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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCAP-11-0000500
                                                                28-NOV-2012
                                                                08:55 AM



              IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                  ---o0o---


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

                                      vs.

       JOSE R. GONZALEZ, III, Respondent/Defendant-Appellant.


                               SCAP-11-0000500

          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                        (CASE NO. 1DTC-11-001356)

                             November 28, 2012

RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND MCKENNA, JJ., AND CIRCUIT
           JUDGE WILSON, ASSIGNED BY REASON OF VACANCY

                    OPINION OF THE COURT BY ACOBA, J.

             We hold that the offense of driving at an excessive

speed, Hawai#i Revised Statutes (HRS) § 291C-105(a),1 is not a

strict liability offense and requires proof that the defendant

acted intentionally, knowingly, or recklessly.            Thus, the

requisite states of mind must be alleged in a charge of this


      1
             HRS § 291C-105(a) 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
                         thirty miles per hour or more; or
                   (2)   Eighty miles per hour or more irrespective of
                         the applicable state or county speed limit.

(Emphases added.)
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offense.   Because the HRS §291C-105(a) charge against Defendant-

Appellant Joseph R. Gonzalez, III (Defendant) failed to allege

the requisite states of mind, we vacate the June 2, 2011 judgment

of the district court of the first circuit (the court)2 and

instruct the court to dismiss the charge without prejudice.                We

conclude also that Plaintiff-Appellee State of Hawai#i (State),

failed to lay an adequate foundation to admit the laser
instrument reading of Defendant’s vehicle’s speed into evidence.

                                     I.

                                     A.

           On June 2, 2011, Defendant was orally arraigned and

charged in the court with excessive speeding, HRS §§ 291C-

105(a)(1) and/or (a)(2).      The charge alleged as follows:
                   [Defendant], you’re charged with on or about the
           14 th of January, 2011, in the City and County of
           Honolulu, State of [Hawai#i], you did drive a motor
           vehicle at a speed exceeding the applicable State of
           [Hawai#i] or county speed limit by 30 miles per hour
           or more and/or 80 miles per hour or more irrespective
           of the applicable State of Hawai#i or county speed
           limit. By doing so you violated Section 291C-105
           (a)(1) and/or (a)(2) of the [HRS].
                   You are subject to sentencing in accordance with
           Section 291C-105(c)(1)[3 ] of the [HRS] where you have


     2
           The Honorable Paula Devens presided.

     3
           HRS § 291C-105(c)(1) (2011) provides in relevant part as follows:

                 (c) Any person who violates this section shall be
           guilty of a petty misdemeanor and shall be sentenced as
           follows without the possibility of probation or suspension
           of sentence:
                 (1)    For a first offense not preceded by a prior
                        conviction for an offense under this section in
                        the preceding five years:
                        (A)   A fine of not less than $500 and not more
                              than $1,000;
                        (B)   Thirty-day prompt suspension of license
                              and privilege to operate a vehicle during
                                                                (continued...)

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            no prior convictions under Section 291C-105 in the
            preceding five years. And you are charged with going
            96 in a 55 mile per hour zone.

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” under HRS § 702-204.4           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.     The court denied Defendant’s motion, ruling that
when a statute does not expressly set forth the culpable state of

      3
       (...continued)
                              the suspension period, or the court may
                              impose, in lieu of the thirty-day prompt
                              suspension of license, a minimum
                              fifteen-day prompt suspension of license
                              with absolute prohibition from operating a
                              vehicle and, for the remainder of the
                              thirty-day period, a restriction on the
                              license that allows the person to drive
                              for limited work-related purposes;
                        (C)   Attendance in a course of instruction in
                              driver retraining;
                        (D)   A surcharge of $25 to be deposited into
                              the neurotrauma special fund;
                        (E)   May be charged a surcharge of up to $100
                              to be deposited into the trauma system
                              special fund if the court so orders;
                        (F)   An assessment for driver education
                              pursuant to section 286G-3; and
                        (G)   Either one of the following:
                              (i)   Thirty-six hours of community
                                    service work; or
                              (ii) Not less than forty-eight hours and
                                    not more than five days of
                                    imprisonment.

(Emphases added.)

      4
            HRS § 702-204 provides in relevant part 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.

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mind, but rather imports the mens rea element from HRS § 702-212

(2011), that “obviates the need of the [S]tate to articulate a

state of mind.”

                                    B.

          Officer Jeremy Franks (Franks) of the Honolulu Police

Department testified on behalf of the State.          He related that on

January 14, 2011, he was on duty and positioned along the H-2
freeway, northbound, before the Mililani Mauka off-ramp.            While

on duty, he observed a vehicle approaching his location and

“passing traffic.”    Officer Franks testified that he used his

Laser Technology Incorporated (LTI) Ultralyte 100 Laser (laser

gun) to measure the oncoming vehicle’s speed.          The laser gun

provided a reading of ninety-six miles per hour, and because the

vehicle was traveling in a fifty-five-mile-per-hour zone, he

proceeded to stop the vehicle.

