Opinion
No. CAAP–10–0000067.
2012-11-23
STATE Of Hawai‘i, Plaintiff–Appellee, v. K.C. LOESCH, Defendant–Appellant.
Appeal from the District Court of the First Circuit Honolulu Division (Case No. 1DTC–10–000141). Glenn D. Choy, on the briefs, for Defendant–Appellant. Brian R. Vincent, Deputy Prosecuting Attorney, City & County of Honolulu, on the briefs, for Plaintiff–Appellee.
Appeal from the District Court of the First Circuit Honolulu Division (Case No. 1DTC–10–000141).
Glenn D. Choy, on the briefs, for Defendant–Appellant. Brian R. Vincent, Deputy Prosecuting Attorney, City & County of Honolulu, on the briefs, for Plaintiff–Appellee.
LEONARD and REIFURTH, JJ., and FOLEY, Presiding Judge, dissenting.
SUMMARY DISPOSITION ORDER
On August 30, 2010, the District Court of the First Circuit (“District Court”)
filed a Notice of Entry of Judgment and/or Order and Plea/Judgment, in which it convicted Defendant–Appellant K.C. Loesch (“Loesch”) of one count of Accidents Involving Damage to Vehicle or Property, in violation of Hawai‘i Revised Statutes (“HRS”) § 291C–13 (Supp.2011).
The Honorable Leslie A. Hayashi presided.
Loesch was sentenced to pay a $100 fine and two fees.
The statute provides in relevant part:
The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property that is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or as close thereto as possible, but shall forthwith return to, and in every event shall remain at, the scene of the accident until the driver has fulfilled the requirements of section 291C–14. Every such stop shall be made without obstructing traffic more than is necessary....
Haw.Rev.Stat. § 291C–13.
HRS § 291C–14(a) (2007) provides:
Duty to give information and render aid. (a) The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall give the driver's name, address, and the registration number of the vehicle the driver is driving, and shall upon request and if available exhibit the driver's license or permit to drive to any person injured in the accident or to the driver or occupant of or person attending any vehicle or other property damaged in the accident and shall give such information and upon request exhibit such license or permit to any police officer at the scene of the accident or who is investigating the accident and shall render to any person injured in the accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of the person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary, or if such carrying is requested by the injured person; provided that if the vehicle involved in the accident is a bicycle, the driver of the bicycle need not exhibit a license or permit to drive.
Haw.Rev.Stat. § 291C–14 (a).
On appeal, Loesch argues that the District Court erred by (1) denying his motion to dismiss the charge on the basis that it failed to set forth the requisite state of mind and (2) convicting him based on findings that were “not only against the weight of the evidence, but unsupported by substantial evidence.” Loesch also maintains that (3) his trial counsel was ineffective for failing to refresh the memory of the complaining witness with, or to otherwise introduce, a letter that allegedly documented prior inconsistent statements that she made to an insurance representative after the incident.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Loesch's points of error as follows:
On May 13, 2010, prior to his trial before the District Court, Loesch was orally charged:
[O]n or about January 4th, 2010, you, as the driver of a vehicle involved in an accident resulting only in damage to a vehicle or other property that is driven or attended by any other person, did fail to immediately stop the vehicle at the scene of the accident or as close thereto as possible and did fail to forthwith return to and in every even remain at the scene of the accident and fulfill the requirements of Section 291C–14 HRS, thereby committing the offense of Accidents Involving Damage to Vehicle Or Property, in violation of 291C–13 HRS.
Loesch's attorney moved to dismiss, arguing that the charge failed to state the requisite mens rea.
The District Court denied the motion. We hold that the District Court erred, and the motion should have been granted.
After the charge was read, Loesch's attorney stated: “Your Honor, before he responds, Defense would just move to dismiss. Lack of jurisdiction. It fails to state an essential element, (indiscernible) intent.” Although a portion of the objection is indiscernible, we interpret Loesch's objection to be that the charge was insufficient because it failed to allege some criminal intent—that is, the requisite mens rea.
In support of our conclusion, we first must determine what HRS § 2 91C–13 requires the State to prove. Pursuant to HRS § 291C–13,
The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property that is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or as close thereto as possible, but shall forthwith return to, and in every event shall remain at, the scene of the accident until the driver has fulfilled the requirements of section 291C–14. Every such stop shall be made without obstructing traffic more than is necessary....
