State v. Kam
| Citation | 134 Hawai'i 280,339 P.3d 1081 |
| Decision Date | 26 November 2014 |
| Docket Number | No. CAAP–12–0000897.,CAAP–12–0000897. |
| Court | Court of Appeals of Hawai'i |
| Parties | STATE of Hawai‘i, Plaintiff–Appellee, v. Cierra Ann KAM, Defendant–Appellant. |
Titiimaea N. Ta‘ase, Deputy Public Defender, on the briefs, for Defendant–Appellant.
Brandon H. Ito, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff–Appellee.
Defendant–Appellant Cierra Ann Kam (Kam)1 was convicted of (1) Operating a Vehicle Under the Influence of an Intoxicant (OVUII), as a repeat offender, and (2) Operating a Vehicle After License and Privilege Have Been Suspended or Revoked for Operating a Vehicle Under the Influence of an Intoxicant (OVLPSR–OVUII).
On appeal, Kam contends that the District Court of the First Circuit (District Court)2 erred in permitting Plaintiff–Appellee State of Hawai‘i (State) to amend the charges against her to allege the required mens rea. Kam relies on a footnote in an unpublished summary disposition order of the Hawai‘i Supreme Court, State v. Castro, No. SCWC–30703, 128 Hawai‘i 115, 2012 WL 3089722, at *1 n. 3 (Hawai‘i Jul. 30, 2012). The State concedes error based on the Castro footnote. For several reasons, including that the Castro footnote has been undermined by State v. Davis, 133 Hawai‘i 102, 324 P.3d 912 (2014), a more recent Hawai‘i Supreme Court published opinion, we conclude that the Castro footnote does not control our decision. We hold that the District Court did not err in permitting the State to amend the charges. We also hold that Kam's contention that the State failed to present sufficient evidence to prove that she had previously been convicted of OVUII, proof that was necessary to support her conviction for OVUII as a repeat offender, is without merit. Accordingly, we affirm Kam's convictions.
On January 11, 2012, at about 2:47 a.m., Honolulu Police Department (HPD) Officer Mykle Moya (Officer Moya) observed the car Kam was driving "weaving heavily" on the H-l Freeway. Officer Moya followed Kam's car and observed it drift back and forth across lane markings and weaving within its lane. Officer Moya effected a traffic stop of Kam's car. Upon approaching Kam, Officer Moya noticed that Kam's eyes were red, bloodshot, and glassy, that there was a very strong odor of alcohol on her breath, and that her speech was slurred.
Officer Moya asked Kam for her driver's license and vehicle documents. Kam stated that she did not have a license and provided Officer Moya with vehicle documents.
Kam participated in field sobriety tests conducted by Officer Moya. Kam performed poorly. On the horizontal gaze nystagmus test, Officer Moya noted that in both eyes, Kam showed a lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus
prior to 45 degrees, and that she also showed circular sway. On the walk and turn test, Officer Moya noted that Kam lost her balance five times during the instruction stage, and that during the walking stage, Kam stopped walking, missed heel-toe, stepped off line, and raised her arms multiple times. On the one leg stand test, Officer Moya observed that Kam swayed and raised her arms throughout the test, put her foot down once, counted the number 3 twice, and skipped number 19.
Kam agreed to participate in a preliminary alcohol screening test, which she "failed." Kam was placed under arrest and taken to the police station, where she agreed to take a breath test. The breath test administered by an Intoxilyzer operator showed that Kam had a breath alcohol concentration of 0.173 grams of alcohol per 210 liters of breath, which is above the legal limit.
A Case Detail Report for District Court "Case ID: 1DTA–11–02742—State v. Cierra A M Kam " shows that on October 21, 2011, "Cierra A M Kam" pleaded no contest to OVUII under Hawai‘i Revised Statutes (HRS) § 291E–61(a)(1) and (a)(3) and that the plea was accepted by the District Court. The Case Detail Report further shows that sentence was imposed and that a " Judgment and Notice" was entered on October 21, 2011. A traffic abstract for " Kam, Cierra Ann M" shows that her driver's license was administratively revoked, pursuant to HRS Chapter 291E, part III, from July 17, 2011 to July 16, 2012.
On January 19, 2012, the State charged Kam by complaint with: (1) OVUII, as a repeat offender who committed the charged OVUII offense within five years of a prior conviction for OVUII, in violation of HRS § 291E–61(a)(1) and/or (a)(3) and (b)(2) (Supp. 2013);4 and (2) OVLPSR–OVUII, as a first offender, in violation of HRS 291E–62(a)(1) and/or (a)(2) and (b)(1) (Supp.2013).5 The complaint alleged that Kam committed the OVUII and OVLPSR–OVUII offenses on or about January 11, 2012. The complaint, however, failed to allege the required mens rea of "intentionally, knowingly, or recklessly" with respect to the OVLPSR–OVUII offense or the HRS § 291E–61(a)(1) portion of the OVUII offense.
