October 10, 2013
STATE of Hawaii, Respondent/Plaintiff-Appellee,
Ricardo APOLLONIO, Petitioner/Defendant-Appellant.
Craig W. Jerome, (James A. Tabe on the application), for petitioner.
Brandon H. Ito, for respondent.
ACOBA, McKENNA, and POLLACK, JJ., with RECKTENWALD, C.J., concurring and dissenting, with whom NAKAYAMA, J., joins.
[130 Hawai'i 354] We hold that because the charge of Excessive Speeding, Hawaii Revised Statutes (HRS) § 291C-105(a)(1) (Supp.2010), against Petitioner/ Defendant-Appellant Ricardo Apollonio (Petitioner) did not allege that Petitioner acted intentionally, knowingly, or recklessly it failed to allege the requisite state of mind. State v. Nesmith, 127 Hawaii 48, 56, 276 P.3d 617, 625 (2012). Therefore, for the reasons stated herein, we vacate the August 22, 2012 judgment of the ICA, which affirmed the August 23, 2011 Notice of Entry of Judgment and/or Order and Plea/Judgment of the district court of the first circuit  (the court) and the court's aforesaid judgment, and remand the case to the court for dismissal without prejudice. Because of the likelihood of retrial, we also conclude that Respondent/Plaintiff-Appellee State of Hawaii (Respondent) failed to lay an adequate foundation to admit the laser instrument (laser gun or laser) reading of Petitioner's vehicle's speed into evidence.
[130 Hawai'i 355] I.
On August 23, 2011, Petitioner was orally arraigned and charged in the court with excessive speeding, as aforesaid. The charge alleged as follows:
On or about July 1st, 2010, in the City and County of Honolulu, State of Hawaii, you did drive a motor vehicle at a speed exceeding the applicable state or county speed limit by 30 miles per hour or more by driving 76 miles per hour in a 35-mile-per-hour zone, thereby violating Section 291C-105, subsection (a)(1)(C)(  ) of the [HRS], as you have had one prior conviction within a five-year period.
Petitioner did not object to the oral charge.
The HPD officer involved (the officer) testified that on July 1, 2010, he cited Petitioner for excessive speeding. On that date, a LTI 20-20 laser gun was used to measure the speed of Petitioner's vehicle.
The officer was trained in October 2006 by Sergeant Ryan Nishibun. His training consisted of " class work, going over the operator's manual, and hands-on time with the laser itself." He maintained that the operator's manual was " provided by [LTI]." Defense counsel objected to this testimony due to " lack of personal knowledge and hearsay." The court overruled the objection, stating that " those issues have been resolved in some other case." 
According to the officer, the manual stated that four tests  were necessary to establish that the laser gun was working properly. All four tests were performed on the date in question and indicated the laser was working properly. The officer stationed himself on the shoulder of Kamehameha Highway south of Punalau Place. The speed limit in the area was thirty-five miles per hour (mph). His laser gun indicated that Petitioner's vehicle was traveling at a speed of 76 mph. Based on the speed reading, Petitioner's vehicle was stopped and Petitioner cited.
On cross-examination, the officer explained that the people who trained him were " all HPD officers," and that " there was nobody from LTI present." He related that the front cover of the manual " may have" had the HPD emblem stamped on it. The manual was provided by an HPD officer. He " [did not] know the person who wrote the manual," and " [did not] know" if the manual was " written or compiled by the [HPD]."
Based on this testimony, Petitioner renewed his motion to strike the speed reading based on a lack of foundation. Petitioner argued that the officer " [did] not recall what the manual looks like," " [did] not know who prepared the manual," and was " not able to say where or what the manual was prepared in accordance with." The court rejected the motion, stating that " [t]he court has also heard that that was [sic] the manuals provided by HPD in conjunction with LTI as part of [the officer's] training at the [police] academy. So the court will give it its due weight."
Petitioner continued cross-examination " with a few questions based on the court's ruling." The officer indicated he " assume[d] that somebody [from LTI] had to have provided [the manual]," but that he " [did not] know personally whether anybody from LTU [130 Hawai'i 356]
provided these manuals to [HPD]." (Emphases added). Further, " [w]hen [he] testified on direct examination [that he was] ... trained in accordance with the manual that LTI provided, that was just based on [his] assumption that somebody from LTI must have provided [the manual]." (Emphasis added.) Petitioner then asked the witness about the maintenance of the laser gun. The officer testified that he had " no idea" if there were " any software upgrades that would have been provided" for the laser gun.
On redirect examination, the officer testified that he " pass[ed] the [training] course" provided by HPD, and was " qualified to use the [laser gun]." Defense counsel objected that the officer did not have personal knowledge regarding whether or not he was qualified. The court overruled the objection. Petitioner conducted recross-examination and then renewed his motion to strike, arguing that the officer " has no personal knowledge [of] who provided the manual." The court again denied the motion.
Petitioner testified that on July 1, 2010, he was traveling northbound on Kamehameha Highway. He explained that before being pulled over he was " looking at his [speedometer] the whole time" and that he was never traveling faster than 60 mph. He also recounted that he was speeding because " he had to [use] the bathroom really bad." On cross-examination, Petitioner admitted that he did not know whether his speedometer was working properly.
In closing argument, Petitioner stated " that [the officer] testified on direct that he was trained in accordance with the manufacturer's specification[s]," but that on cross-examination, [the officer] admitted that " he had no personal knowledge as to whether or not he actually was." Petitioner also contended that the excessive speeding statute required Respondent to demonstrate that Petitioner recklessly traveled 30 mph faster than the speed limit, and because Petitioner testified that his speedometer indicated he was traveling at 60 mph, Respondent had not established that Petitioner was reckless as the statute required.
The court found Petitioner guilty as charged, holding that it " heard credible testimony from [the officer] regarding his training and qualifications," and that the officer " followed the manufacturer's instructions" to ensure that the laser gun was working properly. Addressing mens rea, the court found that the relevant state of mind was " intentional, knowing, or reckless," and that " the court can infer from the circumstances that traveling at that speed, at the minimum, is reckless."
