
    STATE OF HAWAII, Plaintiff-Appellee, v. RICKY SMITH, also known as Ricardo Smith, Defendant-Appellant
    NO. 8386
    (CRIMINAL NO. 55590)
    JANUARY 27, 1983
    LUM, ACTING C.J., NAKAMURA, PADGETT AND HAYASHI, JJ., AND CIRCUIT JUDGE VITOUSEK, ASSIGNED BY REASON OF VACANCY
   Per Curiam.

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.

Isaac Smith (Daphne E. Barbee on the opening brief and Alvin T. Sasaki and law clerk Gerónimo Valdriz on the reply brief), Deputy Public Defender, for appellant.

Shirley Smith, Deputy Prosecuting Attorney, for appellee.

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. 
      
       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).
     