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IN THE SUPREME COURT OF THE STATE OF HAWAI‘I 

---o0o--- 

STATE OF HAWAI‘I,

Plaintiff-Appellant/Cross-Appellee, 

vs. 

ALVIN TRAN, 

Defendant-Appellee/Cross-Appellant. 

SCAP-23-0000063 

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT 

(CAAP-23-0000063; CASE NO. 1CPC-20-0000890) 

JUNE 4, 2024 

RECKTENWALD, C.J., McKENNA, AND EDDINS, JJ., 

AND CIRCUIT JUDGE MALINAO, ASSIGNED BY REASON OF VACANCY1

OPINION OF THE COURT BY RECKTENWALD, C.J. 

 This case centers on whether the statute regarding 

continuous sexual assault of a minor under the age of fourteen 

years, Hawai‘i Revised Statutes (HRS) § 707-733.6 (2014), and a 

1 Circuit Judge Jeffrey P. Crabtree, who was a member of the Court, 

assigned by reason of vacancy, retired from the bench on January 31, 2024. 

Electronically Filed

Supreme Court

SCAP-23-0000063

04-JUN-2024

08:43 AM

Dkt. 41 OP
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related provision of the Hawai‘i Constitution, article I, 

section 25, comport with the U.S. Constitution. For the reasons 

stated below, we conclude that they do. We further conclude 

that the indictment against defendant Alvin Tran, charging a 

violation of HRS § 707-733.6, was sufficiently specific when 

construed under the liberal construction standard announced in 

State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983), and modified 

by State v. Wells, 78 Hawai‘i 373, 894 P.2d 70 (1995). 

 Accordingly, we (1) vacate the circuit court’s order 

granting in part and denying in part Tran’s motion to dismiss; 

(2) affirm the circuit court’s denial of Tran’s supplemented new 

trial motion; and (3) remand the case to the circuit court for 

further proceedings. 

I. BACKGROUND 

 In July 2020, a grand jury returned a single-count 

indictment against Tran as follows: 

On or about January 1, 2015 to and including January 

31, 2020, in the City and County of Honolulu, State of 

Hawai‘i, ALVIN TRAN, a person who either resided in the same 

home with [minor child], a minor under the age of fourteen 

years, or had recurring access to [minor child], with 

intent or knowledge that [minor child] was such a person, 

did intentionally or knowingly engage in three or more acts 

of sexual penetration and/or sexual contact with [minor 

child] over a period of time, while [minor child] was under 

the age of fourteen years, and was not married to [minor 

child], and knew he was not married to [minor child], 

thereby committing the offense of Continuous Sexual Assault 
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of a Minor Under the Age of Fourteen Years, in violation of 

Section 707-733.6 of the [HRS].[2]

Pursuant to Section 707-700 of the [HRS (2014)], 

“married” includes persons legally married, and a male and 

female living together as husband and wife, but does not 

include spouses living apart.

Pursuant to Section 707-700 of the [HRS], “sexual 

penetration” means:

(1) Vaginal intercourse, anal intercourse, 

fellatio, deviate sexual intercourse, or any 

intrusion of any part of a person’s body or of 

any object into the genital or anal opening of 

another person’s body; it occurs upon any 

penetration, however slight, but emission is 

not required. As used in this definition, 

2 HRS § 707-733.6 (2014) states:

(1) A person commits the offense of continuous sexual 

assault of a minor under the age of fourteen years if the person:

(a) Either resides in the same home with a minor 

under the age of fourteen years or has recurring 

access to the minor; and

(b) Engages in three or more acts of sexual 

penetration or sexual contact with the minor over 

a period of time, while the minor is under the 

age of fourteen years.

(2) To convict under this section, the trier of fact, if a 

jury, need unanimously agree only that the requisite number 

of acts have occurred; the jury need not agree on which 

acts constitute the requisite number.

(3) No other felony sex offense involving the same victim 

may be charged in the same proceeding with a charge under 

this section, unless the other charged offense occurred 

outside the period of the offense charged under this 

section, or the other offense is charged in the 

alternative. A defendant may be charged with only one count 

under this section, unless more than one victim is 

involved, in which case a separate count may be charged for 

each victim.

(4) Continuous sexual assault of a minor under the age of 

fourteen years is a class A felony.

 (Emphasis added.) 

 
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“genital opening” includes the anterior surface 

of the vulva or labia majora; or

(2) Cunnilingus or anilingus, whether or not actual 

 penetration has occurred.

Pursuant to Section 707-700 of the [HRS], “deviate 

sexual intercourse” means any act of sexual gratification 

between a person and an animal or a corpse, involving the 

sex organs of one and the mouth, anus or sex organs of the 

other.

Pursuant to Section 707-700 of the [HRS], “sexual 

contact” means any touching, other than acts of “sexual 

penetration”, of the sexual or other intimate parts of a 

person not married to the actor, or of the sexual or other 

intimate parts of the actor by the person, whether directly 

or through the clothing or other material intended to cover 

the sexual or other intimate parts. 

 During trial in April 2022, the State presented 

testimony from (1) minor child, (2) minor child’s mother, 

(3) minor child’s father, (4) a pediatrician who interviewed 

minor child, (5) a clinical psychologist, (6) a Honolulu Police 

Department (HPD) evidence specialist, (7) a homeland security 

special agent, and (8) an HPD detective with the sex crimes 

detail. Tran presented testimony from (1) a sex assault nurse 

examiner, (2) Tran’s brother, and (3) Tran’s sister, but did not 

testify himself. 

 Minor child testified at trial that Tran was her 

father’s best friend and that she had known Tran “[s]ince I was 

born.” According to minor child, Tran lived with her father at 

times, and she would see Tran at her father’s house when she was 

staying with her father. Minor child testified further that 

from ages eight to twelve, Tran, among other things, “rub[bed] 
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my lower private areas,” “touch[ed] my breasts” with “[h]is hand 

and his mouth,” “put his lips on my lips and . . . swirl[ed] his 

tongue in my mouth,” and “suck[ed] . . . and lick[ed] . . . and 

touch[ed] . . . with his hand” minor child’s lower private area. 

 Tran argued in closing, among other things, that an 

inexperienced detective had “rush[ed] to judgment” and was “not 

focused on a fair investigation.” He also contended that minor 

child was “not credible,” was “seeking out attention,” and came 

from “a broken home.” 

 At the close of the evidence, the circuit court3

instructed the jury on continuous sexual assault of a minor 

under the age of fourteen, under HRS § 707-733.6. The circuit 

court stated the offense’s material elements: (1) “[t]hat, on or 

about January 1, 2015, to and including January 31, 2020, in the 

City and County of Honolulu, State of Hawai‘i, the defendant, 

[Tran], intentionally or knowingly engaged in three or more acts 

of sexual penetration or sexual contact with [minor child]”; 

(2) “[t]hat [Tran] intentionally or knowingly resided in the 

same house with [minor child] or had recurring access to [minor 

child] at that time”; (3) “[t]hat [Tran] knew he was not married 

to [minor child] at that time”; and (4) “[t]hat [minor child] 

was less than fourteen years old at that time.” 

3 The Honorable Catherine H. Remigio presided.
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 The circuit court then instructed the jury that, “[a]s 

to Element No. 1, you need to unanimously agree only that the 

requisite number of acts have occurred; you need not agree on 

which acts constitute the requisite number.” This instruction 

tracked HRS § 707-733.6(2)’s language, which states that “the 

trier of fact, if a jury, need unanimously agree only that the 

requisite number of acts have occurred; the jury need not agree 

on which acts constitute the requisite number.” 

