State v. Kekuewa, 163 P.3d 1148, 1160-61 (Haw. 2007)
It is a well-settled principle that a criminal defendant’s conviction will be reversed where the complaint, indictment, oral charge, or information is defective in such a way that it fails to state an offense:
It is well settled that an “accusation must sufficiently allege all of the essential elements of the offense charged,” a requirement that “obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]” State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977)[; accord State v. Israel, 78 Hawai'i 66, 69-70, 890 P.2d 303, 306-07 (1995); State v. Elliott, 77 Hawai'i 309, 311, 884 P.2d 372, 374 (1994)]. Put differently, the sufficiency of the charging instrument is measured, inter alia, by “whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he [or she] must be prepared to meet[.]” State v. Wells, 78 Hawai’i 373, 379-80, 894 P.2d 70, 76-77 (1995) (citations and internal quotation marks omitted) (brackets in original). “A charge defective in this regard 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 (citations omitted).[State v.] Merino, 81 Hawai’i [198,] 212, 915 P.2d [672,] 686 [ (1996) ] (some brackets added and some in original). In other words, an oral charge, complaint, or indictment that does not state an offense contains within it a substantive jurisdictional defect, rather than simply a defect in form, which renders any subsequent trial, judgment of conviction, or sentence a nullity. See Israel, 78 Hawai’i at 73, 890 P.2d at 310 (quoting Elliott, 77 Hawai’i at 311, 884 P.2d at 374 (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at 1244)); Elliott, 77 Hawai’i at 312, 884 P.2d at 375 (“the omission of an essential element of the crime charged is a defect in substance rather than form”) (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at 1244); Territory v. Koa Gora, 37 Haw. 1, 6 (1944) (failure to state an offense is a “jurisdictional point”); Territory v. Goto, 27 Haw. 65, 102 (1923) (Peters, C.J., concurring) (“[f]ailure of an indictment[,] [complaint, or oral charge] to state facts sufficient to constitute an offense against the law is jurisdictional[;] . . . an indictment[,] [complaint, or oral charge] . . . is essential to the court’s jurisdiction,” (brackets added)); HRS § 806-34 (1993) (explaining that an indictment may state an offense “with so much detail of time, place, and circumstances and such particulars as to the person (if any) against whom, and the thing (if any) in respect to which the offense was committed, as are necessary[,]” inter alia, “to show that the court has jurisdiction, and to give the accused reasonable notice of the facts”). That being the case, reversal of a conviction obtained on such a defective accusation does not require a showing of prejudice. See Elliott, 77 Hawai’i at 311, 884 P.2d at 374 (agreeing with the ICA that inasmuch as defendant could not demonstrate and did not assert prejudice where an element was omitted from an oral charge, “[t]he question, then, is whether the oral charges can be reasonably construed to charge [the defendant] with the offenses [of which the defendant was convicted]” (some brackets added and some in original) (citation and quotation signals omitted)); State v. Yonaha, 68 Haw. 586, 586-87, 723 P.2d 185, 185-86 (1986) (conviction obtained on oral charge reversed for failure to state “element” of intent; prejudice not addressed); State v. Faulkner, 61 Haw. 177, 177-78, 599 P.2d 285, 285-86 (1979) (same); State v. Borochov, 86 Hawai’i 183, 193, 948 P.2d 604, 614 (App.1997) (reversing conviction because charge could not be reasonably construed to state an offense). Cf. State v. Sprattling, 99 Hawai’i 312, 320, 55 P.3d 276, 284 (2002) (noting that if an indictment merely omits a word rather than “an essential element of the offense, the harmless error doctrine is applicable” and a defendant who challenges the omission for the first time on appeal must demonstrate substantial prejudice). This is because a defect in a complaint is not one of mere form, which is waivable, nor simply one of notice, which may be deemed harmless if a defendant was actually aware of the nature of the accusation against him or her, but, rather, is one of substantive subject matter jurisdiction, “which may not be waived or dispensed with,” see Jendrusch, 58 Haw. at 281, 567 P.2d at 1244, and that is per se prejudicial, see [State v.] Motta, 66 Haw. [89,] 91, 657 P.2d [1019,] 1020 [ (1983) ] (quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir.1965)).
Cummings, 101 Hawai’i at 142-43, 63 P.3d at 1112-13 (some brackets in original and some added) (ellipses in original) (emphasis in original).
Our case law further supports the proposition that an appellate court may nevertheless remand for entry of judgment of conviction and resentencing as to any offenses adequately set forth in the accusation (i.e., the complaint, indictment, oral charge, or information).
