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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000540
                                                              27-DEC-2013
                                                              11:39 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                          STATE OF HAWAI#I,
                   Petitioner/Plaintiff-Appellant,

                                    vs.

                        MARIANNE L. CODIAMAT,
                   Respondent/Defendant-Appellee.


                            SCWC-11-0000540

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
    (CAAP-11-0000540; CASE NO. 1P311-00173/REP. NO. 11008255)

                           DECEMBER 27, 2013

          RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ.,
     WITH ACOBA, J., DISSENTING, WITH WHOM POLLACK, J., JOINS

                OPINION OF THE COURT BY NAKAYAMA, J.

          Petitioner/Plaintiff-Appellant State of Hawai#i (State)

asks us to consider whether its complaint against

Respondent/Defendant-Appellee Marianne L. Codiamat (Codiamat)

provided sufficient notice to Codiamat of the charged offense to
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meet the constitutional requirements of due process.             The State’s

complaint charged Codiamat with harassment, in violation of

Hawai#i Revised Statutes (HRS) § 711-1106(1)(a) (Supp. 2010).1

Before the commencement of trial, the District Court of the First

Circuit (district court)2 granted Codiamat’s motion to dismiss

the State’s complaint on the ground that it left the defendant

unsure of what offense was charged because it was pleaded in the

disjunctive using the conjunction “or.”

            On application for writ of certiorari to this court,

the State argues: (1) that the Intermediate Court of Appeals

(ICA) erred in affirming the dismissal because the State did not

charge non-synonymous alternative means disjunctively; (2) that

the ICA’s dismissal is inconsistent with Hawai#i precedent

allowing some use of the disjunctive in charging documents; and

(3) that Hawai#i precedent limiting the use of disjunctive

charging should be overturned.

            We hold that the complaint in this case met due process

requirements, regardless of whether one concludes that the


      1
            On the date of the alleged incident, as it does now, HRS § 711-
1106(1)(a) defined harassment as follows:

            (1) A person commits the offense of harassment if, with
            intent to harass, annoy, or alarm any other person, that
            person:
                  (a) Strikes, shoves, kicks, or otherwise touches
                  another person in an offensive manner or subjects the
                  other person to offensive physical contact[.]
      2
            The Honorable Clarence A. Pacarro presided.

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disjunctively charged acts were synonymous or non-synonymous.

Therefore, it is unnecessary for us to reach the question of

whether the acts charged disjunctively were synonymous.             The acts

charged disjunctively were contained within a single subsection

of a statute and were reasonably related so that the complaint

sufficiently apprised the defendant of the nature of the charged

acts and allowed the defendant to prepare a defense.

            We vacate the judgment of the ICA affirming the

district court’s notice of entry of judgment and/or order and

remand this case to the district court for further proceedings.

                              I.   BACKGROUND

            On January 24, 2011, the State charged Codiamat with

harassment in violation of HRS § 711-1106(1)(a).3           The complaint

stated:
            On or about the 6th day of January, 2011, in the City and
            County of Honolulu, State of Hawaii, MARIANNE L. CODIAMAT,
            with intent to harass, annoy, or alarm [Complainant], did
            strike, shove, kick, or otherwise touch [Complainant] in an



      3
            The Dissent asserts that the State conceded that “only the
‘[s]trikes, shoves, kicks, or otherwise touches another person in an offensive
manner’ portion of HRS § 711-1106(1)(a) will be tried in this case” and
therefore “the reference to ‘subjects the other person to offensive physical
contact’ in the charge . . . has no relevance at all for pleading, trial, or
appeal purposes.” Dissenting Opinion at 4 (emphasis in original). In its
application for writ of certiorari, the State asserts that, “[it] is neither
alleging nor proving that [Codiamat] committed the same offense in two
entirely different ways, because the only act being charged here is an
offensive touching of another person.” However, the State’s admission must be
read in the context of its continuing assertion that “the charge’s words of
‘touch[ing Complainant] in an offensive manner’ are factually synonymous with
the words ‘subject[ing Complainant] to offensive physical contact.’”
Although the State maintains that it is only charging the defendant with
committing a single act, this act’s nature and breadth are unclear.

