State ‘i v. Nesmith

• Decision Date: 22 June 2011
• Docket Number: No. CAAP–10–0000072.,CAAP–10–0000072.
• Citation: 125 Hawai'i 232,257 P.3d 245
• Parties: STATE of Hawai‘i, Plaintiff–Appellee,v.Kevin K. NESMITH, Defendant–Appellant.
• Court: Hawaii Court of Appeals

125 Hawai'i 232

257 P.3d 245

STATE of Hawai‘i, Plaintiff–Appellee,

v.Kevin K. NESMITH, Defendant–Appellant.

No. CAAP–10–0000072.

Intermediate Court of Appeals of Hawai‘i.

June 22, 2011.

Timothy I. MacMaster, on the briefs, for Defendant–Appellant.Delanie D. Prescott–Tate, Deputy Prosecuting Attorney City and County of Honolulu, on the briefs, for Plaintiff–Appellee.NAKAMURA, C.J., and REIFURTH, J.; with FOLEY, J., Concurring Separately.Opinion of the Court by NAKAMURA, C.J.

Defendant–Appellant Kevin K. Nesmith (Nesmith) was charged by 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. 2009),¹ as a firsttime offender under HRS § 291E–61(b)(1) (Supp.2009).² The question presented in this appeal is whether the complaint was insufficient because it failed to allege a mens rea. We hold that a complaint charging OVUII in violation of HRS § 291E–61(a)(1) or (a)(3) is not required to allege a mens rea to be sufficient.

I.

The complaint charged Nesmith as follows:

On or about the 7th day of January, 2010, in the City and County of Honolulu, State of Hawaii, KEVIN K. NESMITH did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty; and/or did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway with .08 or more grams of alcohol per two hundred ten liters of breath, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant, in violation of Section 291E–61(a)(1) and/or (a)(3) of the Hawaii Revised Statutes. KEVIN K. NESMITH is subject to sentencing as a first offender in accordance with Section 291E–61(b)(1) of the Hawaii Revised Statutes .

Prior to trial, Nesmith filed a Motion to Dismiss Re: Failure to Allege an Essential Fact (Motion to Dismiss). Nesmith asserted that an essential fact the prosecution was required to prove to establish the charged OVUII offense was that the defendant acted intentionally, knowingly, or recklessly. He argued that the complaint was deficient and must be dismissed because the complaint failed to allege a mens rea. Plaintiff–Appellee State of Hawai‘i (State) filed a memorandum in opposition to the Motion to Dismiss, arguing that Nesmith's state of mind was not an essential element of the charged OVUII offense and therefore did not need to be alleged for the complaint to be sufficient. The District Court of the First Circuit (District Court) ³ denied Nesmith's Motion to Dismiss. Nesmith was tried, found guilty, and sentenced. The District Court entered its Judgment on July 7, 2010.

II

On appeal, Nesmith argues that the complaint was insufficient because it failed to allege the required mens rea, namely, that he committed the offense intentionally, knowingly, or recklessly. He contends that this mens rea was an “essential fact” the complaint was required to state under Hawai‘i Rules of Penal Procedure (HRPP) Rule 7(d) (2008) ⁴ and that without a mens rea allegation, the complaint failed to provide adequate notice of the offense charged.

We hold that the complaint was sufficient. The statute defining the charged OVUII offense, HRS § 291E–61 (Supp.2009), does not specify a required state of mind. The complaint alleged all the essential elements of the charged OVUII offense ⁵ and provided Nesmith with fair notice of the offense charged. The complaint alleged that Nesmith committed the charged OVUII offense by two alternative means: (1) violating HRS § 291E–61(a)(1) and/or (2) violating HRS § 291E–61(a)(3). The complaint was not deficient for failing to allege a mens rea because: (1) with respect to the violation of HRS § 291E–61(a)(3), an HRS § 291E–61(a)(3) violation is an absolute liability offense that does not require proof of mens rea; and (2) with respect to the violation of HRS § 291E–61(a)(1), mens rea is not an essential element of that violation and can be inferred from the allegations in the complaint. We affirm the District Court's Judgment.⁶

III.

The Hawai‘i Supreme Court has set forth the following guidelines for evaluating the sufficiency of a charge. “It is well settled that an accusation must sufficiently allege all of the essential elements of the offense charged....” State v. Wheeler, 121 Hawai‘i 383, 391, 219 P.3d 1170, 1178 (2009) (internal quotation marks and citation omitted).

