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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000427
                                                              15-JAN-2014
                                                              08:51 AM




                            SCWC-11-0000427

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

          WENDY PIERCE, Petitioner/Defendant-Appellant.


         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-11-0000427; CASE NO. 2DTC-10-006049)

                      SUMMARY DISPOSITION ORDER
   (By: Acoba, McKenna, and Pollack, JJ; with Recktenwald, C.J.,
             dissenting, with whom Nakayama, J., joins)

          Petitioner/Defendant-Appellant Wendy Pierce

(Petitioner) seeks review of the August 24, 2012 judgment of the

Intermediate Court of Appeals (ICA) filed pursuant to its August

10, 2012 Summary Disposition Order (SDO), affirming the Entry of

Judgment and/or Order and Plea/Judgment (Judgment), filed on

April 27, 2011 in the District Court of the Second Circuit,
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Wailuku Division (the court)1.       Petitioner was convicted by the

court of the offense of excessive speeding in violation of Hawai#i

Revised Statutes (HRS) § 291C-105 (2007 and Supp. 2010).2             On

appeal to the ICA, Petitioner contended that [the Respondent] did

not establish “‘(1) that the [True Speed] was tested according to

the manufacturer’s recommended procedures and found to be working

properly, and (2) that the nature and extent of [the Officer’s]

training in the use of the [True Speed] met the requirements

indicated by the manufacturer.’”          (Citing State v. Assaye, 121

Hawai#i 124, 213-15, 216 P.3d 1227, 1236-38 (2009).)

            On August 10, 2012, the ICA issued its SDO affirming

the court’s Judgment, only addressing (1) whether the True Speed

was tested or determined to be working properly in accordance

with the manufacturer’s recommended procedures, and (2) whether

the Officer’s training met the manufacturer’s requirements.




      1
            The Honorable R. Mark Browning presided.

      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.

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          In her 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)[,]”3 and “the ICA gravely erred in holding that

the State laid sufficient foundation for the admission of the

laser gun reading.”     Petitioner challenges the sufficiency of the

charge in the Amended Complaint for the first time in her

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), where the issue of mens rea was


     3
          The Amended Complaint read as follows:

          That on or about the 20 th day of October, 2012, in the Division of
          Wailuku, County of Maui, State of Hawai#i,[Petitioner] did drive a
          motor vehicle at a speed exceeding the applicable state or county
          speed limit by thirty miles per hour or more, to wit, did drive a
          motor vehicle at 77 miles per hour in a 45 miles per hour zone,
          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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raised for the first time on appeal, 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 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.’”4         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 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 August 24, 2012 judgment

of the ICA and the April 27, 2011 Judgment of the court are




      4
            In Apollonio, the defendant first contested the sufficiency of the
charge in his Application to this court. 130 Hawai#i at 357 n.5, 311 P.3d at
680 n.5. Similarly, in the instant case, the sufficiency of the charge was
first raised by Petitioner in her Application. Moreover, as in Apollonio, see
id., here Petitioner’s Notice of No Reply Brief in the ICA was filed on
Feburary 14, 2012, prior to this court’s decision in Nesmith, filed on April
12, 2012. Therefore, as this court explained in Apollonio, Petitioner could
not have raised the argument that her conviction was contrary to Nesmith
before the ICA. Id.

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vacated, and this case is remanded to the court with instructions

to dismiss the Complaint without prejudice.

          DATED: Honolulu, Hawai#i, January 15, 2014.

James S. Tabe,                      /s/ Simeon R. Acoba, Jr.
for petitioner
                                    /s/ Sabrina S. McKenna
Peter A. Hanano,
for respondent                      /s/ Richard W. Pollack




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