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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000765
                                                              28-JAN-2014
                                                              08:36 AM




                             SCWC-11-0000765

            IN THE SUPREME COURT OF THE STATE OF HAWAI#I



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

                                    vs.

         MATTHEW LOCKEY, Respondent/Defendant-Appellant.



         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-11-0000765; FC-CR. NO. 11-1-1241)

                    SUMMARY DISPOSITION ORDER
    (By: Recktenwald, C.J., Nakayama, and McKenna, JJ., with
 Acoba, J., dissenting separately, with whom Pollack, J., joins)

           Petitioner/plaintiff-appellee State of Hawai#i seeks

review of the Intermediate Court of Appeals’s April 8, 2013

Judgment on Appeal, entered pursuant to its February 26, 2013

Summary Disposition Order.      The ICA’s judgment vacated the Family

Court of the First Circuit’s September 28, 2011 Judgment of

Conviction and Sentence,1 which convicted Matthew Lockey of


     1
           The Honorable Wilson M.N. Loo presided.
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Harassment in violation of Hawai#i Revised Statutes

§ 711-1106(1)(a).2     On certiorari, the State contends that the

ICA erred in holding that (1) the complaint did not sufficiently

apprise Lockey of what he must be prepared to meet because the

language was worded in the disjunctive; and (2) Lockey’s untimely

objection was not waived.

            We recently addressed this precise issue in State v.

Codiamat, ––– Hawai#i ––––, ––– P.3d –––– (2013) (holding that a

charge worded disjunctively in the language of the statute

provides sufficient notice so long as the acts charged are

contained in a single subsection of a statute and are reasonably

related).

            Lockey was charged under the same statute as the

defendant in Codiamat, and the language of the charge was

virtually identical to the language upheld as valid in Codiamat.

See id. at *1.     Applying the holding of Codiamat to the present

case, the State’s HRS § 711-1106(1)(a) charge provided Lockey

with sufficient notice of what he must be prepared to meet.

Accordingly, the ICA erred in vacating Lockey’s judgment of



     2
            HRS § 711-1106 (Supp. 2009) provides in relevant part:

            (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
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conviction and sentence on the ground that the charge was pled in

the disjunctive.

           Because we are vacating the ICA’s judgment on other

grounds, we need not reach the issue of whether Lockey’s untimely

objection was waived.

           Accordingly, we vacate the ICA’s April 8, 2013 Judgment

on Appeal and affirm the family court’s September 28, 2011

Judgment of Conviction and Sentence.

           DATED: Honolulu, Hawai#i, January 28, 2014.

Brandon H. Ito                        /s/ Mark E. Recktenwald
for petitioner
                                      /s/ Paula A. Nakayama
Harrison Kiehm
for respondent                        /s/ Sabrina S. McKenna




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