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            offensive manner or subject [Complainant] to offensive
            physical contact, thereby committing the offense of
            Harassment, in violation of Section 711-1106(1)(a) of the
            Hawaii Revised Statutes.

(Emphasis added).

            On June 15, 2011, at a pretrial hearing, Codiamat

orally moved to dismiss the complaint based on State v. McCarthy,

No. 29701, 2010 WL 3433722 (App. Aug. 31, 2010) (mem. op.),4

arguing that the disjunctive wording in the complaint made it

difficult to prepare a defense.5          Over the State’s objection, the

district court granted Codiamat’s motion and dismissed the

complaint without prejudice.

            On appeal to the ICA, the State argued that McCarthy

only prohibits charging in the disjunctive when the acts, or the

results of the acts, charged disjunctively are non-synonymous.

It maintained that the acts described in Codiamat’s complaint –-

“strike, shove, kick, or otherwise touch in an offensive manner

or subject to offensive physical contact” –- are simply multiple

descriptions of “an offensive touching.”          The State reasoned that

the disjunctive charging did not deprive Codiamat of fair notice

because the disjunctive was only used to link synonymous words.

            In her answering brief, Codiamat argued that the



      4
            See infra Part III. A. 1 (discussing McCarthy).
      5
            Defense counsel stated that the State had recently filed amended
complaints in the majority of its pending harassment cases to comply with
McCarthy and that the State had not taken the opportunity to do so here.

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reasoning in McCarthy applied here to prohibit disjunctive

charging.    Specifically, Codiamat argued that (1) strike, (2)

shove, (3) kick, (4) otherwise touch in an offensive manner, and

(5) subject to offensive physical contact each have a distinct

meaning.    Codiamat concluded that by charging these acts

disjunctively, “[She] was not given proper notice of what she was

actually being charged with doing.”6

            The ICA affirmed the district court’s judgment,

concluding that “[b]ecause the charge was pleaded in the

disjunctive, it did not sufficiently apprise Codiamat of what she

must be prepared to meet.”       See State v. Codiamat, No. CAAP-11-

0000540, 2012 WL 3113898, at *1 (App. July 31, 2012) (SDO).              The

ICA first established that “touching another person in an

offensive manner” is not synonymous with “subjecting the other

person to offensive physical contact.”          Id. at *1-2.     Relying

upon its earlier holding in State v. Pesentheiner, 95 Hawai#i

290, 22 P.3d 86 (App. 2001), the ICA clarified that

“‘subject[ing] the other person to offensive physical contact’”

has a separate meaning from offensive touching, namely, “‘contact

with an item physically appurtenant to the body.’”            Id. at *2

(quoting Pesentheiner, 95 Hawai#i at 294-95, 22 P.3d at 90-91).

The ICA then cited State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242


      6
            Codiamat also alleges that the complaint lacked sufficient details
regarding the factual allegations of the alleged incident.

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(1977), for the principal that “‘[w]here a statute specifies

several ways in which its violation may occur, the charge may be

laid in the conjunctive but not in the disjunctive.’”             Id. at *2-

3 (quoting Jendrusch, 58 Haw. at 283 n.4, 567 P.2d at 1245 n.4).

The ICA therefore concluded that the disjunctive phrasing in the

complaint constituted a fatal defect and held that the district

court did not err in dismissing the case without prejudice.              Id.

at *3.

