    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000762
                                                              18-DEC-2013
                                                              09:54 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


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

                                    vs.

          SUSHIL BASNET, Petitioner/Defendant-Appellant.


                            SCWC-11-0000762

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-11-0000762; FC-CR. NO. 11-1-1675)
                           December 18, 2013

  RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.

                  OPINION OF THE COURT BY ACOBA, J.

          We hold first, that respectfully, the Family Court of

the First Circuit (the family circuit court) should have

arraigned Petitioner/Defendant-Appellant Sushil Basnet (Basnet)

in accordance with Hawai#i Rules of Penal Procedure (HRPP) Rule

10(a), but because it failed to do so, the case must be dismissed

without prejudice.    Second, in the event of retrial, we hold that

the charge was sufficient inasmuch as it “fully defin[ed] the
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


offense in unmistakable terms readily comprehensible to persons

of common understanding.”       State v. Jendrusch, 58 Haw. 279, 282,

567 P.2d 1242, 1245 (1977). Accordingly, the family circuit

court’s judgment of conviction and sentence entered on September

23, 2013 is vacated and the case is dismissed without prejudice.

                                     I.

A.   Arrest and Complaint

           Basnet was arrested following an incident that took

place the morning of June 7, 2011 at the Himalayan Kitchen

restaurant.    Respondent/Plaintiff-Appellee State of Hawai#i (the

State) filed a Complaint against Basnet on June 9, 2011.              The

caption on the Complaint stated “IN THE DISTRICT COURT OF THE

FIRST CIRCUIT” and the Complaint stated as follows:
                 The undersigned Deputy Prosecuting Attorney of the
           City and County of Honolulu, State of Hawaii charges:

                 On or about the 7th day of June, 2011, in the City and
           County of Honolulu, State of Hawaii, SUSHIL BASNET did
           intentionally, knowingly, or recklessly physically abuse
           [Basnet’s wife], a family or household member, thereby
           committing the Offense of Abuse of Family or Household
           Members [(AFHM)], in violation of Section 709-906(1)[ 1] of
           the Hawaii Revised Statutes [(HRS)]. SUSHIL BASNET is




     1
           HRS § 709-906(1) (Supp. 2006) provides:

           (1) It shall be unlawful for any person, singly or in
           concert, to physically abuse a family or household member or
           to refuse compliance with the lawful order of a police
           officer under subsection (4). The police, in investigating
           any complaint of abuse of a family or household member, upon
           request, may transport the abused person to a hospital or
           safe shelter.

           For purposes of this section, “family or household member”
           means spouses or reciprocal beneficiaries, former spouses or
           reciprocal beneficiaries, persons who have a child in
           common, parents, children, persons related by consanguinity,
           and persons jointly residing or formerly residing in the
           same dwelling unit.

                                      2
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


           subject to sentencing in accordance with Section 709-906(5)(a) of
           the [HRS].

(Emphasis added.)     Basnet posted a $1,000 cash bail and received

a notice to appear at the “FAMILY [court] - Alakea” on June 21,

2011.

B.   Proceedings Before Judge Choy

           On June 21, 2011, a hearing apparently took place in

the family district court before Judge Darryl Y.C. Choy.             The
Pre-Trial Order in the record, entered on June 21, 2011 by Judge

Choy states at the top of the form that the order is from the

“Family Court of the First Circuit.”         In the section of the form

titled “Trial Setting”, it indicates that Basnet waived reading

of the charge, entered a plea of not guilty, and that a jury

trial was demanded, and thereby the case was committed to circuit

court.   Basnet was ordered to appear next on September 19, 2011,

at 1111 Alakea St., Courtroom 8C.

C.   Pre-Trial Proceedings Before Judge Castagnetti

           On September 19, 2011, the parties appeared before the
Honorable Jeannette H. Castagnetti, in the family circuit court.

Both parties indicated that they were ready to proceed to trial,

and the family circuit court ordered the parties back to appear

the following day for trial.

           On Tuesday, September 20, 2011, the family circuit

court informed the parties that the case was a “backup case[] for

trial this week,” and ordered the parties to return that

Thursday, September 22, 2011.        The deputy prosecuting attorney


                                      3
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


also made an oral motion to amend the Complaint in the case.                He

stated that “[b]asically, the heading at the top says in the

District Court.     However, it was filed in the Family Court, and I

just have corrected that with an amended [C]omplaint.”             At that

time, defense counsel stated that he had “a rather lengthy

objection”.    Defense counsel gave his notes he had made outlining

his objection to Judge Castagnetti, after he indicated that the

notes did not contain any privileged communications.             The family

circuit court indicated that it would take the State’s oral

motion to amend the Complaint under advisement, to address when

the parties returned later that week.

            On Thursday, September 22, 2011, the family circuit

court addressed the issue of amending the Complaint that was

raised by the deputy prosecuting attorney at the prior hearing.

The deputy prosecuting attorney maintained that the purpose of

amending the Complaint was to correct the typographical error

that the case was in family court, and not in district court.

Defense counsel stated his position that the error was

substantive rather than typographical.          In his view, the court

lacked jurisdiction because Basnet was arraigned in circuit

court2 and should have instead been arraigned in district court.

He stated as follows:



      2
            As will be discussed infra, there was ongoing confusion regarding
the status of the court presided over by Judge Choy. It was actually a family
district court, but defense counsel at this stage of the case apparently
thought it was a family circuit court, perhaps because, as noted, Judge Choy’s
pre-trial order had the heading “Family Court of the First Circuit.”

