State v. Nesmith

• Decision Date: 12 April 2012
• Docket Number: SCWC–30438.,Nos. SCWC–10–0000072,s. SCWC–10–0000072
• Citation: 127 Hawai'i 48,276 P.3d 617
• Parties: STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Kevin K. NESMITH, Petitioner/Defendant–Appellant. State of Hawai‘i, Respondent/Plaintiff–Appellee, v. Chris F. Yamamoto, Petitioner/Defendant–Appellant.
• Court: Hawaii Supreme Court

127 Hawai'i 48

276 P.3d 617

STATE of Hawai‘i, Respondent/Plaintiff–Appellee,

v.Kevin K. NESMITH, Petitioner/Defendant–Appellant.

State of Hawai‘i, Respondent/Plaintiff–Appellee,

v.Chris F. Yamamoto, Petitioner/Defendant–Appellant.

Nos. SCWC–10–0000072, SCWC–30438.

Supreme Court of Hawai‘i.

April 12, 2012.

Timothy I. MacMaster for Petitioners/Defendants–Appellants.

Keith M. Kaneshiro, Delanie Prescott–Tate, Stephen K. Tsushima, and Sonja P. McCullen for Respondent/Plaintiff–Appellee.

RECKTENWALD, C.J., NAKAYAMA, DUFFY, and McKENNA, JJ.; with ACOBA, J., concurring and dissenting.

Opinion of the Court by McKENNA, J.

In these cases consolidated for disposition, we (1) hold that pursuant to State v. Wheeler, 121 Hawai‘i 383, 219 P.3d 1170 (2009), a charge of operating a vehicle under the influence of an intoxicant (“OVUII”) under Hawai‘i Revised Statutes (“HRS”) § 291E–61(a)(1)(2007)¹ must allege the requisite mens rea ² in order to fully define the offense in unmistakable terms readily comprehensible to persons of common understanding; (2) on the other hand, reaffirm that an OVUII charge under HRS § 291E–61(a)(3)(2007) ³ is an absolute liability offense for which mens rea need not be alleged or proven. We also (3) hold that the ICA erred by relying on general intent cases to hold that mens rea may be inferred from the allegations in an HRS § 291E–61(a)(1) OVUII charge because under State v. Kalama, 94 Hawai‘i 60, 65, 8 P.3d 1224, 1229 (2000), the distinction between general and specific intent has been abandoned; and (4) that in Nesmith, the ICA erred by extending HRS § 806–28 (1993) ⁴ to the district courts, as the plain language of HRS § 806–2 (1993) limits the application of the criminal procedure provisions of Chapter 806 to the circuit courts. See State v. Nesmith, 125 Hawai‘i 232, 237 n. 9, 257 P.3d 245, 250 n. 9 (App. 2011).

I. Background

Kevin K. Nesmith (“Nesmith”) and Chris F. Yamamoto (“Yamamoto”) were each charged by Complaint with OVUII, in violation of HRS §§ 291E–61(a)(1) and/or (a)(3).⁵ Nesmith's charge read:

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.

Yamamoto's charge read:

On or about the 28th day of October, 2009, in the City and County of Honolulu, State of Hawaii, CHRIS F. YAMAMOTO 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. CHRIS F. YAMAMOTO is subject to sentencing as a first offender in accordance with Section 291E–61(b)(1) of the Hawaii Revised Statutes, and/or CHRIS F. YAMAMOTO is subject to sentencing in accordance with Section 291E–61(b)(2) of the Hawaii Revised Statutes, where CHRIS F. YAMAMOTO committed the instant offense as a highly intoxicated driver, as a first offense. ‘Highly intoxicated driver’ means a person whose measurable amount of alcohol is 0.15 or more grams of alcohol per one hundred milliliters or cubic centimeters of the person's blood, or 0.15 or more grams of alcohol per two hundred ten liters of the person's breath.

In each case, defense counsel moved to dismiss the Complaint based on the argument that the State failed to allege an essential fact, namely the “mens rea” requirements of HRS §§ 291E–61(a)(1) and (a)(3). The trial court denied the motions to dismiss, and the parties proceeded to stipulated fact trials. The trial court found Nesmith and Yamamoto guilty as charged. Specifically, Nesmith was adjudged guilty of violating “HRS [§ ] 291E–61(a)(1), (3),(b)(1),” and Yamamoto was adjudged guilty of violating HRS § 291E–61(a)(1)(3)(b)(1)(2). Both timely appealed.