           Chief Judge Nakamura filed a concurring opinion in

which he argued that the “Jendrusch rule[7] cannot withstand

rational scrutiny.”      Id. at *4 (Nakamura, C.J., concurring).             He

contended that charging in the conjunctive provides no greater

notice to the defendant than charging in the disjunctive,

explaining that “[b]ecause the State can establish the harassment

offense against Codiamat by proving either of the charged

alternative means of committing the offense, charging her in the

disjunctive clearly provided her with fair notice of the

accusation and what she was required to meet.”           Id. at *4.     Chief

Judge Nakamura opined that he believed this court should re-

examine and overturn its precedent limiting the use of



     7
             The term “Jendrusch rule” was first used by Chief Judge Nakamura
in this concurring opinion. He noted that “[a]lthough the Jendrusch footnote
is arguably dicta, it has been cited with approval in other cases by the
Hawai#i Supreme Court.” Codiamat, 2012 WL 3113898, at *4 n.1 (Nakamura, C.J.,
concurring).

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disjunctive pleading.       Id. at *5-6.

            Codiamat timely filed an application for writ of

certiorari on September 7, 2012.            This court accepted Codiamat’s

application on October 22, 2012, and oral argument was heard on

November 29, 2012.

                          II.    STANDARD OF REVIEW

A.    Sufficiency of a Complaint

            The issue of whether a complaint provides sufficient

notice to a defendant is reviewed under the de novo, or

right/wrong, standard.       State v. Merino, 81 Hawai#i 198, 212, 915

P.2d 672, 686 (1996).

                                III.   DISCUSSION

A.   The complaint was sufficient to meet the requirements of due
process

            Hawai#i takes a nontechnical approach to pleading

standards.     The Sixth Amendment to the United States Constitution

and article I, section 14 of the Hawai#i Constitution mandate

that a “charge must be worded in a manner such that the nature

and cause of the accusation could be understood by a person of

common understanding.”       State v. Sprattling, 99 Hawai#i 312, 318,

55 P.3d 276, 282 (2002) (internal quotation marks and alterations

omitted) (quoting State v. Israel, 78 Hawai#i 66, 71, 890 P.2d

303, 308 (1995)).      The complaint must “inform[] the accused



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‘fully’ of the nature and cause of the accusation against him or

her, and sufficiently appris[e] the defendant of what he or she

must be prepared to meet to defend against the charges.”             State

v. Nesmith, 127 Hawai#i 48, 66, 276 P.3d 617, 635 (2012) (Acoba,

J., concurring and dissenting).

      1.    Hawai#i precedent regarding disjunctive charging

            Hawai#i courts have never enforced a strict rule

against charging in the disjunctive.         “The rule against

disjunctive allegations has been modified and relaxed in Hawaii

in cases of offenses which are ‘constituted of one or more of

several acts or which may be committed by one or more of several

means or with one or more of several intents or which may produce

one or more of several results.’”         Territory v. Tamashiro, 37

Haw. 552, 553 (1947) (quoting Revised Laws of Hawai#i (RLH) §

10804 (1945)).

            In Jendrusch, the first modern case in which this court

addressed the issue of disjunctive charging, the defendant was

charged with disorderly conduct in violation of HRS § 711-

1101(1).8   58 Haw. at 280, 567 P.2d at 1243.         The complaint


      8
            At the time of the alleged incident, HRS § 711-1101 (Supp. 1974)
provided in pertinent part:

            “(1) A person commits the offense of disorderly conduct if,
            with intent to cause physical inconvenience or alarm by a
            member or members of the public, or recklessly creating a
                                                                (continued...)

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charged the defendant disjunctively with violating subsection

(1)(b) or subsection (1)(c) of the statute.9           Jendrusch, 58 Haw.

at 280, 567 P.2d at 1243-44.         The court held that the complaint

was insufficient on other grounds.10         Id. at 282, 567 P.2d at

1245.     But, in dicta, the court stated:
             The type of conduct proscribed by subsection (1)(b) is not
             factually synonymous with that proscribed by subsection
             (1)(c). In charging the defendant in the disjunctive rather
             than in the conjunctive, it left the defendant uncertain as
             to which of the acts charged was being relied upon as the
             basis for the accusation against him. Where a statute
             specifies several ways in which its violation may occur, the



      8
        (...continued)
             risk thereof, he:

             . . . .