                                      4
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


            Your Honor, my position is that it is not a typographical error.
            It is substantive.
                  This court has no jurisdiction for two very
            fundamental reasons. And I understand that it’s probably
            very upsetting because what it means is that all of these
            cases are inappropriately being processed. Yet, as you
            know, the appellate court did strike down hundreds of --
            several hundred DUI cases last year because they, in fact,
            were not being properly charged. My argument is, one, this
            case is not properly charged and, two, it is not being
            properly processed.
                  It’s very clear that the family court rules
            specifically state that the [HRPP] govern these types of
            cases. And, in fact, there are no rules in the family court
            rules governing the charge, the arraignment, and the
            processing of the defendant. That’s clear.
                  So we look to the [HRPP]. [The HRPP] are also very
            clear on its face, and it says that if someone is charged
            with a non-felony, they don’t get arraigned in circuit
            court. Family court is circuit court. It was inappropriate
            to arraign Mr. Basnet here. It’s -- so as a consequence,
            that arraignment is void.
                  The appropriate place is in the district court. And
            then when an individual either refuses to elect jury trial
            or demand jury trial, it is incumbent upon the [district]
            court to transfer it to the circuit court, and the circuit
            court does not obtain jurisdiction until the district court
            does so.[3 ] So I’m not simply arguing that he cannot amend
            the [C]omplaint. I’m arguing that this court does not have
            jurisdiction.

(Emphases added.)     Defense counsel also made further arguments

regarding the sufficiency of the Complaint for failure to define

“physical abuse” or “family or household member”, alleging that

the Complaint should be dismissed pursuant to State v. Wheeler,

121 Hawai#i 383, 219 P.3d 1170 (2009).

            The family circuit court rejected defense counsel’s

arguments regarding the arraignment, because it noted that Basnet

was actually arraigned in a family district court:

                  THE COURT: . . . . First, let’s deal with the issue
            of the State’s oral motion to amend the [C]omplaint to have
            the heading listed as it being in the family court as
            opposed to the district court which [the deputy prosecuting



      3
            This is the basis of defense counsel’s ultimate argument on this
issue, specifically, that Basnet should have been re-arraigned in the court
that conducted the jury trial.

                                      5
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


            attorney] has represented is a typographical error. So I
            understand [defense counsel’s] argument that this court
            lacks jurisdiction over the subject -- are you saying
            subject matter of the [C]omplaint?
                  [DEFENSE COUNSEL:] . . . Yes.
                  THE COURT: Okay. And you’re also saying that the
            Rules of Penal Procedure were not followed appropriately
            because the defendant was arraigned in a circuit court as
            opposed to a district court?
                  [DEFENSE COUNSEL:] That’s correct.
            . . . .
                  THE COURT: Okay, what about the fact that under the
            [HRS] that there are family district judges appointed who
            have the same powers as district court judges, and the
            courtroom next-door where the arraignment took place, those
            were family district court judges, and the family court has
            exclusive original jurisdiction over cases involving
            husbands and wi[ves]?
            . . . .

(Emphases added.)     The court explained that the statutory scheme

establishes both family district courts and family circuit

courts, and concluded that Basnet had been properly arraigned in

the family district court:

                  THE COURT: Okay. All right. All right, so [HRS]
            Chapter 571 pertains to family court, and specifically, [HRS
            §] 571-3 [(2006)4 ] establishes that family courts are
            divisions of the circuit courts within the state. HRS [§]
            571-8 [(2006)] establishes district family courts in
            addition to the district courts established under HRS [§]
            604-1 [(1993) 5].


      4
            HRS § 571-3 provides:

            The family courts shall be divisions of the circuit courts
            of the State and shall not be deemed to be other courts as
            that term is used in the State Constitution. A family court
            shall be held at the courthouse in each circuit, or other
            duly designated place, by the judge or judges of the
            respective family courts as herein defined. The chief
            justice of the supreme court may temporarily assign a family
            court judge to preside in another circuit when the urgency
            of one or more cases requires the chief justice to do so.
            In any case in which it has jurisdiction the court shall
            exercise general equity powers as authorized by law.

(Emphasis added.)

      5
            HRS § 604-1 provides, in relevant part:

            There shall be established in each of the judicial circuits
            of the State a district court with the powers and under the
                                                                (continued...)

                                      6
      ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                   Pursuant to HRS [§] 571-8(b)[6 ], the Chief Justice may
            designate a district family judge to act as a district judge
            and, when so appointed, shall have all the powers of a
            district judge appointed pursuant to HRS [§] 604-2 [(Supp.
            1994) 7].
                   [HRS §] 571-8.5 [(2006)8 ] gives district family judges
            the power to make and issue all orders and writs necessary
            or appropriate in aid of their original jurisdiction. And
            HRS [§] 571-14 [(Supp. 2008)] gives the family court
            exclusive original jurisdiction to try an adult charged with
            an offense other than a felony against the person of the
            defendant’s husband or wife, and in particular, that’s




      5
       (...continued)
            conditions herein set forth, which shall be styled as
            follows:

            (1) For the First Judicial Circuit:   The District Court of
            the First Circuit.
            . . . .

      6
            HRS § 571-8(b) states, in relevant part:

            (b) When in the discretion of the chief justice of the
            supreme court the urgency or volume of cases so requires,
            the chief justice may appoint one or more district family
            judges for each judicial circuit. In addition, within any
            circuit, the chief justice may designate any district judge
            of the district court to act as a district family judge
            within that circuit; the judge when so designated shall
            exercise the powers of a district family judge appointed
            pursuant to this section.

(Emphasis added.)

      7
            HRS § 604-2 provides, in pertinent part:

            (b) The chief justice shall appoint district judges to serve
            on a per diem basis and as may be necessary to provide
            auxiliary judicial functions in the several districts of the
            State. Per diem district judges may engage in the private
            practice of law during their term of service, and shall
            receive per diem compensation for the days on which actual
            service is rendered based on the monthly rate of
            compensation paid to a district court judge. For the
            purpose of determining per diem compensation in this
            section, a month shall be deemed to consist of twenty-one
            days.

