APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION (CASE NO. 1DTC-10-000141)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Leonard and Reifurth, JJ., and Foley, Presiding Judge, dissenting)
On August 30, 2010, the District Court of the First
Circuit ("District Court") *fn1 filed a Notice of Entry of Judgment
and/or Order and Plea/Judgment, in which it convicted Defendant- Appellant K.C. Loesch ("Loesch") of one count of Accidents Involving Damage to Vehicle or Property, in violation of Hawaii Revised Statutes ("HRS") § 291C-13 (Supp. 2011).*fn2 Loesch was sentenced to pay a $100 fine and two fees.
On appeal, Loesch argues that the District Court erred by (1) denying his motion to dismiss the charge on the basis that it failed to set forth the requisite state of mind and (2) convicting him based on findings that were "not only against the weight of the evidence, but unsupported by substantial evidence." Loesch also maintains that (3) his trial counsel was ineffective for failing to refresh the memory of the complaining witness with, or to otherwise introduce, a letter that allegedly documented prior inconsistent statements that she made to an insurance representative after the incident.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Loesch's points of error as follows:
On May 13, 2010, prior to his trial before the District Court, Loesch was orally charged:
[O]n or about January 4th, 2010, you, as the driver of a vehicle involved in an accident resulting only in damage to a vehicle or other property that is driven or attended by any other person, did fail to immediately stop the vehicle at the scene of the accident or as close thereto as possible and did fail to forthwith return to and in every even remain at the scene of the accident and fulfill the requirements of Section 291C-14 HRS, thereby committing the offense of Accidents Involving Damage to Vehicle Or Property, in violation of 291C-13 HRS.
Loesch's attorney moved to dismiss, arguing that the charge failed to state the requisite mens rea.*fn3 The District Court denied the motion. We hold that the District Court erred, and the motion should have been granted.
In support of our conclusion, we first must determine what HRS § 291C-13 requires the State to prove. Pursuant to HRS § 291C-13,
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. . .
HAW. REV. STAT. § 291C-13. HRS § 291C-13 does not, in itself, set forth the requisite mens rea. However, ...