                   (b) Makes unreasonable noise; or
                   (c) Makes any offensively coarse utterance, gesture,
                   or display, or addresses abusive language to any
                   person present, which is likely to provoke a violent
                   response[.]”

Jendrusch, 58 Haw. at 280, 567 P.2d at 1243 (emphasis omitted) (quoting HRS §
711-1101).
      9
             The complaint read:

             You [Jendrusch] are hereby charged that in the City and
             County of Honolulu, State of Hawaii, on or about the 14th
             day of September, 1974, with intent to cause public
             inconvenience, annoyance or alarm by members of the public
             or recklessly creating a risk thereof, you did make
             unreasonable noise or offensively coarse utterance, gesture
             or display or address abusive language to any person
             present, thereby committing the offense of Disorderly
             Conduct . . . .

Id. at 280, 567 P.2d at 1243-44 (emphasis omitted; brackets in original).
      10
            The court held that the complaint failed to charge an offense
because it was drawn from an outdated version of the statute and did not
account for subsequent amendments. Jendrusch, 58 Haw. at 283, 567 P.2d at
1245.

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           charge may be laid in the conjunctive but not in the
           disjunctive.

Id. at 283 n.4, 567 P.2d at 1245 n.4 (citing Territory v. Lii, 39

Haw. 574 (1952)).

           Later cases clarified permissible means of charging a

defendant in the alternative.       In an indictment for an offense

that may be committed by a variety of acts, two or more of those

acts may be charged in multiple counts or conjunctively in one

count.    See State v. Lemalu, 72 Haw. 130, 134, 809 P.2d 442, 444

(1991) (approving of charging in several counts); see also Lii,

39 Haw. at 578-79 (approving of charging conjunctively in one

count).   However, the preferred method for charging an offense

that may be committed in more than one way is to charge in the

conjunctive/disjunctive -- alleging that the defendant committed

the offense in one way and/or in another way.          State v. Batson,

73 Haw. 236, 250, 831 P.2d 924, 932 (1992) (citing State v.

Cabral, 8 Haw. App. 506, 510, 810 P.2d 672, 675 (1991)).

           These later cases extrapolated a rule from Jendrusch:

“[W]here a statute proscribes an offense that can be committed by

factually alternative types of conduct, ‘the charge may be laid

[out] in the conjunctive but not in the disjunctive.’”            Batson,

73 Haw. at 249-50, 831 P.2d at 932 (first brackets added, second

brackets in original) (quoting Lemalu, 72 Haw. at 134, 809 P.2d


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at 444); accord Jendrusch, 58 Haw. at 283 n.4, 567 P.2d at 1245

n.4.        Though this court quoted the Jendrusch rule in Batson and

Lemalu, we have never relied upon the rule in reaching the

holding of a case.

                The ICA previously construed the Jendrusch rule

narrowly, to forbid disjunctive charging only where a defendant

is charged with committing an offense under multiple sections of

a statute.        See State v. Freitas, No. 28430, 2010 WL 2862051, at

*3 (App. July 22, 2010) (SDO) (“Jendrusch is inapposite because

[defendant] was not charged with engaging in conduct proscribed

by different sections of [the statute] . . . .”).                The ICA’s

decision in McCarthy represented a departure from its earlier

interpretation of the Jendrusch rule.

                McCarthy was convicted of harassment in violation of

HRS § 711-1106(1)(b).11          McCarthy, 2010 WL 3433722, at *1.         On

appeal, McCarthy alleged that the trial court erred in denying



       11
                HRS § 711-1106(1)(b) (Supp. 2005) provided then, as it does now:

                (1) A person commits the offense of harassment if, with
                intent to harass, annoy, or alarm another person, that
                person:
                . . . .
                      (b) Insults, taunts, or challenges another person in a
                      manner likely to provoke an immediate violent response
                      or that would cause the other person to reasonably
                      believe that the actor intends to cause bodily injury
                      to the recipient or another, or damage to the property
                      of the recipient or another[.]


