State v. Blyenburg ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-NOV-2021
07:49 AM
Dkt. 75 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
GEORGE VAN BLYENBURG, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant George Van Blyenburg appeals from
the "Judgment of Conviction and Sentence" entered by the Circuit
Court of the First Circuit on October 28, 2020.1 For the reasons
explained below, we affirm the Judgment.
On August 6, 2016, a vehicle driven by Van Blyenburg
struck and killed Brandon Kishida. On July 6, 2017, a grand jury
indicted Van Blyenburg for Accidents Involving Death or Serious
Bodily Injury in violation of Hawaii Revised Statutes (HRS)
§ 291C-122 (Count 1) and Negligent Homicide in the Second Degree
1
The Honorable Fa'auuga L. To'oto'o presided.
2
HRS § 291C-12 (2007) provided, in relevant part:
Accidents involving death or serious bodily injury. (a) The
driver of any vehicle involved in an accident resulting in
serious bodily injury to or death of any person shall
immediately stop the vehicle at the scene of the accident or
as close thereto as possible but shall then forthwith return
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
in violation of HRS § 707-703(1)(b)3 (Count 2). Van Blyenburg
pleaded not guilty.
Jury trial began on Tuesday, March 3, 2020, and
continued on Wednesday. The State rested on Thursday. That
afternoon, Van Blyenburg called his first witness. Trial was
then recessed for the day.
On Friday morning, March 6, 2020, the State filed its
"Amended Jury Instructions Requested by the State of Hawai#i[.]"
Van Blyenburg testified in his own defense that afternoon.
On Monday, March 9, 2020, the circuit court instructed
the jury. Counsel made their closing arguments. The jury
returned a verdict that afternoon. Van Blyenburg was found
guilty as charged on both counts.
On October 20, 2020, Van Blyenburg filed a motion to
dismiss Counts 1 and 2 of the indictment based on insufficiency
of the charges.4 The motion was heard on October 28, 2020,
2
(...continued)
to and in every event shall remain at the scene of the
accident until the driver has fulfilled the requirements of
section 291C-14. Every such stop shall be made without
obstructing traffic more than is necessary.
(Emphasis added.)
3
HRS § 707-703 (2014) provides, in relevant part:
Negligent homicide in the second degree. (1) A person
commits the offense of negligent homicide in the second
degree if that person causes the death of:
. . . .
(b) A vulnerable user by the operation of a vehicle
in a manner that constitutes simple negligence
as defined in section 707-704(2).
"Vulnerable user" includes "[a] pedestrian legally within a street or public
highway[.]" HRS § 707-700 (Supp. 2015).
4
"Due to the significant consequences associated with omitting an
essential and material element in [a charge], an objection to this deficiency
may be raised 'at any time during the pendency of the proceeding.'" State v.
Sprattling, 99 Hawai#i 312, 318, 55 P.3d 276, 282 (2002) (citing State v.
Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1020 (1983)) (cleaned up); accord Rule
12(b)(2) of the Hawai#i Rules of Penal Procedure ("The following must be
raised prior to trial: . . . (2) defenses and objections based on defects in
the charge (other than that it fails to show jurisdiction in the court or to
charge an offense which objections shall be noticed by the court at any time
(continued...)
2
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before the scheduled sentencing hearing. The circuit court
orally denied the motion to dismiss. Van Blyenburg was then
sentenced to 10 years in prison on Count 1 and 5 years in prison
on Count 2, to run concurrently. On November 2, 2020, the
circuit court entered its "Findings of Fact[], Conclusions of
Law, and Order Denying Defendant's Motion to Dismiss Counts 1
and 2 of the Indictment[.]" This appeal followed.
Van Blyenburg contends that the circuit court erred by
denying his motion to dismiss because: (1) Count 1 "failed to
charge, allege, or provide notice of the attendant circumstances
element that '[e]very such stop shall be made without obstructing
traffic more than is necessary[]'"; and (2) Count 2 "does not
define and give notice as to the element of conduct of 'simple
negligence,' which is defined under § 707-704(2) of the Hawaii
Revised Statutes in four varying and separate ways[.]"
1. The circuit court did not err by denying
the motion to dismiss Count 1.