Haw.Rev.Stat. § 291C–13. HRS § 291C–13 does not, in itself, set forth the requisite mens rea. However, pursuant to HRS § 702–204,
Except as provided in section 702–212, a person is not guilty of an offense unless the person acted intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense. 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.
Haw.Rev.Stat. § 702–204 (1993) (emphasis added). Pursuant to HRS § 702–212, criminal statutes are excepted from the provisions of § 702–204, generally, when (1) the offense is a violation or (2) if the offense is defined by a statute outside of the Hawaii Penal Code (that is, outside of Title 37 of the HRS) and “a legislative purpose to impose absolute liability for such offense or with respect to any element thereof plainly appears.” Haw.Rev.Stat. § 702–212 (1993).
A violation of HRS § 291C–13 is a petty misdemeanor crime. State v. Kilborn, 109 Hawai‘i 435, 440, 127 P.3d 95, 100 (App.2005); Haw.Rev.Stat. § 291C–161(d) (2007). Furthermore, while HRS § 291C–13 is not found in the Hawaii Penal Code, legislative intent to impose absolute liability for violating the statute does not plainly appear. See State v. Eastman, 81 Hawai‘i 131, 140, 913 P.2d 57, 66 (1996) (“Absent statutory language expressly imposing absolute liability, the states of mind denominated in HRS § 702–204 will generally apply, because we will not lightly discern a legislative purpose to impose absolute liability.”). Thus, for a defendant to be found guilty of violating HRS § 291C–13, the State must prove beyond a reasonable doubt that he or she violated § 291C–13 with an intentional, knowing, or reckless state of mind. Cf. State v. Nesmith, 127 Hawai‘i 48, 54, 276 P.3d 617, 623 (2012) (referring to HRS § 291E–61(a)(1)).
We next determine whether, upon a timely objection, the failure to identify the requisite mens rea in a charge under HRS § 291C–13 requires dismissal of the case. In State v. Wheeler, 121 Hawai‘i 383, 219 P.3d 1170 (2009), the defendant Wheeler was orally charged with Operating a Vehicle Under the Influence of an Intoxicant (“OVUII”) in violation of HRS § 291E–61(a)(1), which states:
(a) 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:
(1) While 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[.]
121 Hawai‘i at 385–386, 386 n. 1, 219 P.3d at 1172–73, 1173 n. 1. While the statute did not define the term “operate,” the term was defined in HRS § 291E–1 (2007) to mean “to drive or assume actual physical control of a vehicle upon a public way, street, road, or highway ....“ Id. at 391, 219 P.3d at 1179 (internal quotation marks omitted). Although the oral charge tracked the language of HRS § 291E–61(a)(1), it did not allege that Wheeler had operated a vehicle on a public way, street, road, or highway, and Wheeler's attorney moved to dismiss the charge on the basis that the charge was insufficient. See id. at 386–87, 219 P.3d at 1173–74. The district court denied the motion, and Wheeler was ultimately convicted of OVUII. Id. at 387, 389, 219 P.3d at 1174, 1176.
Wheeler appealed, arguing that the district court erred in denying his motion to dismiss “because the oral charge failed to allege an ‘essential fact’—that Wheeler operated a vehicle on a public road, street or highway [.]” Id. at 389, 219 P.3d at 1176. In a summary disposition order, this court vacated the judgment and remanded to the district court with instructions to dismiss the charge without prejudice, holding that the oral charge was insufficient because it “failed to include a plain, concise and definite statement of each of the essential facts constituting the offense of OVUII because it failed to allege that Wheeler operated a vehicle on a public road, street or highway, an attendant circumstance of the offense.” Id. at 389–90, 219 P.3d at 1176–77.
The Supreme Court affirmed, holding that “[a]lthough the oral charge here tracked the language of HRS § 291E–61, the failure of the charge to allege that Wheeler was driving his vehicle upon a public way, street, road, or highway at the time of the offense rendered the charge deficient.” Id. at 393, 400, 219 P.3d at 1180, 1187. The Court noted that the word “operate” had been given a statutory meaning that “does not comport with its commonly understood definition,” as the common definition “does not geographically limit where the conduct must take place.” Id. at 394, 219 P.3d at 1181. Thus, the term “operate” as used in HRS § 291E–61 “is neither ‘unmistakable’ nor ‘readily comprehensible to persons of common understanding.’ “ Id. (quoting State v. Merino, 81 Hawai‘i 198, 214, 915 P.2d 672, 688 (1996)). And therefore, “[t]he use of the phrase ‘operate’ did not provide adequate notice to Wheeler that the State was required to prove that his operation of the vehicle occurred on a public way, street, road, or highway.” Id. at 395,219 P.3d at 1182.
