Summary
holding that an indictment for second degree robbery that failed to specify that the person against whom force was used was physically present or the owner of the property was not plain error, because,interalia, there was no doubt that that was what the prosecution was alleging
Summary of this case from State v. CordeiroOpinion
NO. 8386
January 27, 1983
APPEAL FROM FIRST CIRCUIT COURT HONORABLE HAROLD Y. SHINTAKU, JUDGE.
LUM, ACTING C.J., NAKAMURA, PADGETT AND HAYASHI, JJ., AND CIRCUIT JUDGE VITOUSEK, ASSIGNED BY REASON OF VACANCY
Isaac Smith ( Daphne E. Barbee on the opening brief and Alvin T. Sasaki and law clerk Geronimo Valdriz on the reply brief), Deputy Public Defender, for appellant.
Shirley Smith, Deputy Prosecuting Attorney, for appellee.
This is an appeal from a conviction of robbery in the second degree. The indictment failed to allege that the person against whom the force was used, June Suenaga, was either physically present or was the owner of the property stolen. However, the challenge to the indictment came only after conviction. In State v. Motta, 66 Haw. 89, 657 P.2d 1019 (1983), we adopted a liberal approach to the construction of indictments where the challenge is after conviction. Using that approach here, we hold that the indictment sufficiently alleged the elements of the crime of robbery to meet a post-conviction challenge.
Because we read State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977), differently, we reached a different result on the robbery charge, from that reached by the Intermediate Court of Appeals in State v. Tuua, 3 Haw. App. 287, 649 P.2d 1180 (1982).
The record is crystal clear that appellant knew that the State was contending that June Suenaga was present when he threatened her in the course of committing the theft of an automobile. The facts are that he threatened to kill her and physically threw her out of the car she had been driving. Obviously, the omitted allegations did not prejudice appellant.
Affirmed.