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his motion to dismiss the complaint for lack of specificity.                 Id.

at *1-2.    McCarthy’s complaint read:
            On or about the 4th day of October, 2006, in the City and
            County of Honolulu, State of Hawaii, KIRK MCCARTHY, with
            intent to harass, annoy, or alarm SCOTT AKAU, did insult,
            taunt, or challenge SCOTT AKAU in a manner likely to provoke
            an immediate violent response or that would cause SCOTT AKAU
            to reasonably believe that KIRK MCCARTHY intended to cause
            bodily injury to him or another or damage to the property of
            SCOTT AKAU or another . . . .

Id. at *1 (emphasis added).       Relying upon the Jendrusch rule and

federal pleading standards, the ICA held that “[t]he complaint is

insufficient because it charges the results of the conduct in the

disjunctive (‘or’), rather than in the conjunctive (‘and’).”                 Id.

at *2 (emphasis added).       The court noted that by charging two

non-synonymous results disjunctively -- provoking a violent

response or causing fear of injury -- the defendant was left

uncertain as to which acts were alleged.          Id. at *3.     The court

also recommended using the conjunctive/disjunctive (“and/or”)

construction established in Batson.12        Id. at *4.


      12
            Based on the ICA’s use of capital letters to emphasize certain
uses of “or,” it appears that the ICA recommended amending the complaint to
read:

            On or about the 4th day of October, 2006, in the City and
            County of Honolulu, State of Hawaii, KIRK MCCARTHY, with
            intent to harass, annoy, or alarm SCOTT AKAU, did insult,
            taunt, or challenge SCOTT AKAU in a manner likely to provoke
            an immediate violent response [and/]or that would cause
            SCOTT AKAU to reasonably believe that KIRK MCCARTHY intended
            to cause bodily injury to him [and/]or another [and/]or
            damage to the property of SCOTT AKAU [and/]or
            another . . . .

                                                                (continued...)

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            Despite the ICA’s apparent assertion that disjunctive

charging of non-synonymous acts violates due process, the court

itself was doubtful of this conclusion.          In the final footnote of

McCarthy, the ICA stated: “The case law notwithstanding, it is

not clear to us that phrasing the charge in the conjunctive

provides any additional notice over a charge phrased in the

disjunctive.”     Id. at *4 n.4.

      2.    Applying Hawai#i precedent to the complaint here

            The ICA relied upon Jendrusch to conclude that because

the complaint against Codiamat charged two forms of non-

synonymous conduct disjunctively, the charge did not provide the

defendant with adequate notice.        See Codiamat, 2012 WL 3113898,

at *1-2.    As discussed above, the Jendrusch rule suggests that

complaints charging non-synonymous acts disjunctively may not

provide adequate notice.       However, a closer examination of

Jendrusch demonstrates that not all uses of the disjunctive, even

when joining non-synonymous acts, constitute a fatal flaw.




      12
        (...continued)
McCarthy, 2010 WL 3433722, at *1-3. But, the ICA also criticized the “[u]se
of the disjunctive to combine multiple forms of conduct.” Id. at *3 (emphasis
added). It is therefore unclear why the ICA did not, or if it perhaps did,
recommend charging the conduct in the conjunctive/disjunctive as well: insult,
taunt, and/or challenge.

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            Jendrusch involved a charge of disorderly conduct under

HRS § 711-1101(1), subsections (b) and (c).13          Jendrusch, 58 Haw.

at 280, 567 P.2d at 1243.        The disorderly conduct codified in

subsection (b) is: “unreasonable noise.”          HRS § 711-1101(1)(b).

The disorderly conduct codified in subsection (c) is, generally,

rude conduct: “offensively coarse utterance[s], gesture[s], or

display[s], or . . . abusive language . . . likely to provoke a

violent response.”      HRS § 711-1101(1)(c).      Notably, the acts of

subsection (c) were charged disjunctively as they appear in the

statute -- “mak[ing] offensively coarse utterance, gesture, or

display, or address[ing] abusive language to any person present.”

