Disappearing elements and when you can file the motion to dismiss after trial

 State v. Van Blyenburg (HSC November 23, 2022)

Background. George Van Blyenburg was indicted with one count of leaving the scene of an accident involving death or serious bodily injury (HRS § 291C-12) and negligent homicide in the second degree (HRS § 707-703(1)(b)). Here is how the prosecution alleged the first count:

 

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 [decedent], 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, and did intentionally, knowingly, or recklessly fail to forthwith return to and in every event remain at the scene of the accident and fulfill the requirements of section 291C-14(a) of the Hawai'i Revised Statutes and/or Section 291C-14(b) of the Hawai'i Revised Statutes, thereby committing the offense of Accidents Involving Death or Serious Bodily Injury, in violation of Section 291C-12 of the Hawai'i Revised Statutes.

 

Van Blyenburg argued that the charging document failed to include essential elements of the offense and did not define “simple negligence” for negligent homicide.

 

Van Blyenburg moved to dismiss the indictment after the guilty verdict, and before sentencing. The motion was denied and he was sentenced. He appealed. The ICA relied on the complaint and jury instructions requested by the State filed before the motion to dismiss to affirm the denial. Van Blyenburg petitioned to the HSC.

 

The duty to stop and the traffic provision. Driver’s have a duty to stop, remain, and assist the police at the scene after certain traffic accidents:

 

The driver of any vehicle involved in a collision resulting in serious bodily injury to or death of any person shall immediately stop the vehicle at the scene of the collision or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the collision until the driver has fulfilled the requirements of section 291C-14. Every stop shall be made without obstructing traffic more than is necessary.

 

HRS § 291C-12. HRS § 291C-14 has more details on a driver’s duties like providing contact information and vehicle information to the police and rendering to persons injured “reasonable assistance, including the carrying, or the making of arrangements for the carrying, of the person to a physician, surgeon, or hospital for medical or surgical treatment[.]”

 

The charging document did not include the last sentence in HRS § 291C-12 that “[e]very stop shall be made without obstructing traffic more than is necessary.” The HSC rejected Van Blyenburg’s argument that this sentence is an attendant circumstance that must be pleaded.

 

The traffic provision is an element for some (but not all) of the alternative theories of the prosecution. HRS § 291C-12(a) “proscribes an offense that can be committed by factually alternative types of conduct.” State v. Batson, 73 Haw. 236, 249-250, 831 P.2d 924, 932 (1992). A person can violate the statute by stopping but refusing to provide information or failing to stop altogether. The HSC noted that defendants “can be charged with having committed an offense in two different ways when [they are] alleged to have committed it in both ways.” Id. at 250, 831 P.2d at 932.

 

The traffic provision requiring drivers to stop “without obstructing traffic more than is necessary” differs from the common understanding of the phrase. State v. Baker, 146 Hawai'i 299, 307, 463 P.3d 956, 964 (2020). And so when the prosecution alleges that the defendant stopped the vehicle, but failed to fulfill some of the duties in HRS §§ 291C-12(a) and 291C-14, the provision is an attendant circumstance that must be pleaded and proven beyond a reasonable doubt. Id. at 305-308, 463 P.3d at 962-965.

 

The HSC, however, held that the charge’s first theory—that Van Blyenburg failed to stop altogether and then failed to comply with HRS § 291C-14—does not need the traffic provision. Thus, according to the HSC, the indictment had the “elements of the offense intended to be charged, and sufficiently apprise[d] the defendant of what [they] must be prepared to meet.” State v. Hitchcock, 123 Hawai'i 369, 376, 235 P.3d 365, 372 (2010).

 

Due Process Violations v. Violation of Art. I, Sec. 1’s Notice of the “Nature and Cause” of the charge. In a footnote, the HSC admonished the ICA for looking beyond the four corners of the indictment in upholding the dismissal. “[T]he appellate court can consider other information in addition to the charge that may have been provided to the defendant . . . until the time defendant objected to the sufficiency of the charges” only when the defendant alleges the charging document states the offense, but is deficient because it failed to inform the defendant about the nature and cause of the charges against them. State v. Wheeler, 121 Hawai'i 383, 396, 219 P.3d 1170, 1183 (2009). See Haw. Const. Art. I, Sec. 14.

 

A charge that fails to include every essential element, in contrast, violates Due Process and when the charge does not have every element, it fails “to state an offense, and a conviction based upon it cannot be sustained[.]” State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977); see also State v. Israel, 78 Hawai'i 66, 73, 890 P.2d 303, 310 (1995). The HSC added that when a charge omits an element and violates Due Process, there can be no conviction based on it—“no matter what other information the defendant may have received from the State.”

 

It appears that when the motion to dismiss alleges the omission of an essential element and thus a violation of Due Process, the court cannot look beyond the charging instrument—even after the verdict and before sentencing. When the motion alleges a failure to afford notice of the nature and cause of the charge in violation of Article I, Section 14, the court can look at what the defendant received before the filing of the motion like discovery, jury instructions, and the evidence at trial.

 

Due Process requires inclusion of the state of mind, not defining it. The HSC rejected Van Blyenburg’s argument that the prosecution’s failure to include the definition of “simple negligence” warranted dismissal of the other count—negligent homicide.

 

The offense occurs when a driver causes death of a “vulnerable user . . . in a manner that constitutes simple negligence as defined in [HRS] section 707-704(2).” HRS § 707-703(1)(b). “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.” HRS § 707-704(2)(c). It is “essentially a civil standard of negligence.” HRS § 702-206 cmt.

 

The HSC noted that the state of mind “animates” the elements of the offense, but is not an element. The charging document must nevertheless allege the correct state of mind for each element. State v. Nesmith, 127 Hawai'i 48, 56, 276 P.3d 617, 625 (2012). That is because the state of mind is an “essential fact” that needs to be pleaded pursuant to Hawai'i Rules of Penal Procedure Rule 7(d).” State v. Maharaj, 131 Hawai'i 215, 219, 317 P.3d 659, 663 (2013). The HSC also has held in the past that the failure to include the state of mind is a Due Process violation. Id.

 

The HSC in the end rejected the argument that the state of mind must be defined. It needs to be alleged and included in the charge, but it held that the prosecution does not need to include the definition of the state of mind. The HSC affirmed the dismissal.

 

Justice Wilson’s Dissent. Justice Wilson dissented on the HSC’s analysis about HRS § 291C-12. He wrote that the prosecution’s failure to include the traffic provision in the indictment violated Due Process. Justice Wilson wrote that the majority has nothing supporting its holding that the traffic provision is an attendant circumstance in some, but not every instance. “Every stop shall be made without obstructing traffic more than is necessary.” HRS § 291C-12(a). For Justice Wilson the word “every” clearly signals that the provision applies to every violation of HRS § 291C-12(a). Justice Wilson reminded the majority that the court “must presume that the legislature meant what it said and is further barred from rejecting otherwise unambiguous statutory language.” State v. Demello, 136 Hawai'i 193, 195, 361 P.3d 420, 422 (2015).

 

Justice Wilson also took issue with an attendant circumstance that “only sometimes” has to be pleaded and proven. It questioned if the prosecution elected the theory of a complete failure to stop, would it no longer be a defense to stop relatively close to the scene in time and space? Justice Wilson wrote that the majority did not establish a clear line of demarcation.

 

He did, however, concur with the majority in the footnote about the different kinds of defects and the need to stick to the four corners of the charging instrument when the alleged defect is a failure to include the essential elements of the offense. Justice McKenna joined.