(Emphasis added.)

      8
            HRS § 571-8.5 provides, in relevant part:

            (a) The district family judges may:
                  . . . .
                  (3) Make and issue all orders and writs necessary or
            appropriate in aid of their original jurisdiction;
                  . . . .

                                       7
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


            [HRS §] 571-14(2)(B)[ 9].
                  So I’m going to find that this court has jurisdiction,
            and also, that the defendant was properly arraigned by a
            district family court judge. And so I’m going to grant the
            State’s oral motion to amend the [C]omplaint. I’ll also
            find that there’s been no prejudice to the defendant with
            respect to the amendment. It was, as the State represented,
            a typographical error, that this case is a family court
            criminal matter. It was assigned to a family court criminal
            number, and it was just a matter of changing the heading to
            be in the family court of the first circuit, State of
            Hawaii.

(Emphases added.)

            Defense counsel then asked the family circuit court to
take judicial notice “of the lack of a commitment order from the

district court to the circuit court.”         He also stated that he

“would like findings with respect to whether the family circuit

court is declaring that it is unnecessary for the family district

court judge and the family district court, if you will, then, to

not abide by the [HRPP] which specifically require a commitment

order and a second arraignment within 14 days[.]”10           The family

circuit court declined to make the requested findings, but stated

that there was no commitment order that was issued by the



      9
            HRS § 571-14 provides, in relevant part:

            (a) Except as provided in sections 603-21.5 and 604-8, the
            [family] court shall have exclusive jurisdiction:
            . . . .
                  (2) To try any adult charged with:
                  . . . .
                        (B) An offense, other than a felony,
                  against the person of the defendant’s husband or
                  wife[.]
                  . . . .

(Emphasis added.)

      10
            Defense counsel was presumably referring to HRPP Rule 10(a),
discussed further infra, which provides that “A defendant who has been held by
district court to answer in circuit court shall be arraigned in circuit court
within 14 days after the district court’s oral order of commitment . . . .”
(Emphasis added.)

                                      8
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


district family judge after arraignment of the defendant.

Defense counsel responded that “there was no subsequent

arraignment within the 14 days, as required by the rules.”

            As to defense counsel’s argument based on Wheeler, the

family circuit court took Basnet’s oral motion to dismiss the

Complaint under advisement and indicated that it would make

findings as to the issues raised regarding the sufficiency of the

Complaint.

D.    Trial, Sentencing, and Post-Trial Proceedings

            The family circuit court then heard the motions in

limine and the case proceeded to voir dire and jury selection.

Trial commenced that same day.

            The following day, September 23, 2011, trial was set to

continue.    Before the jury was brought in, the family circuit

court orally ruled on defense’s oral motion to dismiss the

Complaint pursuant to Wheeler for failure to state a claim or

failure to state an offense.        Relying on Wheeler, and State v.

Mita, 124 Hawai#i 385, 245 P.3d 458 (2010), the family circuit

court denied the motion.

            Defense counsel also asked the family circuit court to

reconsider its earlier finding that “because a District Court

judge conducted the arraignment, the matter occurred in the

District Court of the . . . Family Court, District Court

division.”    Defense counsel averred that Judge Choy was a per

diem judge, but not necessarily a District Court judge.             He

therefore argued that there was no evidence that the earlier

                                      9
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


proceeding occurred in the District Court, and that, in the

alternative, even if it was in the District Court, there was no

commitment order to the Circuit Court.

          The family circuit court then asked defense counsel how

his client was prejudiced by any of the proceedings “from the

time he was arrested to arraignment and plea to today[.]”

Defense counsel responded that “[Basnet] has been prejudiced by

the [family circuit] court not having jurisdiction or he wouldn’t

be here today.”    Defense counsel said:
                And it’s our opinion that the [family circuit] court
          doesn’t have jurisdiction, that the rules require, again,
          arraignment in the District Court, followed by commitment
          orders, followed by a second arraignment. Now, at that
          second arraignment, Mr. Basnet may have already had time to
          consult with counsel, had gone to the Public Defender, may
          or may not have waived jury trial. It’s unknown in terms of
          what sequence of events would have occurred. But he was
          denied a second arraignment which he was entitled to.

(Emphasis added.)    This was construed as an oral motion for

reconsideration of the family circuit court’s ruling.            The family

circuit court asked defense counsel to put the motion in writing,

said it would give the State an opportunity to brief the issue,

and stated that the motion would be contingent on the outcome of

trial.

          Trial then continued that day, with the family circuit

court giving the jury the following instructions, in pertinent

part:
                In the [C]omplaint, the defendant, Sushil Basnet, is
          charged with the offense of Abuse of Family or Household
          Members.
                A person commits the offense of Abuse of Family or
          Household Members if he intentionally, knowingly, or
          recklessly physically abuses a family or household member.
                There are three material elements to the offense of
          Abuse of Family or Household Members, each of which the

                                    10
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


          prosecution must prove beyond a reasonable doubt.
                These three elements are:
                1.    That on or about June 7, 2011, in the City and
          County of Honolulu, State of Hawai#i, the defendant
          physically abused [the defendant’s wife]; and
                2.    That at that time, the defendant and [the
          defendant’s wife] were family or household members; and
                3.    That the defendant did so intentionally,
          knowingly, or recklessly as to each of the foregoing
          elements.
                Family or household member mean spouses or reciprocal
          beneficiaries, former spouses or reciprocal beneficiaries,
          persons who have a child in common, parents, children,
          persons related by consanguinity, and persons jointly
          residing or formerly residing in the same dwelling unit.
                Physical abuse means causing bodily injury to another
          person.
                Bodily injury means physical pain, illness, or any
          impairment of physical condition.
          . . . .