Jendrusch, 58 Haw. at 280, 567 P.2d at 1243-44 (emphasis added).

The Jendrusch court expressed no concern as to charging these

non-synonymous acts disjunctively.         The court stated only that

charging subsection (b) and subsection (c) disjunctively deprived

the defendant of notice.14       Id. at 283, 567 P.2d at 1245.

            In this case, the State charged Codiamat under a single

subsection of the harassment statute, HRS § 711-1106(1)(a).                  The

ICA construed the language of HRS § 711-1106(1)(a) as


      13
            See supra note 10.
      14
            From the text of Jendrusch, it is unclear if the use of the
disjunctive was impermissible because it joined acts from two different
subsections of the statute, or if it was impermissible because it joined two
different categories of behavior.

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constituting two distinct forms of conduct: direct offensive

touching and indirect offensive contact.         But, whether Codiamat

was charged with direct offensive touching or indirect offensive

contact is relatively inconsequential because the actions are

closely related, falling within the same category of behavior.

Because Codiamat was charged with violating only one subsection

of the statute, codifying a single category of harassing

behavior, the complaint does not violate the Jendrusch rule.

B.   Hawaii’s disjunctive charging rule strikes the appropriate
balance between ease of administration and protection of
defendants’ rights

          The State argues that Hawai#i precedent limiting the

use of disjunctive in charging documents should be reexamined and

overturned.   The State adopts Chief Judge Nakamura’s reasoning

from his concurring opinion and argues for “a reasonable

approach.”    The State’s argument relies upon the principle that

Hawaii’s courts “interpret a charge as a whole, employing

practical considerations and common sense.”          Sprattling, 99

Hawai#i at 318, 55 P.3d at 282.

          The State encourages us to adopt Alaska’s approach for

determining the sufficiency of a charge.         In Christian v. State,

513 P.2d 664 (Alaska 1973), the Alaska Supreme Court determined

that a complaint provided sufficient notice when it charged the



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defendant with “mak[ing] false statements, conceal[ing] material

facts or otherwise commit[ting] fraud in application for

registration of a vehicle.”       513 P.2d at 667 (emphasis added).

The Christian court explained that “under modern principles of

criminal procedure an indictment should not be construed

hypertechnically in an effort to find fatal flaws when, by a

reasonable approach, it can be read as fulfilling the basic

criteria of sufficiency.”       Id.   It reasoned that the charge

provided fair notice to the defendant where it “named the

defendant, gave the date and place of the offense, stated the

essential elements of the offense, cited the precise number of

the certificate of title, and named several methods by which the

offense was perpetrated.”       Id.

            Codiamat disagrees, arguing that disjunctive pleading

does not provide adequate notice to the defendant.            She claims

that the disjunctively worded complaint left her unsure of how to

prepare a defense.15     Codiamat takes issue with Chief Judge



      15
            In its reply to Codiamat’s response, the State contends that the
procedural history of the case demonstrates that Codiamat was not hindered in
preparing her defense. The State notes that at the first trial setting for
this case, Codiamat “objected to the State’s request for a continuance
ostensibly because she was ready to proceed to trial.” This theorizing is
irrelevant. The standard for evaluating the sufficiency of a complaint
challenged before trial is “whether the nature and cause of the accusation
could be understood by a person of common understanding,” not whether the
defendant understood the accusation. Sprattling, 99 Hawai#i at 318, 55 P.3d
at 282 (brackets omitted; emphasis added).

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Nakamura’s conclusion that charging in the conjunctive is

misleading because it suggests that the State must prove both

means charged while in actuality proof of either means will

suffice.   Codiamat maintains that charging in the conjunctive

provides notice to the defendant that he or she is accused of

committing the offense by each means charged.          At oral argument,

Codiamat also suggested that the most important aspect of notice

is informing the defendant of the nature of the charge, and that

informing the defendant of what is necessary to prepare a defense

is secondary.

