowingly, or

recklessly as to each of the foregoing elements.

(Emphasis added.)8 When Van Blyenburg moved to dismiss Count 1,

he had already been provided with information about the attendant

circumstance element that "every stop shall be made without

obstructing traffic more than necessary[.]" Because Van

Blyenburg had been provided with information about the element

missing from Count 1 of the indictment before he moved to dismiss

8 This instruction was actually given to the jury.

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the charge, the circuit court did not err by denying the motion. 

Treat, 67 Haw. at 120, 680 P.2d at 251.

2. The circuit court did not err by denying the

motion to dismiss Count 2.

Count 2 of the indictment alleged:

On or about August 6, 2016, in the City and County of

Honolulu, State of Hawai#i, GEORGE VAN BLYENBURG did cause

the death of Brandon Kishida, who was a vulnerable user, to

wit, a pedestrian legally within a street or public highway,

by the operation of a vehicle in a manner that constitutes

simple negligence as defined in Section 707-704(2) of the

Hawai#i Revised Statutes, thereby committing the offense of

Negligent Homicide in the Second Degree, in violation of

Section 707-703(1)(b) of the Hawai#i Revised Statutes. In

accordance with Section 264-1(a) of the Hawai#i Revised

Statutes, "public highway" means all roads, alleys, streets,

ways, lanes, bikeways, bridges, and all other real property

highway related interests in the State, opened, laid out,

subdivided, consolidated, and acquired and built by the

government. In accordance with Section 291C-1 of the

Hawai#i Revised Statutes, "street" means the entire width

between boundary lines of every way publicly maintained when

any part thereof is open to the use of the public for

purposes of vehicular travel.

(Emphasis added.) Van Blyenburg argues that Count 2 "is

defective in that it does not define and give notice as to the

element of conduct of 'simple negligence,' which is defined under

§ 707-704(2) of the Hawaii Revised Statutes[.]"

HRS § 707-704 (2014) (negligent homicide in the third

degree) provides, in relevant part:

(2) "Simple negligence" as used in this section:

(a) A person acts with simple negligence with respect to

the person's conduct when the person should be aware

of a risk that the person engages in that conduct.

(b) A person acts with simple negligence with respect to

attendant circumstances when the person should be

aware of a risk that those circumstances exist.

(c) A person acts with simple negligence with respect to a

result of the person's conduct when the person should

be aware of a risk that the person's conduct will

cause that result.

(d) A risk is within the meaning of this subsection if the

person's failure to perceive it, considering the

nature and purpose of the person's conduct and the

circumstances known to the person, involves a

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deviation from the standard of care that a law-abiding

person would observe in the same situation.

Van Blyenburg challenges the following conclusions of

law made by the circuit court:

3. As to Count 2 of the Indictment:

. . . .

d. Terms with different statutory and common,

everyday definitions only need to be defined in a charging

document where the term is an element of the charge. See

Baker, 146 Hawai#i at 308, 463 P.3d at 965 ("A complaint[]

. . . cannot reasonably be construed to charge an offense

. . . when the common definition of an element of an offense

set forth in the charge does not comport with its statutory

definition [and the charging document does not include the

statutory definition.]") (emphasis added).

e. Given the foregoing, "simple negligence" is not

an element of Negligent Homicide in the Second Degree,

H.R.S. § 707-703(1)(b).

f. As such, the Court finds that "simple

negligence" need not be defined in Count 2 of the

Indictment.

g. Thus, the Court further finds that Count 2 of

the Indictment is sufficient.

Van Blyenburg relies on Wheeler, 121 Hawai#i at 393, 219 P.3d at

1180 (holding that failure to allege defendant was driving his

vehicle "upon a public way, street, road, or highway" at time of

offense rendered charge deficient); State v. Kauhane, 145 Hawai#i

362, 372, 452 P.3d 359, 369 (2019) (holding that charge, which

did not include statutory definition of "obstructs," was

deficient where statutory definition did not reflect commonly

understood meaning of term); and State v. Pacquing, 139 Hawai#i

302, 308, 389 P.3d 897, 903 (2016) (holding that charge, which

did not include statutory definition of "confidential personal

information," was deficient where statutory definition was "not

readily comprehensible to persons of common understanding[.]").

We need not decide whether the circuit court's

conclusions of law were right or wrong. Although Count 2 of the

indictment did not recite the statutory definition of "simple

negligence," the State's original requested jury instructions,

filed on May 22, 2018 (almost two years before the trial), and

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the State's amended requested jury instructions (filed the

morning before Van Blyenburg testified at trial) both contained

the complete statutory definition of "simple negligence."9

Because Van Blyenburg had been provided with the statutory

definition of "simple negligence" missing from Count 2 of the

indictment before he moved to dismiss the charge, the circuit

court did not err by denying the motion. State v. Armitage,

No. CAAP-19-0000814, 2021 WL 4936967, at *6 (Haw. App. Oct. 22,

2021) (SDO) (holding that where State filed proposed jury

instructions a month before trial that included statutory

definition of "under the influence," defendant had ample notice

of precisely what she must be prepared to meet at trial) (citing

State v. Mita, 124 Hawai#i 385, 390, 245 P.3d 458, 463 (2010));

see also Wheeler, 121 Hawai#i at 391, 219 P.3d at 1178 (quoting

State v. Wells, 78 Hawai#i 373, 379–80, 894 P.2d 70, 76–77

(1995)).

For the foregoing reasons, the "Judgment of Conviction

and Sentence" entered by the circuit court on October 28, 2020,

is affirmed.

DATED: Honolulu, Hawai#i, November 19, 2021.

On the brief:

/s/ Katherine G. Leonard

Emmanuel G. Guerrero, Presiding Judge

for Defendant-Appellant.

/s/ Keith K. Hiraoka

Donn Fudo, Associate Judge

Deputy Prosecuting Attorney,

City and County of Honolulu, /s/ Clyde J. Wadsworth

for Plaintiff-Appellee. Associate Judge

9 The complete statutory definition of "simple negligence" was given

to the jury.

9