Petitioner appealed to the ICA. According to Petitioner, the only evidence introduced regarding the manufacturer's recommendations for testing the laser gun or training officers was provided by the manual, and the officer did not have personal knowledge that the manual was provided by LTI. On this basis, Petitioner argued that Respondent failed to lay an adequate foundation for introducing the speed reading from the laser gun.
Petitioner also maintained that an adequate foundation was not laid because State v. Manewa, 115 Hawaii 343, 167 P.3d 336 (2007), required Respondent to introduce evidence that " the instrument has been inspected and serviced as required by the manufacturer." (Citing State v. Assaye, 121 Hawaii 204, 217, 216 P.3d 1227, 1240 (2009) (Acoba, J. concurring).)
The ICA held that adequate foundation had been established to admit the speed reading. The ICA noted that the officer received eight hours of training from the HPD, " confirmed that during training he was provided with a training manual, which he acknowledged was provided by [LTI]" and testified that during training he was " taught [four] tests recommended by the manufacturer [130 Hawai'i 357]
to determine whether the laser was working properly." State v. Apollonio, No. CAAP-11-0000695, 128 Hawaii 129, 2012 WL 2894715, at *2 (App. July 16, 2012). According to the ICA, " [e]vidence from [the officer's] testimony" " confirmed that he performed these four tests on the laser gun on July 1, 2010, and that the results of the tests indicated that the laser was operating correctly." Id.
Further, the officer explained that the manual he received as a part of his training " ‘ said Operator's Manual, LTI 20-20 Operator's Manual,’ " although " [the officer] later agreed that the manual cover may also have stated ‘ Honolulu Police Department’ [or contained an HPD logo]." Id. He " could not definitely say that the manual was not written or compiled by HPD." Id. The ICA concluded that, " [i]n light of the foregoing, the officer's testimony was sufficient to establish that ‘ the nature and extent of [his] training ... meets the requirements indicated by the manufacturer.’ " Id. (Quoting Assaye, 121 Hawaii at 215, 216 P.3d at 1238.)
Addressing Manewa, the ICA held that once the laser is tested in accordance with procedures recommended by the manufacturer, " the Assaye majority did not require any further showing of inspection and service as required by the manufacturer." Id. Therefore, the ICA rejected Petitioner's argument that Respondent was required to demonstrate that the manufacturer had properly serviced the laser gun. Id.
Petitioner presents the following questions in his Application:
1. Whether the ICA's order affirming [Petitioner's] conviction constitutes an obvious inconsistency with [this court's] April 12, 2012 decision in [ Nesmith, 127 Hawaii 48, 276 P.3d 617].
2. Whether the ICA gravely erred in holding that [Respondent] laid sufficient foundation for the admission of the laser gun reading.
On November 7, 2012, Respondent filed a Response to Petitioner's Application (Response). On November 13, 2012, Petitioner filed a Reply.
In connection with his first question, Petitioner argues that " [t]he oral charge [ ] failed to allege the intentional, knowing, and reckless states of mind required to alert the defendant[ ] of precisely what [he] needs to defend against to avoid a conviction."  (Citing Nesmith, 127 Hawaii at 56, 276 P.3d at 625.) Additionally, Petitioner argues that " the oral charge was fatally defective under Hawaii Rules of Penal Procedure (HRPP) Rule 7(d),"  because " state of mind was an ‘ essential fact,’ which was required to be alleged." Finally, according to Petitioner, due to the lack of mens rea in the charge, " the [ ] court lacked jurisdiction over the case." (Citing State v. Cummings, 101 Hawaii 139, 142, 63 P.3d 1109, 1112 (2003).)
In its Response, Respondent argues that " [t]he Nesmith majority's holding that mens rea must be alleged in a charge was based on its reasoning that ‘ a charge omitting the mens rea requirements would not alert a defendant that negligently operating a vehicle under the influence of an intoxicant ... for instance is not an offense recognized [by statute].’ " (Quoting Nesmith, 127 Hawaii at 56, 276 P.3d at 625.) " In other words," Respondent contends, Nesmith held that the " state of mind must be included in the charge to ‘ alert the defendants [ ] [of] precisely what they needed to defend against to avoid a [130 Hawai'i 358]
conviction.’ " (Quoting Nesmith, 127 Hawaii at 56, 276 P.3d at 625.)
Respondent observes that Petitioner's " defense was that he was never aware that he was driving his vehicle more than sixty [mph]." According to Respondent, Petitioner's counsel stated the correct state of mind requirements during closing argument and noted that " this is not a negligence case." Respondent argues that, therefore, Petitioner " was clearly aware of precisely what he needed to defend against [to avoid] a conviction." Thus " his constitutional rights were not adversely affected." 
In Nesmith, this court cited with approval Elliott, in which the petitioner had challenged the sufficiency of the oral charge for the first time on appeal, arguing that the oral charge did not include a mens rea element. Nesmith, 127 Hawaii at 56, 276 P.3d at 625 (" [Elliott ] provides an illustration of how omission of facts in a charge can render a charge deficient." ) Nesmith stated that, as a result, Elliott " liberally reviewed the oral charge in favor of its validity." Id. However, " [e]ven under a liberal review, [this court] held [in Elliott ] that the charge could not be reasonably construed to state the offense of resisting arrest," because " the requisite state of mind was omitted." Id.
In this case, as in Elliott, Petitioner challenged the sufficiency of the oral charge for the first time on appeal, and therefore the charge must be construed liberally in favor of its validity. Id. As in Elliott, the instant charge omitted the requisite state of mind. Analogous to Elliott, then, the excessive speeding charge cannot be " reasonably construed to state an offense." Id. Nesmith therefore mandates dismissal without prejudice. Id.
Respondent argues that Nesmith supports a contrary result, because Nesmith holds that a charge is only deficient if defendants lack the notice necessary to avoid a conviction. In State v. Elliott, however, this court noted that the defendant " has not indicated how she was surprised or prejudiced by the omissions, and the record does not show that she was hampered in her defense." 77 Hawaii 309, 311, 884 P.2d 372, 374 (1994) (brackets omitted). Nevertheless, Elliott held that " with respect to the resisting arrest count, the requisite state of mind was omitted from the charge," and therefore " the oral charge at issue [was] fatally defective." Id. at 313, 884 P.2d at 376. Similarly, in this case, the charge omitted the requisite state of mind, and therefore it cannot be " reasonably construed to state [an] offense." Id.