          The jury deliberations took place that day, and in the

afternoon the jury indicated that it had reached a verdict.                The

jury found Basnet guilty of AFHM.        Basnet was also sentenced the

same day to two years’ probation, including, as special terms and

conditions of probation, that Basnet serve two days in jail with

credit for time served, pay $55.00 as a Crime Victim Compensation

Fee, pay a Probation Service Fee of $150.00, and undergo domestic

violence intervention as directed by his probation officer.

Basnet was ordered to appear on October 19, 2011 for execution of

the sentence or conditions of bail pending appeal.

          After sentencing, the family circuit court briefly

raised the issue of Basnet’s previous motions, stating that they

were denied for the reasons that the court had already indicated.

Defense counsel indicated that he did not intend to file his

motion for reconsideration in writing, but rather decided to

“leave it to appeal.”     The following exchange regarding

arraignment then took place:

                                    11
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                 THE COURT: Okay, I understand that. All right. So
           as to -- we can do this then. [Deputy prosecuting
           attorney], as -- as to [defense counsel’s] then oral motion
           for reconsideration of his motions to dismiss for lack of
           jurisdiction, I think particularly under [] Wheeler or --
           and, also, the motion to dismiss for lack of jurisdiction,
           specifically that -- I think we -- there [were] a number of
           arguments -- and, [defense counsel], you can correct me if
           I’m not stating this properly -- the fact that the Family
           District Court lacked jurisdiction under -- under the Rules
           of Penal Procedure and that after -- and that the defendant
           should have been arraigned in District Court, is that
           correct, and then after he demanded a jury trial, the matter
           should have been committed to Circuit Court by way of a
           commitment order, and then once in Circuit Court, he was
           required to have an arraignment within 14 days of his
           arraignment, and then the matter should have been set --
                 [Defense counsel:] Yes.
                 THE COURT: -- for trial? That’s the basis --
                 [Defense counsel:] Correct.
                 THE COURT: -- of your motion?
                       Okay, [deputy prosecuting attorney], anything
           further you want to put with respect, on the record, to
           that?
                 [Deputy prosecuting attorney:] No, Your Honor.
                 THE COURT: All right. And, again, the court is
           denying that motion. There’s -- hasn’t -- as the court sees
           it, no prejudice to the defendant with respect to the
           procedure that was followed in this case. And, of course,
           if the appellate courts disagree, then we will find out once
           they go up --
           . . . .
           -- on appeal.

(Emphases added.)

                                     II.

A.   Basnet’s Opening Brief

     1.    HRPP Rule 10(a)

           On October 18, 2011, Basnet filed a notice of appeal

with the ICA.    Basnet’s first point of error was that “[t]he

[family circuit] court jurisdictionally erred in denying Basnet’s

motion to dismiss for failing to hold an arraignment within

fourteen days of Basnet demanding a jury trial in the Family

District court pursuant to HRPP Rule 10(a).”           In connection with

this argument, Basnet pointed out that the family circuit court


                                     12
      ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


failed to conduct an arraignment even when he objected to not

having been properly arraigned.

      2.    Sufficiency of the Complaint

            Basnet’s second point of error was that “the

[C]omplaint failed to define the terms ‘physical abuse’ and

‘family or household member.’”         In connection with this argument,

Basnet contended that “physical abuse” is an element of the

offense of AFHM that “should be defined [in the Complaint] as to

provide him with fair notice of what the element means.”              Basnet

further argued that while HRS § 709-906(1) provides a definition

of “family or household member,” the definition was not included

in the Complaint and thus the “mere citation in the written

charge to HRS § 709-906(1) . . . simply does not cure the defect

in the charge.”

B.    State’s Answering Brief

      1.    HRPP Rule 10(a) Applicability

            In its Answering Brief, the State first alleged that

Basnet should be judicially estopped from arguing that he should

have been re-arraigned in the circuit court, because he had

argued before the trial court judge that the family circuit court

lacked jurisdiction because there was no arraignment in the

district court at all.

            The State argued in the alternative that, should the

appellate court consider Basnet’s claim regarding the

arraignment, the arraignment did in fact comport with HRPP Rule

10.   On this point, the State contended that “the record shows

                                      13
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


that Basnet was initially arraigned in the Family Court of the

First Circuit” rather than the District Court, and thus “HRPP

Rule 10(a)’s mandate is inapplicable to his situation.”             Hence,

the State alleged, the arraignment in the family court of the

first circuit did not deprive the family court of jurisdiction to

hear the case.

     2.    Sufficiency of the Complaint

           With respect to Basnet’s second point of error, the

State argued that the family circuit court correctly interpreted

Wheeler and Mita in denying Basnet’s motion to dismiss for lack

of jurisdiction because the terms “physical abuse” and “family or

household member” were not defined in the charge.            The State

contended that “[a] person of ordinary understanding would know

the common meaning of the words ‘physical,’ ‘abuse,’ ‘family,’

‘household,’ and ‘member.’”       Hence, the State argued that Basnet

had sufficient notice of the cause of the accusation, because

“[h]e understood that he was charged with causing pain, i.e.,

physical abuse, to his wife, i.e., a family member.”

C.   ICA’s Memorandum Opinion

           As noted, the ICA filed a Memorandum Opinion in this

case on June 19, 2013.      State v. Basnet, No. CAAP-11-0000762,

2013 WL 3094944, at *1 (App. June 19, 2013).

     1.    Interpretation and Application of HRPP Rule 10

           The ICA first addressed Basnet’s contention that the

circuit family court lacked subject matter jurisdiction because

his arraignment did not comply with the HRPP.           Id. at *2.

