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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-29655
                                                              15-JAN-2014
                                                              09:58 AM




                                  SCWC-29655

             IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                      vs.

         FRANCIS M. SHYANGUYA, Petitioner/Defendant-Appellant.


         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
   (ICA NO. 29655; HPD CR. NO. 08347776; CR. NO. 1P108-12324)

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

             Petitioner/Defendant-Appellant Francis M. Shyanguya

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

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

25, 2012 Memorandum Opinion (Memo. op.), affirming the Judgment

entered on February 2, 2009 by the District Court of the First

Circuit (the court1).       Petitioner was convicted by the court of

Prostitution in violation of the Hawai#i Revised Statutes (HRS) §


     1
             The Honorable Russel S. Nagata presided.
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712-1200 (1)(1993).2     On appeal to the ICA, Petitioner contended

(1) that the trial counsel was ineffective because of

“incompetent and damaging direct and cross examination and

closing arguments,” and (2) the oral charge was deficient because

it “fail[ed] to state the specific sexual conduct” and, “[u]nder

State v. Wheeler, 121 Hawai#i 383, 219 P.3d 1170 [(2009)] fair

notice to the defendant requires notice of the means of terms of

elements that are not readily comprehensible to persons of common

understanding.”3     The ICA sua sponte raised the issue of whether

the charge contained a jurisdictional defect for failing to

allege the requisite mens rea, citing State v. Nesmith, 127

Hawai#i 48, 56, 276 P.3d 617, 625 (2012), in which this court held

that a charge that fails to allege the requisite state of mind

does not provide fair notice to the accused of the nature and

cause of the accusation.



      2
            At the time of the charge, HRS § 712-1200(1) (1993) provided:

            (1) a person commits the offense of prostitution if the person
            engages in, or agrees or offers to engage in, sexual conduct with
            another person for a fee.

HRS § 712-1200(1).

      3
            The charge stated as follows:

            On or about the 16th day of September, 2008, in the City and
            County of Honolulu, State of Hawai#i, [Petitioner] did
            engage in, or agree or offer to engage in, sexual conduct
            with another person for a fee, thereby committed the offense
            of Prostitution, in violation of Section 712-1200(1) of the
            Hawai#i Revised Statutes.

                                      2
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            In his Application, Petitioner contends that a charge

which does not plead the “essential fact[]” of mens rea “amounts

to a failure to state an offense,” (citing State v. Cummings, 101

Hawai#i 139, 142, 63 P. 3d 1109, 112 (2003)), and that “[a]ny

conviction based on such defective complaint cannot be

sustained.” (Citing Nesmith, 127 Hawai#i at 62 276 P. 3d at 630

(Acoba, J., concurring and dissenting).).          The ICA, inter alia,

held that Petitioner “waived any challenge to the sufficiency of

the charge for failure to allege a mens rea by not objecting on

this basis in [the court] and by not asserting this claim on

appeal.”    State v. Shyanguya, No. 29655, 2012 WL 2383726, at *4

(App. June 25, 2012).

            HRS § 712-1200(1) does not specify the state of mind

required to establish the elements of the offense of

prostitution.     Thus, under HRS § 702-204 (1993), for each element

of HRS § 712-1200(1), the state must establish that Petitioner

acted intentionally, knowingly, or recklessly.4

            In State v. Maharaj, No. SCWC-29520, 2013 WL 6068086,

at *5 (Haw. Nov. 18, 2013), where the issue of mens rea was

raised for the first time on appeal, we reaffirmed the “core



      4
            HRS § 702-204 (1993) 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.”

                                      3
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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.’”5         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 Complaint

against Petitioner failed to allege the requisite state of mind

that also was an essential fact of the offense of prostitution,

the Complaint must be dismissed without prejudice.            Id. at *5.

            IT IS HEREBY ORDERED that the August 24, 2012 judgment

of the ICA and the February 2, 2009 Judgment of the court are

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

to dismiss the Complaint without prejudice.

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

Jack Schweigert,                     /s/ Simeon R. Acoba, Jr.
for petitioner
                                     /s/ Sabrina S. McKenna
Donn Fudo
(on the brief),                      /s/ Richard W. Pollack
for respondent

      5
            In the instant case, the sufficiency of the charge was first
raised sua sponte by the ICA on appeal.

                                      4
