August 26, 2013
STATE OF HAWAI'I, Plaintiff-Appellee,
JACOB HARGITT, Defendant-Appellant
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT WAHIAWA DIVISION (CASE NO. 1DTC-11-082323)
Summer M.M. Kupau, Deputy Public Defender, for Defendant-Appellant.
Brandon H. Ito, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff-Appellee.
Foley and Reifurth, JJ., with Nakamura, C.J., concurring separately.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Jacob A. Hargitt ("Hargitt") appeals from the Notice of Entry of Judgment and/or Order and Plea/Judgment filed on April 3, 2012 in the District Court of the First Circuit, Wahiawa Division ("District Court").
On appeal, Hargitt contends that (1) the District Court plainly erred by not dismissing the charge of Excessive Speeding because the charge was deficient for failing to allege the requisite mens rea, (2) the District Court abused its discretion by admitting evidence of a laser gun reading because the State failed to provide sufficient foundation for its admission, and (3) without the laser gun reading there was insufficient evidence to convict him of Excessive Speeding.
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 Hargitt's points of error as follows:
On December 1, 2011, Hargitt was issued a citation for Excessive Speeding, in violation of Hawaii Revised Statutes ("HRS") § 2910105(a)(1) and/or (a)(2) (Supp. 2011). On April 3, 2012, Hargitt was orally arraigned on the sole count of Excessive Speeding. The oral charge did not state the requisite mens rea for a charge of Excessive Speeding. Hargitt, however, did not object to the charge.
That same day, the District Court held a bench trial. Hargitt testified therein that, as a military police officer, he had been trained to use speed-detecting devices, including a device similar to that which Officer Jeremy Franks ("Officer Franks") used to clock his speed. Hargitt further testified that he had been traveling approximately 65 to 70 miles per hour when Officer Franks clocked his speed, and given that Officer Franks was roughly 900 feet away and several other cars were proximate to Hargitt's car, it was likely that Officer Franks had clocked a different vehicle. Hargitt also objected to the admissibility of the laser gun evidence. The District Court found Hargitt guilty as charged.
"HRS § 2910105(a) is not a strict liability offense, but instead requires that the State prove that a defendant acted intentionally, knowingly, or recklessly." State v. Gonzalez, 128 Hawai'i 314, 324, 288 P.3d 788, 798 (2012). A charge for violating HRS § 2910105(a) that does not state the requisite state of mind is insufficient pursuant to State v. Nesmith, 127 Hawai'i 48, 276 P.3d 617 (2012). Gonzalez, 128 Hawai'i at 324, 288 P.3d at 798.
"[W]hen a party raises an objection to the indictment for the first time on appeal the indictment is liberally construed." State v. Tominiko, 126 Hawai'i 68, 76, 266 P.3d 1122, 1130 (2011) (citing State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019 (1983)). "This standard means we will not reverse a conviction based upon a defective indictment unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime." Id. (quoting Motta, 66 Haw. at 91, 657 P.2d at 1020) (internal quotation marks omitted). The liberal construction approach applies to oral charges. State v. Hitchcock, 123 Hawai'i 369, 378, 235 P.3d 365, 374 (2010) (citing State v. Elliott, 77 Hawai'i 309, 311, 884 P.2d 372, 374 (1994)).
Under Motta's liberal construction approach, "one way in which an otherwise deficient count can be reasonably construed to charge a crime is by examination of the charge as a whole." Id. (quoting Elliott, 77 Hawai'i at 312, 884 P.2d at 375) (internal quotation marks and brackets omitted). Additionally, "in determining whether the accused's right to be informed of the nature and cause of the accusation against him [or her] has been violated, we must look to all of the information supplied to him [or her] by the State to the point where the court passes upon the contention that the right has been violated." Id. at 379, 235 P.3d at 375 (brackets in original) (quoting State v. Israel, 78 Hawai'i 66, 70, 890 P.2d 303, 307 (1995)) (emphasis omitted).
Upon review of the record on appeal here, the mens rea requirement was in no manner stated in the charge nor mentioned at any time prior to the District Court's pronouncement of Hargitt's guilt, whereupon it stated that Hargitt had acted with the requisite state of mind. We cannot reasonably construe the charge, even when considering all other information provided to Hargitt prior to the District Court's adjudication, as alleging that he committed the crime knowingly, intelligently, or recklessly. See Sabala, 2013 WL 1687547, at *2; Elliott, 77 Hawai'i at 313, 884 P.2d at 376. Thus, the charge cannot reasonably be construed to state a crime, even under the liberal construction standard. Therefore, the charge was deficient and must be dismissed without prejudice. Gonzalez, 128 Hawai'i at 324, 288 P.3d at 798.
IT IS HEREBY ORDERED that the Notice of Entry of Judgment and/or Order and Plea/Judgment filed on April 3, 2012 in the District Court of the First Circuit, Wahiawa Division, is vacated and the case is remanded with instructions to dismiss the case without prejudice.
In my view, a defendant should be required to show plain error when the defendant fails to object to the sufficiency of the charge in the trial court and raises the issue for the first time on appeal. See State v. Stone, No. 30059, 2012 WL 3791886, at *12-13 (Hawai'i App. Aug. 31, 2012) (Nakamura, C.J., concurring and dissenting). To show plain error, the defendant should be required to demonstrate that he or she was prejudiced by the alleged deficiency in the charge. See id. In this case, Defendant-Appellant Jacob A. Hargitt (Hargitt), who was represented by counsel, did not object to his excessive speeding charge in the trial court, and he challenges the charge for the first time on appeal. Hargitt does not show that he was prejudiced by the failure of the charge to allege the required mens rea.
However, under existing and controlling precedent, even absent any prejudice, Hargitt is entitled to have his conviction overturned if he can show that the charge "cannot within reason be construed to charge a crime." State v. Motta, 66 Haw. 89, 91, 657 P.2d 1019, 1020 (1983). Based on State v. Nesmith, 127 Hawai'i 48, 276 P.3d 617 (2012), I conclude that Hargitt's excessive speeding charge cannot within reason be construed to charge a crime. Accordingly, I concur in the result reached by the majority.