Less than ten months ago this court, in a unanimous opinion, held that the failure to allege a requisite state of mind results in dismissal without prejudice:
In Nesmith, this court reasoned that ‘ state of mind requirements, though not an element of an offense’ were required to be included in the charges against the defendants in order ‘ to alert the defendants of precisely what they needed to defend against to avoid a conviction.’ 127 Hawaii at 56, 276 P.3d at 625 (internal quotation marks and citations omitted). Nesmith held that [if a] state of mind [is not] included in a charge[ ] the case [is] dismissed without prejudice. Id. at 54, 276 P.3d at 623. Because the charge here did not contain the requisite state of mind, as the State concedes, Nesmith mandates dismissal without prejudice.
Due to the likelihood of retrial, Petitioner's argument that Respondent failed to lay an adequate foundation for the introduction of the speed reading from the laser gun may be addressed in part to prevent future error. In order to lay an adequate foundation for the speed reading from a laser gun, the State must demonstrate (1) that the accuracy of the laser gun was tested according to procedures recommended by the manufacturer, Assaye, 121 Hawaii at 213, 216 P.3d at 1236, and (2) that " the nature and extent of an officer's training in the operation of a laser gun [met] the requirements indicated by the manufacturer." Id. at 215, 216 P.3d at 1238. Petitioner argues that neither requirement was satisfied here. He also asserts that Respondent failed to introduce evidence that the laser gun was " inspect[ed]" or service[d] by the manufacturer," as required by Manewa, 115 Hawaii at 354, 167 P.3d at 347.
Petitioner advances three arguments suggesting that, under the first prong of the Assaye test, Respondent did not establish that the laser gun was tested in accordance with the manufacturer's recommendations. First, Petitioner argues that the officer's knowledge of the four tests was based upon " reading the manual that was never offered or admitted into evidence." Thus, according to Petitioner, " his testimony was based upon hearsay [[]— the contents that he obtained from the manual were statements, other than statements made by him while testifying, offered to prove the truth of the matter asserted— that the manufacturer, LTI, recommended these four tests to ensure that the device was in proper working order."
Second, Petitioner argues that " [the officer] assumed the manual was published by LTI," but he was " trained by an HPD officer, he received the manual from the training officer, and the manual's cover was imprinted only with the words ‘ Operator's Manual’ and possibly an HPD logo." Additionally, " [the officer] admitted that he did not know who provided the manual to HPD, whether the [130 Hawai'i 360]
manual was written or compiled by HPD, and that he never met anyone from LTI." Petitioner declares that thus, " [the officer's] testimony that the tests were recommended by the manufacturer should not have been admissible for lack of personal knowledge."
Third, Petitioner contends that the best evidence rule required Respondent to introduce the manual itself into evidence. According to Petitioner, HRE Rule 1002 states that " ‘ to prove the content of a writing ... the original writing ... is required’ " and here " the content of the manual was the very evidence the State relied upon to establish that LTI had recommended the four tests."
Regarding training under the second prong of the Assaye test, Petitioner argues that Respondent " failed to adduce any evidence as to whether the [officer's] training ... met the requirements indicated by the manufacturer. In fact, [Respondent] did not present any evidence as to what LTI even requires in the training in the operation [sic] of the laser gun." (Emphasis in original.)
Finally, with respect to Manewa, Petitioner asserts that this court held that an inadequate foundation was laid when a chemist " lacked the personal knowledge that an [analytical balance] had been properly calibrated," and " merely assumed that the manufacturer's service representative had done so." Petitioner then cites the concurring opinion in Assaye as holding that " Manewa ‘ requires not only that the State show that there is an accepted manufacturer's procedure ... but also to show that the instrument has been inspected and serviced as required by the manufacturer.’ " (Quoting Assaye, 121 Hawaii at 217, 216 P.3d at 1240 (Acoba, J., concurring).)
In its Response, Respondent argues that all of Petitioner's evidentiary arguments other than its personal knowledge objection are waived, because they were not raised before the ICA. As to personal knowledge, Respondent relies on the arguments made before the ICA, where it maintained that the officer's testimony that the manual was provided by LTI was a " reasonable inference," and that other evidence linked LTI to the manual, such as the fact that the laser gun was manufactured by LTI and the title of the manual was the " LTI 20-20 Operator's Manual."
Further, Respondent contends that " [Petitioner's] exact argument [regarding the best evidence rule] was recently rejected in another case." (Citing State v. Jervis, No. 30463, 125 Hawaii 30, 2011 WL 1713501 (App. May 5, 2011) (SDO).) In Jervis, the ICA reasoned that the best evidence rule did not apply because " [the officer's] testimony about the manual was not adduced to prove the contents of the manual, but rather to establish foundation for his testimony." Jervis, 2011 WL 1713501 at *1 (citing Fireman's Fund Ins. Co. v. Stites, 258 F.3d 1016, 1023 (9th Cir.2001); Smith v. Atlantic Richfield Co., 814 F.2d 1481, 1486 (10th Cir.1987); United States v. Carlock, 806 F.2d 535, 551 (5th Cir.1986); Lang v. Cullen, 725 F.Supp.2d 925, 953-54 (C.D.Cal.2010)).
With respect to Manewa, Respondent argued that there, this court held that the State had established that a " [Gas chromatograph mass spectrometer]" was working properly because an expert " testified that he personally conducted a ‘ routine check’ ‘ each and every morning’ ‘ to ensure that all the parameters are within the manufacturer's specifications.’ " (Quoting Manewa, 115 Hawaii at 354, 167 P.3d at 347.) Respondent contended that, therefore, establishing that a " routine check" was performed is enough to establish that a device is working. Lastly, Respondent maintained that in the instant case " it was never established at trial whether there was in fact a manufacturer's service representative who periodically calibrated the laser gun," and in the absence of such evidence " the State is not required to show that the laser gun ‘ had been properly calibrated [130 Hawai'i 361]
by the manufacturer's servicing representative.’ " (Quoting Manewa, 115 Hawaii at 354, 167 P.3d at 347.)