Count 1 of the indictment alleged, in relevant part:
On or about August 6, 2016, in the City and County of
Honolulu, State of Hawai#i, GEORGE VAN BLYENBURG, as the
driver of a vehicle involved in an accident resulting in
serious bodily injury to or death of Brandon Kishida, with
intent, knowledge, or reckless disregard of the substantial
and unjustifiable risk that he was such a driver, did
intentionally, knowingly, or recklessly fail to immediately
stop the vehicle at the scene of the accident or as close
thereto as possible, and did intentionally, knowingly, or
recklessly fail to forthwith return to and in every event
remain at the scene of the accident . . . thereby committing
the offense of Accidents Involving Death or Serious Bodily
Injury, in violation of Section 291C-12 of the Hawai#i
Revised Statutes.
Citing State v. Baker, 146 Hawai#i 299, 463 P.3d 956 (2020), Van
Blyenburg argues that Count 1 was defective because it did not
allege that he failed to stop his vehicle "without obstructing
traffic more than is necessary." Whether a charge sets forth all
the essential elements of a charged offense is a question of law,
4
(...continued)
during the pendency of the proceedings[.])") (emphasis added).
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which we review under the de novo, or right/wrong, standard.
Baker, 146 Hawai#i at 305, 463 P.3d at 962.
The defendant in Baker was convicted of failure to stop
at the scene of an accident involving vehicle damage, in
violation of HRS § 291C-13.5 The version of HRS § 291C-13 at
issue in Baker stated, in relevant part:
Accidents involving damage to vehicle or property. The
driver of any vehicle involved in an accident resulting only
in damage to a vehicle or other property that is driven or
attended by any person shall immediately stop such vehicle
at the scene of the accident or as close thereto as
possible, but shall forthwith return to, and in every event
shall remain at, the scene of the accident until the driver
has fulfilled the requirements of section 291C-14. Every
such stop shall be made without obstructing traffic more
than is necessary.
Baker, 146 Hawai#i at 302 n.1, 463 P.3d at 959 n.1 (citing HRS
§ 291C-13 (Supp. 2008)) (emphasis added). The charge in Baker
"did not include any reference to the language 'without
obstructing traffic more than is necessary' or include language
similar to it." Id. at 308, 463 P.3d at 965. The supreme court
held that the charge "failed to give Baker proper notice of the
elements of the offense with which she was charged[.]" Id.
Van Blyenburg challenges the following conclusions of
law made by the circuit court:
2. As to Count 1 of the Indictment:
. . . .
e. Baker contains no indication that the decision
should apply retroactively.[6]
. . . .
g. Given the foregoing, Baker is inapplicable to
the instant case.
5
The relevant provisions of HRS § 291C-13 substantially mirror
those of HRS § 291C-12. State v. Armitage, No. CAAP-XX-XXXXXXX, 2021 WL
4936967, at *2 (Haw. App. Oct. 22, 2021) (SDO).
6
Baker was published on March 13, 2020, four days after the jury
found Van Blyenburg guilty.
4
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h. As such, the Court finds Defendant's contention
that Count 1 of the Indictment is defective to be without
merit.
Conclusions of law are reviewed under the right/wrong
standard. State v. Alvarez, 138 Hawai#i 173, 181, 378 P.3d 889,
897 (2016). The circuit court's conclusions of law were wrong.
In Baker, after ruling that the charge was defective, the supreme
court vacated Baker's conviction. If the supreme court had
intended that its decision have prospective effect only, it would
not have vacated Baker's conviction. Cf. State v. Jones, 148
Hawai#i 152, 174-76, 468 P.3d 166, 188-90 (2020) (applying a
holding prospectively and not to the case at bar); State v.
Torres, 144 Hawai#i 282, 292-95, 439 P.3d 234, 244-47 (2019)
(same); State v. Jess, 117 Hawai#i 381, 404, 184 P.3d 133, 156
(2008) (same).
Although the circuit court's conclusion that Baker did
not "apply retroactively" was wrong, the circuit court did not
err by denying the motion to dismiss Count 1.7 In Baker the
defendant challenged the sufficiency of the charge for the first
time on appeal; accordingly, the supreme court applied the
"liberal construction" standard in reviewing the charge. 146
Hawai#i at 308, 463 P.3d at 965. In this case, Van Blyenburg
challenged the sufficiency of the charge at the trial level.