On April 12, 2012, after the State had filed its complaint against Kam, the Hawai‘i Supreme Court decided State v. Nesmith, 127 Hawai‘i 48, 276 P.3d 617 (2012). Kevin K. Nesmith (Nesmith) and Chris F. Yamamoto (Yamamoto) had each been charged with OVUII, in violation of HRS § 291E–61(a)(1) and/or (a)(3). Id. at 50–51, 276 P.3d at 619–20.6 In Nesmith, the supreme court held that the portion of Nesmith's OVUII charge and Yamamoto's OVUII charge that alleged a violation of HRS § 291E–61(a)(1) was defective because it failed to allege the required "intentionally, knowingly, or recklessly" mens rea. Id. at 54, 56, 61, 276 P.3d at 623, 625, 630. The supreme court also held that an OVUII charge under HRS § 291E–61(a)(3) "is an absolute liability offense for which mens rea need not be alleged or proven." Id. at 50, 276 P.3d at 619.
On April 20, 2012, in light of Nesmith, the State filed a motion to amend its complaint to allege the required "intentionally, knowingly, or recklessly" mens rea for the OVLPSR–OVUII offense and the HRS § 291E–61(a)(1) portion of the OVUII offense. In its motion to amend, the State set forth the language of its proposed amended complaint and highlighted where it planned to insert the "intentionally, knowingly, or recklessly" mens rea. On June 29, 2012, Kam filed a memorandum in opposition to the State's motion. Kam did not contend that she would suffer any prejudice if the State were allowed to amend the complaint. Instead, she argued that the defect in the charges for failing to allege the required mens rea was a jurisdictional defect that required either dismissal of the complaint or limiting the State to proceeding on the HRS § 291E–61(a)(3) portion of the OVUII charge alone.
On July 5, 2012, at a hearing held prior to trial, the District Court granted the State's motion to amend the complaint, and it denied Kam's request to dismiss the complaint. The State served the Amended Complaint, which alleged that Kam had acted "intentionally, knowingly, or recklessly" in committing the charged OVLPSR–OVUII offense and in committing the HRS § 291E–61(a)(1) portion of the charged OVUII offense. Kam acknowledged receipt of the Amended Complaint and pleaded not guilty to the Amended Complaint.
The parties agreed to proceed with a trial on stipulated evidence. The parties stipulated into evidence State's Exhibits 1 through 6, consisting of the following:
Exhibit 1: Notice of Administrative Review Decision for Respondent "Cierra Kam" regarding an arrest dated June 16, 2011, and Arrest Report No. 11–216656.
Exhibit 2: Copy of Hawai‘i State Identification Card for "Kam, Cierra Ann"; a vehicle Insurance Identification Card; and a Certificate of Motor Vehicle Registration.
Exhibit 3: Notice of Administrative Revocation for Respondent "Kam, Cierra A. M." for an arrest dated June 16, 2011, and Arrest Report No. 11–216–656.
Exhibit 4: Case Detail Report for District Court "Case ID: 1DTA–11–02742—State v. Cierra A M Kam " certified by a District Court clerk.
Exhibit 5: Traffic abstract for "Kam, Cierra Ann M" certified by a District Court clerk.
Exhibit 6: Reports prepared by Honolulu Police Department Officers regarding the arrest of "Kam, Cierra Ann" on January 11, 2012, under Arrest Report No. 12–013341.
The parties also stipulated "as to identification and venue" and that "the driver's license and ... date of birth of the documents" that were admitted in evidence matched before the information on the documents was "blacked out." Based on the stipulated evidence, the District Court found Kam guilty as charged of (1) OVLPSR–OVUII and (2) OVUII under both HRS § 291E–61(a)(1) and (a)(3), as a repeat offender under HRS § 291E–61(b)(2).
The District Court sentenced Kam on the repeat-offender OVUII charge to five days in jail, a fine of $700, substance abuse assessment and treatment if necessary, revocation of her driver's license for eighteen months, and various surcharges and fees. It sentenced Kam on the OVLPSR–OVUII charge to five days in jail, a $500 fine, revocation of her driver's license for one year, and a surcharge and fees. The jailterms and license revocation periods were imposed to be served concurrently. The District Court entered its Judgment on September 28, 2012, and this appeal followed.
The State charged Kam by complaint with OVUII as a repeat offender and with OVLPSR–OVUII. The State moved pre-trial to amend the complaint, pursuant to Hawai‘i Rules of Penal Procedure (HRPP) Rule 7(f) (2011), to allege the required mens rea for the OVLPSR–OVUII charge and the HRS § 291E–61(a)(1) portion of the OVUII charge. HRPP Rule 7(f)(1) provides:
(1) The court may permit a charge other than an indictment to be amended at any time before trial commences if substantial rights of the defendant are not prejudiced.
The District Court, over Kam's objection, granted the State's motion.
Kam argues that the District Court erred in permitting the...
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State v. Kam, CAAP–12–0000897.
...280339 P.3d 1081STATE of Hawai‘i, Plaintiff–Appelleev.Cierra Ann KAM, Defendant–Appellant.No. CAAP–12–0000897.Intermediate Court of Appeals of Hawai‘i.Nov. 26, 2014.As Corrected Jan. 20, 2015.339 P.3d 1082Titiimaea N. Ta‘ase, Deputy Public Defender, on the briefs, for Defendant–Appellant.Br......