Petitioner argues that " [a]bsent [the officer's] assumption that LTI might have provided the manual ... there is nothing in evidence to support that [the tests used to verify the gun's accuracy] were recommended by LTI." We conclude that in this respect, admission of the officer's testimony as evidence was wrong. See Kealoha v. County of Hawai ‘ i, 74 Haw. 308, 319-20, 844 P.2d 670, 676 (1993) (" When application of a particular evidentiary rule can yield only one correct result, the proper standard for appellate review is the right/wrong standard." ).
HRE Rule 602 provides that " [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." The Commentary to HRE Rule 602 explains that, " ‘ Personal knowledge,’ for purposes of this rule, means that the witness perceived the event about which he testifies." In other words, witnesses may not testify based on " guesswork" or " speculation," such as when the witness concludes that a fact " must have" been true. See Addison M. Bowman, Hawaii Rules of Evidence Manual § 602-1 (2012) (hereinafter Bowman, HRE Manual ).
Here, the officer's testimony that the manual was provided by LTI was based on " guesswork" and " speculation." As he acknowledged, the officer did not " know personally whether anybody from LTI provided [the] manual[ ]," but " assumed that somebody from LTI must have provided it." The only individuals present during the officer's training were HPD officers. The manual was provided by " the traffic division instructors that were training [the officer]." Thus, " nobody from LTI gave [him] the manual." The officer recounted that he had " [n]ever met a representative from [LTI]." Finally, the officer confirmed that he " [didn't] know personally whether anybody from LTI provided these manuals to [HPD]." In other words, the officer had no personal knowledge that the manual was provided by LTI, or was an LTI manual.
Additionally, the officer's testimony regarding the manual's appearance did not connect the manual to LTI. " [T]he only thing that [he could] recall about the manual" was that it said " Operator's Manual" on its cover and that it " may have a[n] HPD logo." Although the officer did state that the manual's cover read " LTI 20-20 Operator's Manual," this indicated only that the manual concerned the laser gun designated " LTI 20-20," and not that LTI produced the manual. In sum, the officer provided no testimony as to the manual itself that would suggest that it was from LTI.
Finally, the officer conceded that he did not have personal knowledge regarding who wrote or compiled the manual. The officer did not know " if the manual ... that may or may not be stamped with the [HPD] logo was [130 Hawai'i 362]
[sic] written or compiled by the [HPD]." He did not " know the person who wrote the manual." The officer had no verifiable basis for concluding that the manual was provided by LTI.
Thus, nothing in evidence was " sufficient to support a finding" that the officer had personal knowledge of the fact as testified to on direct, see HRE Rule 602, that the manual was " provided by [LTI], the manufacturer of [the] LTI 20-20." Respondent itself noted that the officer's statement on direct examination was based on the inference that the manual " must have" been provided by LTI. Rule 602 prohibits precisely such an inference. That inference, without any basis in fact, must be categorized as guesswork. See Bowman, HRE Manual at § 602-1 (noting that the personal knowledge rule is violated when a witness concludes that a fact " musta," i.e., " must have," been true). Because the officer lacked personal knowledge that the manual was " provided by" LTI, there was no evidence establishing that the four tests performed by the officer were recommended by the manufacturer. Therefore, the court erred in concluding that the four tests were recommended by the manufacturer.
Respondent apparently maintains that even without the officer's testimony, the evidence supported the conclusion that the manual was provided by LTI, essentially because the laser gun was manufactured by LTI and the cover of the manual read " LTI 20-20 Operator's Manual." Contrary to the court's finding, there was no evidence connecting LTI to the manual itself. As discussed supra, the fact that " LTI" was in the manual's title indicated only that the manual concerned the laser designated " LTI 20-20," and not that LTI produced the manual. Evidence regarding the manual— the officer's testimony that the HPD logo was on the cover and that the manual was provided to him by an HPD officer— implied that the manual was compiled, not by LTI, but by the HPD. Hence, the court erred by concluding that the manual was provided by LTI.
Respondent's failure to link the manual to the laser gun's manufacturer resolves Petitioner's contention that Respondent failed to satisfy the first prong of Assaye. Petitioner's arguments regarding the hearsay rule and best evidence rule were not raised in Petitioner's Opening Brief before the ICA, and are therefore waived. Hawaii Rules of Appellate Procedure Rule 28(b)(7) (" Points not argued may be deemed waived." ).
Petitioner also asserts that Respondent failed to satisfy the second prong of Assaye, which requires the State to prove that an officer's training in the operation of a laser conformed to the manufacturer's requirements. 121 Hawaii at 215, 216 P.3d at 1238. To recount, Respondent argues as it did before the ICA that Assaye does not require the State to set forth the manufacturer's requirements for officer training, but instead " implicitly teaches that it is difficult to discern how anyone can use the laser gun properly without any training or instruction." (Emphasis in original.) The officer's testimony that he received eight hours of training, according to Respondent, met that requirement. To the contrary, Assaye held that the State must establish that an officer's training satisfied the laser manufacturer's requirements. 121 Hawaii at 215, 216 P.3d at 1238.
Logically, this requires a showing as to both (1) the training requirements set forth by the manufacturer, and (2) the training actually received by the operator of the laser gun. We have said before that this showing cannot be met simply by describing the officer's training. See id. at 215-16, 216 P.3d at 1238-39 (holding that although an [130 Hawai'i 363]
officer testified that he was " certified" after taking a " four hour class," the State " ha[d] not shown whether the training that [the officer] received [met] the requirements of the manufacturer of the laser gun" ) (internal quotations omitted). Consequently, Respondent could not demonstrate that the officer's training met the manufacturer's requirements because the only evidence of those requirements was the manual, and there was no evidence linking the manual to LTI.
Respondent also asserts that because in closing argument Petitioner " conceded that [the officer] testified on direct [examination] that he was trained in accordance with the manufacturer's specification," and that " the specification was derived from the manual itself," Petitioner cannot now argue that [the officer's] training was insufficient. But read in its entirety, Petitioner's closing argument demonstrates that Respondent's contention is incorrect. Petitioner argued that on cross-examination, the officer admitted that although he " testified on direct examination that he was trained in accordance with the manual that LTI provided," that " was just based on [his] assumption that somebody from LTI must have provided it." Thus, Petitioner's " concession" did not preclude the argument that the officer had only speculated as to who provided the manual upon which his training was based.