                                     14
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


Notably, the ICA concluded that “[a]lthough the State argues

otherwise,[11] Basnet correctly asserts he was arraigned in the

district family court, not the circuit family court.              The

presiding judge at the arraignment hearing was a per diem

judge[], and per diem judges serve as district judges only.”                Id.

(emphasis added) (citing HRS § 604-2 and HRS § 571-8).

            However, the ICA determined that any impropriety with

respect to the arraignment and failure of the family district

court to enter a separate commitment order “constituted harmless

error and did not warrant dismissal.”         Id.   According to the ICA,

“[t]he purpose of arraignment is to inform the defendant of the

charges and of their [sic] rights and to give the opportunity to

plead.”    Id.   Thus, in this case, where Basnet waived reading of

the charge, entered a plea of not guilty, and elected jury trial

during his arraignment in the family district court, and where

the pre-trial order entered by the family district court

specifically noted the case was committed to the family circuit

court for jury trial, Basnet could not show that “the alleged

irregularities affected his substantial rights.”            Id.

      2.    Sufficiency of the Complaint

            Second, the ICA noted that this court’s opinion in Mita

held that “‘the State need only allege the statutory definition



      11
            To reiterate, in its Answering Brief, the State had argued that
HRPP Rule 10 was inapplicable because “the record shows that Basnet was
initially arraigned in the Family Court of the First Circuit” rather than the
family district court.

                                     15
      ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


of a term when it creates an additional essential element of the

offense, and the term itself does not provide a person of common

understanding with fair notice of that element.”             Id. (quoting

Mita, 124 Hawai#i at 392, 246 P.3d at 465).           Applying Mita’s

holding, the ICA stated that “Basnet does not contend that either

of the terms [‘physical abuse’ or ‘family or household member’]

created an additional essential element of the offense.”                Id. at

*3.

            The charge was sufficient according to the ICA, because

the use of terms in the charge was consistent with commonly

understood meanings, such that Basnet had fair notice.              Id.      It

noted that this court has held that the ordinary reading of

“physical abuse” gives sufficient notice of the prohibited

conduct, id. (citing State v. Kameenui, 69 Haw. 620, 623, 752

P.2d 1250, 1252 (1988)), and that the [C]omplaint did not need to

set forth the full statutory definition of “family or household

member” because “it adequately informed Basnet of the nature and

cause of the accusation against him.”          Id.     Hence, the ICA

upheld the judgment of the family circuit court as to both of

Basnet’s points of error.

                                     III.

            Basnet lists the following questions in his

Application:
            (1) Whether the ICA gravely erred in holding that the
            failure to arraign Basnet in [family circuit court] was
            harmless error where Basnet timely objected before trial?



                                      16
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


           (2) Whether the ICA gravely erred in holding that the
           [AFHM] charge was sufficient under State v. Wheeler?

           The State did not file a Response.

                                     IV.

A.   Challenge to Arraignment Procedures

           In connection with his first question, Basnet argues

the family circuit court “lacked jurisdiction because [Basnet]

had never been arraigned in that court as required by [HRPP] Rule
10(a).”   HRPP Rule 10(a) provides, to reiterate:
           (a)   A defendant who has been held by district court to
           answer in circuit court shall be arraigned in circuit court
           within 14 days after the district court’s oral order of
           commitment following (i) arraignment and plea, where the
           defendant elected jury trial or did not waive the right to
           jury trial or (ii) initial appearance or preliminary
           hearing, whichever occurs last.

(Emphasis added.)     Basnet avers instead that, “[The family

circuit court] just ordered the jury trial to proceed overruling

[Basnet’s] objection.”      According to Basnet, (1) “there must be

an arraignment which is intended to identify . . . the accused,

inform[] him of the charge, and obtain a plea[,]” (citing

Territory v. Marshall, 13 Haw. 76, 83 (Haw. Terr. 1900)), (2)

“[a]n arraignment is a critical stage of a criminal
proceeding[,]” (citing Hamilton v. Alabama, 368 U.S. 52, 54

(1961)), and “it must [be] before a judge with proper

jurisdiction[,]” (citing State v. Patterson, 780 S.W.2d 675, 680

(Mo. App. 1989)), (3) “the [family] district court arraignment

was a nullity as it was not in the court in which Basnet was

tried,” and (4) “a conviction is invalid if there is no


                                      17
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


arraignment and the defendant makes a valid timely objection[,]”

(citing Blanton v. State, 115 N.E.2d 122, 123 (Ind. 1953)).

           Basnet contends that, as with a timely objection to the

sufficiency of a charge, a criminal defendant should also not be

required to show prejudice where he or she makes a timely

objection to the lack of an arraignment, because “there is no

charge for the defendant to answer.”        Basnet asserts that,

contrary to this rationale, the ICA, “in effect, applied the
liberal construct construction standard, essentially a harmless

error standard, to determine if [Petitioner] was entitled to

relief.”   (Citing State v. Motta, 66 Haw. 89, 90, 657 P.2d 1014,

1019 (1983).)   Basnet maintains that “[w]here a defendant makes a

proper and timely objection, [the liberal construction standard]

has no application.”     (Citing State v. Walker, 126 Haw. 475, 489,

273 P.3d 1161, 1175 (2012).)

B. Challenge to the Sufficiency of the Charge

           Regarding Basnet’s second question, he asserts that
“[s]ince this court’s decisions in Wheeler [] and Mita [], there

has been much confusion as to when definitions not included in a

criminal statute must be included in a charge so that a criminal

defendant receives fair notice of the charge.”          According to

Basnet, “[t]he ICA . . . chose to follow Mita[,] where this court

held that the meaning of ‘animal nuisance’ was apparent from the

words themselves rather than Wheeler which held that a definition




                                     18
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


not in the criminal statute must be expressly charged because the

definition included an element of the offense.”

