State v. Pai ( 2014 )

***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-11-0000344
27-JAN-2014
09:35 AM
SCWC-11-0000344
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
ROGER A. PAI, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000344; CASE NO. 2DTC-10-003203)
SUMMARY DISPOSITION ORDER
(By: Acoba, McKenna, and Pollack, JJ; with Recktenwald, C.J.,
dissenting, with whom Nakayama, J., joins)
Petitioner/Defendant-Appellant Roger A. Pai
(Petitioner) seeks review of the January 9, 2013 judgment of the
Intermediate Court of Appeals (ICA) filed pursuant to its
November 26, 2012 Summary Disposition Order, affirming the
Judgment entered on March 21, 2011 by the District Court of the
Second Circuit (the court)1. Petitioner was convicted by the
1
The Honorable Kelsey T. Kawano presided.
***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
court of Excessive Speeding in violation of the Hawai#i Revised
Statutes (HRS) § 291C-105(a)(2) (Supp. 2010)2 and No Motor Vehicle
Insurance in violation of HRS § 431:10C-104 (2005).3 On appeal to
the ICA, Petitioner contended that the Respondent/Plaintiff-
Appellee the State of Hawai#i (the State) did not establish,
first, “that the laser gun was tested according to manufacturer
recommended procedures and determined to be operating properly
prior to its use,” and second that “‘the nature and extent of the
citing officer’s training in the operation of the laser gun meets
2
Pursuant to HRS § 291C-105(a), “no person shall drive a motor
vehicle at a speed exceeding” either (1) “[t]he applicable state or county
speed limit by thirty miles per hour or more,” or (2) “[e]ighty miles per hour
or more irrespective of the applicable state or county speed limit.”
Individuals found to have violated HRS § 291C-105(a) are guilty of a petty
misdemeanor and subject to a fine between $500 and $1,000, a thirty-day
suspension of license, a surcharge of up to $125, an assessment for driver
education, and either thirty-six hours of community service work or between
forty-eight hours and five days of imprisonment. HRS § 291C-105(c).
Individuals found guilty are also required to attend a course of instruction
in driver retraining. Id.
3
HRS § § 431:10C-104 provides in relevant part as follows:
§ 431:10C-104 Conditions of operation and registration of motor
vehicles.
(a) Except as provided in section 431:10C-105, no person
shall operate or use a motor vehicle upon any public street,
road, or highway of this State at any time unless such motor
vehicle is insured at all times under a motor vehicle
insurance policy.
(b) Every owner of a motor vehicle used or operated at any
time upon any public street, road, or highway of this State
shall obtain a motor vehicle insurance policy upon such
vehicle which provides the coverage required by this article
and shall maintain the motor vehicle insurance policy at all
times for the entire motor vehicle registration period.
2
***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
the requirements indicated by the manufacturer.’” (Quoting State
v. Assaye, 121 Hawai#i 124, 213-15, 216 P.3d 1227, 1236-38
(2009).) Petitioner also maintained that the State did not
demonstrate “that the laser gun had been inspected and serviced
in a manner directed by the manufacturer.”
On November 26, 2012, the ICA issued its SDO affirming
the court's Judgment, only addressing (1) whether the laser gun
was tested or determined to be working properly in accordance
with the manufacturer’s recommended procedures, (2) whether the
Officer’s training met the manufacturer’s requirements, and (3)
whether the laser gun was inspected and serviced by the
manufacturer.
In his Application, Petitioner contends that “the ICA’s
order affirming [her] conviction constitutes an obvious
inconsistency with . . . State v. Nesmith, 127 Hawai#i 48, 276
P.3d 617 (2012)[,]”4 and “the ICA gravely erred in holding that
the State laid sufficient foundation for the admission of the
4
The Amended Complaint read as follows:
That on or about the 1st day of December, 2010, in the Division of
Wailuku, County of Maui, State of Hawai#i, [Petitioner] did drive
a motor vehicle at a speed exceeding eighty miles per hour
irrespective of the applicable state or county speed limit to wit,
did drive a motor vehicle at 82 miles per hour, thereby committing
the offense of Excessive Speeding, in violation of Section 291C-
105(a)(1) and/or 291C-105(a)(2) and 291C-105(c)(1) of the Hawaii
Revised Statutes.
3
***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
laser gun reading.”5 Petitioner challenges the sufficiency of the
charge in the Amended Complaint for the first time in his
Application. The Amended Complaint in this case did not allege
the state of mind that the State was required to prove for the
charge of excessive speeding against Petitioner. Because HRS §§
291C-105(a)(1), 291C-105(a)(2), and 291C-105(c)(1) do not specify
the requisite state of mind, HRS § 702-204 applies, which
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.”
In State v. Maharaj, No. SCWC-29520, 2013 WL 6068086,
at *5 (Haw. Nov. 18, 2013), we reaffirmed the “core principle”
set out in State v. Apollonio, 130 Hawai#i 353, 311 P.3d 676
(2013), that a charge that fails to allege the requisite state of
mind must be “‘dismissed without prejudice because it violates
due process.’”6 Id. (quoting Apollonio, 130 Hawai#i at 359, 311
P.3d at 682). We also held that the requisite state of must be
5
In his Application, Petitioner does not challenge his conviction
for the offense of No Motor Vehicle Insurance.
6
In the instant case, Petitioner challenged the sufficiency of the
Amended Complaint for the first time in his Application to the Court.
However, in Apollonio, where the defendant also challenged the sufficiency of
the charge for the first time in his Application, this court held that the
“core principle” that a charge that fails to state the requisite state of mind
must be dismissed without prejudice applied. 130 Hawai#i at 369 n.10, 311
P.3d at 682 n.10.
4
***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
alleged as an “essential fact” under Hawai#i Rules of Penal
Procedure Rule 7(d). Thus, inasmuch as the Amended Complaint
against Petitioner failed to allege the requisite state of mind
that also was an essential fact of the offense of excessive
speeding, the Amended Complaint must be dismissed without
prejudice. Id. at *5.
IT IS HEREBY ORDERED that the January 9, 2013 judgment
of the ICA and the March 21, 2011 Judgment of the court are
vacated, and this case is remanded to the court with instructions
to dismiss the Excessive Speeding charge without prejudice.
DATED: Honolulu, Hawai#i, January 27, 2014.
James S. Tabe, /s/ Simeon R. Acoba, Jr.
for petitioner
/s/ Sabrina S. McKenna
Renee Ishikawa Delizo,
(on the briefs), /s/ Richard W. Pollack
for respondent
5