 Finally, the circuit court provided the statutory 

definitions of “sexual penetration,” “sexual contact,” “deviate 

sexual intercourse,” and “married.” See HRS § 707-700. 

 All members of the jury agreed to a guilty verdict. 

The circuit court asked the jury foreperson, “has the jury 

reached a unanimous verdict in this case?” The foreperson 

replied “Yes, ma’am.” At Tran’s request, the circuit court 

polled the jury, noting that “the purpose of a jury poll is to 

ensure that the verdict just announced is unanimous and 

represents the true verdict of the jury.” The circuit court 

then instructed the jurors to “answer yes if you agree with the 

verdict, answer no if you do not agree with the verdict.” Each 

juror, when asked individually, answered “Yes.” The circuit 

court concluded that “[t]he verdict is unanimous. And 

consistent with the jury’s verdict, which has been 

received, . . . the [c]ourt adjudges Mr. Tran guilty of the 
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offense of Continuous Sexual Assault of a Minor Under the Age of 

Fourteen Years.” 

 In May 2022, after the verdict but before sentencing, 

Tran moved for a new trial, alleging several errors, including 

improperly excluded evidence and prosecutorial misconduct. 

Later that month, the circuit court allowed Tran to supplement 

his new trial motion over the State’s opposition. 

 Specifically, Tran added an argument to his new trial 

motion based on the U.S. Supreme Court’s decision in Ramos v. 

Louisiana, which held that the Sixth Amendment to the U.S. 

Constitution requires verdicts from unanimous juries to support 

convictions. See 140 S. Ct. 1390, 1397 (2020). Tran argued 

that “the federal constitution, by way of its Sixth and 

Fourteenth Amendments, does not allow a state to alter the 

verdict unanimity that the Sixth Amendment’s jury trial clause 

requires to convict on a criminal offense.” 

 Tran argued first that article I, section 25(2) of the 

Hawaiʻi Constitution, providing that, “[i]n continuous sexual 

assault crimes against minors younger than fourteen years of 

age, the legislature may define . . . [w]hat constitutes the 

jury unanimity that is required for a conviction,” is 

unconstitutional under the Sixth and Fourteenth Amendments to 

the U.S. Constitution. Second, without the benefit of this 

constitutional provision, HRS § 707-733.6 is unconstitutional 
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under the Hawaiʻi Constitution and the Fourteenth Amendment to 

the U.S. Constitution. Third, without HRS § 707-733.6, Hawai‘i 

law requires unanimous jury agreement on each of the three acts 

required by HRS § 707-733.6(1)(b) (2014). Fourth, the circuit 

court’s jury instruction on HRS § 707-733.6(2) (2014)’s 

unanimity rule, requiring jury unanimity only as to whether a 

minimum of three acts occurred and not requiring unanimity as to 

which three acts occurred, permitted the jury to convict Tran on 

an invalid and unconstitutional legal theory. Fifth, the jury’s 

guilty verdict must be vacated because it might rest upon the 

aforementioned theory. Finally, Tran argued he was entitled to 

a new trial where the jury would be instructed that all jurors 

must agree on at least three specific acts to return a guilty 

verdict under HRS § 707-733.6. 

 In April 2022, one week after Tran was convicted, we 

issued our decision in State v. Jardine, which clarified the 

specificity required in criminal charges. 151 Hawai‘i 96, 508 

P.3d 1182 (2022). Specifically, we held that, because 

“‘substantial bodily injury’ is a generic term for which the 

State must include the statutory definition by stating the 

species of injury allegedly inflicted, and/or a ‘to wit’ clause 

specifying the alleged injury,” the “felony information against 

[the defendant] was insufficient because it did not state the 

species of [the victim’s] substantial bodily injuries or descend 
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to the particulars of [the victim’s] injuries.” Id. at 99, 102, 

508 P.3d at 1185, 1188. 

 In May 2022, Tran moved to dismiss based on Jardine, 

arguing that the July 2020 indictment “did not provide the 

details that Jardine requires, beyond identifying who [Tran] was 

accused of sexually assaulting.” “Instead,” Tran argued, the 

“indictment used [HRS § 707-]733.6(1)’s generic language to 

accuse Tran of violating the statute and set forth the full 

statutory definitions of the terms” used in the relevant 

statutes. The indictment should have stated which of the 

“various forms of sexual intercourse, intrusions, and lingus” 

included in the definition of “sexual penetration” and which 

specific kinds of touching or other contact included in the 

definition of “sexual contact” Tran allegedly committed. The 

indictment, in Tran’s view, should therefore have been dismissed 

with prejudice because the State’s interest in prosecuting HRS 

§ 707-733.6 cases “is outweighed by the constellation of 

constitutional and statutory rights that the State’s prosecution 

of Tran, on a defective [HRS § 707-]733.6 indictment, has 

violated.” Tran argued that the error was “structural and 

systemic,” and that “doing anything less [than dismissing with 

prejudice] will compound and perpetuate that systemic structural 

error.” 

 The State opposed Tran’s motions. 
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 The circuit court denied the new trial motion and 

continued sentencing, concluding that article I, section 25 of 

the Hawai‘i Constitution, “on its face, does not permit a [jury] 

vote other than 12-0 to secure a conviction.” The circuit court 

reasoned that “[u]nanimity, or the state of being unanimous, 

requires the agreement and consent of all involved,” and, “[i]n 

the context of a jury trial, it means all 12 jurors must agree. 

It does not mean anything less than 12 (such as 10-2 or 9-3).” 

(Internal quotation marks omitted.) Finally, “[a] 10-2 jury 

vote,” for example, “by definition, is NOT unanimous.” The 

court therefore “decline[d] to read [article I,] section [25,] 

subsection (2) to authorize the legislature to declare jury 

unanimity to be anything but 12-0. There is no other reasonable 

definition of unanimity.” 

 Next, the circuit court addressed Tran’s 

constitutional challenge to HRS § 707-733.6, beginning with the 

Intermediate Court of Appeals’ (ICA) decision in State v. Young, 

150 Hawaiʻi 365, 502 P.3d 45 (App. 2021), an HRS § 707-733.6 case 

decided after Ramos. The circuit court noted that the ICA 

concluded in Young that “Ramos did not address the issue 

presented by [the defendant] in this appeal: whether the juror 

unanimity requirement extends to deciding which of several 

possible means the defendant used to commit an element of the 

crime.” Id. at 370, 502 P.3d at 50. The circuit court then 
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concluded that “HRS § 707-733.6(2) does not violate [Tran’s] 

constitutional right to an impartial jury (unanimous verdict) or 

due process under either the U.S. or Hawaiʻi Constitutions” and 

accordingly denied Tran’s new trial motion. 

 The circuit court granted in part and denied in part 

Tran’s dismissal motion, dismissing the case because, “[f]irst, 

the indictment does not narrowly tailor generic statutory 

terms,” and “[t]he terms ‘sexual contact’ and ‘sexual 

penetration’ are generic terms because they are statutorily 

defined to mean more than one type of sexual act.” “Second, the 

indictment against Tran also fails to set forth factual details 

circumscribing the core of criminality in which he allegedly 

engaged.” While “[t]he indictment identifies the who,” it does 

not identify “what specific sexual acts occurred, where they 

occurred, and how they occurred,” the court wrote. Thus, the 

court concluded, “the indictment fails to ensure that the trial 

jury did not convict Tran on the basis of a factual theory of 

guilt that the State did not present to the grand jury or that 

the grand jury rejected.” However, the court dismissed the case 

without prejudice, instead of with prejudice, “in light of the 

evidence adduced at trial, the jury’s verdict, the seriousness 

of the offense, and the lack of any statute of limitations.” 