Accordingly, "in determining whether [Van Blyenburg] has been
adequately informed of the charges against him, [we] can consider
other information in addition to the charge that may have been
provided to [him] during the course of the case up until the time
[he] objected to the sufficiency of the charges against him."
State v. Wheeler, 121 Hawai#i 383, 396, 219 P.3d 1170, 1183
(2009); State v. Treat, 67 Haw. 119, 120, 680 P.2d 250, 251
(1984); see also State v. Hitchcock, 123 Hawai#i 369, 379, 235
P.3d 365, 375 (2010) (in case where defendant argued the charge
was defective for the first time on appeal, supreme court
7
The circuit court's ruling "will not be disturbed on the ground
that the circuit court gave the wrong reasons for the ruling." Flores v.
Ballard, 149 Hawai#i 81, 88, 482 P.3d 544, 551 (App. 2021) (citation omitted).
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"examine[d] the information provided or 'supplied' by the
prosecution to Hitchcock prior to appeal.").
The State filed and served its amended requested jury
instructions before Van Blyenburg testified at trial. State's
amended instruction no. 1 stated:
In Count 1, the Defendant, GEORGE VAN BLYENBURG, is
charged with the offense of Accidents Involving Death or
Serious Bodily Injury.
A person commits the offense of Accidents Involving
Death or Serious Bodily Injury if he intentionally,
knowingly, or recklessly, as the driver of any vehicle
involved in an accident resulting in serious bodily injury
to, or death of, any person, did not immediately stop the
vehicle at the scene of the accident, or as close thereto as
possible and return to and remain at the scene of the
accident, and fulfill the Duty to Give Information and
Render Aid.
There are four material elements of the offense of
Accidents Involving Death or Serious Bodily Injury, each of
which the prosecution must prove beyond a reasonable doubt.
These four elements are:
1. That on or about August 6, 2016, in the City and
County of Honolulu, State of Hawai#i, the
Defendant was the driver of a vehicle involved
in an accident resulting in serious bodily
injury to, or the death of, Brandon Kishida; and
2. The Defendant failed to immediately stop his
vehicle at the scene of the accident, or as
close thereto as possible and return to and
remain at the scene of the accident, provided
that every stop shall be made without
obstructing traffic more than necessary; and
3. The Defendant failed to fulfill the Duty to Give
Information and Render Aid; and
4. The Defendant acted intentionally, knowingly, or
recklessly as to each of the foregoing elements.
(Emphasis added.)8 When Van Blyenburg moved to dismiss Count 1,
he had already been provided with information about the attendant
circumstance element that "every stop shall be made without
obstructing traffic more than necessary[.]" Because Van
Blyenburg had been provided with information about the element
missing from Count 1 of the indictment before he moved to dismiss
8
This instruction was actually given to the jury.
6
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the charge, the circuit court did not err by denying the motion.
Treat, 67 Haw. at 120, 680 P.2d at 251.
2. The circuit court did not err by denying the
motion to dismiss Count 2.
Count 2 of the indictment alleged:
On or about August 6, 2016, in the City and County of
Honolulu, State of Hawai#i, GEORGE VAN BLYENBURG did cause
the death of Brandon Kishida, who was a vulnerable user, to
wit, a pedestrian legally within a street or public highway,
by the operation of a vehicle in a manner that constitutes
simple negligence as defined in Section 707-704(2) of the
Hawai#i Revised Statutes, thereby committing the offense of
Negligent Homicide in the Second Degree, in violation of
Section 707-703(1)(b) of the Hawai#i Revised Statutes. In
accordance with Section 264-1(a) of the Hawai#i Revised
Statutes, "public highway" means all roads, alleys, streets,
ways, lanes, bikeways, bridges, and all other real property
highway related interests in the State, opened, laid out,
subdivided, consolidated, and acquired and built by the
government. In accordance with Section 291C-1 of the
Hawai#i Revised Statutes, "street" means the entire width
between boundary lines of every way publicly maintained when
any part thereof is open to the use of the public for
purposes of vehicular travel.
