NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT (CASE NO. 3DTA-11-02033)
On the briefs:
Robert D.S. Kim for Defendant-Appellant
Jason R. Kwait Deputy Prosecuting Attorney County of Hawai'i for Plaintiff-Appellee
Foley, Presiding Judge, Leonard and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Michael Scheller (Scheller) appeals from the Judgment and Notice of Entry of Judgment, filed on January 24, 2012, in the District Court of the Third Circuit (district court).
On July 12, 2011, Scheller was charged by written complaint with Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(3) (Supp. 2012) (Count I), Accidents Involving Damage to Vehicle or Property, in violation of HRS § 291C-13 (Supp. 2012) (Count II), and Inattention to Driving, in violation of HRS § 291-12 (Supp. 2012) (Count III).
Counts II and III were dismissed with prejudice. Scheller was convicted of OVUII in violation of HRS § 2 91E-61(a) (1) .
On appeal, Scheller contends (1) the OVUII charge was deficient for failing to allege the requisite mens rea, and the district court failed to make a finding establishing the requisite state of mind for each element of offense (2) the district court failed to make a finding that Scheller operated a vehicle on a public way, street, road, or highway, and (3) the district court erred by denying his motion to dismiss for violation of Rule 48 of the Hawaii Rules of Penal Procedure.
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 Scheller's points of error as follows:
In State v. Nesmith, 127 Hawai'i 48, 56, 276 P.3d 617, 625 (2012), the Hawai'i Supreme Court held that the requisite mens rea must be alleged in a charge asserting a violation of HRS § 291E-61(a)(1) in order to provide fair notice of the nature and cause of the accusation. The OVUII charge against Scheller did not allege the requisite mens rea for a violation of HRS § 291E-61(a) (1) .
Appellee State of Hawai'i (State) argues that Scheller failed to challenge the sufficiency of the charge in the district court and raises it for the first time on appeal. The State thus argues that under State v. Motta. 66 Haw. 89, 657 P.2d 1019 (1983), Scheller's conviction should not be vacated unless he can show (a) prejudice or (b) that the, charge cannot within reason be construed to charge a crime.
Recently, in State v. Apollonio, 130 Hawai'i 353, 358-59, 311 P.3d 676, 681-82 (2013), and State v. Maharai, No. SCWC-29520, 2013 WL 6068086, at *4-5 (Haw. Nov. 18, 2013), a majority of the Hawai'i Supreme Court held that charges failing to allege the requisite mens rea should be dismissed without prejudice, even though the defendants in those cases challenged the charge for the first time on appeal. Applying the liberal construction standard, the supreme court held that because the respective charges in Apollonio and Maharai failed to state the required mens rea, the charges could not reasonably be construed to charge a crime. Apollonio, 130 Hawai'i at 358-59, 311 P.3d at 681-82; Maharai, 2013 WL 6068086, at *5. In both Apollonio and Maharai, the convictions on ...