 The State appealed from the circuit court’s dismissal 

order, arguing that the circuit court erred by (1) declining to 
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apply the Motta/Wells liberal construction standard to Tran’s 

postconviction challenge to the sufficiency of the charge, 

(2) concluding that “sexual penetration” and “sexual contact” 

are generic terms as used in HRS § 707-733.6, and (3) requiring 

that the indictment specify the predicate acts of the charged 

continuing offense. 

 Tran cross-appealed, arguing that the circuit court 

should have dismissed the case with prejudice, rather than 

without prejudice. Tran also challenged the denial of his new 

trial motion, raising five points of error: (1) article I, 

section 25(2) of the Hawaiʻi Constitution is unconstitutional 

under the U.S. Constitution in light of Ramos; (2) HRS § 707-

733.6(2) is unconstitutional without the safe harbor granted by 

the aforementioned constitutional provision; (3) because the 

aforementioned constitutional and statutory provisions are both 

unconstitutional, the rule requiring juror unanimity as to which 

specific acts constituted the three acts required, which those 

provisions overturned, applies to HRS § 707-733.6 cases; 

(4) Tran’s guilty verdict must be set aside; and (5) if Tran is 

retried, the circuit court must instruct jurors in accordance 

with the rule requiring unanimity as to the specific acts 

required to convict under HRS § 707-733.6. 

 We transferred the case. 
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II. STANDARDS OF REVIEW 

A. Constitutional Law 

 “Questions of constitutional law are reviewed 

de[]novo, under the right/wrong standard.” In re Gas Co., 147 

Hawaiʻi 186, 198, 465 P.3d 633, 645 (2020). 

B. Charge Sufficiency 

 “The question of whether a charge sets forth all the 

essential elements of a charged offense is a question of law 

that this court reviews de novo under the right/wrong standard.” 

Jardine, 151 Hawai‘i at 99, 508 P.3d at 1185. 

III. DISCUSSION 

 The main issue in this case is whether article I, 

section 25(2) of the Hawai‘i Constitution authorizes nonunanimous 

jury verdicts for HRS § 707-733.6 cases in violation of the 

Sixth Amendment to the U.S. Constitution as explained in Ramos. 

Tran argues that jurors in HRS § 707-733.6 cases must 

unanimously agree about three specific acts prohibited by the 

statute. The State argues that Ramos did not disturb laws 

permitting juries to return guilty verdicts where all jurors 

agree with the verdict but do not necessarily agree on specific 

predicate acts. 

 While Ramos proscribes laws allowing nonunanimous 

juries to return guilty verdicts, article I, section 25(2) of 
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the Hawai‘i Constitution plainly does not empower the legislature 

to enact such laws, and HRS § 707-733.6(2) plainly does not 

permit nonunanimous juries to return guilty verdicts. We 

therefore conclude that these provisions do not violate the 

Sixth Amendment to the U.S. Constitution. 

 Regarding Tran’s equal protection claims, because both 

article I, section 25(2) and HRS § 707-733.6(2) are rationally 

related to the legitimate legislative end of enhancing public 

safety, neither provision violates the Equal Protection Clause 

of the Fourteenth Amendment to the U.S. Constitution. 

 We also clarify when courts must liberally construe 

charge challenges and what our recent decision in Jardine 

requires of indictments charging HRS § 707-733.6 violations when 

so construed. Under our precedents, we must liberally construe 

an indictment challenged after a jury verdict, as was the case 

here. When so construed, the indictment against Tran stated an 

offense because it included all essential elements of the 

charged crime and relevant statutory definitions, and he did not 

show he was prejudiced by the charge. We accordingly conclude 

that the circuit court incorrectly dismissed the charge against 

Tran. 

 We therefore (1) vacate the circuit court’s grant in 

part and denial in part of Tran’s dismissal motion, (2) affirm 

the circuit court’s denial of Tran’s supplemented new trial 
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motion, and (3) remand the case to the circuit court for further 

proceedings. 

A. Article I, Section 25 of the Hawai‘i Constitution Does Not 

 Violate Tran’s Right to a Jury Trial Under the Sixth 

 Amendment to the U.S. Constitution 

 Tran argues that, under Ramos, both article I, 

section 25 of the Hawaiʻi Constitution and HRS § 707-733.6 

violate the Sixth Amendment to the U.S. Constitution, as 

incorporated against the states by the Fourteenth Amendment to 

the U.S. Constitution. According to Tran, Ramos “unequivocally 

held that states may not experiment with unanimity among trial 

jurors as to the truth of every accusation required to convict 

in a criminal case.” Tran further argues that the plain 

language of article I, section 25(2) “expressly authorizes 

experimentation that Ramos expressly precludes.” We disagree. 

 Ramos does not reach the issues that Tran claims it 

does. Ramos held that the Sixth Amendment proscribes laws 

allowing nonunanimous juries to return guilty verdicts. See 140 

S. Ct. at 1397. Thus, Ramos requires all jurors to agree with a 

given guilty verdict. However, Ramos is silent regarding what 

Tran calls “experimentation with . . . unanimity.” Nothing in 

Ramos suggests that the U.S. Supreme Court sought to prohibit 

the people of a state from empowering juries to return guilty 

verdicts where all jurors agree as to guilt but do not 

necessarily agree on which specific acts that guilt is 
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predicated on. As a result, Ramos does not support the 

proposition that the Sixth Amendment invalidates either article 

I, section 25(2) or HRS § 707-733.6(2). Further, article I, 

section 25(2) comports with the Sixth and Fourteenth Amendments 

because it does not authorize nonunanimous jury verdicts. 

Because article I, section 25 does not authorize the legislature 

to empower nonunanimous juries to return guilty verdicts, we 

need not address Tran’s argument that HRS § 707-733.6 violates 

the Hawai‘i Constitution without article I, section 25’s 

authorization. 

 1. The U.S. Supreme Court’s decision in Ramos does not 

 proscribe unanimous juries from returning guilty 

 verdicts notwithstanding potential juror disagreement 

 on which specific acts satisfy elements of an offense 

 The U.S. Supreme Court determined in Ramos that the 

right to a jury trial guaranteed by the Sixth Amendment to the 

U.S. Constitution, as incorporated against the states by the 

Fourteenth Amendment to the U.S. Constitution, requires juries 

to return unanimous guilty verdicts to convict defendants of 

serious crimes. In so holding, that Court overruled its 

companion decisions in Apodaca v. Oregon, 406 U.S. 404 (1972), 

and Johnson v. Louisiana, 406 U.S. 356 (1972), which upheld laws 

allowing nonunanimous juries to return guilty verdicts in Oregon 

and Louisiana, respectively. 
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 When Ramos was decided, article I, section 11 of the 

Oregon Constitution expressly permitted convictions by a 

nonunanimous jury verdict of 10-2, providing in relevant part 

that “ten members of the jury may render a verdict of guilty or 

not guilty, save and except a verdict of guilty of first degree 

murder, which shall be found only by a unanimous verdict, and 

not otherwise.” Or. Const. art. I, § 11. 