The Supreme Court expanded on Wheeler in State v. Nesmith, 127 Hawai‘i 48, 276 P.3d 617, holding, among other things, that a charge of OVUII under HRS § 291E–61(a)(1) “must allege the requisite mens rea in order to fully define the offense in unmistakable terms readily comprehensible to persons of common understanding[.]” 127 Hawai‘i at 50, 276 P.3d at 619. Although HRS § 291E–61(a)(1) does not in itself define the requisite mens rea, the Court held that, pursuant to HRS § 702–04, the State must prove beyond a reasonable doubt that the defendant violated HRS § 291E–61(a)(1) with an intentional, knowing, or reckless state of mind as to all elements of the offense. Id. at 53–54, 276 P.3d at 622–23. After identifying the problem with the charge in Wheeler—that the statutory definition of “operate” contained a geographical limit that was “neither ‘unmistakable’ nor ‘readily comprehensible to persons of common understanding’ “—the Court stated:
Similarly, in this case, at oral argument, the State argued that any person on the street would know a charge of “operating a vehicle under the influence of an intoxicant” to mean drunk driving. However, that common understanding is not reflected in the statutory framework creating the offense of OVUII under HRS § 291E–61(a)(1), under which it is a crime only if one intentionally, knowingly, or recklessly (not negligently) “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.” As in Wheeler, the OVUII offense in this case is statutorily defined as narrower than what is commonly understood to constitute “drunk driving.” In that sense, a charge alleging a violation of HRS § 291E–61(a)(1) that omits the statutorily incorporated culpable states of mind from HRS § 702–204 is not readily comprehensible to persons of common understanding. As such, a charge omitting the allegation of mens rea is deficient for failing to provide fair notice to the accused.
Id. at 5455, 276 P.3d at 623–24. With regard to the issue raised by this case as to whether the charge provides sufficient notice of the mens rea necessary for conviction, the Court further stated:
[I]n this case, the “intentional, knowing, or reckless” state of mind requirements, though not an “element of an offense” under HRS § 702–205, needed to be charged in an HRS § 291E–61(a)(1) Complaint to alert the defendants of precisely what they needed to defend against to avoid a conviction. A charge omitting the mens rea requirements would not alert the Petitioners that negligently operating a vehicle under the influence of an intoxicant in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty, for instance, is not an offense recognized under HRS § 291E–61(a)(1). In short, mens rea must be alleged in an HRS § 291E–61(a)(1) charge.
Id. at 56, 276 P.3d at 625.
The logic of this holding in Nesmith applies to charges for violating HRS § 291C–13. The charge read to Loesch tracked the language of HRS § 291C–13, but failed to inform Loesch that the State was required to prove that Loesch violated the statute intentionally, knowingly, or recklessly. Nothing in the charge informs Loesch that a negligent or unknowing violation of HRS § 291C–13 is not a criminal offense. Thus, a charge under HRS § 291C–13 must allege the requisite mens rea in order to fully define the offense in unmistakable terms readily comprehensible to persons of common understanding. Therefore, the charge in this case was insufficient, and the District Court erred in denying Loesch's motion to dismiss.
Therefore,
IT IS HEREBY ORDERED that the Notice of Entry of Judgment and/or Order and Plea/Judgment filed on August 30, 2010 in the District Court of the First Circuit is vacated, and the case is remanded to the District Court with instructions to dismiss the case without prejudice. In light of our disposition on Loesch's first point of error, we need not address the other points of error he raises on appeal. Dissenting Opinion by FOLEY, J.
I respectfully dissent.
