CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 30718; HPD TRAFFIC 1DTA-10-02094)
Electronically Filed Supreme Court SCWC-30718 03-MAY-2012 08:39 AM
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, Duffy, and McKenna, JJ., with Acoba, J., Concurring and Dissenting Separately)
Petitioner/Defendant-Appellant Kevin M. Yamahata, seeks review of the Intermediate Court of Appeal's September 12, 2011 Judgment on Appeal, entered pursuant to its August 22, 2011 Summary Disposition Order ("SDO"). State v. Yamahata, No. 30718, 2011 WL 3671969 (App. Aug. 22, 2011) (SDO). The SDO affirmed the District Court of the First Circuit's August 11, 2011 Order and Notice of Entry of Order. The District Court *fn1 adjudged Yamahata guilty of Operating a Vehicle Under the Influence of an Intoxicant "OVUII," in violation of Hawaii Revised Statutes ("HRS") § 291E-61(a)(1) and (a)(3).*fn2 We accepted Yamahata's application for writ of certiorari and now affirm the ICA's Judgment on Appeal.
On certiorari, Yamahata contends that the ICA gravely erred in holding that mens rea need not be alleged in either an HRS § 291E-61(a)(1) or an HRS § 291E-61(a)(3) charge. In State v. Nesmith, we recently held that (1) mens rea must be alleged in an HRS § 291E-61(a)(1) charge in order to provide fair notice of the nature and cause of the accusation; and (2) mens rea need not be alleged (or proven) in an HRS § 291E-61(a)(3) charge, as the legislative intent to impose absolute liability for an HRS § 291E-61(a)(3) offense plainly appears. State v. Nesmith, ___ Hawaii ___, ___ P.3d ___ (2012). Accordingly, the ICA gravely erred in holding that mens rea need not be alleged in an HRS § 291E-61(a)(1) charge. Therefore, Yamahata's HRS § 291E-61(a)(1) charge was deficient for failing to allege mens rea. However, the District Court adjudged Yamahata guilty of violating both HRS §§ 291E-61(a)(1) and (a)(3). Subsections (a)(1) and (a)(3) can each serve as the basis for a conviction under HRS § 291E-61. See State v. Grindles, 70 Haw. 528, 530-31, 777 P.2d 1187, 1189-90 (1989); State v. Caleb, 79 Hawaii 336, 339, 902 P.2d 971, 974 (1995); State v. Mezurashi, 77 Hawaii 94, 98, 881 P.2d 1240, 1244 (1994). Insofar as the HRS § 291E- 61(a)(3) charge was sufficient, and insofar as Yamahata does not challenge the sufficiency of the evidence as to that basis, his conviction still stands.
IT IS HEREBY ORDERED that the ICA's Judgment on Appeal is affirmed.
/s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ James E. Duffy, Jr. ...