            Basnet construes Wheeler and Mita as holding that “a

person charged with a crime is thereby on notice of all

definitions that apply to the terms used in the charge unless the

definition includes an additional element of the offense in the

form of an attendant circumstances.”         He argues that such a

holding is “patently arbitrary” and that “[t]his court should
review this case in order to clarify/refine when Wheeler or Mita

applies to particular facts in a given case or whether one should

be overruled.”     Basnet concludes that in this case, the terms

‘physical abuse’ and ‘family or household member’ are not self-

evident and an ordinary person has no idea of what they mean[,]”

therefore, the ICA gravely erred in applying Mita to this case.

                                      V.

                                      A.

            As a preliminary matter, it is noted that the ICA
concluded (1) that Basnet was initially arraigned in the family

district court, with Judge Choy presiding, and (2) that no court

entered a separate commitment order.12         The ICA premised its


      12
            There appears to be no separate written commitment order as part
of the record on appeal, in accordance with HRPP Rule 5(b)(3), although a
checked box on Judge Choy’s Pre-Trial Order indicates that the case was
committed to the circuit court. The State apparently does not challenge the
conclusion that there was no written commitment order.
            In his Application, Basnet does not appear to premise his
arguments on the lack of a written commitment order, but rather on the lack of
an arraignment by the circuit court. Also, there is no transcript available
for the June 21, 2011 hearing in which the family district court would have
                                                                 (continued...)

                                      19
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


conclusion on an interpretation of HRS § 604-2 and HRS § 571-8,

in conjunction with information about Judge Choy from the State

of Hawai#i Judiciary’s 2011 Annual Report.          Basnet, 2013 WL

3094944, at *2 n.5.      See The Judiciary State of Hawai#i, 2011

Annual Report, at 32 (December 31, 2011), http://www.courts.

state.hi.us/news_and_reports/reports/annual_report_stat_sup_archi

ve.html.    According to HRS § 604-2(b), district court judges can

be appointed on a per diem basis.          HRS § 571-8 establishes a
district family court in each judicial circuit.            No statute or

court rule provides for circuit court judges to be appointed on a

per diem basis.     Thus, insofar as Judge Choy was a per diem

judge, he presided in the family district court.            Although the

State argued before the ICA that Basnet was actually arraigned in

the family circuit court, it did not file a Response, and thus

does not appear to challenge the conclusion by the ICA that

Basnet was arraigned in family district court.

            Family district courts in Hawai#i are courts of limited
jurisdiction.     See HRS § 571-8 and HRS § 571-8.5.         HRS § 571-8.4

directs that “[t]he senior judge or judge of the family court of

the circuit may direct that any case coming within the

jurisdictional provisions of this chapter, or all cases of a

class or within a district to be designated by the senior judge

or judge, shall be heard by the district family judge.”             The


      12
        (...continued)
entered an oral commitment on the record. Under these circumstances, the
alleged lack of a written commitment order in this case need not be addressed.

                                      20
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


instant case involves “[a]n offense, other than a felony, against

the person of the defendant’s . . .         wife[,]” HRS § 571-

14(a)(2)(B).    Thus, this case fell within the jurisdictional

provisions of Chapter 571, and accordingly, could initially be

assigned to a district family judge, that is, until the defendant

requested a jury trial.13      HRS § 571-8.4.

            District courts are also courts of limited

jurisdiction.     HRS § 604-8 states that “[i]n any case cognizable

by a district court under this section in which the accused has a

right to a trial by jury in the first instance, the district

court, upon demand by the accused for a trial by jury, shall not

exercise jurisdiction over the case, but shall examine and

discharge or commit for trial the accused as provided by law[.]”14

In this case, Basnet demanded a jury trial, and, as noted, the

family district court stated in its Pre-Trial Order that the case

was committed to the family circuit court.

            HRPP Rule 5(b)(1) provides:
            ARRAIGNMENT. In the district court, if the offense charged
            against the defendant is other than a felony, the complaint
            shall be filed and the proceedings shall be had in



      13
            The offense of AFHM, HRS § 709-906(1), is a misdemeanor, carrying
a maximum prison term of one year. See HRS § 706-663 (1993) (“the court may
sentence a person who has been convicted of a misdemeanor . . . to
imprisonment for a definite term to be fixed by the court and not to exceed
one year in the case of a misdemeanor . . . .”).

      14
         Basnet had a constitutional and statutory right to trial by jury in
this case. See HRS § 806-60 (1993) (any defendant charged with a crime for
which the defendant may be imprisoned for six months or more has the right to
trial by jury); State v. Kasprycki, 64 Haw. 374, 375, 641 P.2d 978, 978-79
(1982) (noting that petty offenses without the right to trial by jury are
those for which the term of imprisonment is thirty days or less).


                                      21
     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


             accordance with this section (b) . . . . When the offense is
             charged by complaint, arraignment shall be in open court, or
             by video conference when permitted by Rule 43. The
             arraignment shall consist of the reading of the complaint to
             the defendant and calling upon the defendant to plead
             thereto . . . . The defendant may waive the reading of the
             complaint or the recitation of the essential facts
             constituting the offense charged at arraignment . . . . In
             addition to the requirements of Rule 10(e), the court shall
             in appropriate cases, inform the defendant of the right to
             jury trial in the circuit court and that the defendant may
             elect to be tried without a jury in the district court.

As noted, HRPP Rule 10(a) provides that “[a] defendant who has

been held by district court to answer in circuit court shall be
arraigned in circuit court within 14 days after the district

court’s oral order of commitment following (i) arraignment and

plea, where the defendant elected jury trial or did not waive the

right to jury trial . . . .”         (Emphasis added.)