Loesch argues that the district court erred by denying his motion to dismiss the charge on the basis that it failed to set forth the requisite state of mind, an essential element of the offense, and the court consequently lacked jurisdiction. He maintains that “[w]hile state of mind is not strictly an element of the offense, [HRS] Section 701–114(1) requires proof beyond a reasonable doubt as to ... the state of mind required to establish each element of the offense.” He argues that because the charge did not include the requisite mens rea, he was not given fair notice. He cites to State v. Wheeler, 121 Hawai‘i 383, 219 P.3d 1170 (2009), to support this point.
The statute at issue in this case is Hawaii Revised Statutes (HRS) § 291C–13 (2007), which provides in relevant part:
§ 291C–13 Accidents involving damage to vehicle or property.
The driver of any vehicle involved in an accident resulting only in damage to a vehicle ... that is driven ... by any person shall immediately stop such vehicle at the scene of the accident or as close thereto as possible, but shall forthwith return to, and in every event shall remain at, the scene of the accident until the driver has fulfilled the requirements of section 291C–14.
HRS § 291C–13 sets forth no mens rea. HRS § 702–204 (1993) provides in relevant part, “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.” To convict Loesch of violating HRS § 291C–13, leaving the scene of an accident, the State had to prove beyond a reasonable doubt that Loesch committed each essential element of the offense intentionally, knowingly or recklessly. HRS § 701–114 (1993).
In Wheeler, Wheeler was charged with operating a vehicle under the influence of an intoxicant (OVUII), in violation of HRS § 291E–61(a)(1) (2007). Wheeler, 121 Hawai‘i at 385, 219 P.3d at 1172. A person who violated HRS § 291E–61(a)(1) had to either drive or assume actual physical control of a vehicle 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. Id. at 391, 219 P.3d at 1178.HRS § 291E–61(a)(1) did not define “operate”; but “HRS § 291E–1 provided that ‘to operate’ meant ‘to drive or assume actual physical control of vehicle upon a public way, street, road, or highway[.]’ “ Id.
In Wheeler, the Hawai‘i Supreme Court held that “[a]lthough the oral charge here tracked the language of HRS § 291E–61, the failure of the charge to allege that Wheeler was driving his vehicle upon a public way, street, road, or highway at the time of the offense rendered the charge deficient.” Id. at 393, 219 P.3d at 1180. The supreme court stated that “operate” had been defined in HRS § 291E–61 in a manner that did not comport with its commonly understood definition. Id. at 394, 219 P.3d at 1181. Compared to the dictionary definition, the statutory definition of “operate” contained a “geographical limit” that was “neither unmistakable nor readily comprehensible to persons of common understanding” and, thus, did not provide fair notice. Id. at 394–95, 219 P.3d at 1181–82.
In State v. Nesmith, 127 Hawai‘i 48, 50, 276 P.3d 617, 619 (2012), Nesmith and Yamamoto (collectively, Defendants) were each charged with OVUII under HRS § 291E–61(a)(1) and/or (a)(3) (2007). HRS § 291E–61(a)(1) did not set forth a state of mind, and the charges did not provide any. Nesmith, at 53, 276 P.3d at 621. Prior to trial in each case, Defendants moved to dismiss their respective charges based on the argument that the State failed to allege the requisite mens rea, which was an essential element of the offense. Id. at 51, 276 P.3d at 620. The district court denied the motions to dismiss. Id.
The Hawai‘i Supreme Court held the district court erred in denying the motions to dismiss. Id. at 61, 276 P.3d at 630. The supreme court stated that “a charge alleging a violation of HRS § 291E–61(a)(1) that omits the statutorily incorporated culpable states of mind from HRS § 702–204 is not readily comprehensible to persons of common understanding” and, therefore, was “deficient for failing to provide fair notice to the accused.” Id. at 54–55, 276 P.3d at 623–24. The supreme court stated that:
“intentional, knowing, or reckless” state of mind requirements, though not an “element of an offense” under HRS § 702–205, needed to be charged in an HRS § 291E–61(a)(1) Complaint to alert the defendants of precisely what they needed to defend against to avoid a conviction. A charge omitting the mens rea requirements would not alert the Petitioners that negligently operating a vehicle under the influence of an intoxicant in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty, for instance, is not an offense recognized under HRS § 291E–61(a)(1). In short, mens rea must be alleged in an HRS § 291E–61(a)(1) charge.
Id. at 56, 276 P.3d at 625.
