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State v. Souleng

Intermediate Court of Appeals of Hawai'i

January 22, 2015

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
MICKENSIE P. SOULENG, Defendant-Appellant

As Amended February 18, 2015.

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION. (CASE NO. 1DTC-11-002605).

Pedric T. Arrisgado, Deputy Public Defender, for Defendant-Appellant.

James M. Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

NAKAMURA, CHIEF JUDGE, AND REIFURTH AND GINOZA, JJ.

OPINION

Page 885

[134 Hawai'i 466] NAKAMURA. C.J.

Plaintiff-Appellee State of Hawai'i (State) charged Defendant-Appellant Mickensie P. Souleng (Souleng) by complaint with the offenses of (1) Accidents Involving Bodily Injury, in violation of Hawai'i Revised Statutes (HRS) § 291C-12.6 (2007 & Supp. 2013); [1]

Page 886

[134 Hawai'i 467] and (2) Driving Without a License, in violation of HRS § 286-102 (2007 & Supp. 2010).[2] After a bench trial, the District Court of the First Circuit (District Court)[3] found Souleng guilty as charged of both offenses.

On appeal, Souleng argues that: (1) both charges against him were defective for failing to allege a mens rea; (2) the Accidents Involving Bodily Injury charge was additionally defective for failing to allege essential elements under HRS § 291C-14; (3) based on Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the District Court violated his constitutional right to confront witnesses against him by admitting, over Souleng's objection, a letter signed by the Supervising Driver License Clerk (Exhibit 2), certifying that Souleng lacked a valid driver's license on the date in question; (4) without Exhibit 2, there was insufficient evidence to prove the charged Driving Without a License offense; and (5) there was insufficient evidence to support his conviction for the offense of Accidents Involving Bodily Injury.

As explained below, we hold that: (1) the charges were defective for the reasons articulated by Souleng; (2) based on Melendez-Diaz, the District Court violated Souleng's Sixth Amendment confrontation rights by admitting Exhibit 2 without requiring the Supervising Driver License Clerk who signed it to testify; (3) without Exhibit 2, there was insufficient evidence to support Souleng's conviction for Driving Without a License; and (4) the State presented sufficient evidence to support Souleng's conviction for Accidents Involving Bodily Injury. We reverse Souleng's conviction for Driving Without a License. We vacate his conviction for Accidents Involving Bodily Injury, and we remand the case with instructions to dismiss the charge for Accidents Involving Bodily Injury without prejudice.

BACKGROUND

At trial, the State called Wencheslao Sabio (Sabio), the complaining witness with respect to the charge of Accidents Involving Bodily Injury. Sabio testified that he was at a friend's house on Kopke Street, drinking and talking story on the sidewalk, when a vehicle, driven by Souleng, backed up and hit him on the side of his leg and knee. According to Sabio, he shouted for the vehicle to stop and moved towards a chair, when the vehicle " hit me again, so I told 'em, 'Oh, you know how to drive or what?'" Sabio did not see the vehicle coming towards him until he first got hit. Sabio's friend, Antonio Abellanosa (Abellanosa), told a neighbor to call the police. Sabio was later taken to Kaiser Hospital, and although there were no further injuries, he experienced physical pain.

Sabio testified that the vehicle stopped after hitting him twice and that Souleng got out of the vehicle and spoke to Sabio. However, Souleng did not provide Sabio with Souleng's name, address, and insurance information. Souleng did not provide Sabio with any information, but got back into his car and drove away. Sabio testified that on the night of the incident, he had consumed two small cups of vodka, but was not intoxicated.

Sabio's friend, Abellanosa, testified that he lived on Kopke Street, and on the night of the charged incident, he was standing on the sidewalk in front of his house drinking with his friends when a vehicle backed up and " hit or bang" Sabio. Abellanosa did not know the driver's name, but identified Souleng in court as the driver. According to Abellanosa, he confronted Souleng and told Souleng that Souleng had struck Sabio, but Souleng responded that Sabio was " a liar [.]" Souleng did not give any information or offer to help Sabio, and when Abellanosa called the police, Souleng left. On cross-examination, Abellanosa testified that he had seen Souleng

Page 887

[134 Hawai'i 468] around before, but was not aware of where he lived.

At trial, the State offered Exhibit 2, which was a letter signed by Supervising Driver License Clerk Jacqueline Windrath as Custodian of Records for the Driver License Section. In the letter, Windrath certified, based on records of the Driver License Section, that " OUR RECORDS INDICATE THAT ON THE VIOLATION DATE, DEFENDANT DID NOT HAVE A VALID HAWAII DRIVER'S LICENSE." Windrath further certified and attested that the information in her letter was a " true, full, and correct summary of the voluminous original public records in the custody of the Driver License Section[.]" Souleng objected to Exhibit 2, arguing, among other things, that Exhibit 2 was testimonial and that its admission would violate his " [Sixth] Amendment right to confront the witness." The District Court, over Souleng's objection, admitted Exhibit 2 into evidence. Jacqueline Windrath, the person who signed the Exhibit 2 letter, did not testify.

The District Court found Souleng guilty of both the Driving Without a License and Accidents Involving Bodily Injury offenses, and it sentenced Souleng to fines totaling $400 and also imposed various fees and assessments. The District Court entered its Judgment on February 22, 2012, and this appeal followed.

DISCUSSION

I.

Souleng was charged with Accidents Involving Bodily Injury, in violation of HRS § 291C-12.6, .and Driving Without a License, in violation of HRS § 286-102. Souleng did not object to the charges in the District Court and is challenging the sufficiency of the charges for the first time on appeal. Because Souleng did not challenge the sufficiency of the charges until his appeal, we apply the liberal construction standard. State v. Tominiko, 126 Hawai'i 68, 76, 266 P.3d 1122, 1130 (2011). Under this standard, " 'we will not [vacate] a conviction based upon a defective [charge] unless the defendant can show ...


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