“[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 [.]’ ” Wheeler, 121 Hawai‘i at 391, 219 P.3d at 1178 (quoting State v. Wells, 78 Hawai‘i 373, 379–80, 894 P.2d 70, 76–77 (1995)) (some brackets in original, 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[.]’ ” [ State v.] Sprattling, 99 Hawai‘i [312,] 318, 55 P.3d [276,] 282 [ (2002) ] (quoting State v. Israel, 78 Hawai‘i 66, 70, 890 P.2d 303, 307 (1995)) (brackets in original). The relevant inquiry, therefore, is whether or not the charge provided the accused with fair notice of the essential elements. Wheeler, 121 Hawai‘i at 395, 219 P.3d at 1182. This court has recognized that “ ‘[a] charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process.’ ” Id. at 391, 219 P.3d at 1178 (quoting State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977)).

State v. Mita, 124 Hawai‘i 385, 390, 245 P.3d 458, 463 (2010) (some brackets in original, some added; ellipsis points added). “Whether a charge sets forth all the essential elements of a charged offense is a question of law, which we review under the de novo, or right/wrong, standard.” Id. at 389, 245 P.3d at 462 (internal quotation marks, brackets, ellipsis points, and citation omitted).

IV.

“Under the Hawai‘i Penal Code, the essential elements of an offense are (1) conduct; (2) attendant circumstances; and (3) results of conduct.” Id. at 391, 245 P.3d at 464; see HRS § 702–205 (1993). The complaint against Nesmith alleged the essential elements of the charged OVUII offense under both the HRS § 291E–61(a)(1) and the HRS § 291E–61(a)(3) means of committing the offense. The state of mind is not an element of a criminal offense, State v. Klinge, 92 Hawai‘i 577, 584 n. 3, 994 P.2d 509, 516 n. 3 (2000); State v. Aganon, 97 Hawai‘i 299, 303, 36 P.3d 1269, 1273 (2001), but must be proved if required. See HRS § 701–114 (1993); HRS § 702–204 (1993).

There is no required state of mind specified in the statute defining the charged OVUII offense. Nesmith was charged with OVUII in violation of HRS § 291E–61(a)(1) and/or (a)(3), which provide:

(a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:

(1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty; [or]

....

(3) With .08 or more grams of alcohol per two hundred ten liters of breath[.]

Except as provided in HRS § 702–212 (1993), if the statute defining the offense does not specify a state of mind, the default states of mind of intentionally, knowingly, or recklessly apply to each element of the offense. HRS § 702–204; ⁷ State v. Bayly, 118 Hawai‘i 1, 10, 185 P.3d 186, 195 (2008). HRS § 702–212, in turn, provides that the default states of mind prescribed by HRS § 702–204 do not apply to “[a] crime defined by statute other than [the Hawaii Penal Code], insofar as a legislative purpose to impose absolute liability for such offense or with respect to any element thereof plainly appears.” HRS § 702–212(2). The statute defining the charged OVUII offense, HRS § 291E–61, is not part of the Hawaii Penal Code.

A.

Citing State v. Young, 8 Haw.App. 145, 795 P.2d 285 (1990), the State asserts that the violation of HRS § 291E–61(a)(3) is an absolute liability offense that does not require proof of mens rea. We agree.

In Young, this court held that the HRS § 702–212 exception to the imposition of default states of mind under HRS § 702–204 applied to HRS § 291–4(a)(2) (1985) ⁸ the predecessor to HRS § 291E–61(a)(3) and (a)(4). Like HRS § 291E–61(a)(3), HRS § 291–4(a)(2) defined the driving-under-the-influence offense by reference to a measurement of the quantity of alcohol in a person's body. For purposes of our mens rea analysis, there is no material substantive difference between HRS § 291–4(a)(2) and HRS § 291E–61(a)(3).

In determining that the violation of HRS § 291–4(a)(2) was an absolute liability offense because the legislative purpose to impose absolute liability plainly appeared, this court in Young stated:

By enacting HRS § 291–4(a)(2), “the legislature permitted proof of DUI [ (driving under the influence of intoxicating liquor) ] by merely showing that a defendant drove a vehicle with a BAC [ (blood alcohol concentration) ] of 0.10 percent or more.” State v. Wetzel, 7 Haw.App. 532, [539], 782 P.2d 891, 895 (1989) (footnote omitted). Thus, the legislative purpose of HRS § 291–4(a)(2) was “to impose absolute liability for such offense or with respect to any element thereof,” as provided in HRS § 702–212(2). Accordingly, we stated in State v. Christie, 7 Haw.App. 368, [370], 764 P.2d 1245, 1246, aff'd, 70 Haw. 158, 766 P.2d 1198 (1988), cert. denied, 490 U.S. 1067, 109 S.Ct. 2068, 104 L.Ed.2d 633 (1989), that DUI has been “a per se offense” under HRS § 291–4(a)(2) since 1983.

Young, 8 Haw.App. at 153–54, 795 P.2d at...