          Officer Franks testified that he was trained in the use

of the laser gun and that he had verified its accuracy on the
date in question.    Officer Franks’ training consisted of “four

hours of operator training in January of [2003] in the police

academy,” and “further training as an instructor by LTI

representatives themselves as well as laser instructor currently

retired Sergeant Bobby Lung.”       As to accuracy, Officer Franks

explained that at his initial training in the use of the laser

gun in 2003, he was provided with a manual “from [LTI].”            That

manual provides four separate tests “that an operator must do


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prior to using the laser on the shift.”            Officer Franks related

that he performed all four tests prior to using the laser gun on

January 14, 2011.

             On cross-examination, Officer Franks testified that

although the manual containing the four tests was not the manual

that was provided with the laser gun, it did contain both the HPD

seal and the LTI copyright.         He further recounted that he
received additional training directly from LTI personnel, where

the LTI personnel reviewed the HPD manual, and that all the

information covered by the LTI personnel was replicated in the

manual.

                                       C.

             Defendant testified that he was a military police

officer in the United States Army.           Defendant also stated that he

had training in the use of both radar guns and laser guns.                On

January 14, 2011, Defendant was pulled over at approximately 9

p.m.    According to Defendant, he was driving at a speed of fifty-
five miles per hour “on average.”           As he was driving, Defendant

observed a black Jeep Wrangler in the lane next to him, which

drove erratically, often speeding up to pass him before slowing

down to return to a position next to him.            Defendant believed

that the Wrangler was traveling seventy miles per hour.

             Defendant also related that the struts in his vehicle

were functioning poorly.         Due to this mechanical defect,

Defendant explained that whenever he tried to go faster than


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sixty miles per hour, his car would shake and was difficult to

control.   He stated that on January 14, 2011, his car did not

shake or become difficult to control while he was driving.

                                    D.

           At the end of trial, the court found Defendant guilty

as charged.   The court ruled that it found Officer Franks’

testimony credible, and based on Officer Franks’ testimony it
found Defendant guilty beyond a reasonable doubt “on each and

every element that the State needs to prove.”          The court noted

that this included the state of mind element, and held that “the

State did prove [that Defendant] acted recklessly.”

                                    II.

           On appeal, Defendant raises the following points of

error:
           I. The trial court erred in denying [Defendant’s]
           motion to dismiss because the prosecution’s citation
           and oral charge for excessive speeding was fatally
           insufficient because it failed to allege the requisite
           mens rea.

           II. The trial court erred in finding that the State
           put forth a prima facie case and receiving evidence of
           the laser gun speed reading because the State failed
           to lay a sufficient foundation for the speed reading
           taken by the laser gun.

                                   III.

                                    A.

           As to the first point of error, Defendant argues that

state of mind is an “essential element” of the charged offense,

and because the oral charge did not allege Defendant’s state

mind, the charge must be dismissed.        (Citing State v. Jendrusch,


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58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977).) Defendant also

argues that “the State’s failure to allege the state of mind

amounts to a failure to state an offense, and a conviction based

upon it cannot be sustained, for that would constitute a denial

of due process.”    (Quoting State v. Elliot, 77 Hawai#i 309, 311,

884 P.2d 372, 374 (1994).) (Punctuation omitted.)

                                    B.
                                    1.

          In its Answering Brief, the State argues that it was

not required to allege a mens rea element, because HRS § 291C-

105(a) is a strict liability offense and, therefore, the state of

mind requirements in HRS § 702-204 do not apply.           As an initial

matter, the State argues that although it did not raise before

the court the argument that HRS § 291C-105(a) (2011) is a strict

liability offense, it is not precluded from raising this argument

for the first time on appeal because the court ruled in its favor

on this issue.    According to the State, “[a]n appellate court may
affirm a judgement of the lower court on any ground in the record

that supports affirmance,” and “[the State] is merely submitting

a different reason explaining why the trial court’s denial of

[Defendant’s] oral motion to dismiss is the correct result.”

(Citing State v. Fukagawa, 100 Hawai#i 498, 506, 60 P.3d 899, 907

(2002); State v. Dow, 96 Hawai#i 320, 326, 30 P.3d 926, 932

(2001); Poe v. Hawai#i Labor Relations Bd., 87 Hawai#i 191, 197,

953 P.2d 569, 575 (1998).)


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                                    2.

          It is questionable whether the State may argue on

appeal that HRS § 291C-105(a) is a strict liability offense.               It

is a “well-settled maxim” that “the failure to properly raise an

issue at the trial level precludes a party from raising that

issue on appeal.”    State v. Kikuta, 125 Hawai#i 78, 89, 253 P.3d

639, 650 (2011); see also State v. Ildefonso, 72 Hawai#i 573,
584, 827 P.2d 648, 655 (1992) (“Our review of the record reveals

that [the defendant] did not raise this argument at trial, and

thus it is deemed to have been waived.”); State v. Hoglund, 71

Haw. 147, 150, 785 P.2d 1311, 1313 (1990) (“Generally, the

failure to properly raise an issue at the trial level precludes a

party from raising that issue on appeal.”).          The cases cited by

the State do not negate this proposition.         None deal with

circumstances where the prevailing party waived the argument

raised on appeal.    Our precedent clearly demonstrates that a

party can waive an argument by failing to raise it at trial even
if the party ultimately prevails on that issue.           Kikuta, 125

Hawai#i at 89, 253 P.3d at 650.

          Although the State prevailed in the trial court, Kikuta

held that the State waived the argument that the parental use of

force was not for disciplinary reasons because it did not raise

that argument before the trial court.        Id.; see also State v.

