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                                                              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.
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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
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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.

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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.

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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




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