 Similarly, article I, section 17 of the Louisiana 

Constitution expressly permitted convictions by nonunanimous 

juries, stating in relevant part: “[a] case for an offense 

committed prior to January 1, 2019, in which the punishment is 

necessarily confinement at hard labor shall be tried before a 

jury of twelve persons, ten of whom must concur to render a 

verdict.” La. Const. art. I, § 17.(A). 

 Ramos clarified that “the Sixth Amendment's unanimity 

requirement applies to state and federal criminal trials 

equally.” 140 S. Ct. at 1397. Contrary to Tran’s claims, 

however, Ramos contains no language or analysis concerning any 

Sixth Amendment issue regarding the longstanding practice of 

permitting a unanimous jury to return a guilty verdict even 

where jurors might disagree about the specific acts satisfying 

an element of a crime. See id. 
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 The U.S. Supreme Court has long recognized this 

practice. In Richardson v. United States, the Court explained 

the rule as follows: 

The question before us arises because a federal jury 

need not always decide unanimously which of several 

possible sets of underlying brute facts make up a 

particular element, say, which of several possible means 

the defendant used to commit an element of the 

crime . . . . Where, for example, an element of robbery is 

force or the threat of force, some jurors might conclude 

that the defendant used a knife to create the threat; 

others might conclude he used a gun. But that 

disagreement — a disagreement about means — would not 

matter as long as all 12 jurors unanimously concluded that 

the Government had proved the necessary related element, 

namely, that the defendant had threatened force.

526 U.S. 813, 817 (1999) (citations omitted). 

 The growing body of post-Ramos state and federal case 

law confirms that Ramos did not disturb the well-established 

doctrine that the Sixth Amendment to the U.S. Constitution does 

not require jury unanimity as to specific underlying facts or 

“means” to convict a defendant of a continuing course of conduct 

offense, such as that which is at issue here. 

 Notably, the ICA recently addressed this issue in 

Young. The defendant in that case argued that HRS § 707-

733.6(2) violated the Sixth and Fourteenth Amendments to the 

U.S. Constitution under Ramos. 150 Hawai‘i at 368, 502 P.3d at 

48. With reference to article I, section 25’s history, HRS 

§ 707-733.6’s history, this court’s precedent, and U.S. Supreme 

Court precedent, the ICA concluded that “Ramos did not address 

the issue presented by [the defendant] in this appeal: whether 
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the juror unanimity requirement extends to deciding which of 

several possible means the defendant used to commit an element 

of the crime.” Young, 150 Hawaiʻi at 370, 502 P.3d at 50. That 

the Young defendant did not advance Tran’s argument regarding 

whether article I, section 25 comports with the U.S. 

Constitution does not change this analysis because of the two 

provisions’ interrelated histories, discussed infra, Section 

III(B). 

 Moreover, as the Young court pointed out, pre-Ramos 

“courts in other jurisdictions have held that their respective 

continuous sexual assault statutes do not require jury unanimity 

on the specific predicate acts.” Id. at 376, 502 P.3d at 56. 

These include courts in Arizona, California, Texas, and 

Wisconsin. See, e.g., State v. Ramsey, 124 P.3d 756, 764 (Ariz. 

Ct. App. 2005) (concluding that, under Arizona continuous sexual 

assault of minor statute, “the specific, individual acts that 

constitute the requisite number of predicate acts . . . clearly 

constitute the underlying brute facts or means rather than 

elements of the crime on which the jury must agree unanimously 

and separately” (brackets, citation, and quotation omitted)); 

People v. Gear, 19 Cal. App. 4th 86, 92 (Cal. Ct. App. 

1993) (noting that “[t]he crime of continuous sexual abuse of a 

child . . . is a continuous-course-of-conduct crime and 

therefore falls within the exception to the rule that jurors 
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must agree on the particular criminal acts committed by the 

defendant before convicting him,” in upholding California 

continuous sexual assault of minor statute against jury 

unanimity challenge (citation omitted)); Jacobsen v. State, 325 

S.W.3d 733, 737 (Tex. App. 2010) (concluding that, under Texas 

continuous sexual assault of minor statute, “it is the 

commission of two or more acts of sexual abuse over the 

specified time period – that is, the pattern of behavior or the 

series of acts – that is the actus reus element of the offense 

as to which the jurors must be unanimous in order to convict.”); 

State v. Johnson, 627 N.W.2d 455, 460 (Wis. 2001) (concluding 

that, under Wisconsin continuous sexual assault of minor 

statute, “the predicate acts of sexual assault are not 

themselves elements of the offense, about which the jury must be 

unanimous before convicting the defendant. Rather, to convict 

under this statute, the jury need only unanimously agree that 

the defendant committed at least three acts of sexual assault of 

the same child within the specified time period.”). Nothing in 

Ramos changes these holdings. 

 Federal courts have interpreted Ramos similarly. One 

federal magistrate judge wrote that 

[t]he [U.S.] Supreme Court has recently held that in 

state court proceedings for serious crimes, there is a 

right to have all twelve jurors agree that a defendant is 

guilty, so that one single vote to acquit renders a guilty 

verdict unconstitutional. Ramos v. Louisiana, 140 S. Ct. 

1390, 1397 (2020). However, the Court has never held that 
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the jury must also be unanimous as to the means by which a 

defendant committed the crime, in a case where alternative 

means are argued to the jury. Indeed, the Court has 

distinguished between unanimity that [a] defendant 

committed the crime of conviction (required by Ramos) and 

unanimity as to how [a] defendant committed the crime (not 

required by Ramos).

Crow v. Haynes, No. 3:16-cv-05277-RJB-JRC, 2020 WL 5371375, at 

*18 (W.D. Wash. Aug. 20, 2020), report and recommendation 

adopted, No. 3:16-cv-05277-RJB-JRC, 2020 WL 5369350 (W.D. Wash. 

Sept. 8, 2020), aff’d, No. 20-35911, 2021 WL 5122171 (9th Cir. 

Nov. 4, 2021). 

 Other federal courts have likewise interpreted Ramos. 

See Anderson v. Davis, No. 3:19-CV-2915-C-BK, 2021 WL 3040771, 

at *7 n.3 (N.D. Tex. May 13, 2021) (“Ramos dealt only with the 

issue of who the unanimity requirement applied to — not what the 

requirement entailed.”), findings, conclusions, and 

recommendation adopted by 2021 WL 3039015 (N.D. Tex. July 19, 

2021), Anderson v. Lumpkin, No. 21-10773, 2022 WL 3134315 (5th 

Cir. Mar. 30, 2022); Campos-Lopez v. Konieg, No. 8:21-cv-00416, 

2021 WL 6805698 at *4 (C.D. Cal Dec. 27, 2021) (noting that, 

notwithstanding Ramos, “[t]here is . . . no federal 

constitutional right that a jury decide unanimously which of 

several possible sets of underlying facts make up a particular 

element.” (ellipsis and quotation omitted)), findings and 

recommendation accepted by No. 821CV00416ODWSHK, 2022 WL 344970 

(C.D. Cal. Feb. 3, 2022); Hernandez v. Dir., No. 4:19CV713, 2022 
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WL 16753872 at *8 (E.D. Tex. July 13, 2022) (noting that, 

notwithstanding Ramos, “[a] disagreement about which of several 

possible sets of underlying brute facts make up a particular 

element . . . does not matter as long as all 12 jurors 

unanimously conclude that the Government has proved the 

necessary related element”) (brackets and quotations omitted), 

report and recommendation adopted by No. 4:19-CV-00713-RWS, 2022 

WL 16748597 (E.D. Tex. Nov. 7, 2022), Hernandez v. Lumpkin, No. 