Harada, 98 Hawai#i 18, 30, 41 P.3d 174, 186 (2002) (holding that

the State waived the argument that exigent circumstances


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justified a violation of the knock-and-announce rule by failing

to raise it at trial even though the State prevailed on a

different argument at trial); State v. Rodrigues, 67 Haw. 496,

498, 692 P.2d 1156. 1158 (1985) (precluding the State from

raising arguments regarding exigent circumstances and the good

faith exception on appeal when they were not raised in the trial

court, even though the State prevailed on other grounds at
trial); but see State v. Moses, 102 Hawai#i 449, 456, 77 P.3d

940, 947 (2003) (holding, under similar circumstances, that

“[c]onsideration of the appellee’s argument in this situation is

appropriate, even though not raised before the circuit court,

because the appellee never had the need to raise such an argument

before the circuit court”).

          In the instant case, the State had the opportunity to

raise before the court the argument that HRS § 291C-105(a) is a

strict liability offense.      At the beginning of trial, Defendant

raised the State’s failure to allege a state of mind when the
State read the oral charge.      Instead of responding that the

charge was not deficient because the statute was a strict

liability offense that contained no mens rea requirement, the

State relied on its argument that mens rea was not an element of

the offense, and therefore did not have to be included in the

oral charge.   At that point, the State chose to forego reliance

on a strict liability argument, and, under Kikuta, Harada, and

Rodrigues, that argument would be waived.


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          None of the cases cited by the State allow a party to

raise an issue on appeal when that issue was not raised before

the trial court.    Fukagawa, for example, held that even if the

trial court had incorrectly rejected the defendant’s argument

that he had possessed a de minimis amount of methamphetamine,

based on the evidence, the defendant would still be convicted

because he could not possibly meet his burden of demonstrating
that this was a de minimis offense.        100 Hawai#i at 507, 60 P.3d

at 908. To show that his offense was de minimis, the defendant

was required to address both the nature of the conduct alleged

and the nature of the attendant circumstances.          Id.   Based on the

record below, the defendant had only addressed the former.             Id.

Because of the defendant’s failure to address the nature of the

attendant circumstances, Fukagawa held that the trial court did

not abuse its discretion in refusing to find the offense a de

minimis violation.    Id.   Fukagawa could not have dealt with

waiver, as the court’s holding was not based on any affirmative
argument made by the prosecution.        Id.   Instead, this court ruled

only that the evidence provided by the defendant was legally

insufficient.   Id.

          Dow is even less relevant to the present case.            96

Hawai#i at 323, 30 P.3d at 929.       In Dow, the trial court held

that recorded test result of “19% mgm Ethanol per cc” supported a

DUI conviction.    Id.   The trial court erred by concluding that

the written result was the equivalent of a blood alcohol content


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of .19 -- in fact, the recorded result was expressed using the

wrong unit of measure.     Id.   Nevertheless, this court noted that

“the record indicates that the recorded test result was not the

only evidence presented at the time of trial.”          Id.

           The record also contained additional evidence presented

by the State at trial, including the testimony of the medical

technician that the results of the blood-alcohol test were “a .20
and a .19,” and the testimony of two lay witnesses that the

defendant’s eyes were bloodshot and he smelled of alcohol.             Id.

at 325, 30 P.3d at 931.     On the basis of the additional evidence

presented at trial, this court affirmed the decision of the trial

court.   Id.   The State could not have waived the arguments

eventually relied on by this court, because this court’s decision

was based on the additional evidence presented by the State at

trial.

           Similarly, in Poe, this court held that “where the

circuit court’s decision is correct, its conclusion will not be
disturbed on the ground that it gave the wrong reason for its

ruling” only after adopting an alternative argument that the

prevailing party presented to the trial court.          87 Hawai#i at

197, 953 P.2d at 575.     Poe consolidated two cases before the

Hawai#i Labor Relations Board.      In the first, the State argued

the plaintiff’s employer had designated him as an essential

employee, and the board disagreed.        Id. at 194, 953 P.2d at 572.

In the second case, the plaintiff argued that because he was not


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an essential employee, his employer had engaged in a prohibited

practice by refusing to allow him to strike.            Again, the board

disagreed.     Id.

            On appeal, this court ruled that the board’s first

decision was incorrect -- the plaintiff was indeed an essential

employee.     Id. at 196, 953 P.2d at 574.        Because the plaintiff

was an essential employee, it became impossible for the
plaintiff’s employer to have engaged in prohibited labor

practices, and therefore this court affirmed the second decision

of the board on this new ground.           Id. at 196-97, 953 P.2d at 574-

75.   The argument regarding the plaintiff’s status as an

essential employee could not have been waived, because the labor

board had addressed it in the plaintiff’s initial case.              Id. at

194, 953 P.2d at 572.       In sum, Fukagawa, Dow, and Poe provide no

support for the State’s position that it can raise an argument

for the first time on appeal because it prevailed in the trial

court.
                                      IV.

            Although the State may have waived its strict liability

argument, because of the likelihood that this case will be

retried, and because this court accepted transfer due to the

public importance of clarifying the charging requirements in an

excessive speeding case, the appropriate resolution of this issue

is discussed.




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                                     A.