             Rule 10(a) requires that the defendant be arraigned in

circuit court after the order of commitment.            In the instant

case, the defendant was not arraigned in the family circuit court

after the family district court’s order of commitment, as

indicated in its Pre-Trial Order.           Thus, it is clear that the

family circuit court erred by not arraigning Basnet.15
                                      B.

             Black’s Law Dictionary defines “arraignment” as “[t]he

initial step in a criminal prosecution whereby the defendant is

brought before the court to hear the charges and to enter a

plea.”     Black’s Law Dictionary 123 (9th ed. 2009).          As noted,


      15
            No arraignment at all took place in the family circuit court in
this case. Basnet did not explicitly raise any other issue with respect to
the arraignment request under HRPP Rule 10(a), and so our decision is limited
to the issue raised.

                                       22
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


HRPP Rule 10(d) provides that “[a]rraignment in the circuit court

shall be conducted in open court or by video conference when

permitted by Rule 43.     The arraignment shall consist of reading

the charge to the defendant or stating to the defendant the

substance of the charge and calling on the defendant to plead

thereto.   The defendant shall be given a copy of the charge

before the defendant is called upon to plead.”

           In his Application, Basnet mentions the three purposes
of an arraignment, as set forth in Marshall.          Marshall stated

that, “[t]he general rule is that there must be in every criminal

case an arraignment and a plea, the object of the arraignment

being to identify the accused, inform him of the charge and

obtain his plea, the object of the plea being to make an issue to

be tried.”   13 Haw. at 83.

           Basnet further references State v. Kikuchi, 54 Haw.

496, 510 P.2d 781 (1973), for the proposition that a defendant

can waive his or her right to an arraignment by failing to
properly object to the lack of arraignment, where the defendant

was fully aware of the charge.       In Kikuchi, the defendant was

initially charged in the district court for violating an

ordinance Section 15-6.4(3a).       54 Haw. at 496, 510 P.2d at 781.

However, after a trial, he was found guilty of the offense of

violating Section 15-6.4(2a), for which he had never been

charged.   Id.   Although the procedure is not clear from the

opinion, the defendant apparently then “appealed to the circuit


                                     23
      ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


court of the first circuit for a trial de novo[,]” and the

circuit court found him guilty of violating Section 15-6.4(2a).

Id.   This court noted, however, that the record on appeal did not

show that there was an arraignment of the defendant for violating

Section 15-6.4(2a), or that he entered a plea of not guilty.                 Id.

at 496-97, 510 P.2d at 781.

            Kikuchi posed the question of whether it is “mandatory

that a defendant in a criminal case be arraigned in open court
and that he or the court enter a plea of not guilty?              Or, can

arraignment and entry of a plea of not guilty be waived

specifically by defendant or by the conduct of the defendant

during the course of trial?”         Id. at 498, 510 P.2d at 782.        This

court noted that “the record, as in the present case, clearly

shows that [the defendant] was represented by counsel, was fully

aware of the nature and substance of the accusation [under

Section 15-6.4(2a)], knew what he was being prosecuted for,

postured himself as being not guilty of the accusation, was tried
as if he had pleaded not guilty, and raised no objection during

the course of trial[.]”       Id. at 500, 510 P.2d at 783 (emphasis

added).    Under these circumstances, Kikuchi held that, “[w]e are

of the opinion that as in the instant case where it appears from

the record that [the defendant] had sufficient notice of the

accusation and an adequate opportunity to defend himself in the

prosecution he has suffered no prejudice.”           Id.




                                       24
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                                     C.

          In his Opening Brief to the ICA, Basnet alleged that

Kikuchi is distinguishable, on the basis that the defendant in

Kikuchi failed to object to the lack of an arraignment at trial,

whereas Basnet did object in the proceedings before the family

circuit court in this case.      Indeed, Basnet maintained his

objection throughout trial.

          An objection to the lack of an arraignment may be
analogized to an objection to the sufficiency of the charge,

since one of the purposes of an arraignment, as noted in

Marshall, is to “inform [the defendant] of the charge and obtain

his plea[.]”   Marshall, 13 Haw. at 83.        In the sufficiency of the

charge context, this court has applied different principles

depending on whether an objection is made before the trial court

or for the first time on appeal. The failure of the charging

instrument to state an offense is reversible error, Jendrusch, 58

Haw. at 281, 567 P.2d at 1244, and this court has held that
“[t]he failure of an accusation to charge an offense may be

raised ‘at any time during the pendency of the proceedings.’”

State v. Merino, 81 Hawai#i 198, 212, 915 P.2d 672, 686 (1996)

(quoting HRPP 12(b)(2)).

          However, pursuant to the “post-conviction liberal

construction rule,” adopted by this court in State v. Motta, 66

Haw. 89, 90, 657 P.2d 1019, 1019-20 (1983) and State v. Wells, 78




                                     25
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


Hawai#i 373, 381, 894 P.2d 70, 78 (1995), an appellate court will

liberally construe indictments and complaints that are challenged

for the first time on appeal.       Merino, 81 Hawai#i at 212, 915 P.2d

at 686.   In those circumstances, “‘this court will not reverse a

conviction based upon a defective indictment or complaint unless

the defendant can show prejudice or that the indictment or

complaint cannot within reason be construed to charge a crime.’”

Id. (quoting Wells, 78 Hawai#i at 381, 894 P.2d at 78) (brackets
omitted) (other citation omitted).

          Where the defendant has timely objected to the

sufficiency of the charge, however, this rule does not apply.

 See State v. Robins, 66 Haw. 312, 314, 660 P.2d 39, 41 (1983)

(stating that where the alleged deficiency in the indictment was

raised by a timely motion, “[t]he liberal construction rule laid

down in Motta” was inapplicable).         Thus, where the issue was

raised at trial, the case will be dismissed without prejudice

without resort to the Motta/Wells standard.
          These principles are instructive here, and lead to two

conclusions.   First, because Basnet timely objected, he did not

need to show that he was prejudiced by the family court’s failure

to arraign in accordance with HRPP Rule 10(a).

