CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000344; CASE NO. 2DTC-10-003203)
James S. Tabe for petitioner
Renee Ishikawa Delizo, (on the briefs) for respondent
Acoba, McKenna, and Pollack, JJ; with Recktenwald, C.J., dissenting, with whom Nakayama, J., joins
SUMMARY DISPOSITION ORDER
Petitioner/Defendant-Appellant Roger A. Pai (Petitioner) seeks review of the January 9, 2013 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its November 26, 2012 Summary Disposition Order, affirming the Judgment entered on March 21, 2011 by the District Court of the Second Circuit (the court). Petitioner was convicted by the court of Excessive Speeding in violation of the Hawai'i Revised Statutes (HRS) § 2910105(a) (2) (Supp. 2010) and No Motor Vehicle Insurance in violation of HRS § 431:100104 (2005). On appeal to the ICA, Petitioner contended that the Respondent/Plaintiff-Appellee the State of Hawai'i (the State) did not establish, first, "that the laser gun was tested according to manufacturer recommended procedures and determined to be operating properly prior to its use, " and second that ", the nature and extent of the citing officer's training in the operation of the laser gun meets the requirements indicated by the manufacturer.'" (Quoting State v. Assaye, 121 Hawai'i 124, 213-15, 216 P.3d 1227, 1236-38 (2009).) Petitioner also maintained that the State did not demonstrate "that the laser gun had been inspected and serviced in a manner directed by the manufacturer."
On November 26, 2012, the ICA issued its SDO affirming the court's Judgment, only addressing (1) whether the laser gun was tested or determined to be working properly in accordance with the manufacturer's recommended procedures, (2) whether the Officer's training met the manufacturer's requirements, and (3) whether the laser gun was inspected and serviced by the manufacturer.
In his Application, Petitioner contends that "the ICA's order affirming [her] conviction constitutes an obvious inconsistency with . . . State v. Nesmith, 127 Hawai'i 48, 276 P.3d 617 (2012)[, ]" and "the ICA gravely erred in holding that the State laid sufficient foundation for the admission of the laser gun reading." Petitioner challenges the sufficiency of the charge in the Amended Complaint for the first time in his Application. The Amended Complaint in this case did not allege the state of mind that the State was required to prove for the charge of excessive speeding against Petitioner. Because HRS §§ 2910105(a)(1), 2910105(a)(2), and 2910105 (c) (1) do not specify the requisite state of mind, HRS § 702-204 applies, which provides: "When the state of mind required to establish an element of an offense is not specified by the law, that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly."
In State v. Maharaj, No. SCWO29520, 2013 WL 6068086, at *5 (Haw. Nov. 18, 2013), we reaffirmed the "core principle" set out in State v. Apollonio, 130 Hawai'i 353, 311 P.3d 676 (2013), that a charge that fails to allege the requisite state of mind must be "''dismissed without prejudice because it violates due process.'" Id. (quoting Apollonio, 130 Hawai'i at 359, 311 P.3d at 682). We also held that the requisite state of must be alleged as an "essential fact" under Hawai'i Rules of Penal Procedure Rule 7(d). Thus, inasmuch as the Amended Complaint against Petitioner failed to allege the requisite state of mind that also was an essential fact of the offense of excessive speeding, the Amended Complaint must be dismissed without prejudice. Id. at *5.
IT IS HEREBY ORDERED that the January 9, 2013 judgment of the ICA and the March 21, 2011 Judgment of the court are vacated, and this case is remanded to the court with instructions to dismiss the Excessive Speeding charge without prejudice.
RECKTENWALD, C.J., IN WHICH NAKAYAMA, J.
For the reasons set forth in my dissenting opinion in State v. Apollonio, 130 Hawai'i 353, 364-371, 311 P.3d 676, 687-694, I respectfully dissent from the majority's conclusion that the lack of a mensrea allegation in the charge requires that the case be dismissed without prejudice despite the defendant's untimely objection to the sufficiency of the charge. In my view, where a defendant does not object to a deficient charge in the trial court, the defendant is required to show how he or she was prejudiced by the error. In ...