             The State argues that the language of HRS

§ 291C-105(a) is absolute on its face because it states that “no

person” shall drive at a speed exceeding the statute’s limits.

According to the State, “no” is ordinarily defined as “not any,”

or “not one.” (Quoting Webster’s New World Dictionary 919 [sic].)

The State maintains that if only persons who intentionally,
knowingly, or recklessly drive at speeds exceeding the statute’s

limits could be charged under the statute, it would no longer be

true that “all” persons would be prohibited from exceeding the

statute’s speed limits.       Therefore, the State argues, the

unqualified language in HRS § 291C-105(a) can only be given

effect if the statute imposes strict liability.            On this basis,

the State argues that the language of HRS § 291C-105(a) meets the

requirements of HRS § 702-212,5 because “a legislative purpose to

impose absolute liability . . . plainly appears.”

            In support of its strict liability argument, the State
relies on the Commentary to HRS § 702-212. According to the



      5
            HRS § 702-212 provides in relevant part as follows:

                  The state of mind requirements prescribed by sections
            702-204 and 702-207 through 702-211 do not apply to:
                  (1)   An offense which constitutes a violation, unless
                        the state of mind requirement involved is
                        included in the definition of the violation or a
                        legislative purpose to impose such a requirement
                        plainly appears; or
                  (2)   A crime defined by statute other than this Code,
                        insofar as a legislative purpose to impose
                        absolute liability for such offense or with
                        respect to any element thereof plainly appears.

(Emphasis added.)

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State, although the Commentary notes that “[o]ften regulatory

statutes are absolute on their face when it is doubtful that

absolute criminal liability was intended,” it also provides

examples of several pre-1968 statutes that did impose absolute

liability.    (Quoting Commentary to HRS § 702-212 nn.1, 3.)

According to the Commentary, two examples of statutes that did

impose absolute liability were HRS § 453-14 (1968),6 requiring
the reporting of knife and bullet wounds within twenty-four

hours, and HRS § 403-146 (1968),7 which prohibited officers or

directors of banks from delivering guaranties or endorsements

which the bank could not legally make.          In contrast, the

Commentary lists HRS §§ 403-141 (1968),8 403-142 (1968),9 and


      6
            HRS § 453-14 provided in relevant part as follows:

                  Every physician and surgeon attending or treating a
            case of knife wound, bullet wound, gunshot wound, powder
            burn, or any injury that would seriously maim, produce
            death, or has rendered the injured person unconscious,
            caused by the use of violence or sustained in a suspicious
            or unusual manner . . . , shall report such case to the
            chief of police.

(Emphases added.)

      7
            HRS § 403-146 provided in relevant part as follows

                  Any officer, director, or agent of a bank who makes or
            delivers any guaranty or indorsement on behalf of the bank
            whereby it may become liable on any of its discounted notes,
            bills, or obligations, in any sum beyond the amount of loans
            and discounts which the bank may legally make, shall be
            fined not more than $1,000 or imprisoned not more that one
            year, or both.

(Emphases added.)

      8
            HRS § 403-141 provided in relevant part as follows:

                  Any officer, director, or employee of a bank who
            wilfully or knowingly subscribes to or makes or causes to be
            made any false statement or report to the director of
                                                                (continued...)

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403-147 (1968)10 as statutes that, although appearing absolute on

their faces, do not impose strict liability.

            The State observes that in all of the statutes the

Commentary notes as imposing strict liability, the statute begins

      8
       (...continued)
            regulatory agencies, or any false entry in the books or
            accounts of the bank; or who knowingly subscribes to or
            exhibits false papers with the intent to deceive any person
            authorized to examine into the affairs of the bank or its
            directors; or who knowingly states or publishes any false
            report or statement of the bank or prepares any false
            minutes, with intent to deceive any examiner or any person
            authorized to examine the affairs of the bank or the
            directors thereof; or who fails to make proper entry upon
            the books or records of the bank; to disclose the true
            condition of the bank; or who makes any entry upon the books
            or records of the bank with intent to deceive or conceal the
            true condition thereof; shall be fined not more than $1,000
            or imprisoned not more than two years, or both.

(Emphases added.)

      9
            HRS § 403-142 provided in relevant part as follows:

                  Any officer, director, employee, or agent of a bank
            who makes a false or misleading entry or wilfully omits to
            make entry in any book, report, or statement of the
            business, affairs, or condition, in whole or in part, of the
            bank, with respect to any matter particularly pertaining to
            the business with intent to deceive or conceal the true
            condition of the business from any officer, director, or any
            agent, examiner, or other person employed or lawfully
            appointed to examine into the condition of any of its
            affairs, or any public officer, office, or board to whom or
            which the bank is required by law to report, or having
            authority by law to examine into any of its affairs, or who,
            with like intent, causes, aids, or abets any other person to
            make any false entry or to fail to make a requisite entry,
            shall be fined not more than $1,000 or imprisoned not more
            than two years, or both.

(Emphases added.)

      10
            HRS § 403-147 provided in relevant part as follows:

                  Any officer or director of a bank who, in case of the
            fraudulent insolvency of the bank, has participated in the
            fraud, or any officer or director who wilfully does any act,
            as such officer or director, which is expressly forbidden by
            law, or wilfully omits to perform any duty imposed upon him
            as such officer or director by law, shall be fined not more
            than $1,000 or imprisoned not more than five years, or both.