(Emphasis added.) Van Blyenburg argues that Count 2 "is
defective in that it does not define and give notice as to the
element of conduct of 'simple negligence,' which is defined under
§ 707-704(2) of the Hawaii Revised Statutes[.]"
HRS § 707-704 (2014) (negligent homicide in the third
degree) provides, in relevant part:
(2) "Simple negligence" as used in this section:
(a) A person acts with simple negligence with respect to
the person's conduct when the person should be aware
of a risk that the person engages in that conduct.
(b) A person acts with simple negligence with respect to
attendant circumstances when the person should be
aware of a risk that those circumstances exist.
(c) A person acts with simple negligence with respect to a
result of the person's conduct when the person should
be aware of a risk that the person's conduct will
cause that result.
(d) A risk is within the meaning of this subsection if the
person's failure to perceive it, considering the
nature and purpose of the person's conduct and the
circumstances known to the person, involves a
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deviation from the standard of care that a law-abiding
person would observe in the same situation.
Van Blyenburg challenges the following conclusions of
law made by the circuit court:
3. As to Count 2 of the Indictment:
. . . .
d. Terms with different statutory and common,
everyday definitions only need to be defined in a charging
document where the term is an element of the charge. See
Baker, 146 Hawai#i at 308, 463 P.3d at 965 ("A complaint[]
. . . cannot reasonably be construed to charge an offense
. . . when the common definition of an element of an offense
set forth in the charge does not comport with its statutory
definition [and the charging document does not include the
statutory definition.]") (emphasis added).
e. Given the foregoing, "simple negligence" is not
an element of Negligent Homicide in the Second Degree,
H.R.S. § 707-703(1)(b).
f. As such, the Court finds that "simple
negligence" need not be defined in Count 2 of the
Indictment.
g. Thus, the Court further finds that Count 2 of
the Indictment is sufficient.
Van Blyenburg relies on Wheeler, 121 Hawai#i at 393, 219 P.3d at
1180 (holding that failure to allege defendant was driving his
vehicle "upon a public way, street, road, or highway" at time of
offense rendered charge deficient); State v. Kauhane, 145 Hawai#i
362, 372, 452 P.3d 359, 369 (2019) (holding that charge, which
did not include statutory definition of "obstructs," was
deficient where statutory definition did not reflect commonly
understood meaning of term); and State v. Pacquing, 139 Hawai#i
302, 308, 389 P.3d 897, 903 (2016) (holding that charge, which
did not include statutory definition of "confidential personal
information," was deficient where statutory definition was "not
readily comprehensible to persons of common understanding[.]").
We need not decide whether the circuit court's
conclusions of law were right or wrong. Although Count 2 of the
indictment did not recite the statutory definition of "simple
negligence," the State's original requested jury instructions,
filed on May 22, 2018 (almost two years before the trial), and
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the State's amended requested jury instructions (filed the
morning before Van Blyenburg testified at trial) both contained
the complete statutory definition of "simple negligence."9
Because Van Blyenburg had been provided with the statutory
definition of "simple negligence" missing from Count 2 of the
indictment before he moved to dismiss the charge, the circuit
court did not err by denying the motion. State v. Armitage,
No. CAAP-XX-XXXXXXX, 2021 WL 4936967, at *6 (Haw. App. Oct. 22,
2021) (SDO) (holding that where State filed proposed jury
instructions a month before trial that included statutory
definition of "under the influence," defendant had ample notice
of precisely what she must be prepared to meet at trial) (citing
State v. Mita, 124 Hawai#i 385, 390, 245 P.3d 458, 463 (2010));
see also Wheeler, 121 Hawai#i at 391, 219 P.3d at 1178 (quoting
State v. Wells, 78 Hawai#i 373, 379–80, 894 P.2d 70, 76–77
(1995)).
For the foregoing reasons, the "Judgment of Conviction
and Sentence" entered by the circuit court on October 28, 2020,
is affirmed.
DATED: Honolulu, Hawai#i, November 19, 2021.
On the brief:
/s/ Katherine G. Leonard
Emmanuel G. Guerrero, Presiding Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Donn Fudo, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
9
The complete statutory definition of "simple negligence" was given
to the jury.
9