          Second, respectfully, the ICA erred in applying the

harmless error standard.      See Basnet, 2013 WL 3094944, at *2.          In

the context of sufficiency of the charging instrument, it is




                                     26
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


well-established that a charge that fails to provide the accused

with fair notice of the essential elements “amounts to a failure

to state an offense, and a conviction based upon it cannot be

sustained, for that would constitute a denial of due process.”

Jendrusch, 58 Haw. at 281, 567 P.2d at 1244.          Thus, such errors

are not subject to harmless error analysis.          Similarly, since one

of the purposes of arraignment is also to inform the defendant of

the charge, if a defendant objects at trial to the lack of an
arraignment, then the conviction “cannot be sustained[,]” because

it would correspondingly constitute a denial of due process.

Accordingly, Basnet’s conviction must be vacated, and the case

dismissed without prejudice.

                                    VI.

          We reach Basnet’s second point of error in the event

charges will be re-filed against Basnet.         Basnet maintains that

the charge is legally insufficient, and alleges that the ICA

erred in its application of Mita and this court should clarify or
overrule Wheeler and Mita.      This court has held that “[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 comprehensible to persons

of common understanding, a charge drawn in the language of the

statute is sufficient.”     Jendrusch, 58 Haw. at 282, 567 P.2d at

1245; see State v. Cummings, 101 Hawai#i at 143, 63 P.3d at 1113




                                     27
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


(2003).   In the instant case, the charge did “fully define[] the

offense in unmistakable terms readily comprehensible to persons

of common understanding,” Jendrusch, 58 Haw. at 282, 567 P.2d at

1245, and thus, contrary to Basnet’s allegation, the charge was

legally sufficient.

                                     A.

          First, the charge was not required to include the

statutory definition of the term “family or household member.”
As noted, HRS § 709-906(1) provides that “‘family or household

member’ means spouses or reciprocal beneficiaries, former spouses

or reciprocal beneficiaries, persons in a dating relationship as

defined under section 586-1, persons who have a child in common,

parents, children, persons related by consanguinity, and persons

jointly residing or formerly residing in the same dwelling unit.”

Without this definition, the charge still “fully define[d] the

offense in unmistakable terms readily comprehensible to persons

of common understanding,” because the charge included the name of
Basnet’s spouse, therefore indicating specifically who was the

relevant family or household member.        Where the actual name of

his wife was part of the charge, defining the term “family and

household member” as “wife” was not required to apprise Basnet of

the charges he needed to be prepared to meet.

          Contrary to Basnet’s argument, this case is

distinguishable from Wheeler, where this court held that the

charge was insufficient because it failed to include the


                                     28
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


statutory definition of the term “operate.”          Wheeler, 121 Hawai#i

at 393, 219 P.3d at 1180.      That conclusion was based on the fact

that the use of the phrase “operate” in the charge did not

provide adequate notice to the defendant that the State was

required to prove that his operation of the vehicle occurred on a

public way, street, road or highway.        Id. at 395, 219 P.3d at

1182.   In this case, on the other hand, Basnet is not persuasive

in arguing that the term “family or household member” did not
provide him with adequate notice, absent the statutory

definition, because the term “family or household member” is

readily comprehendible to a person of common understanding.                Thus

the proposed application of Wheeler is inapposite.

                                     B.

           Second, the term “physical abuse” need not be defined

in the written charge.     In Kameenui, this court held that

although the statute does not specifically define the term

“physical abuse” the statute including that term, HRS § 709-
906(1) is not void for vagueness because “[p]ersons of ordinary

intelligence” would have a reasonable opportunity to know that

“physical abuse” includes “physical injury.”          69 Haw. at 623, 753

P.2d at 1252.   Further, in State v. Nomura, 79 Hawai#i 413, 903

P.2d 718 (1995), the ICA noted that “[f]rom Kameenui and the

[dictionary] definition of the word ‘physical,’ it is evident

that to ‘physically abuse’ someone means to maltreat in such a




                                     29
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


manner as to cause injury, hurt or damage to that person’s body

. . . .”   and that “a more precise definition would ‘require the

legislature to list every type of conduct covered under the

statute [which] would be counterproductive.’”          Nomura, 79 Hawai#i

at 416, 903 P.2d at 721 (quoting Kameenui, 69 Haw. at 623, 753

P.2d at 1252).    Thus, this court has held that the term “physical

abuse” is readily understandable, and as such, it provided

sufficient notice to Basnet as part of the charge in this case.
           Finally, although the family circuit court gave an

instruction to the jury in this case regarding “family and

household member” and “physical abuse” in this case, this court

has not held that the charge must mirror the jury instructions

given in a particular case.      Rather, this court has held that

“the trial court is not required to instruct the jury in the

exact words of the applicable statute but to present the jury

with an understandable instruction that aids the jury in applying

that law to the facts of the case.”        State v. Sawyer, 88 Hawai#i
325, 330, 966 P.2d 637, 642 (1998) (internal quotation marks and

citation omitted).

                                    VII.

           Accordingly, the ICA’s July 19, 2013 judgment and the

family circuit court’s September 23, 2011 judgment of conviction

and sentence are vacated, and the case is remanded to the family




                                     30
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


circuit court to enter an order dismissing the case without

prejudice.


Steven T. Barta,                     /s/ Mark E. Recktenwald
for petitioner
                                     /s/ Paula A. Nakayama
James M. Anderson,
for respondent                       /s/ Simeon R. Acoba, Jr.

                                     /s/ Sabrina S. McKenna

                                     /s/ Richard W. Pollack




                                     31