Before the ICA, Nesmith and Yamamoto each challenged (1) the trial court's denial of their motions to dismiss and (2) their convictions, on the basis that the Complaints were legally deficient for having failed to allege mens rea. The ICA affirmed the judgments of the trial court in a published opinion in the Nesmith case and a summary disposition order in the Yamamoto case, holding that mens rea need not be alleged in a Complaint charging HRS § 291E–61(a)(1) and/or (a)(3). See Nesmith, 125 Hawai‘i 232, 257 P.3d 245; and State v. Yamamoto, No. 30438, 2011 WL 2179267 (App. June 6, 2011) (SDO).

First, in both Nesmith and Yamamoto, the ICA held that mens rea is not an element of the offense of OVUII under HRS § 291E–61(a)(3), which is an absolute liability offense. Nesmith, 125 Hawai‘i at 236, 257 P.3d at 249;Yamamoto, SDO at 6. Second, in Yamamoto, the ICA held that mens rea can be inferred from the allegations in the charge of OVUII under HRS § 291E–61(a)(1), which the ICA characterized as a general intent crime. Yamamoto, SDO at 9. In Nesmith, the ICA did not expressly characterize HRS § 291E–61(a)(1) as a general intent crime; rather, it relied on general intent cases to hold that mens rea can be inferred from the allegations in the charge of OVUII under HRS § 291E–61(a)(1). Nesmith, 125 Hawai‘i at 237–39, 257 P.3d at 250–52. Finally, in Nesmith, the ICA expressly extended HRS § 806–28 to the district courts. Nesmith, 125 Hawai‘i at 237, n. 9, 257 P.3d at 250, n. 9. The Yamamoto panel, on the other hand, expressly observed that HRS § 806–28 does not apply to the district courts. Yamamoto, SDO at 8. Both Nesmith and Yamamoto timely filed applications for writ of certiorari, which we granted and hereby consolidate for disposition.

On certiorari, both applications contain the following first five questions presented:

1. Was the OVUII charge herein legally sufficient[?]

2. Did the OVUII charge herein “fully define” the offense in “unmistakable terms readily comprehensible to persons of common understanding[?]” See State v. Wheeler[,] 121 Hawai‘i 383, 219 P.3d 1170 (2009)[.]

3. What are the “essential facts” that must be included in an OVUII charge?

4. What mens rea, if any, is the State required to prove in an OVUII case?

5. What mens rea, if any, is the State required to plead in an OVUII complaint?

Each's sixth question presented can be summarized as follows: Did the ICA gravely err in concluding (1) that OVUII based on blood alcohol content and charged under HRS § 291E–61(a)(3) is an absolute liability offense; and (2) that the mental state for OVUII under HRS § 291E–61(a)(1) can be inferred without specification in the charge?

Although we agree that HRS § 291E–61(a)(3) is an absolute liability offense for which mens rea need not be alleged or proven, we hold that the ICA erred in its holdings regarding HRS § 291E–61(a)(1) in three ways. First, we hold that the HRS § 291E–61(a)(1) charges as written (omitting mens rea) failed to fully define the HRS § 291E–61(a)(1) offense in unmistakable terms readily comprehensible to persons of common understanding. Second, this holding rejects the ICA's characterization of HRS § 291E–61(a)(1) as a general intent offense for which mens rea may be inferred from the allegations in the charge. Under Kalama, 94 Hawai‘i 60, 8 P.3d 1224, the distinction between general and specific intent has been abandoned. Third, we hold that the Nesmith majority erred by extending HRS § 806–28 to the district courts, as the plain language of HRS § 806–2 limits the application of the criminal procedure provisions of Chapter 806 to the circuit courts.

II. Discussion

A criminal charge serves multiple purposes. To initiate the criminal process, a charge must sufficiently state an offense to establish the court's jurisdiction over a case. State v. Cummings, 101 Hawai‘i 139, 142, 63 P.3d 1109, 1112 (2003). The sufficiency of a charge also implicates an accused's rights under the Hawai‘i Constitution, article I, sections 5, 10 and 14. First, under article I, section 5, “No person shall be deprived of life, liberty or property without due process of law[.]” Second, under article I, section 14, an accused is entitled to adequate notice of the charges against him or her: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation [.]” Third, under article I, section 10, an indictment must be sufficiently specific to protect a person from being charged twice for the same offense: “[N]or shall any person be subject for the same offense to be twice put in jeopardy[.]”

As to the content and form of the charge, the State is required to charge OVUII offenses in writing. SeeHawai‘i Rules of Penal Procedure (“HRPP”) Rule 7(a)(2009). “The charge shall be a plain, concise and definite statement of the essential facts constituting the offense charged.” HRPP Rule 7(d)(2009). “[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.”...