(Emphases added.)

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with unqualified language (“every” or “any”) and contains no

further qualification.      In contrast, the State maintains that the

Commentary’s examples of statutes that do not impose strict

liability, although beginning with the same unqualified language,

are subsequently qualified by terms such as “wilfully” or

“knowingly.”    From this, the State infers a general rule that

whenever a statute begins with unqualified language, and contains
no further qualifying language, the requirement imposed by HRS

§ 702-212 is met, and a legislative purpose to impose absolute

liability plainly appears.

            The State further compares HRS § 291C-102 (2011),11

enacted in 1973, to the statute at issue in this case, HRS §

291C-105.    According to the State, while HRS § 291C-102, which

provides penalties for ordinary speeding offenses, contains no

unqualified language and is not punishable by incarceration,12


      11
            HRS § 291C-102 provides, in relevant part as follows:

                  (a) A person violates this section if the person
            drives:
                  (1)   A motor vehicle at a speed greater than the
                        maximum speed limit other than provided in
                        section 291C-105; or
                  (2)   A motor vehicle at a speed less than the minimum
                        speed limit,
                  where the maximum or minimum speed limit is
                  established by county ordinance or by official signs
                  placed by the director of transportation on highways
                  under the director's jurisdiction.
                  (b) If the maximum speed limit is exceeded by more
            than ten miles per hour, a surcharge of $10 shall be
            imposed, in addition to any other penalties, and shall be
            deposited into the neurotrauma special fund.

(Emphasis added.)

      12
            The penalty for a violation of HRS § 291C-102 is set by HRS §
291C-161 (2011). HRS § 291C-161 provides in relevant part as follows:
                                                                (continued...)

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HRS § 291C-105, which provides penalties for excessive speeding,

does contain unqualified language and provides more significant

penalties, including the possibility of incarceration.             The State

reasons, therefore, that “it is reasonable to infer that the

legislature intended to emphasize the more severe penalties

imposed by HRS § 291-105(c) to apply to every person found to

violate HRS § 291-105(a), regardless of a person’s state of
mind.”

                                     B.

            Defendant argues in his Reply that “there is no express

language in HRS § 291C-105(a) to indicate the legislature’s

intent to make excessive speeding an absolute liability crime.”

Examining the legislative history of HRS § 291C-105(a), Defendant

argues that “nowhere in the accompanying committee reports is

there even the mere suggestion that the legislature intended to

impose absolute liability on excessive speeding.”


      12
       (...continued)
                  (a) It is a violation for any person to violate any of
            the provisions of this chapter, except as otherwise
            specified in subsections (c) and (d) and unless the
            violation is by other law of this State declared to be a
            felony, misdemeanor, or petty misdemeanor.
                  (b) Except as provided in subsections (c) and (d),
            every person who is determined to have violated any
            provision of this chapter for which another penalty is not
            provided shall be fined:
                  (1)   Not more than $200 for a first violation
                        thereof;
                  (2)   Not more than $300 for a second violation
                        committed within one year after the date of the
                        first violation; and
                  (3)   Not more than $500 for a third or subsequent
                        violation committed within one year after the
                        date of the first violation.

(Emphases added.)

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                                    V.

          Both HRS § 702-212 and its commentary suggest that a

strong showing is required before courts interpret a statute as

imposing strict liability.      The commentary to HRS § 702–204

states that a “state of mind [ ] will, in most instances, be

required for the imposition of penal liability[,]” and,

consequently, HRS § 702–212 “provides for those relatively few
instances when absolute or strict liability will be recognized.”

(Emphasis added.)    Thus, HRS § 702–212 states that, for “crime[s]

defined by statute other than [the HPC],” the states of mind

specified by the HPC “do not apply . . . insofar as a legislative

purpose to impose absolute liability for such offense or with

respect to any element thereof plainly appears.”           (Emphasis

added.)

          Previous decisions have construed the language of HRS §

702-212 as interpreting penal statutes as strict liability

offenses only if (1) the statutory language “expressly impos[es]
absolute liability,” State v. Eastman, 81 Hawai#i 131, 140, 913

P.2d 57, 60 (1996) (citing State v. Rushing, 62 Haw. 102, 105,

612 P.2d 103, 106 (1980)), or (2) the legislative history

“unequivocally indicates” an intent to eliminate the state of

mind requirement.    State v. Buch, 83 Hawai#i 308, 316, 926 P.2d

599, 607 (1996) (holding that the legislature plainly intended to

impose strict liability when the legislative history indicated

that the law had been amended to “eliminate the requirement of


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actual knowledge”); see also State v. Nesmith, 127 Hawai#i 48,

59, 276 P.3d 617, 628 (2012). (holding that the legislature

plainly intended to impose strict liability for drunk driving

offenses based on the statute’s legislative history).

              Neither the statutory language nor the legislative

history can support the imposition of strict liability in this

case.      The State’s argument that a statute “expressly imposes”
strict liability when it uses unqualified language such as

“every,” “any,” or “no person” is precluded by Rushing.               In that

case, the section of the statute at issue also used unqualified

language, without a subsequent reference to “wilfully” or

“knowingly.”13      Nevertheless, this court rejected any contention

that the language alone could support a finding of strict

liability, holding that “we do not find the legislative purpose

to impose absolute liability plainly to appear from the wording

of HRS § 346-34.”       Rushing, 62 Haw. at 105, 612 P.2d at 106.