           We disagree with Codiamat’s weighing of the dual

purposes of notice.     It is equally important that the defendant

first, understand the acts with which he or she is charged and

second, be provided with sufficient information to prepare a

defense.   We agree, in part, with Chief Judge Nakamura: the use

of the disjunctive may be appropriate when it provides notice to

the defendant that the State may attempt to prove guilt by

showing that the defendant committed any one of multiple related

acts.   This alerts the defendant that he or she must be prepared

to defend against each of the charged alternatives.           However, the

disjunctive may not provide adequate notice to the defendant when

used to join charges of violations of multiple sections or

subsections of a statute.      In these instances, the use of the

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disjunctive may confuse the defendant as to the number of

disparate acts with which he or she is charged.          This conclusion

is supported by our precedent.

           As discussed above, the disjunctive charging rule in

Hawai#i has evolved over time.      The earliest Hawai#i precedent

provided that analogous terms, or terms used merely for

illustrative purposes, could be charged disjunctively, but that

all other uses of the disjunctive were impermissible.            Kim Ung

Pil, 26 Haw. at 726.     By 1947, the rule came to allow some

disjunctive charging of acts, means, intents, and results.             See

Tamashiro, 37 Haw. at 553.      If dicta from Jendrusch is

interpreted as precedent, then charges brought under separate

sections or subsections of a statute may not be worded

disjunctively.    Jendrusch, 58 Haw. at 283 n.4, 567 P.2d at 1245

n.4.   However, states of mind may be charged disjunctively.            See,

e.g., Batson, 73 Haw. at 248, 831 P.2d at 931 (charging defendant

“intentionally or knowingly”); Jendrusch, 58 Haw. at 280, 567

P.2d at 1243 (charging defendant with “intent to cause public

inconvenience, annoyance or alarm by members of the public or

recklessly creating a risk thereof”).        Furthermore, acts may be

charged disjunctively when the words used charge similar or

analogous forms of conduct that are codified in a single

subsection of a statute.      See, e.g., Nesmith, 127 Hawai#i at 51,

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276 P.3d at 620 (charging defendant with “operat[ing] or

assum[ing] actual physical control of a vehicle upon a public

way, street, road, or highway while under the influence of

alcohol”); Jendrusch, 58 Haw. at 280, 567 P.2d at 1243-44

(charging defendant with “mak[ing] offensively coarse utterance,

gesture, or display, or address[ing] abusive language to any

person present”).

            These principles strike a balance between a more common

sense, less technical, approach to charging while still

protecting defendants’ rights to notice and due process.

                              IV. CONCLUSION

            We hold that when charging a defendant under a single

subsection of a statute, the charge may be worded disjunctively

in the language of the statute as long as the acts charged are

reasonably related so that the charge provides sufficient notice

to the defendant.16     We therefore vacate the ICA’s August 30,




      16
             This holding does not disturb our earlier precedent that when
charging an offense that may be committed in more than one way, the State may
charge in separate counts, in the conjunctive, or, preferably, in the
conjunctive/disjunctive. See Batson, 73 Haw. at 250, 831 P.2d at 932; Lemalu,
72 Haw. at 134, 809 P.2d at 444; Lii, 39 Haw. at 578-79. Furthermore, while
the State may charge in the alternative, the State may not charge a defendant
with any offense, or any alternative, that is not supported by probable cause.
See Hawai#i Rules of Professional Conduct (HRPC) Rule 3.8(a) (1994) (“A public
prosecutor or other government lawyer shall . . . not institute or cause to be
instituted criminal charges when [the prosecutor or government lawyer] knows
or it is obvious that the charges are not supported by probable cause . . . .”
(brackets in original))

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2012 judgment affirming the district court’s June 15, 2011 notice

of entry of judgment and/or order and remand to the district

court for further proceedings.

Brandon H. Ito                           /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
James S. Tabe
and Craig W. Jerome                      /s/ Sabrina S. McKenna
for respondent




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