                                                                  Electronically Filed
                                                                  Supreme Court
                                                                  SCAP-12-0000392
                                                                  25-FEB-2013
                                                                  09:34 AM




                                 SCAP-12-0000392

                IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                               STATE OF HAWAI#I
                        Petitioner/Plaintiff-Appellee,

                                        vs.

                               JEFFREY BORTEL,
                       Respondent/Defendant-Appellant.


            APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                 (CAAP-12-0000392; CASE NO. 1DTC-11-020521)

                               MEMORANDUM OPINION
 (By:       Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)

               Respondent/Defendant-Appellant Jeffrey Bortel

(Defendant) seeks review of the March 19, 2012 Notice of Entry of

Judgment and/or Order and Plea/Judgment of the district court of

the first circuit (the court)1 that adjudged Defendant guilty of

Excessive Speeding, Hawai#i Revised Statutes (HRS) § 291C-

105(a)(1) (2007 & Supp. 2008).2           Petitioner/Plaintiff-Appellee


        1
               The Honorable T. David Woo, Jr. presided.

        2
            HRS § 291C-105, entitled “Excessive speeding,” provides in
relevant parts as follows:

                     (a) No person shall drive a motor vehicle at a speed
               exceeding:
                     (1)   The applicable state or county speed limit by
the State of Hawai#i (the State) filed an application for

transfer on October 26, 2012.     On November 21, 2012 this court

accepted transfer of the case.      We vacate the court’s March 19,

2012 Notice of Entry of Judgment and/or Order and Plea/Judgment,

and instruct the court to dismiss the charge without prejudice.

                                   I.

          On January 1, 2012, Defendant was cited for excessive

speeding for traveling seventy-three miles per hour in a thirty-

five mile per hour speed zone, HRS § 291C-105(a)(1) (2007).

          Defendant was arraigned and charged on March 19, 2011.

The oral charge did not allege a state of mind for the offense:
                [THE STATE]: On or about January 1, 2011, in the City and
          County of Honolulu, [S]tate of Hawai[#]i, you did drive a motor
          vehicle at a speed exceeding the applicable state or county speed
          limit by 30 miles per hour or more thereby violating Section 291C
          Subsection 105([a])(1) of the [HRS]. This is your first offense
          in the last five years. How do you plead -- do you understand the
          charge against you?
                [DEFENDANT]: Yes, I do.
                THE COURT: And how do you plead?
                [DEFENDANT]: Not guilty.

Following his arraignment, Defendant’s defense counsel orally

moved to dismiss the charge for failure to include the requisite

state of mind for the offense:
                [DEPUTY PUBLIC DEFENDER]: Your Honor, before we begin
          defense would be making an oral motion to dismiss for defective
          complaint, a failure to state a state of mind. There is a current
          case pending in the supreme court, the Nesmith case, that
          addresses this exact issue. So we’d ask to dismiss due to
          defective complaint.
                [THE STATE]: Uh, the -- it’s the State’s understanding that
          the Nesmith case concerns [HRS §] 291E-61 and not the section at
          issue today.
                [DEPUTY PUBLIC DEFENDER]: Also, Your Honor, there’s no
          definition of “public street” stated in the complaint, so we’d



                     thirty miles per hour or more[.]


                                    2
           also ask for dismissal on that.
                 [THE STATE]: Um, all -- all definitions in this section
           fall under [HRS §] 291C-1 unless otherwise specified.

The court summarily denied the motion.

           At the conclusion of the bench trial, the court found

Defendant guilty as charged.

           In his opening brief, Defendant raised three points of

error:
           1. The district court erred in denying [Defendant’s]
           motion to dismiss because the oral charge failed to
           allege the requisite mens rea.

           2. The district court violated [Defendant’s]
           constitutional right to testify when it failed to
           properly advise him of his right pursuant to Tachibana
           v. State[, 79 Hawai#i 226, 900 P.2d 1293 (1995)] and
           ensure whether [Defendant’s] waiver of such right was
           voluntary and knowing.

           3. The [court] erred because the State did not
           establish sufficient foundation for the accuracy of
           the speed reading and that Officer Maeshiro was
           qualified to operate the Ultralyte laser.

           The State answered each point of error:

     1.   As to point one, the State argues that HRS § 291C-105(a)

describes an absolute liability offense for which the state of

mind requirements of HRS § 702-204 (1993)3 do not apply.            The

State argues that a negligent state of mind may be specified by

the definition of an offense but cannot be incorporated into an

offense through HRS § 702-204.



     3
           HRS § 702-204 provides as follows:

                 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.

                                     3
      2.   As to point two, the State concedes the Tachibana issue.

      3.   As to point three, the State argues that sufficient

foundation was laid to admit the speed reading as substantial

evidence of Defendant’s speed.

            The State filed an application for transfer on October

26, 2012.

            The State sought a mandatory transfer pursuant to HRS §

602-58(a)(1).4    The State asserted that Defendant’s first point

of error (whether a charge for excessive speeding must set forth

the state of mind requirements) implicates a question of

fundamental public importance.