              Moreover, if unqualified language standing alone
plainly demonstrated a legislative intent to impose strict



      13
              The statute at issue in Rushing provided in relevant part:

                    If, at any time while the recipient of public
              assistance is receiving such assistance, his living
              requirements are reduced and he fails to report the
              reduction within thirty days from the date of the reduction
              to the department, or he acquires from any source real
              property, funds, income, or other resources and fails to
              report the amount of same together with the source of the
              resources to the department within thirty days of receipt of
              same, or prior to spending or otherwise disposing of all or
              any portion of the same, he shall be deemed guilty of fraud.

62 Haw. at 103, 612 P.2d at 104 (quoting HRS § 346-34 (1976)) (emphases
added).

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liability, dozens of statutes would be transformed into strict

liability offenses.        See, e.g., HRS § 6E-10 (2011)14 (construction

on privately owned historic property), HRS § 21-15(c) (2011),15

and HRS §§ 21-12(g), (h) (2011),16 (violations of legislative

confidentiality), HRS § 46-45 (2011)17 (preventing county

      14
            HRS § 6E-10 provides in relevant part as follows:

                  (a) Before any construction . . . by, for, or
            permitted by a private landowner may be commenced which will
            affect an historic property on the Hawai#i register of
            historic places, the landowner shall notify the department
            of the construction . . . and allow the department
            opportunity for review of the effect of the proposed
            construction . . .
                  . . . .
                  (c) Any person, natural or corporate, who violates the
            provisions of this section shall be fined not more than
            $1,000, and each day of continued violation shall constitute
            a distinct and separate offense under this section for which
            the offender may be punished.

(Emphases added.)

      15
            HRS § 21-15(c) provides in relevant part as follows:

                  Any person other than the witness concerned or the
            witness’ counsel who violates subsection 21-12(g) or (h)
            shall be fined not more than $500 or imprisoned not more
            than six months, or both.

(Emphasis added.)

      16
            HRS § 21-12 provides in relevant part as follows:

                  (g) Testimony and other evidence given or adduced at a
            hearing closed to the public shall not be made public unless
            authorized by majority vote of all of the members of the
            committee, which authorization shall also specify the form
            and manner in which the testimony or other evidence may be
            released.
                  (h) All information of a defamatory or highly
            prejudicial nature received by or for the committee other
            than in an open or closed hearing shall be deemed to be
            confidential. No such information shall be made public
            unless authorized by majority vote of all of the members of
            the committee for legislative purposes, or unless its use is
            required for judicial purposes.

      17
            HRS § 46-45 provides in relevant part as follows:

                    No council, or other board, committee, department,
                                                                   (continued...)

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employees from spending money without prior appropriation), HRS §

142-61(f) (2011)18 (regulating electric fences), HRS § 142-95

(2011)19 (keeping Belgian hares off of the ground), HRS § 142-96

(2011)20 (frightening animals and endangering others), HRS § 264-


      17
           (...continued)
                bureau, officer, or employee of any county shall expend, or
                aid or participate in expending, during any period of time
                for any purpose, except for and in the exercise by the
                county of the power of eminent domain, any sum in the
                absence of an appropriation for the purpose for the period,
                or any sum in excess of an appropriation, if any, for the
                purpose for the period, or incur, authorize, or contract, or
                aid or participate in incurring, authorizing, or
                contracting, during any fiscal year, liabilities or
                obligations, whether payable during the fiscal year or not,
                for any or all purposes, except for and in the exercise by
                the county of the power of eminent domain, in excess of the
                amount of money available for the purposes for the county
                during the year. Any person who violates this section shall
                be fined not more than $1,000 or imprisoned not more than
                one year, or both.

(Emphases added.)

      18
               HRS § 142-61(f) provides in relevant part as follows:

                     Any person who constructs or maintains an electrically
               charged fence or fence with electrically charged attachments
               not conforming to the requirements of this section shall be
               fined not more than $500, or imprisoned not more than one
               year, or both.

(Emphases added.)

      19
               HRS § 142-95 provides in relevant part as follows:

                     Any person who breeds, raises or keeps rabbits or
               Belgian hares shall keep them off the ground.
                     Any person who violates this section shall be fined
               not more than $100 or imprisoned not more than six months,
               or both.

(Emphases added.)

      20
               HRS § 142-96 provides in relevant part as follows:

                     Whoever frightens, exasperates, or animates a horse or
               other animal, and thereby endangers the personal safety or
               the personal property of any person, or the animal itself,
               being that of another, shall, in case the personal safety of
               any person is thereby imminently endangered, be fined not
               less than $5 nor more than $500; or in case the personal
                                                                    (continued...)

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12 (2011)21 and HRS § 264-6 (2011)22 (preventing persons from

breaking up or “disturbing” state highways), HRS § 448-3(a)

(2011)23 (preventing the employment of unlicensed dental

practitioners).         Many of these statutes impose significant prison

sentences for their violation.            Such widespread application of


      20
           (...continued)
                safety of any person is not so endangered, be fined not less
                than $5 nor more than $100.

(Emphasis added.)