According to Petitioner, the concurring opinion in Assaye correctly interprets Manewa, and under the concurrence, Respondent must also demonstrate that the laser gun was serviced by a representative of the manufacturer to lay an adequate foundation for the speed reading taken from the laser gun. In this case, there is no clear evidence in the record with respect to the periodic servicing of the laser guns. Petitioner asked the officer whether the laser gun was under warranty and required periodic software updates, but he replied that he was " unaware" of any such requirement. Thus, Petitioner's question regarding Manewa need not be resolved here.
Based on the foregoing, the August 22, 2012 judgment of the ICA, which affirmed the court's August 23, 2011 Notice of Entry of Judgment and/or Order and Plea/Judgment and the court's aforesaid judgment are vacated and the case remanded to the court with instructions to dismiss the case without prejudice.
Concurring and Dissenting Opinion by RECKTENWALD, C.J., in Which NAKAYAMA, J., joins.
[130 Hawai'i 364] Defendant Ricardo Apollonio was charged with excessive speeding. Although the oral charge did not allege Apollonio's state of mind at the time of the incident, his trial counsel correctly recognized that the State was required to prove that Apollonio was, at the least, reckless, and argued at trial that the State had failed to carry that burden. Apollonio was convicted and appealed to the Intermediate Court of Appeals (ICA), which affirmed his conviction. At no time in the trial court or in the ICA did Apollonio challenge the sufficiency of the charge. It was not until the case reached this court that, for the first time, he contended that the charge was inadequate. He does not suggest how he was prejudiced by the lack of an allegation about his state of mind. He does not, for example, argue that he would have offered different evidence had the charge alleged the requisite state of mind. Nevertheless, Apollonio contends that his conviction should be set aside.
The majority holds that these circumstances warrant vacating the conviction in the instant case. Majority opinion at 354-55, 311 P.3d at 677-78. I respectfully dissent. In my view, when a defendant objects to the sufficiency of a charge for the first time on appeal, an appellate court's review of such a claim is limited to plain error. In other words, in order to obtain post-conviction relief, the defendant is required to show that he or she was prejudiced by the error. Here, the record clearly shows that Apollonio was aware of the requisite state of mind and thus suffered no prejudice from the lack of a mens rea allegation.
Apollonio was orally charged with Excessive Speeding as follows:
On or about July 1st, 2010, in the City and County of Honolulu, State of Hawaii, you did drive a motor vehicle at a speed exceeding the applicable state or county speed limit by 30 miles per hour or more by driving 76 miles per hour in a 35-mile-per-hour zone, thereby violating Section 291C-105, subsection (a)(1)(C)(ii) of the Hawaii Revised Statutes, as you have had one prior conviction within a five-year period.
Apollonio did not object to the sufficiency of the oral charge before the district court.
A bench trial was conducted and, during closing arguments, defense counsel argued that the State failed to prove the requisite state of mind:
[130 Hawai'i 365] [T]he second argument the defense would like to make is that the State has failed to prove beyond a reasonable doubt that— with regard to the— [ ] Apollonio's state of mind. Even in this case, it is reckless. Reckless as defined under the HRS is a conscious disregard for a substantial and unjustifiable risk. The defense is not contending that— [ ] Apollonio testified credibly that he looked at his speedometer, his speedometer said 60 miles per hour. This is not a negligence case. This is not anything— again, he had to have made a conscious disregard for a substantial and unjustifiable risk. The prosecutor asked him is there any— you know, do you assume it was working properly on that day? He answered candidly, yeah, I just assume it. And that is not— again, rise to the level of needed— of proving the state of mind beyond a reasonable doubt even when the state of mind is reckless. This is still a criminal proceeding. This is not a civil proceeding.
And so based on that, we ask that the court find [ ] Apollonio not guilty in these cases.
The district court found Apollonio guilty as charged. With regard to the requisite state of mind, the district court stated that " the court can infer from the circumstances that traveling at that speed, at the minimum, is reckless. So therefore, the court finds that [the] State has proved its case beyond a reasonable doubt."
Apollonio timely appealed, contending that the district court erred in admitting evidence of the laser gun reading. Apollonio did not challenge the sufficiency of the charge before the ICA. The ICA affirmed. State v. Apollonio, No. CAAP-11-0000695, 128 Hawaii 129, 2012 WL 2894715, at *3 (Haw.App. July 16, 2012).
In his application for writ of certiorari, Apollonio challenges for the first time the sufficiency of the charge. Specifically, Apollonio argues that the ICA's SDO constituted " an obvious inconsistency" with this court's decision in Nesmith, 127 Hawaii 48, 276 P.3d 617, which was decided while Apollonio's case was pending on appeal. Apollonio also argues that the oral charge was fatally defective under Hawaii Rules of Penal Procedure (HRPP) Rule 7(d) because " state of mind [was] an ‘ essential fact’ that must be alleged in a charging document[.]" Finally, Apollonio contends that the district court lacked jurisdiction over his case because the charge omitted the mens rea allegation. However, Apollonio does not argue that he did not understand the charge against him.
The State responds that Apollonio " was clearly aware of precisely what he needed to defend against to avoid a conviction" and therefore " his constitutional rights were not adversely affected." The State notes that Apollonio's " defense was that he was never aware that he was driving his vehicle more than sixty miles per hour" and that defense counsel stated the requisite state of mind during closing argument.
Apollonio did not argue in the district court or before the ICA that the charge was insufficient. If a defendant challenges the sufficiency of a charge for the first time on appeal, the charge shall be liberally construed in favor of its validity. See State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019-20 (1983); State v. Wells, 78 Hawaii 373, 381, 894 P.2d 70, 78 (1995); State v. Merino, 81 Hawaii 198, 212, 915 P.2d 672, 686 (1996).
A. The sufficiency of a charge is not jurisdictional
Apollonio argues, inter alia, that the lack of a mens rea allegation in the charge deprived the district court of jurisdiction over his case. Apollonio's contention lacks merit.