22-40782, 2023 WL 8371953 (5th Cir. July 6, 2023) (per curiam). 

 Tran’s contention that Ramos addresses potential juror 

disagreements regarding predicate acts turns on Ramos’s use of 

the phrase “the truth of every accusation.” 140 S. Ct. at 1395 

(quotation omitted). However, the full quotation makes clear 

that the phrase “the truth of every accusation” referred to 

agreement with a given guilty verdict: 

[t]he requirement of juror unanimity emerged in 14th

century England and was soon accepted as a vital right 

protected by the common law. As Blackstone explained, no 

person could be found guilty of a serious crime unless the 

truth of every accusation should be confirmed by the 

unanimous suffrage of twelve of his equals and neighbors, 

indifferently chosen, and superior to all suspicion. A 

verdict, taken from eleven, was no verdict at all.

Id. (quotations, footnotes, and ellipses omitted). 

 Thus, the phrase “the truth of every accusation” 

underscores that the Sixth Amendment requires a guilty verdict 

on which all twelve jurors — rather than fewer than twelve 
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jurors — agree and says nothing about potential juror 

disagreement as to specific predicate acts. 

 For the above reasons, we conclude that Ramos does not 

address guilty verdicts returned by all jurors, notwithstanding 

potential disagreement as to the means by which a defendant 

committed an element of a charged continuing offense. 

 2. Because article I, section 25(2) of the Hawai‘i 

 Constitution does not authorize nonunanimous jury 

 verdicts, it comports with the Sixth and Fourteenth 

 Amendments to the U.S. Constitution 

 Tran argues that article I, section 25 of the Hawai‘i 

Constitution authorizes the legislature to empower nonunanimous 

juries to return guilty verdicts and that it is therefore 

invalid under the U.S. Constitution. For the reasons set forth 

below, we disagree. Tran further argues that without the “safe 

harbor” provided by article I, section 25, HRS § 707-733.6 

violates the Hawai‘i Constitution. Since we conclude that 

article I, section 25 does not authorize the legislature to so 

empower nonunanimous juries and that provision therefore 

comports with the U.S. Constitution, we need not address Tran’s 

argument that HRS § 707-733 violates the Hawai‘i Constitution 

without article I, section 25’s authorization. 

 Because Tran concedes that article I, section 25 is 

unambiguous, we construe this provision according to its plain 

meaning. 
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 “[W]e have long recognized that the Hawai‘i 

Constitution must be construed with due regard to the intent of 

the framers and the people adopting it, and the fundamental 

principle in interpreting a constitutional provision is to give 

effect to that intent,” and “[t]his intent is to be found in the 

instrument itself.” Hawai‘i State AFL-CIO v. Yoshina, 84 Hawai‘i 

374, 376, 935 P.2d 89, 91 (1997) (quotations omitted). 

Moreover, “the general rule is that, if the words used in a 

constitutional provision are clear and unambiguous, they are to 

be construed as they are written.” Id. (brackets, ellipsis, and 

quotation omitted)). “[T]he words of the [Hawai‘i] constitution 

are presumed to be used in their natural sense unless the 

context furnishes some ground to control, qualify or enlarge 

them.” Malahoff v. Saito, 111 Hawai‘i 168, 181, 140 P.3d 401, 

414 (ellipsis and quotation omitted). As with statutes, we “may 

resort to legal or other well accepted dictionaries as one way 

to determine the ordinary meaning[s] of certain terms” not 

otherwise defined. State v. Pacquing, 139 Hawai‘i 302, 312, 389 

P.3d 897, 907 (2016) (quotation omitted). 

 Article I, section 25 of the Hawai‘i Constitution 

provides: 

In continuous sexual assault crimes against minors 

younger than fourteen years of age, the legislature may 

define: 
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1. What behavior constitutes a continuing 

course of conduct; and

2. What constitutes the jury unanimity that is 

required for a conviction. 

(Emphasis added.) 

 Merriam-Webster’s Dictionary defines “unanimity” as 

“the quality or state of being unanimous,” and, in turn, defines 

“unanimous” as "having the agreement and consent of all.” 

Unanimity, Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/unanimity 

[https://perma.cc/8LDV-7Z4V]; Unanimous, Merriam-Webster Online 

Dictionary, https://www.merriam-webster.com/dictionary/unanimous 

[https://perma.cc/4LP9-QGCV]. Thus, for a twelve-member jury to 

unanimously return a guilty verdict, all twelve members must 

agree with the verdict, just as the jury did here. As the 

circuit court noted in its order denying Tran’s supplemented new 

trial motion, “[i]n the context of a jury trial, [unanimity] 

means all 12 jurors must agree.” Because “unanimity” means the 

agreement of all, article I, section 25 of the Hawai‘i 

Constitution is in no way incongruous with Ramos. 

 Article I, section 25 cannot be read to empower the 

legislature to authorize juries to return nonunanimous guilty 

verdicts. Indeed, the provision forecloses this possibility by 

using the term “unanimity.” In contrast, article I, section 11 

of the Oregon Constitution and article I, section 17 of the 
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Louisiana Constitution expressly permitted nonunanimous jury 

verdicts of 10-2. See Or. Const. art. I, § 11. (“[T]en members 

of the jury may render a verdict of guilty or not guilty, save 

and except a verdict of guilty of first degree murder, which 

shall be found only by a unanimous verdict.”); La. Const. art. 

I, § 17.(A) (“A case for an offense committed prior to January 

1, 2019, in which the punishment is necessarily confinement at 

hard labor shall be tried before a jury of twelve persons, ten 

of whom must concur to render a verdict.”). 

 Because this “constitutional provision is not 

ambiguous, the court, in construing it, is not at liberty to 

search for its meaning beyond the instrument.” Malahoff, 111 

Hawai‘i at 181, 140 P.3d at 414 (quotation omitted). Our inquiry 

therefore begins and ends with article I, section 25’s text, 

which we may not construe to mean anything other than what it 

says. 

B. Neither Article I, Section 25 nor HRS § 707-733.6 Violates 

the Equal Protection Clause of the Fourteenth Amendment to 

 the U.S. Constitution 

 Tran argues that article I, section 25 of the Hawaiʻi 

Constitution and HRS § 707-733.6 violate the Equal Protection 

Clause of the U.S. Constitution. Tran argues that those 

prosecuted under HRS § 707-733.6 are treated differently than 

those prosecuted under other criminal statutes, and that the 

difference in treatment is not rationally based. Specifically, 
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Tran contends that defendants prosecuted under HRS § 707-733.6 

are denied equal access to the rule announced in our decision in 

State v. Arceo, 84 Hawai‘i 1, 928 P.2d 843 (1996), and that 

because this denial is based on a presumption of guilt, article 

I, section 25 of the Hawai‘i Constitution and HRS § 707-733.6 

lack a rational basis. Because both provisions are rationally 

based on the legitimate legislative end of enhancing public 

safety, we disagree. 

