Opinion
No. CAAP–13–0006234.
02-03-2015
STATE of Hawai‘i, Plaintiff–Appellee, v. Corazon D. CONSTANTINO, Defendant–Appellant.
Phyllis J. Hironaka, Deputy Public Defender, on the briefs, for Defendant–Appellant. Tracy Murakami, Deputy Prosecuting Attorney, County of Kauai Associate Judge, on the briefs, for Plaintiff–Appellee.
Phyllis J. Hironaka, Deputy Public Defender, on the briefs, for Defendant–Appellant.
Tracy Murakami, Deputy Prosecuting Attorney, County of Kauai Associate Judge, on the briefs, for Plaintiff–Appellee.
LEONARD and GINOZA, JJ. with NAKAMURA, C.J., concurring separately.
SUMMARY DISPOSITION ORDER
Defendant–Appellant Corazon D. Constantino (Constantino) appeals from an “Amended Judgment; Guilty Conviction and Probation Sentence, Notice of Entry” (Amended Judgtment) filed on October 31, 2013, in the Circuit Court of the Fifth Circuit (circuit court).
The Honorable Kathleen N.A. Watanabe presided.
An Indictment filed on July 22, 2010 charged Constantino with three Counts: two counts of Sexual Assault in the Third Degree in violation of Hawaii Revised Statutes (HRS) § 707–732(1)(b) (2014) (Counts 1 and 2); and one count of Attempted Sexual Assault in the Third Degree in violation of HRS §§ 705–500 (2014) and 707–732(1)(b) (Count 3).
On December 14, 2010, Constantino filed a Motion to Dismiss (Defective Charge Motion) alleging that the Indictment was defective for failing to allege all elements of the charges, specifically that it failed to allege that Constantino was not married to the complaining witness (CW), a minor. The circuit court denied the motion.
On February 28, 2011, Constantino also filed a Motion to Dismiss for Lack of Probable Cause on grounds that Plaintiff–Appellee State of Hawai‘i (State) failed to present evidence of probable cause to the grand jury to support the Indictment, particularly that Constantino was not married to the CW. The circuit court denied the motion.
On January 22, 2013, Constantino filed a motion to reconsider the order denying the Defective Charge Motion (Motion to Reconsider), again challenging the Indictment as being defective for failing to allege that Constantino was not married to the CW. The circuit court issued an order on February 7, 2013 denying the motion.
Subsequently, on March 6, 2013, pursuant to a plea agreement, Constantino pled no-contest to an amended Count 1–Sexual Assault in the Third Degree in violation of HRS § 707–732(1)(f ) (2014)-in return for the State dismissing Counts 2 and 3 with prejudice.
Constantino thereafter sought to withdraw his no-contest plea, but his motion in this regard was denied by the circuit court. The Amended Judgment was subsequently entered against Constantino pursuant to his no-contest plea, convicting him of Sexual Assault in the Third Degree in violation of HRS § 707–732(1)(f).
Pursuant to the plea agreement, the parties agreed that Constantino would plead to the amended offense under HRS § 707–732(1)(f) rather than the charged offense under HRS § 707–732(1)(b). HRS § 707–732(1)(b) and (f) provide in relevant part:
§ 707–732 Sexual assault in the third degree. (1) A person commits the offense of sexual assault in the third degree if:
....
(b) The person knowingly subjects to sexual contactanother person who is less than fourteen years old or causes such a person to have sexual contact with the person;
....
(f) The person knowingly, by strong compulsion, has sexual contactwith another person or causes another person to have sexual contact with the actor.
(Emphasis added.) In turn, “sexual contact” is defined in HRS § 707–700 (2014) as:
any touching, other than acts of “sexual penetration”, of the sexual or other intimate parts of a person not married to the actor,or of the sexual or other intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts.
(Emphasis added.)
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On appeal, Constantino's points of error assert that the circuit court erred in: (1) denying his motions for dismissal; and (2) denying his motion to withdraw no-contest plea.