The term " jurisdiction" means a court's " statutory or constitutional power to adjudicate" a type of case. United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (emphasis omitted); see Black's Law Dictionary 927 (9th ed. 2009) (defining " jurisdiction" as, inter alia, " [a] court's power to decide a case or issue or decree" ). Article VI, section 1 of the Hawaii Constitution provides, in relevant part, that Hawaii courts " shall have original and appellate jurisdiction as provided by law[.]" Accordingly, the Hawaii legislature sets the [130 Hawai'i 366]
jurisdiction of the courts, and has done so by statute. The applicable statute here provides that
[d]istrict courts shall have jurisdiction of, and their criminal jurisdiction is limited to, criminal offenses punishable by fine, or by imprisonment not exceeding one year whether with or without fine. They shall not have jurisdiction over any offense for which the accused cannot be held to answer unless on a presentment or indictment of a grand jury.
HRS § 604-8(a) (Supp.2011).
The legislature also established territorial limitations on criminal jurisdiction, providing in relevant part that " a person may be convicted under the law of this State of an offense committed by the person's own conduct or the conduct of another for which the person is legally accountable if ... the conduct or the result which is an element of the offense occurs within this State[.]" HRS § 701-106(1)(a) (1993).
Outside of these parameters, a charging defect is not jurisdictional. Indeed, there is no language, in the constitution or Hawaii statutes, that bases a trial court's jurisdiction over criminal cases on the sufficiency of a charging instrument. Nevertheless, in State v. Cummings, 101 Hawaii 139, 142-43, 63 P.3d 1109, 1112-13 (2003), this court stated that the failure of a charging instrument to state an offense is a jurisdictional defect that cannot be waived. In that case, this court held that a complaint " failed to state a material element of [driving under the influence] that the prosecution was required to prove," and that it thus failed to state an offense. Id. at 145, 63 P.3d at 1115. Accordingly, this court stated, the district court lacked subject matter jurisdiction to preside over the case. Id. The Cummings court stated that " 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." Id. at 142, 63 P.3d at 1112. According to the Cummings court, such a defect is not " 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, and that is per se prejudicial." Id. at 143, 63 P.3d at 1113 (citations and quotation marks omitted).
However, a close examination of the authorities Cummings relied on calls into question its holding that an insufficient charge constitutes a jurisdictional defect. Cummings relied largely on this court's opinion in [130 Hawai'i 367]
State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977), for the proposition that " the omission of an essential element of the crime charged is a defect in substance rather than of form." Cummings, 101 Hawaii at 142, 63 P.3d at 1112. However, Jendrusch did not expressly state that an insufficient charge is a jurisdictional defect. Rather, Jendrusch stated that a charge lacking an essential element of the crime charged " amounts to a failure to state an offense," and characterized a conviction based upon such a defective charge as a " denial of due process." 58 Haw. at 281, 567 P.2d at 1244. Jendrusch also stated that the " [l]ack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding." Id. (emphasis added) (quoting Hawaii Rules of Criminal Procedure Rule 12 (1960)). Thus, to the extent that Jendrusch stated that the charge failed to state an offense, this court appeared to recognize the insufficiency of the charge as distinct from a jurisdictional defect. Moreover, in setting forth the proposition that such a defect warrants reversal even when challenged for the first time on appeal, the Jendrusch court cited federal precedent that is no longer followed since the United States Supreme Court's 2002 ruling in Cotton, 535 U.S. 625, 122 S.Ct. 1781, discussed infra. See Jendrusch, 58 Haw. at 281, 567 P.2d at 1244.
Cummings also cited Territory v. Gora, 37 Haw. 1, 6 (Terr.1944), which stated that a charge's failure to state an offense was a " jurisdictional point [.]" Cummings, 101 Hawaii at 142, 63 P.3d at 1112. However, the Gora court found that the defendant abandoned that point by not arguing it on appeal, and that he waived his challenge that the charge was insufficient because he did not object to the charges in the trial court. 37 Haw. at 6. Finding that such a challenge is waivable is inconsistent with the principle that an insufficient charge is a jurisdictional defect.
The Cummings court also relied on Chief Justice Peters' concurring opinion in Territory v. Goto, 27 Haw. 65, 103 (1923), which stated, inter alia, that an indictment " is essential to the court's jurisdiction." Cummings, 101 Hawaii at 142, 63 P.3d at 1112. The concurrence in part cites Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), which the United States Supreme Court expressly overruled in Cotton. See Cotton, 535 U.S. at 631, 122 S.Ct. 1781. Moreover, the majority in Goto held that the alleged defectiveness of the indictment in the case " is one which may be constitutionally waived." Goto, 27 Haw. at 74. Accordingly, on close examination, Cummings' assertion that an insufficient charge divests a trial court of jurisdiction is, respectfully, incorrect.
Moreover, this court's treatment of insufficient charge claims reflect principles contrary to the proposition that such an error constitutes a jurisdictional defect. For example, this court liberally construes and applies a presumption of validity to an allegedly deficient charge when the charge is challenged subsequent to a conviction. See, e.g., State v. Hitchcock, 123 Hawaii 369, 378, 235 P.3d 365, 374 (2010); State v. Sprattling, 99 Hawaii 312, 318, 55 P.3d 276, 282 (2002). This court has also held that, in determining the sufficiency of a charge, the court should examine all of the information provided to the defendant up to the time that he or she challenges the charge's sufficiency. See, e.g., State v. Treat, 67 Haw. 119, 120, 680 P.2d 250, 251 (1984) (" We think that in determining whether the accused's right to be informed of the nature and cause of the accusation against him has been violated, we must look to all of the information supplied to him by the State to the point where the court passes upon the contention that his right has been violated." (quoting State v. Robins, 66 Haw. 312, 317, 660 P.2d 39, 42-43 (1983))); Sprattling, 99 Hawaii at 319, 55 P.3d at 283 (" [I]n construing the validity of an oral charge, we are not restricted to an examination solely of the charge, but will interpret it in light of all of the information provided to the accused." (citing, inter alia, State v. Israel, 78 Hawaii 66, 70, 890 P.2d 303, 307 (1995))). Such further inquiry as described in the foregoing cases contradicts the proposition that an insufficient charge constitutes a jurisdictional flaw, as a jurisdictional defect would ordinarily mandate the automatic vacating of a conviction.
