Highlighting the difference between inadequate notice and a defective complaint

 State v. Aquino (HSC June 28, 2024)

Background. Alexander Aquino was charged with unlawful imprisonment in the first degree. HRS § 707-721(1)(a). Here is the charge:

 

On or about the August 1, 2020 through August 21, 2021, in Kona, County and State of Hawai‘i, ALEXANDER AQUINO, as a principle [sic] or accomplice, knowingly restrained another person, L.R., a minor born in June of 2007, under circumstances which exposed L.R. to the risk of serious bodily injury, thereby committing the offense of Unlawful Imprisonment in the First Degree, in violation of Section 707-721(1)(a), Hawai‘i Revised Statutes, as amended.

 

Aquino filed a motion to dismiss. The statutory term “restrain” means “to restrict a person’s movement in such a manner as to interfere substantially with the person’s liberty” either through force, threat, or deception or “[i]f the person is under the age of eighteen or incompetent, without the consent of the relative, person, or institution having lawful custody of the person.” HRS § 707-700.

 

Aquino argued that because the complaining witness (his son) was under eighteen, the charge needed to include the statutory definition. The circuit court with the Honorable Judge Wendy DeWeese presiding denied the motion. Aquino opted for a bench trial.

 

The complaining witness testified that he was not allowed in his house without permission. He lived mainly on a lanai 17 feet above the ground. At night, Aquino and his mother would put a metal chain around his neck and locked it with a padlock. The chain connected to a ring on the floor of the lanai. When chained, he had about 6 to 7 inches of movement. He could not sit up. He slept on a towel on a plastic bag with a comforter, but no pillow. Other than his birthday, he slept outside with the chain around his neck.

 

When he was about 13 years old, he tried to escape. He climbed down the porch, slipped, and the fall fractured his back. About a year after that, he ran away. He pretended to chain himself to the lanai but snuck away, hitchhiked into Kona, and got help.

Aquino’s main issue was whether chaining him to the lanai exposed the complaining witness to the risk of serious bodily injury and if he knew it. The failed escape plan was evidence for the judge. He was found guilty as charged.

 

The ICA vacated the judgment. The prosecution petitioned for a writ of cert.

 

The charging document afforded adequate notice and included every element to the offense. The charging document is meant to ensure that the defendant knows “what they must defendant against to avoid conviction.” State v. Van Blyenburg, 152 Hawai'i 66, 74, 520 P.3d 264, 272 (2022). And in order to prepare and present a complete defense the accused must be informed of the “nature and cause” of the charge and every element. State v. Garcia, 152 Hawai'i 3, 6, 518 P.3d 1153, 1156 (2022). These rights stem from Article I, Sections 5 and 14 of the Hawai'i Constitution. Id.

 

The “restrain” element need not be further defined. The HSC rejected Aquino’s argument that the statutory definition of “restrain” contained an additional element that had to be pleaded. According to the HSC, unlawful imprisonment in the first degree is “straightforward” and occurs when the person “knowingly restrains another person under circumstances which expose the person to the risk of serious bodily injury.” HRS § 707-721. “Restrain” is the conduct element. The charge here pleaded the conduct element and did not have to include the statutory definition.

 

There are two alternatives to proving the conduct element of restrain. HRS § 707-700. It rejected Aquino’s argument that the consent alternative was an additional attendant-circumstance element. The HSC reasoned that if it did, it would give parents and other adults “immunity because they either consented to their own or to others’ unlawful acts.” That would be an absurd outcome that courts must avoid. See State v. Haugen, 104 Hawai'i 71, 76, 85 P.3d 178, 183 (2004). And so Aquino had adequate notice.

 

The key distinction between adequate notice and missing elements. In State v. Van Blyenburg, the HSC noted that there was a distinction between inadequate notice and missing elements. When there is a missing element, there is a due process violation and no conviction can be based upon the defective charging document. See State v. Elliott, 77 Hawai'i 309, 884 P.3d 372 (1994). Inadequate notice means that every element has been pleaded thereby satisfying due process, but the charge itself does not give enough for the accused to prepare for their trial. That was the issue in State v. Jardine, 151 Hawai'i 96, 508 P.3d 1182 (2022). And the notice issue can be resolved with discovery. See State v. Van Blyenburg, 152 Hawai'i at 70 n. 3, 520 P.3d at 268 n. 3.

 

There was enough evidence to convict. The HSC also found error in the ICA’s ruling that there was insufficient evidence. Specifically, the ICA found that there was not enough evidence to show Aquino knowingly exposed his son to the risk of serious bodily injury. The HSC emphasized that the “method of restraint does not have to be the source of danger.” The entire situation has to produce the risk—as it did here. The HSC found support for this factual distinction from other jurisdictions. Hurley v. State, 401 P.3d 827, 833 (Wyo. 2017); State v. Burke, 162 N.H. 459, 33 A.3d 1194, 1197 (2011). The HSC vacated the ICA’s judgment and affirmed the conviction.