State v. Shyanguya ( 2014 )

***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-29655
15-JAN-2014
09:58 AM
SCWC-29655
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
FRANCIS M. SHYANGUYA, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29655; HPD CR. NO. 08347776; CR. NO. 1P108-12324)
SUMMARY DISPOSITION ORDER
(By: Acoba, McKenna, and Pollack, JJ; with Recktenwald, C.J.,
dissenting, with whom Nakayama, J., joins)
Petitioner/Defendant-Appellant Francis M. Shyanguya
(Petitioner) seeks review of the August 24, 2012 judgment of the
Intermediate Court of Appeals (ICA) filed pursuant to its June
25, 2012 Memorandum Opinion (Memo. op.), affirming the Judgment
entered on February 2, 2009 by the District Court of the First
Circuit (the court1). Petitioner was convicted by the court of
Prostitution in violation of the Hawai#i Revised Statutes (HRS) §
1
The Honorable Russel S. Nagata presided.
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712-1200 (1)(1993).2 On appeal to the ICA, Petitioner contended
(1) that the trial counsel was ineffective because of
“incompetent and damaging direct and cross examination and
closing arguments,” and (2) the oral charge was deficient because
it “fail[ed] to state the specific sexual conduct” and, “[u]nder
State v. Wheeler, 121 Hawai#i 383, 219 P.3d 1170 [(2009)] fair
notice to the defendant requires notice of the means of terms of
elements that are not readily comprehensible to persons of common
understanding.”3 The ICA sua sponte raised the issue of whether
the charge contained a jurisdictional defect for failing to
allege the requisite mens rea, citing State v. Nesmith, 127
Hawai#i 48, 56, 276 P.3d 617, 625 (2012), in which this court held
that a charge that fails to allege the requisite state of mind
does not provide fair notice to the accused of the nature and
cause of the accusation.
2
At the time of the charge, HRS § 712-1200(1) (1993) provided:
(1) a person commits the offense of prostitution if the person
engages in, or agrees or offers to engage in, sexual conduct with
another person for a fee.
HRS § 712-1200(1).
3
The charge stated as follows:
On or about the 16th day of September, 2008, in the City and
County of Honolulu, State of Hawai#i, [Petitioner] did
engage in, or agree or offer to engage in, sexual conduct
with another person for a fee, thereby committed the offense
of Prostitution, in violation of Section 712-1200(1) of the
Hawai#i Revised Statutes.
2
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In his Application, Petitioner contends that a charge
which does not plead the “essential fact[]” of mens rea “amounts
to a failure to state an offense,” (citing State v. Cummings, 101
Hawai#i 139, 142, 63 P.3d 1109, 112 (2003)), and that “[a]ny
conviction based on such defective complaint cannot be
sustained.” (Citing Nesmith, 127 Hawai#i at 62 276 P.3d at 630
(Acoba, J., concurring and dissenting).). The ICA, inter alia,
held that Petitioner “waived any challenge to the sufficiency of
the charge for failure to allege a mens rea by not objecting on
this basis in [the court] and by not asserting this claim on
appeal.” State v. Shyanguya, No. 29655, 2012 WL 2383726, at *4
(App. June 25, 2012).
HRS § 712-1200(1) does not specify the state of mind
required to establish the elements of the offense of
prostitution. Thus, under HRS § 702-204 (1993), for each element
of HRS § 712-1200(1), the state must establish that Petitioner
acted intentionally, knowingly, or recklessly.4
In State v. Maharaj, No. SCWC-29520, 2013 WL 6068086,
at *5 (Haw. Nov. 18, 2013), where the issue of mens rea was
raised for the first time on appeal, we reaffirmed the “core
4
HRS § 702-204 (1993) provides, “When the state of mind required to
establish an element of an offense is not specified by the law, that element
is established if, with respect thereto, a person acts intentionally,
knowingly, or recklessly.”
3
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principle” set out in State v. Apollonio, 130 Hawai#i 353, 311
P.3d 676 (2013), that “‘[a] charge that fails to charge a
requisite state of mind cannot be construed reasonabl[y] to state
an offense and thus the charge is dismissed without prejudice
because it violates due process.’”5 Id. (quoting Apollonio, 130
Hawai#i at 359, 311 P.3d at 682). We also held that “as a fact
that must be alleged in a charge, a requisite state of mind is
clearly an essential fact that must be alleged under [Hawai#i
Rules of Penal Procedure] Rule 7(d).” Id. at *5 (internal
quotation marks omitted). Thus, inasmuch as the Complaint
against Petitioner failed to allege the requisite state of mind
that also was an essential fact of the offense of prostitution,
the Complaint must be dismissed without prejudice. Id. at *5.
IT IS HEREBY ORDERED that the August 24, 2012 judgment
of the ICA and the February 2, 2009 Judgment of the court are
vacated, and this case is remanded to the court with instructions
to dismiss the Complaint without prejudice.
DATED: Honolulu, Hawai#i, January 15, 2014.
Jack Schweigert, /s/ Simeon R. Acoba, Jr.
for petitioner
/s/ Sabrina S. McKenna
Donn Fudo
(on the brief), /s/ Richard W. Pollack
for respondent
5
In the instant case, the sufficiency of the charge was first
raised sua sponte by the ICA on appeal.
4