[130 Hawai'i 368] Indeed, many courts have abandoned the view that an insufficient charge constitutes a jurisdictional defect. The United States Supreme Court expressly rejected the contention that defects in a charging instrument may " deprive a court of its power to adjudicate a case." Cotton, 535 U.S. at 630, 122 S.Ct. 1781. At issue in Cotton was whether the omission from an indictment of a fact that enhanced the statutory maximum sentence warranted vacating the enhanced sentence, even though the defendant failed to object to the omission in the trial court. Id. at 627, 122 S.Ct. 1781. The Fourth Circuit Court of Appeals held that vacating the enhanced sentence was justified on the ground that " because an indictment setting forth all the essential elements of an offense is both mandatory and jurisdictional, a court is without jurisdiction to impose a sentence for an offense not charged in the indictment." Id. at 629, 122 S.Ct. 1781 (citation, ellipses, and emphasis omitted). The Supreme Court reversed. Id.
The Supreme Court expressly overruled its 1887 decision in Ex parte Bain, " the progenitor" of the view that a defective indictment deprives a court of jurisdiction. Id. at 629-31, 122 S.Ct. 1781. The Supreme Court explained that Bain " is a product of an era in which this Court's authority to review criminal convictions was greatly circumscribed." Id. at 629, 122 S.Ct. 1781. When Bain was decided, " a defendant could not obtain direct review of his criminal conviction in the Supreme Court[,]" and the " Court's authority to issue a writ of habeas corpus was limited to cases in which the convicting court had no jurisdiction to render the judgment which it gave." Id. at 629-30, 122 S.Ct. 1781 (citations and quotation marks omitted). Accordingly, the Supreme Court's " desire to correct obvious constitutional violations led to a somewhat expansive notion of ‘ jurisdiction,’ which was more a fiction than anything else[.]" Id. at 630, 122 S.Ct. 1781 (citations and some quotation marks omitted). The Supreme Court concluded that " Bain 's elastic concept of jurisdiction is not what the term ‘ jurisdiction’ means today, i.e., the courts' statutory or constitutional power to adjudicate the case." Id. (citation and some quotation marks omitted) (emphasis in original). Having overruled Bain and " [f]reed from the view that indictment omissions deprive a court of jurisdiction," the Supreme Court proceeded to examine the defendants' claim under plain error review. Id. at 631, 122 S.Ct. 1781.
Based on the foregoing, subject matter jurisdiction of the court and the sufficiency of the charge are two distinct concepts. Accordingly, an insufficient charge does not constitute a jurisdictional defect.
B. An untimely objection to the sufficiency of a charge should be reviewed only for plain error
Because a defect in a charging instrument does not divest a trial court of jurisdiction, a defendant who challenges the sufficiency of a charge is therefore subject to the same limitations as one who raises any nonjurisdictional error. Therefore, where a defendant [130 Hawai'i 369]
does not object to the sufficiency of the charge before the trial court, such a challenge is not preserved on appeal. Rather, a challenge to a charge for the first time on appeal should be reviewed for plain error; that is, an appellate court may recognize the error when it " affects substantial rights of the defendant." State v. Staley, 91 Hawai‘ 'i 275, 282, 982 P.2d 904, 911 (1999) (citation omitted). Accordingly, the defendant would be required to demonstrate that he or she was prejudiced by the allegedly defective charge. Cf. State v. Klinge, 92 Hawaii 577, 592-93, 994 P.2d 509, 524-25 (2000). In determining whether the defendant'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." Hitchcock, 123 Hawaii at 375, 235 P.3d at 379 (citations and emphasis omitted).
This approach is consistent with and recognizes the underlying purpose of a charge, which is to " apprise the accused of the charges against him [or her], so that [the accused] may adequately prepare his [or her] defense, and to describe the crime charged with sufficient specificity to enable [the accused] to protect against future jeopardy for the same offense." State v. Vanstory, 91 Hawaii 33, 44, 979 P.2d 1059, 1070 (1999) (internal quotation marks and citation omitted), superceded on other grounds by HRS § 134-6(c) (Supp.2002). " [T]he 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. Wheeler, 121 Hawaii 383, 391, 219 P.3d 1170, 1178 (2009) (quoting Wells, 78 Hawaii at 379-80, 894 P.2d at 76-77) (some brackets in original and some added). In other words, the charge " must be worded in a manner such ‘ that the nature and cause of the accusation [could] be understood by a person of common understanding[.]’ " Sprattling, 99 Hawaii at 318, 55 P.3d at 282 (quoting Israel, 78 Hawaii at 70, 890 P.2d at 307) (brackets in original). This mandate is established in article I, section 14 of the Hawaii Constitution, which requires that " [i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation[.]"
The foregoing approach would revise our current Motta / Wells post-conviction liberal construction standard, which mandates that a conviction based upon a defective charge will not be reversed " unless the defendant can show prejudice or that the indictment [or complaint] cannot within reason be construed to charge a crime." Merino, 81 Hawaii at 212, 915 P.2d at 686 (citation omitted) (emphasis added). Under the approach set forth here, this court should not reverse a conviction unless the defendant can show prejudice and that the charge cannot within reason be construed to charge a crime.
Such a revision of the liberal construction standard is appropriate given the jurisprudence that evolved since this court's adoption of the standard thirty years ago in Motta. The Motta court, in adopting the liberal construction standard, stated that it chose to adopt the rule " followed in most federal courts" and specifically cited cases in the first, second, sixth, ninth, and tenth circuit courts of appeals. 66 Haw. at 90-91, 657 P.2d at 1019-20. However, particularly following the United States Supreme Court's ruling in Cotton, all of the above federal circuits review belated challenges to the sufficiency of indictments— that is, challenges raised for the first time on appeal— only for plain error. See United States v. Troy, 618 F.3d 27, 34 (1st Cir.2010) (stating that the defendant's failure to challenge the sufficiency of the indictment " survives the government's waiver argument" but nonetheless " constitutes a forfeiture, which confines appellate review to plain error" ); United States v. Nkansah, 699 F.3d 743, 752 (2d Cir.2012) (stating that the omission of a requisite element in the indictment is reviewed for plain error when the challenge is raised after trial, and finding that even if the omission " constitutes error that is plain, it did not impact appellant's substantial rights" ); [130 Hawai'i 370]
United States v. Teh, 535 F.3d 511, 515-17 (6th Cir.2008) (reviewing claim that indictment failed to state an offense, not raised at trial, for plain error, and finding that although the indictment failed to charge an offense, the defendant was " unable to show the prejudice required to disturb his conviction" ); United States v. Leos-Maldonado, 302 F.3d 1061, 1064 (9th Cir.2002) (limiting review of an untimely objection to the sufficiency of the indictment to the plain error test and stating that " the error must be not only plain but also prejudicial" ); United States v. Sinks, 473 F.3d 1315, 1320-22 (10th Cir.2007) (upholding conviction, finding that because an element of an offense " was proven by overwhelming and essentially uncontroverted evidence, the failure to charge it does not rise to the level of plain error" ).