The State concedes that, in light of this court's ruling in State v. Muller, No. CAAP–10–0000225, 2014 WL 444230, 131 Hawai‘i 331, 318 P.3d 621 (App. Jan. 31, 2014) (SDO), cert. denied, No. SCWC–10–0000225, 2014 WL 1758391 (Haw. Apr. 29, 2014), the Indictment was insufficient, the Amended Judgment should be vacated, and the case dismissed without prejudice.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we conclude that the State's concession of error is appropriate, that Constantino's conviction must be vacated, and the case must be remanded for dismissal without prejudice.
“The issue of whether a complaint provides sufficient notice to a defendant is reviewed under the de novo, or right/wrong, standard.” State v. Codiamat, 131 Hawai‘i 220, 223, 317 P.3d 664, 667 (2013).
As this court held in Muller,
The Hawai‘i Supreme Court has set out the four material elements of the offense of sexual assault in the third degree under HRS § 707–732(1)(b), one of which is “that the defendant was aware that the Minor was not married to him (i.e., the requisite knowing state of mind with respect to the attendant circumstance implicit in ‘sexual contact,’ ... ).”. State v. Arceo, 84 Hawai‘i 1, 15, 928 P.2d 843, 857 (1996). Therefore, Count II [alleging Sexual Assault in the Third Degree in violation of HRS § 707–732(1)(b) ] should have alleged that Muller was aware that the complainant was not married to him.
Muller, 2014 WL 444230 at *1 (original brackets omitted).
Here, Constantino filed motions in the circuit court asserting that the Indictment was deficient for failing to allege that Constantino was not married to the CW. Consistent with Muller, we conclude that because the counts in the Indictment-all of which involved HRS § 707–732(1)(b) –failed to allege the essential element that Constantino was aware that the CW was not married to him, the Indictment was deficient. Constantino's conviction must be vacated and the case dismissed without prejudice. We need not reach Constantino's second point of error.
Therefore,
IT IS HEREBY ORDERED that the “Amended Judgment; Guilty Conviction and Probation Sentence, Notice of Entry” filed by the Circuit Court of the Fifth Circuit on October 31, 2013, is vacated. The case is remanded to the circuit court with instructions to dismiss the case without prejudice.
Concurring Opinion by NAKAMURA, C.J.
I filed a dissenting opinion in State v. Muller, No. CAAP–10–0000225, 2014 WL 444230 (Hawai‘i App. Jan. 31, 2014) (SDO), cert. denied, No. SCWC–10–0000225, 2014 WL 1758391 (Hawai‘i Apr. 29, 2014), in which Muller was similarly charged with knowingly engaging in sexual contact with a minor, “who was less than fourteen years old[,]” without an allegation that Muller and the victim were not married. In Muller, I concluded that under the liberal construction standard, the charge could within reason be construed to charge a crime, and therefore, Muller's conviction should not be vacated. Id., 2014 WL 444230, at *2–5 (Nakamura, C .J., dissenting). However, in this case, unlike in Muller where Muller challenged the sufficiency of the charge for the first time on appeal, Defendant–Appellant Corazon D. Constantino (Constantino) raised a timely pre-trial objection to the sufficiency of the indictment in the circuit court. Accordingly, the liberal construction standard does not apply.
It appears that under existing Hawai‘i Supreme Court precedents and the circumstances of this case, the circuit court should have dismissed the indictment based on Constantino's timely objection to the sufficiency of the charges in the indictment. But see State v.. Wade, 766 P.2d 811, 814–16 (Kan.1989) (allegation in charge that the victim of sexual assault was five years old was sufficient to allege essential element of non-marriage where the defendant's marriage to the victim was a legal impossibility). Moreover, because Constantino did not validly waive indictment to the uncharged offense of third-degree sexual assault by strong compulsion, in violation of Hawaii Revised Statutes § 707–732(f) (2014), his no-contest plea to that offense was invalid. See Hawai‘i Rules of Penal Procedure Rule 7(c) and 7(f) (2012). Therefore, I concur in the decision to vacate the amended judgment and to remand the case with instructions to dismiss the case without prejudice.