      21
               HRS § 264-12 provides in relevant part as follows:

                     Any person, including any public officer or employee
               who violates section 264-6, shall be fined not more than
               $250 or imprisoned not more than three months, or both.

(Emphases added.)

      22
               HRS § 264-6 provides in relevant part as follows:

                     No person or government agency, whether federal,
               state, or county, shall, in any manner or for any purpose do
               any of the following acts without a written permit from the
               director of transportation or the director's authorized
               representative:
                     (1)   Break up, dig up, disturb, undermine or dig
                           under, or cause to be broken up, dug up,
                           disturbed, undermined, or dug under, the
                           right-of-way of any state highway; or
                     (2)   Place, erect, leave, or store any structure,
                           motor or other vehicle, equipment, or any other
                           object wholly or partially within the
                           right-of-way of any state highway; provided that
                           this paragraph shall not apply to the holding or
                           displaying of movable signs, for the purpose of
                           carrying on political campaign activities.

      23
               HRS § 448-3(a) provides in relevant part as follows:

                     Except as provided in section 447-3, no person who
               manages or conducts as manager, proprietor, conductor, or
               otherwise a place where dental operations are performed,
               shall employ any person as operator in dental surgery or as
               a practitioner, or cause to permit any person to so act, who
               is not duly licensed to practice dentistry; provided that
               nothing in this chapter shall prohibit any unlicensed person
               from performing merely mechanical work upon inert matter in
               a dental laboratory.

(Emphasis added.)

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strict liability cannot be reconciled with the Commentary to HRS

§ 702-212, which counsels that strict liability “should not be

discerned lightly by the courts,” that HRS § 702-212(2) “severely

limits the situations which will allow the imposition of absolute

criminal liability,” and that “strict liability in the penal law

is indefensible in principle if conviction results in the

possibility of imprisonment.”          Commentary to HRS § 702-212.
             Finally, the State’s argument that a comparison between

HRS § 291C-102 and HRS § 291C-105 supports the imposition of

strict liability is contradicted by the Commentary to HRS § 702-

212.    The State argues that because HRS § 291C-105 imposes

stricter penalties than HRS § 291C-102, and because only HRS §

291C-105 utilizes unqualified language, it is reasonable to infer

that the legislature intended that the more severe penalties in

HRS § 291C-105 apply regardless of a defendant’s state of mind.

As the State notes, violations of HRS § 291C-105 may be punished

by imprisonment, although violations of HRS § 291C-102 may not.
To reiterate, the Commentary to the HPC suggests that “absolute

or strict liability in the penal law is indefensible in principle

if conviction results in the possibility of imprisonment and

condemnation.”       Commentary to HRS § 702-212.        Thus, contrary to

the State’s position, the fact that HRS § 291C-105 carries

stricter penalties, including the possibility of imprisonment, is

in fact evidence that the legislature did not intend to make HRS

§ 291C-105(a) a strict liability offense.


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          Because the statute’s use of “no person,” standing

alone, is insufficient to impose strict liability, and no other

language in the statute refers to strict liability, the State’s

argument that the statutory language demonstrates that HRS §

291C-105 is absolute on its face must be rejected.

          Moreover, the State cannot rely on the legislative

history of HRS § 291C-105(a) to demonstrate that excessive
speeding is a strict liability offense.         In both its Application

for Transfer and its Answering Brief, the State eschews any

reliance on the statute’s legislative history, and instead argues

solely from the plain language of the statute.          (“[N]o Hawai#i

appellate court has yet addressed whether absolute liability may

‘plainly appear’ from the language of the statute

itself.”)(emphasis added).      Further, nothing in the legislative

history of HRS § 291C-105(a) “unequivocally indicates” an intent

to impose strict liability. Buch, 83 Hawai#i at 316, 926 P.2d at

607; see also State v. Wells, 78 Hawai#i 373, 376, 894 P.2d 70, 73
(1995) (“[I]n determining the purpose of the statute, we are not

limited to the words of the statute to discern the underlying

policy which the legislature seeks to promulgate[,] but may look

to relevant legislative history.”) (internal quotation marks,

brackets and citations omitted.)

          In 2006, the legislature enacted HRS § 291C-105, which

for the first time provided additional penalties to drivers who

exceeded the speed limit by more than thirty miles per hour, or


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who drove faster than eighty miles per hour. The relevant

legislative history demonstrates a legislative intent to “define

excessive speeding as exceeding the speed limit by [twenty-five]

miles per hour24 or driving eighty miles per hour or more

irrespective of the speed limit,” Conf. Comm. Rep. No. 57-06, in

2006 House Journal, at 1796, to “improve public safety” by

“creating severe penalties for those who drive at excessive
speeds,” id., and to “clamp down on highway speeding and racing.”

2006 House Journal, at 939 (statement of Rep. Caldwell). None of

these statements demonstrate a clear intent to make excessive

speeding a strict liability crime.

            In creating the offense of excessive speeding, the

legislature intended to “fix or mark the limits” of the offense

at speeds of thirty miles per hour greater than the posted speed

limit, or at speeds of eighty miles per hour, irrespective of the

speed limit.    Demarcating the offense of excessive speeding from

ordinary speeding does not indicate an intent to omit a state of
mind requirement from the law.        It only demonstrates an intent to

set the parameters at which a defendant meeting the applicable

state of mind requirement may be found guilty.