At least some state courts have also followed the United States Supreme Court's lead in Cotton and confined their review of late challenges to the sufficiency of the charge to plain error. See, e.g., Maldonado, 223 P.3d at 657 (" If a defendant does not object before trial, as occurred here, the state's failure to timely file an information will be reviewed on appeal only for fundamental error. To prevail under this standard, [the defendant] must establish that an error occurred, was fundamental in nature, and caused him prejudice." ); Peay v. United States, 924 A.2d 1023, 1029 (D.C.2007) (" [W]e conclude that plain error review is appropriate where an indictment omits an element of the offense for which a defendant is later convicted where there has been no objection." ).
Accordingly, I would hold that review of insufficient charge claims raised for the first time on appeal be limited to plain error review.
Under the plain error doctrine, " where plain error has been committed and substantial rights have been affected thereby, the error may be noticed even though it was not brought to the attention of the trial court." State v. Miller, 122 Hawaii 92, 100, 223 P.3d 157, 165 (2010). This court has held that it " will apply the plain error standard of review to correct errors which seriously affect the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights." Id. (citation and emphasis omitted). In other words, the error must have prejudiced the defendant's substantial rights. See Klinge, 92 Hawaii at 592-93, 994 P.2d at 524-25 (declining to find plain error where a challenged statement did not " prejudicially affect[ ] [the defendant's] substantial rights" ); State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1303 (1986) (" In light of the inconclusive evidence against Marsh, the particularly egregious misconduct of the prosecutor in presenting her personal views on the dispositive issues, and the lack of a prompt jury instruction specifically directed to the prosecutor's closing remarks, we hold that the prosecutor's conduct so prejudiced Marsh's right to a fair trial as to amount to ‘ plain error.’ " ); State v. Toro, 77 Hawaii 340, 347, 884 P.2d 403, 410 (App.1994) (" [E]ven where error occurs, there will be no reversal where on the record as a whole, no prejudice to appellant has resulted." (quoting State v. Nakamura, 65 Haw. 74, 80, 648 P.2d 183, 187 (1982))); see also Leos-Maldonado, 302 F.3d at 1064 (" In order to affect [the defendant's] ‘ substantial rights,’ the error ‘ must have affected the outcome of the District Court proceedings.’ In other words, the error must be not only plain but also prejudicial." (citations omitted)).
To determine whether a defect in a charge has prejudiced the defendant, the appellate court may consider not only the charge, but the record below. Sprattling, 99 Hawaii at 319, 55 P.3d at 283. When the record shows that the defendant actually knew the charges against him or her and/or had adequate notice of the charges against him or her to prepare a defense, the defendant's substantial rights have not been impaired; that is, no prejudice occurred. See Israel, 78 Hawaii at 71, 890 P.2d at 308 (agreeing that " if a defendant actually knows the charges against him or her, that defendant's constitutional right to be informed of the nature and cause of the accusation is satisfied," so long as " the record must clearly demonstrate the defendant's actual knowledge" ); Hitchcock, 123 Hawaii at 379, 235 P.3d at 375; Nkansah, 699 F.3d at 752 (" When notice adequate to allow [a defendant] to prepare a defense is [130 Hawai'i 371]
provided, omissions in the indictment do not affect substantial rights." (quotation marks and citation omitted)).
I believe that the foregoing framework preserves a defendant's due process rights while also providing defendants an incentive to object to the sufficiency of the charge before the trial court. Indeed,
a late challenge suggests a purely tactical motivation and is needlessly wasteful because pleading defects can usually be readily cured through a superseding indictment before trial. Additionally, the fact of the delay tends to negate the possibility of prejudice in the preparation of the defense, because one can expect that the challenge would have come earlier were there any real confusion about the elements of the crime charged. For all these reasons, indictments which are tardily challenged are liberally construed in favor of validity.
Leos-Maldonado, 302 F.3d at 1065 (citation omitted) (emphasis added).
For the foregoing reasons, I would review late challenges to the sufficiency of a charge only for plain error, and require a showing of prejudice before vacating a conviction.
C. Apollonio was not prejudiced by the defective charge
Based on the foregoing, I would not vacate Apollonio's conviction on the ground that the charge did not allege the requisite state of mind. As stated above, Apollonio never objected to the sufficiency of the charge before the trial court or even the ICA. Accordingly, his belated claim should be reviewed only for plain error.
Although the charge did not contain a mens rea allegation, a review of the record below clearly shows that Apollonio knew the state of mind that the State was required to prove. As stated above, defense counsel contended during closing arguments that the State failed to prove the requisite state of mind. Defense counsel argued, inter alia, that " [t]his is not a negligence case [,]" and that the State failed to prove beyond a reasonable doubt that Apollonio " made a conscious disregard for a substantial and unjustifiable risk." Such arguments by defense counsel clearly demonstrate that the defense was well aware of the requisite state of mind, despite the omission of a mens rea allegation from the oral charge.
Notably, Apollonio never alleged before the trial court, the ICA, or this court that he did not understand the nature and cause of the accusation, or that he was misled in any way. Rather, he made a conclusory argument to this court that plain error review was warranted " [i]nasmuch as the defective charge infringed upon [his] due process right to be informed of the nature and cause of the accusation against him, as well as his rights to a fair trial and complete defense[.]"
In sum, Apollonio has not demonstrated that he was prejudiced by the defective charge and thus has failed to show how the error affected his substantial rights. Accordingly, Apollonio's insufficient charge claim, raised for the first time before this court, does not constitute plain error. I would therefore hold that his conviction should not be vacated on this ground.