State v. Avilla ( 2014 )

***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-30701
31-JAN-2014
10:10 AM
NO SCWC-30701
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
________________________________________________________________
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
BRANDY IWALANI C. AVILLA, Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30701; CASE NO. 1DTA-10-00518)
SUMMARY DISPOSITION ORDER
(By: Acoba, and McKenna, JJ.,
with Circuit Judge Ayabe, assigned by reason of vacancy,
concurring in the result;
with Recktenwald, C.J., dissenting, with whom Nakayama, J. joins)
Petitioner Brandy Iwalani C. Avilla (“Avilla”) seeks
review of the Intermediate Court of Appeal’s April 24, 2012
Judgment on Appeal, entered pursuant to its April 9, 2012 Summary
Disposition Order, which affirmed the District Court of the First
Circuit’s “Notice of Entry of Judgment and/or Order and
Plea/Judgment” filed on June 9, 2010. The District Court
***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
adjudged Avilla guilty of Operating a Vehicle Under the Influence
of an Intoxicant, in violation of Hawai#i Revised Statutes
(“HRS”) § 291E-61(a)(1)(2007).1
We accepted Avilla’s application for writ of certiorari
and now vacate the ICA’s Judgment on Appeal and remand this case
to the District Court with instructions to dismiss Avilla’s
Complaint without prejudice.
On certiorari, Avilla contends that the ICA order
affirming her conviction constitutes an obvious inconsistency
with the Supreme Court’s April 12, 2012 decision in State v.
Nesmith, 127 Hawai#i 48, 276 P.3d 617. In State v. Nesmith, we
held that mens rea must be alleged in an HRS § 291E-61(a)(1)
charge in order to provide fair notice of the nature and cause of
the accusation. State v. Nesmith, 127 Hawai#i at 54-55, 276 P.3d
at 623-24. The Complaint against Avilla failed to allege the
mens rea required in an HRS § 291E-61(a)(1) charge. Therefore,
Avilla’s HRS § 291E-61(a)(1) charge was deficient for failing to
allege mens rea.
Unlike Nesmith, however, Avilla challenged the
sufficiency of the Complaint for the first time on appeal. This
1
HRS § 291E-61(a)(1) provided, at the time of the alleged offense,
the following:
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 . . . [w]hile
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[.]
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court recently issued a decision in which the sufficiency of a
charge was similarly challenged for the first time on certiorari.
See State v. Apollonio, 130 Hawai#i 353, 311 P.3d 676. In State
v. Apollonio, the majority of this court held, “a charge that
fails to charge a requisite state of mind cannot be construed
reasonably to state an offense and thus the charge is dismissed
without prejudice because it violates due process.” Id. at 359,
311 P.3d at 682. Avilla’s Complaint failed to charge a requisite
state of mind, and thus, the ICA’s Judgment on Appeal must be
vacated and the charge must be dismissed without prejudice
because it violates due process.
IT IS HEREBY ORDERED that the ICA’s Judgment on Appeal
is vacated, and this case is remanded to the District Court with
instructions to dismiss the Complaint without prejudice.
DATED: Honolulu, Hawai#i, January 31, 2014.
Trisha Y. Nakamura, /s/ Simeon R. Acoba, Jr.
for petitioner
/s/ Sabrina S. McKenna
Brian R. Vincent,
for respondent
CONCURRENCE BY CIRCUIT JUDGE AYABE
I concur in the result.
/s/ Bert I. Ayabe