 “The Equal Protection Clause of the Fourteenth 

Amendment [to the U.S. Constitution] commands that no State 

shall deny to any person within its jurisdiction the equal 

protection of the laws, which is essentially a direction that 

all persons similarly situated should be treated alike.” City 

of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 

(1985) (quotation omitted). However, “[t]he Equal Protection 

Clause does not prohibit the State from passing laws which treat 

classes of people differently, but only from treating classes 

differently when the basis of the discrimination does not bear a 

rational relationship to a legitimate statutory objective.” 

State v. Bloss, 62 Haw. 147, 153, 613 P.2d 354, 358 (1980). 

Because Tran does not claim protected class membership, we 

review for rational basis. See Lee v. City of Los Angeles, 250 

F.3d 668, 687 (9th Cir. 2001) (noting that policy treating 

classes of people differently “need only be rationally related 
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to legitimate legislative goals to pass constitutional muster” 

(quotation omitted)). Doing so here, we hold that both 

provisions comport with the Fourteenth Amendment’s Equal 

Protection Clause. 

 In Arceo, a case involving a two-count indictment of 

child sexual assault, we held that 

when separate and distinct culpable acts are subsumed 

within a single count charging a sexual assault — any one 

of which could support a conviction thereunder — and the 

defendant is ultimately convicted by a jury of the charged 

offense, the defendant’s constitutional right to a 

unanimous verdict is violated unless one or both of the 

following occurs: (1) at or before the close of its casein-chief, the prosecution is required to elect the specific 

act upon which it is relying to establish the “conduct” 

element of the charged offense; or (2) the trial court 

gives the jury a specific unanimity instruction, i.e., an 

instruction that advises the jury that all twelve of its 

members must agree that the same underlying criminal act 

has been proved beyond a reasonable doubt. 

Arceo, 84 Hawaiʻi at 32–33, 928 P.2d at 874–75. 

 Under Arceo’s rule, jurors had to unanimously agree on 

the specific criminal acts proven at trial when returning guilty 

verdicts. However, the people of Hawai‘i narrowed the Arceo 

decision when they incorporated article I, section 25 into the 

Hawai‘i Constitution. Because their reasons for doing so are 

rationally related to a legitimate legislative end, this 

provision and its companion legislation, HRS § 707-733.6, 

comport with the Equal Protection Clause of the Fourteenth 

Amendment to the U.S. Constitution. 
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 In arguing that article I, section 25 and HRS § 707-

733.6 discriminate against defendants prosecuted under HRS 

§ 707-733.6 by denying them the protection of Arceo’s rule, Tran 

cites legislative materials indicating that the provisions would 

“make it easier to prosecute those who repeatedly sexually 

assault a child.” See, e.g., S.B. 2246, 23rd Leg., Reg. Sess. 

(2006) (proposing amendment to article I of Hawai‘i Constitution 

relating to sexual assault and noting “[t]his would make it 

easier to prosecute those who repeatedly sexually assault a 

child”), 

https://www.capitol.hawaii.gov/slh/AllIndex/All_Acts_SLH2006.pdf

[https://perma.cc/J7SF-3JSX]; S. Stand. Comm. Rep. No. 3010, in 

2006 Senate Journal, at 1458 (noting that proposed legislation 

would “mak[e] it easier to prosecute those who repeatedly 

sexually assault children”), 

https://www.capitol.hawaii.gov/journal/senate/2006/Senate_Journa

l_2006_Committee_Reports.pdf [https://perma.cc/6TLH-7VYL]. 

 While these provisions are not ambiguous, we turn to 

the relevant legislative history because “an examination of the 

debates, proceedings and committee reports is useful” in 

addressing Tran’s arguments here. Nelson v. Hawaiian Homes 

Comm’n, 127 Hawaiʻi 185, 198, 277 P.3d 279, 292 (2012) (quotation 

omitted). 
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 Article I, section 25 was enacted “to provide that the 

legislature may define what behavior constitutes a continuing 

course of conduct in continuous sexual assault crimes against 

minors younger than fourteen years of age and what constitutes 

the jury unanimity that is required for a conviction.” S.B. 

2246, 23rd Leg., Reg. Sess. (2006). 

 A 2006 Senate Standing Committee report regarding the 

legislation that would become HRS § 707-733.6 noted that, 

[u]nder the current law, it is difficult to prosecute those 

who repeatedly sexually assault young children, because of 

the difficulty young children have in remembering the 

individual dates on which they were sexually assaulted.

S. Stand. Comm. Rep. No. 3010, in 2006 Senate Journal, at 1458. 

 Enhancing public health, safety, and welfare are 

recognized as rationally-based legislative ends. State v. 

Mallan, 86 Hawai‘i 440, 452, 950 P.2d 178, 190 (1998) (“[T]he 

police power issue is subsumed within the rational basis test. 

In other words, under minimum rationality due process analysis, 

a statute must be rationally related to the public health, 

safety, or welfare.”). 

 This legislative history makes clear that these 

provisions were intended to protect children from repeated 

sexual assault, given the unique challenges that child victims 

might face under these circumstances. Together, these 

provisions aim to enhance public safety by permitting unanimous 

juries to return guilty verdicts in HRS § 707-733.6 cases 
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without requiring agreement on which specific acts were proven 

beyond a reasonable doubt at trial. As noted above, one 

specific reason for permitting juries to return verdicts in this 

manner was that children have a difficult time “remembering the 

individual dates on which they were sexually assaulted.” S. 

Stand. Comm. Rep. No. 3010, in 2006 Senate Journal, at 1458. 

 These provisions neither authorize nonunanimous juries 

to return guilty verdicts nor implicate the presumption of 

innocence, as demonstrated by the record here. The relevant 

legislative history reveals an intent to allow unanimous juries 

to return guilty verdicts in HRS § 707-733.6 cases without 

necessarily agreeing on which three acts were proven at trial. 

For example, a Senate Standing Committee report regarding the 

bill that would become HRS § 707-733.6 stated that the measure 

would permit juries to return guilty verdicts “if each member of 

the jury was convinced beyond a reasonable doubt that the 

defendant had sexually assaulted the child the required minimum 

number of times, even if there were no unanimity as to the 

individual assaults.” Id. The bill was not intended to permit 

nonunanimous jury verdicts or to alter the presumption of 

innocence. Here, Tran was presumed innocent and convicted only 

after a seven-day trial which concluded with all twelve jurors, 

who were individually polled at Tran’s request, and all answered 
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“Yes” when the circuit court asked “if [they] agree[d] with the 

verdict.” 

Because article I, section 25 of the Hawai‘i Constitution 

and HRS § 707-733.6 are rationally related to the legitimate 

legislative end of enhancing public safety, neither provision 

violates the Equal Protection Clause of the Fourteenth Amendment 

to the U.S. Constitution. 

C. The Indictment was Sufficient 

 The Motta/Wells liberal construction rule applies to 

Tran’s indictment challenge because he raised this claim after 

the jury’s verdict. The indictment was sufficient because it 

charged a crime and Tran was not prejudiced by the allegedly 

defective charge. We therefore vacate the circuit court’s 

dismissal order. 

1. Tran’s defective charge challenge was untimely 

 and the Motta/Wells liberal construction rule applies 

 After trial, Tran challenged the charge’s sufficiency 

on the grounds that it did not define the specific acts alleged 

against him. To comply with Jardine, Tran contends that

statutory terms included in indictments “must be narrowed down 

to the pertinent species from [their] (often capacious) 

statutory definition[s].” He argues that his indictment defined 

only the generic terms “sexual penetration” and “sexual 

contact,” but did not state what types of acts he allegedly 
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33 

engaged in. Thus, Tran contends, the indictment was so 

generalized that it did not state an offense. 