In State v. Mita, 124 Hawai‘i 385, 245 P.3d 458 (2010), Mita was charged and convicted of violating Revise Ordinances of Honolulu (ROH) § 7–2.3 which provides:
Sec. 7–2.3 Animal nuisance-Prohibited.
It is unlawful to be the owner of an animal, farm animal or poultry engaged in animal nuisance as defined in Section 7–2.2; provided, however, that it shall not be deemed to be animal nuisance for purposes of this article if, at the time the animal, farm animal or poultry is making any noise, biting or stinging, a person is trespassing or threatening trespass upon private property in or upon which the animal, farm animal or poultry is situated, or for any other legitimate cause which teased or provoked said animal, farm animal or poultry.
ROH § 7–2.2 defines “animal nuisance” as follows:
Sec. 7–2.2 Definitions.
....
“Animal nuisance,” for the purposes of this section, shall include but not be limited to any animal, farm animal or poultry which:
(a) Makes noise continuously and/or incessantly for a period of 10 minutes or intermittently for one-half hour or more to the disturbance of any person at any time of day or night and regardless of whether the animal, farm animal or poultry is physically situated in or upon private property;
(b) Barks, whines, howls, crows, cries or makes any other unreasonable noise as described in Section 7–2.4(c)
ROH § 7–2.4(c) (1990 & Supp. No. 6, 2–05) provides:
Sec. 7.2–4 General Requirements.
(c) Noise is unreasonable within the meaning of this article if considering the nature and the circumstances surrounding the animal nuisance, including the nature of the location and the time of the day or night, it interferes with reasonable individual or group activities such as, but not limited to, communication, work, rest, recreation or sleep; or the failure to heed the admonition of a police officer or a special officer of the animal control contractor that the noise is unreasonable and should be stopped or reduced.
(c) Notwithstanding the provisions of HRS Section 142–75 or any other applicable law, bites or stings a person.
Mita was issued an “Animal License & Regulation–Complaint & Summons” (citation). The citation, signed “Wanda Mita[,]” stated that Mita “[d]id on/or about this 3[rd] day of June Yr 08 at about 1940–2050 did own, harbour or keep (animal description): Boxers Name Roxy/Obie Color Brown ... at (location): [Mita's residence address] and did commit the offense of: ... animal nuisance-Sec: 7–2.3 Barking Dog [.]” Additionally, the citation had a section entitled “Officer's Report” which stated that “Mita was issued a Barking 3rd [sic] citation. She was already issued a previous Barking 2 warning citation.” Mita, 124 Hawai‘i at 386, 245 P.3d at 459.
At the start of trial, the Deputy Prosecuting Attorney read the following charge to Mita: “On or about June 3rd, 2008, in the city and county of Honolulu, state of Hawaii, you as the owner of an animal, farm animal, or poultry engaged in animal nuisance as defined in section 7–2.2, thereby violating section 7–2.3 of the Revised Ordinances of Honolulu.” Id. at 386, 245 P.3d at 459.
The supreme court found the charge against Mita “distinguishable from Wheeler because unlike the term ‘operate,’ the definition of the term ‘animal nuisance’ does not create any additional attendant circumstances or other essential elements of the offense of animal nuisance.” Id. at 391, 245 P.3d at 464. The supreme court also distinguished the charge in Mita from Wheeler in that the term “animal nuisance” is “consistent with its commonly-understood meaning and provides a defendant with notice of what is being charged.” Id. at 392, 245 P.3d at 465.
I find the charge in this case more akin to the charge in Mita, than the charges in Wheeler and Nesmith. The charge in this case was consistent with the commonly understood meaning of leaving the scene of an accident and provided Loesch with notice of what was being charged. Unlike Nesmith, the intentional, knowing, or reckless state of mind requirement did not need to be charged to alert Loesch what he needed to defend against to avoid conviction. Loesch's defense, if any, was clear: he was not or did not know he was in an accident resulting in damage to another vehicle; he was not the driver of that vehicle; or he did or could not immediately stop his vehicle at the scene of the accident or as close thereto as possible, return to, and remain at the scene of the accident until he fulfilled the requirements of HRS § 291C–14.
Loesch's defense was in fact that he did not know he had been in an accident resulting in damage to another vehicle. He testified he thought he ran over a water bottle. The notice of the charge to Loesch was certainly as clear, if not more so, as the notice of the charge to Mita.