            The State also sought a discretionary transfer pursuant

to HRS § 602-58(b)(1).5      The State asserted that issues of

whether HRS § 291C-105(a) constitutes an absolute liability

offense so that the state of mind requirements of HRS § 702-204

do not apply or whether absolute liability may plainly appear

from the language of a statute itself have never been addressed.6

                                     II.

            On July 19, 2012, this court accepted an application


      4
            HRS § 602-58(a)(1) provides in relevant part that “[t]he supreme
court, in the manner and within the time provided by the rules of court, shall
grant an application to transfer any case within the jurisdiction of the
intermediate appellate court to the supreme court upon the grounds that the
case involves”“a question of imperative or fundamental public importance.”

      5
            HRS § 602-58(b)(1) provides in relevant part that “[t]he supreme
court . . . may grant an application to transfer . . . upon grounds that the
case involves” “a question of first impression or a novel legal question.”

      6
            Because our ruling on Defendant’s first point of error disposes of
the case, we do not reach his remaining questions raised on appeal.

                                      4
for transfer in State v. Gonzalez, No. SCAP-11-0000500, 128

Hawai#i 314, 288 P.3d 788, 2012 WL 5970946 (Nov. 28, 2012), which

presented identical issues with respect to the sufficiency of a

charge of excessive speeding.    A published opinion in Gonzalez

was filed on November 28, 2012.

                                III.

            Logically, the discretionary issue pertaining to strict

liability must be answered first.       The State raises nearly

identical arguments to those it raised in Gonzalez regarding

strict liability.    In Gonzalez, we held that “neither the plain

language of the statute nor the legislative history supported the

State’s contention that HRS § 291C-105(a) is a strict liability

offense.”    2012 WL 5970946 at *9 (citing State v. Buch, 83

Hawai#i 308, 316, 926 P.2d 599, 607 (1996)).      Therefore, “HRS §

702-204 applies to HRS § 291C-105(a),” and “the State must prove

that a defendant acted intentionally, knowingly, or recklessly,”

in a charge of excessive speeding.       Id. (citing Buch, 83 Hawai#i

at 316, 926 P.2d at 607).    HRS § 291C-105(a) then is not a strict

liability offense, but instead requires that the State prove that

a defendant acted intentionally, knowingly, or recklessly.        Id.

                                  IV.

            The mandatory transfer issue in the instant case was

also raised in Gonzalez.    In Gonzalez, “after the charge was

read, Defendant orally moved to dismiss the charge, arguing that

the oral charge ‘fail[ed] to state the requisite state of mind’


                                   5
under HRS § 702-204.”      Id. at *1.7      The State “responded by

arguing that a defendant’s state of mind is not an element of an

offense, and, as such, need not be alleged in an oral charge.”

Id.   The district court “denied Defendant’s motion, ruling that

when a statute does not expressly set forth the culpable state of

mind, but rather imports the mens rea element from [HRS § 702-

212], that ‘obviates the need of the [S]tate to articulate a

state of mind.’”     Id.   In Gonzalez, the State agreed that, if HRS

§ 291C-105(a) contains a mens rea requirement, then the oral

charge in that case was insufficient under State v. Nesmith, 127

Hawai#i 48, 276 P.3d 617 (2012).          Gonzalez, 2012 WL 5970946 at

*9.

            This court held in Gonzalez that, “as in Nesmith, the

defendant objected to the failure to allege the requisite state

of mind at trial.”      Id. at *9 (citing Nesmith, 127 Hawai#i at 51,

276 P.3d at 620.).      Gonzalez stated that in Nesmith, “this court

reasoned that ‘state of mind requirements, though not an element

of an offense” were required to be included in the charges

against the defendant in order ‘to alert the defendants of

precisely what they needed to defend against to avoid a

conviction.’”     Id. (quoting Nesmith, 127 Hawai#i at 56, 276 P.3d

at 625.)).    According to Gonzalez, Nesmith “held that the state

of mind must be included in a charge or the case must be

      7
            In this case, as in Gonzalez and Nesmith, the defendant objected
to the failure to allege the requisite state of mind at trial. See Gonzalez,
2012 WL 5970946 at *9 (“In this case, as in Nesmith, the defendant objected to
the failure to allege the requisite state of mind at trial.”)

                                      6
dismissed without prejudice.”    Id. (citing Nesmith, 127 Hawai#i

at 54, 276 P.3d at 623)).    Because the charge in Gonzalez did not

refer to the requisite states of mind, Nesmith “mandate[d]

dismissal without prejudice.”    Id.   Likewise, the absence of an

allegation of the requisite states of mind in the instant case

requires dismissal of the excessive speeding charge without

prejudice.

                                 V.

          Based on the foregoing, we vacate Defendant’s

conviction and remand this case to the court with instructions to

dismiss the charge without prejudice, because HRS § 291C-105(a)

is not a strict liability offense and the oral charge herein

failed to allege the requisite states of mind.

          DATED:    Honolulu, Hawai#i, February 25, 2013.

Brandon H. Ito,                   /s/ Mark E. Recktenwald
for petitioner
                                  /s/ Paula A. Nakayama
Evan S. Tokunaga,
for respondent,                   /s/ Simeon R. Acoba, Jr.
on the briefs
                                  /s/ Sabrina S. McKenna

                                  /s/ Richard W. Pollack




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