 Under article I, section 14 of the Hawaiʻi 

Constitution, those accused of crimes have the right “to be 

informed of the nature and cause of the accusation” against 

them. Defendants may challenge indictments for failure to 

charge an offense “at any time during the pendency of the 

proceeding” because of “the significant consequences associated 

with omitting an essential and material element in an oral 

charge” or indictment. State v. Sprattling, 99 Hawai‘i 312, 318, 

55 P.3d 276, 282 (2002) (quotation omitted). 

 While indictments can be challenged at any point 

during the proceeding, different standards apply to “postconviction challenges.” Motta, 66 Haw. at 91, 657 P.2d at 1020. 

Under the Motta/Wells framework, “we will not reverse a 

conviction based upon a defective indictment unless the 

defendant can show prejudice or that the indictment cannot 

within reason be construed to charge a crime.” Id. The liberal 

construction standard “essentially prescribes a presumption of 

validity on indictments that are challenged subsequent to a 

conviction.” Sprattling, 99 Hawai‘i at 318, 55 P.3d at 282.

 Tran argues that the Motta/Wells liberal construction 

standard does not apply here because he challenged the 

indictment before sentencing. According to Tran, the liberal 
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34 

construction standard applies only when the challenge is raised 

even later in the process, i.e., on appeal or in a Hawai‘i Rules 

of Penal Procedure (HRPP) Rule 40 proceeding. In support of 

that argument, he cites cases in which we have referred to the 

Motta/Wells rule as applying when an indictment is challenged 

for the first time on appeal. See, e.g., State v. Kauhane, 145 

Hawai‘i 362, 370, 452 P.3d 359, 367 (2019) (“[W]hen a defendant 

challenges the sufficiency of a charge for the first time on 

appeal, an appellate court will apply a more liberal standard of 

review, called the Motta/Wells rule.”). 

 The State argues that the Motta/Wells rule should 

apply once there is a finding of guilt. It points out that this 

court has consistently applied the Motta/Wells liberal 

construction rule when charge challenges are raised “for the 

first time on appeal.” State v. Walker, 126 Hawai‘i 475, 491, 

273 P.3d 1161, 1177 (2012) (quotation omitted), overruled on 

other grounds by Schwartz v. State, 136 Hawai‘i 258, 361 P.3d 

1161 (2015). The State highlights that this court in Motta 

adopted the liberal construction rule for indictment challenges 

raised “after trial.” Motta, 66 Haw. at 94, 657 P.2d at 1022 

(emphasis omitted). Because Tran first challenged the 

indictment a month after the jury’s verdict and the end of 

trial, the State argues the Motta/Wells rule applies. 
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 While we have occasionally described the Motta/Wells 

rule as applying to challenges raised for the first time on 

appeal, we have never held that it applies only to challenges 

raised on appeal. See, e.g., Sprattling, 99 Hawai‘i at 318, 55 

P.3d at 282 (recognizing Motta/Wells rule “essentially 

prescribes a presumption of validity on indictments that are 

challenged subsequent to a conviction”). 

 Motta itself is a good example. The defendant there 

was convicted of burglary, and subsequently claimed that the 

indictment was deficient for failing to allege the specific 

crime that he intended to commit when entering the building. 

Motta, 66 Haw. at 90, 657 P.2d at 1019. The defendant objected 

to the indictment by moving to dismiss more than two months 

after a jury returned a guilty verdict against him. Id. at 90 

n.1, 657 P.2d at 1019 n.1. Drawing on federal cases, we adopted 

a “liberal construction standard for post-conviction challenges 

to indictments,” under which “we will not reverse a conviction 

based upon a defective indictment unless the defendant can show 

prejudice or that the indictment cannot within reason be 

construed to charge a crime.” Id. at 91, 657 P.2d at 1020. 

Applying those principles to the Motta defendant, we rejected 

his challenge. We wrote that 

[b]y adopting this liberal standard for post-trial 

challenges, we do not mean to condone or encourage the 

prosecutors in failing to take greater care expressly to 
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include all the elements of the offense being charged. 

Fifteen minutes to an hour more thought and effort spent on 

the drafting of indictments, would save the prosecutor, as 

well as our crowded courts, hours of time having to deal 

with these vexatious challenges to carelessly drawn 

indictments.

Our adoption of this liberal standard should also put 

an end to what appears to be a pattern and practice on the 

part of the criminal defense bar, of waiting until after 

conviction before raising any objections to indictments. 

Id. at 94 n.3, 657 P.2d at 1022 n.3 (emphases omitted). 

 The circumstances in Motta are analogous to those 

here, that is, a motion to dismiss made “after trial.” Id. at 

90, 657 P.2d at 1019. Moreover, the rationale set forth in 

Motta - disincentivizing the “pattern and practice” of 

defendants deliberately waiting until after the jury’s verdict 

before moving to dismiss - applies equally here. Id. at 94 n.3, 

657 P.2d at 1022 n.3. 

 Tran argues that the liberal construction rule does 

not apply until after a defendant has been sentenced and a court 

has entered a final judgment. See, e.g., State v. Wheeler, 121 

Hawai‘i 383, 400, 219 P.3d 1170, 1187 (2009) (observing that 

Motta/Wells rule applies when defendants challenge charges 

“subsequent to a conviction”). However, these cases have not 

excluded the possibility of applying the rule to challenges 

raised post-verdict, but prior to sentencing. As we noted in 

State v. Akana, “[t]he meaning of the term ‘convicted’ or 

‘conviction’ varies according to the context in which it appears 

and the purpose to which it relates.” 68 Haw. 164, 166, 706 
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37 

P.2d 1300, 1303 (1985). While the “technical definition [of 

‘conviction’] includes the judgment or sentence rendered 

pursuant to an ascertainment of guilt,” the term is “more 

commonly used and understood to mean a verdict of guilty or a 

plea of guilty.” Id. Tran was convicted when the circuit court 

“adjudge[d] Mr. Tran guilty” immediately after receiving the 

jury’s unanimous verdict. 

 Further, the rationale we cited in Motta applies with 

equal force whether the motion is made after a guilty verdict or 

after a final judgment of conviction is entered. Cf. State v. 

Bautista, 153 Hawai‘i 284, 289, 535 P.3d 1029, 1034 

(2023) (“[D]efendants awaiting sentencing, or those challenging 

a charging instrument’s validity for the first time on 

appeal . . . or even later per HRPP Rule 40, are foreclosed from 

having their pleas nullified or their trial convictions 

overturned per HRS § 801-1 [2014].”). 

 We therefore hold that where, as here, a charge 

challenge is raised after a guilty verdict has been returned (or 

after a court has adjudicated a defendant guilty in a bench 

trial), the Motta/Wells rule applies. 

