  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-30701
                                                              31-JAN-2014
                                                              10:10 AM




                              NO SCWC-30701

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I
________________________________________________________________

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

                                    vs.

   BRANDY IWALANI C. AVILLA, Petitioner/Defendant-Appellant.
________________________________________________________________

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (ICA NO. 30701; CASE NO. 1DTA-10-00518)

                      SUMMARY DISPOSITION ORDER
                   (By: Acoba, and McKenna, JJ.,
     with Circuit Judge Ayabe, assigned by reason of vacancy,
                     concurring in the result;
with Recktenwald, C.J., dissenting, with whom Nakayama, J. joins)

          Petitioner Brandy Iwalani C. Avilla (“Avilla”) seeks

review of the Intermediate Court of Appeal’s April 24, 2012

Judgment on Appeal, entered pursuant to its April 9, 2012 Summary

Disposition Order, which affirmed the District Court of the First

Circuit’s “Notice of Entry of Judgment and/or Order and

Plea/Judgment” filed on June 9, 2010.        The District Court
   ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

adjudged Avilla guilty of Operating a Vehicle Under the Influence

of an Intoxicant, in violation of Hawai#i Revised Statutes

(“HRS”) § 291E-61(a)(1)(2007).1

            We accepted Avilla’s application for writ of certiorari

and now vacate the ICA’s Judgment on Appeal and remand this case

to the District Court with instructions to dismiss Avilla’s

Complaint without prejudice.

            On certiorari, Avilla contends that the ICA order

affirming her conviction constitutes an obvious inconsistency

with the Supreme Court’s April 12, 2012 decision in State v.

Nesmith, 127 Hawai#i 48, 276 P.3d 617.         In State v. Nesmith, we

held that mens rea must be alleged in an HRS § 291E-61(a)(1)

charge in order to provide fair notice of the nature and cause of

the accusation.     State v. Nesmith, 127 Hawai#i at 54-55, 276 P.3d

at 623-24.    The Complaint against Avilla failed to allege the

mens rea required in an HRS § 291E-61(a)(1) charge.             Therefore,

Avilla’s HRS § 291E-61(a)(1) charge was deficient for failing to

allege mens rea.

            Unlike Nesmith, however, Avilla challenged the

sufficiency of the Complaint for the first time on appeal.               This


      1
          HRS § 291E-61(a)(1) provided, at the time of the alleged offense,
the following:

            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 . . . [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[.]
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

court recently issued a decision in which the sufficiency of a

charge was similarly challenged for the first time on certiorari.

See State v. Apollonio, 130 Hawai#i 353, 311 P.3d 676.           In State

v. Apollonio, the majority of this court held, “a charge that

fails to charge a requisite state of mind cannot be construed

reasonably to state an offense and thus the charge is dismissed

without prejudice because it violates due process.”           Id. at 359,

311 P.3d at 682.    Avilla’s Complaint failed to charge a requisite

state of mind, and thus, the ICA’s Judgment on Appeal must be

vacated and the charge must be dismissed without prejudice

because it violates due process.

          IT IS HEREBY ORDERED that the ICA’s Judgment on Appeal

is vacated, and this case is remanded to the District Court with

instructions to dismiss the Complaint without prejudice.

          DATED: Honolulu, Hawai#i, January 31, 2014.

Trisha Y. Nakamura,                   /s/ Simeon R. Acoba, Jr.
for petitioner
                                      /s/ Sabrina S. McKenna
Brian R. Vincent,
for respondent


                 CONCURRENCE BY CIRCUIT JUDGE AYABE

          I concur in the result.

                                     /s/ Bert I. Ayabe
