October 25, 2013
STATE OF HAWAI'I, Plaintiff-Appellee,
EMMANUEL DAGUPION, Defendant-Appellant
This decision is published in table format in the Pacific and Hawai'i reporter
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT. (Wahiawa Division). CASE NO. 1DTC-11-018379.
On the briefs: Cherylann Miyamoto, Deputy Public Defender, for Defendant-Appellant.
Brandon H. Ito, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
Nakamura, Chief Judge, and Fujise and Reifurth, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Emmanuel Dagupion (Dagupion) appeals from the Judgment filed on March 15, 2012, in the District Court of the First Circuit (District Court).  Dagupion was charged with excessive speeding for exceeding the applicable speed limit by 30 miles per hour or more, in violation of Hawaii Revised Statutes (HRS) § 291C-105(a)(1) and (c)(1) (2007 & Supp. 2012). Dagupion did not object to the sufficiency of the excessive speeding charge in the District Court. After a bench trial, he was found guilty as charged.
On appeal, Dagupion argues that: (1) the excessive speeding charge was defective and infringed upon his right to due process because if failed to allege a mens rea; and (2) the prosecution failed to lay a sufficient foundation for the District Court to admit the police officer's testimony regarding the speed reading from his laser gun.
The Hawai'i Supreme Court's recent decision in State v. Apollonio, SCWC-11-0000695, 130 Haw. 353, 311 P.3d 676, 2013 WL 5574921 (Hawai'i Oct. 10, 2013), provides controlling authority for our decision in Dagupion's case. Based on Apollonio, we conclude that " the charge omitted the requisite state of mind, and therefore it cannot be 'reasonably construed to state an offense.'" 2013 WL 5574921, at *5 (citation and brackets omitted). Because the charge was deficient for failing to allege a mens rea, we vacate Dagupion's conviction and remand the case with instructions to dismiss the charge without prejudice. 2013 WL 5574921, at *5. In light of our resolution of Dagupion's claim that the charge was defective, we do not address his claim that an inadequate foundation was laid for the admission of testimony regarding the laser gun speed reading.
We vacate the District Court's Judgment and remand the case with instructions to dismiss the excessive speeding charge without prejudice.