2. Under the Motta/Wells rule, the indictment was 

 not defective because Tran was not prejudiced and 

the charge stated a crime 

 Applying the liberal construction rule, we conclude 

that the circuit court incorrectly dismissed the indictment. 
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 Tran argues that his case is similar to Jardine, in 

which this court held that the indictment against the defendant 

in that case was insufficient because it tracked the generic 

statutory language of second-degree assault, but did not include 

the specific details about the type of assault that the 

defendant allegedly committed. 151 Hawai‘i at 97-98, 508 P.3d at 

1183-84. In Jardine, we stated that when strictly construing an 

indictment containing generic language, a charge should “descend 

to the particulars” because including “such information would 

apprise a defendant of what the defendant must be prepared to 

meet.” Id. at 101-02, 508 P.3d at 1187-88. But in Jardine the 

defendant filed a motion to dismiss before trial, and the 

Motta/Wells liberal construction rule therefore did not apply. 

Id. at 98, 508 P.3d at 1184. 

 Here, Tran has not established that he was prejudiced 

by the indictment. There is nothing in the record to suggest 

that he was misled or would have defended the case differently 

if the indictment contained the additional detail he proposes. 

Thus, we are not convinced that he was prejudiced by the 

indictment at hand. Cf. Motta, 66 Haw. at 94, 657 P.2d at 

1022 (upholding defendant’s conviction of burglary even where 

indictment failed to include crime that was allegedly committed 

when defendant entered building because he had “shown no 
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prejudice in the outcome of his trial from the failure of the 

indictment to specify the underlying offense”). 

 Second, when liberally construed, the indictment was 

sufficiently detailed to charge a crime. The indictment alleged 

in relevant part that

[o]n or about January 1, 2015 to and including 

January 31, 2020, in the City and County of Honolulu, State 

of Hawai‘i, ALVIN TRAN, a person who either resided in the 

same home with [minor child], a minor under the age of 

fourteen years, or had recurring access to [minor child], 

with intent or knowledge that [minor child] was such a 

person, did intentionally or knowingly engage in three or 

more acts of sexual penetration and/or sexual contact with 

[minor child] over a period of time, while [minor child] 

was under the age of fourteen years, and was not married to 

[minor child], and knew he was not married to 

[minor child], thereby committing the offense of Continuous 

Sexual Assault of a Minor Under the Age of Fourteen Years, 

in violation of Section 707-733.6 of [HRS].

 The indictment included all material elements outlined 

in HRS § 707-733.6, citing that statute specifically. It also 

provided the statutory definitions of “sexual penetration,” 

“sexual contact,” and related terms. 

 Generally, “[w]here [a] statute sets forth with 

reasonable clarity all essential elements of the crime intended 

to be punished, and fully defines the offense in unmistakable 

terms readily comprehensible to persons of common understanding, 

a charge drawn in the language of the statute is sufficient.” 

State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242, 1245 

(1977). Tran argues that because the indictment only included 

the statutory language of HRS §§ 707-733.6 (Continuous Sexual 
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40 

Assault of a Minor Under the Age of Fourteen Years) and 707-700 

(“sexual penetration,” “deviate sexual intercourse,” and “sexual 

contact”), it was too generic to state a crime. 

 We do not agree that the indictment cannot, “within 

reason,” be construed to state an offense. See Motta, 66 Haw. 

at 91, 657 P.2d at 1020. As the State points out, when 

reviewing “whether an offense has been sufficiently pleaded,” 

this court “interpret[s] a charge as a whole, employing 

practical considerations and common sense.” Sprattling, 99 

Hawai‘i at 318-19, 55 P.3d at 282-83. 

 Here, the indictment included the material elements of 

the offense and all the relevant statutory definitions. A 

person of common understanding would know from reading the 

indictment against Tran that he was accused of violating HRS 

§ 707-733.6 by intentionally or knowingly engaging in (1) three 

or more acts of sexual penetration and/or sexual contact 

(2) with minor child, to whom he was not married (3) between 

2015-2020 (4) in the City and County of Honolulu. The 

indictment outlined the requisite mens rea and properly defined 

sexual penetration and sexual contact according to their 

statutory definitions. See Wheeler, 121 Hawai‘i at 393, 219 P.3d 

at 1180 (“[W]here the statute sets forth with reasonable clarity 

all essential elements of the crime intended to be punished, and 

fully defines the offense in unmistakable terms readily 
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41 

comprehensible to persons of common understanding, a charge 

drawn in the language of the statute [will be] sufficient.”). 

Therefore, the indictment charged a crime when liberally 

construed. See id. 

 Tran argues further that “[e]lisions of necessary 

information to establish the crime of conviction precludes 

reasonably construing the charge to state an offense.” He 

asserts that the indictment should have included the specific 

types of sexual penetration or contact that he allegedly engaged 

in. Again, he analogizes to Jardine, where we upheld the 

dismissal of a second-degree assault indictment that neither 

defined “substantial bodily injury” nor specified the type of 

injury that the defendant allegedly inflicted. 151 Hawai‘i at 

98, 508 P.3d at 1184. But, again, Jardine involved a pretrial 

motion to dismiss, and we did not consider the adequacy of the 

charge in light of the liberal construction standard. Id. at 

101-02, 508 P.3d at 1187-88. 

 A more apt analogy would be to Motta, where the 

defendant challenged a burglary indictment on the grounds that 

it did not specify the crime that the defendant intended to 

commit when he entered the building. 66 Haw. at 92, 657 P.2d at 

1021. We noted there that, while the “general rule” in certain 

other jurisdictions was that such an indictment would be 

defective, under the liberal construction standard, we were, 
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42 

“within reason,” able to construe the charge as stating the 

offense of burglary. Id. at 93-94, 657 P.2d at 1021-22. In 

Motta, the defendant did not show that the indictment against 

him was “so obviously defective that by no reasonable 

construction can it be said to charge the offense for which 

conviction was had.” Id. at 94, 657 P.2d at 1022 (quotation 

marks omitted). 

 Similarly, the charge here can be construed as 

alleging the offense charged “within reason.” See Motta, 66 

Haw. at 91, 657 P.2d at 1020. All of HRS § 707-733.6’s 

essential elements and relevant statutory definitions were 

included in the indictment. The indictment therefore 

“sufficiently apprise[d]” Tran of what he needed to “be prepared 

to meet,” Wells, 78 Hawai‘i at 379-80, 894 P.2d at 76-77, and 

“provided [him] with fair notice of the offense’s essential 

elements,” Kauhane, 145 Hawai‘i at 370, 452 P.3d at 367 (brackets 

and quotation omitted). 

 Because the indictment must be liberally construed, 

and, when so construed, was sufficient to apprise Tran of what 

he had to prepare to meet at trial, the circuit court 

incorrectly dismissed the indictment. The circuit court’s 

dismissal order is therefore vacated. Because we conclude that 

the circuit court incorrectly dismissed the indictment, we do 
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43 

not address whether it should have been dismissed with 

prejudice. 

IV. CONCLUSION

 For the foregoing reasons, we (1) vacate the circuit 

court’s January 9, 2023 Order Granting in Part and Denying in 

Part Defendant’s Motion to Dismiss; (2) affirm the circuit 

court’s October 6, 2022 Order Denying Defendant’s Motion for New 

Trial, Pursuant to Supplemental Argument, Filed May 25, 2022; 

and (3) remand the case to the circuit court for further 

proceedings consistent with this opinion. 

Daniel Hugo /s/ Mark E. Recktenwald 

for Plaintiff-Appellant/ 

Cross-Appellee /s/ Sabrina S. McKenna 

Thomas M. Otake /s/ Todd W. Eddins 

for Defendant-Appellee/ 

Cross-Appellant /s/ Clarissa Y. Malinao 

Robert T. Nakatsuji 

(on the briefs) 

for Amicus Curiae