            The remaining legislative history, which indicates an

intent to “improve public safety” and “clamp down on highway

speeding or racing” makes no reference to omitting a state of



      24
            The conference committee would change this limit to thirty miles
per hour in the final bill. Conf. Comm. Rep. No. 57-06, in 2006 House
Journal, at 1796.

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mind requirement or precluding any defenses to excessive

speeding.    The legislative history demonstrates only an intent to

punish severely those who are ultimately found guilty, not to

increase the class of guilty persons to those lacking any

culpable mental state.25      Consequently, the legislative history of

HRS § 291C-105 does not support the conclusion that HRS

§ 291C-105(a) is a strict liability offense.
            In sum, neither the plain language of the statute nor

the legislative history supports the State’s contention that HRS

§ 291C-105(a) is a strict liability offense.           Buch, 83 Hawai#i at

316, 926 P.2d at 607.      Therefore, HRS § 702-204 applies to HRS

§ 291C-105(a), and in future cases the State must prove that a

defendant acted intentionally, knowingly, or recklessly. Id.

                                     VI.

            As discussed above, HRS § 291C-105(a) is not a strict

liability offense, but instead requires that the State prove that

a defendant acted intentionally, knowingly, or recklessly.              The
State concedes that, if HRS § 291C-105(a) contains a mens rea

requirement, then the oral charge is insufficient pursuant to

Nesmith.    In this case, as in Nesmith, the defendant objected to



      25
            In 2008, the legislature amended several statutes, including HRS
§ 291C-105, to impose additional fees which would be paid to the Trauma System
Special Fund. 2008 Haw. Sess. Laws Act 231, § 16 at 846-47. Although the
legislative history to the amendment indicates an intent to “establish
additional funding mechanisms to enhance the availability of revenues in the
Trauma System Special Fund,” Conf. Comm. Rep. No. 172-08, in 2008 Senate
Journal, at 871, and to “impose higher penalties and fines on irresponsible
and dangerous drivers,” 2008 Senate Journal, at 684 (statement of Sen. Baker),
nothing indicates an intent to modify the underlying state of mind requirement
for HRS § 291C-105.

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the failure to allege the requisite state of mind at trial.                See

Nesmith, 127 Hawai#i at 51, 276 P.3d at 620.         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 defendants in order “to alert the defendants

of precisely what they needed to defend against to avoid a

conviction.” 127 Hawai#i at 56, 276 P.3d at 625 (internal
quotation marks and citations omitted).         Nesmith held that state

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

dismissed without prejudice.       Id. at 54, 276 P.3d at 623.

Because the charge here did not contain the requisite state of

mind, as the State concedes, Nesmith mandates dismissal without

prejudice.

                                    VII.

          Due to the likelihood of retrial on remand, Defendant’s

argument that the State failed to lay an adequate foundation for

the introduction of the speed reading from the laser gun is
addressed to prevent further error.

                                     A.

          With respect to his second point of error, Defendant

contends that, in order to lay an adequate foundation for the

introduction of a speed reading from a laser gun, the State must

demonstrate (1) that the laser gun’s accuracy was tested

according to manufacturer recommended procedures and determined

to be operating properly prior to use, and (2) that the nature


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and extent of the officer’s training in the operation of laser

guns meets the requirements indicated by the manufacturer.

(Citing Assaye, 121 Hawai#i at 213-15, 216 P.3d at 1236-38.)

Defendant argues that the State met neither of the foundational

requirements.

                                     1.

          As to (1), Defendant argues that the evidence
introduced at trial demonstrates only that Officer Franks

followed the procedures for testing the laser gun contained in

his manual, and does not demonstrate that the manual or the

procedures therein were sanctioned by LTI (the laser gun’s

manufacturer).    Therefore, Defendant argues that introduction of

the laser gun’s reading violates Assaye, which held that a

foundation for the accuracy of a particular laser gun must be

laid through a demonstration that the officer using the gun has

complied with “‘accepted procedures’ for testing the accuracy of

a particular laser gun,” which are “recommended by the
manufacturer.”    (Quoting 121 Hawai#i at 213, 216 P.3d at 1236.)

          In connection with this argument, Defendant challenges

Officer Franks’ testimony on cross-examination, wherein he stated

that LTI representatives reviewed his manual and that his manual

contained identical information to that offered by the LTI

representatives.    Defendant argues that this testimony contained

out-of-court communicative statements offered to prove




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substantive facts, and therefore “was inadmissible hearsay

without an applicable exception.”          As such, Defendant argues, it

constituted plain error for the trial court to have considered

such evidence.

          Finally, Defendant points out that on direct

examination, the State asked Officer Franks whether the tests in

his manual established that the laser gun was “working properly.”
According to Defendant, this proves that “[a]t best, Officer

Franks demonstrated that they were tests to establish that the

laser gun was working properly, not accurately.”           (Citing Assaye,

121 Hawai#i at 215, 216 P.3d at 1238.) (Emphases in original.)

                                     2.

          In response, the State distinguishes Assaye by arguing

that in that case there was no evidence which could demonstrate

that the calibration tests performed were recommended by the

manufacturer.    Here, however, Officer Franks testified that the

tests were set forth in a manual from LTI, bearing the
manufacturer’s copyright.      Further, the information contained in

the manual corresponded to information provided by the

representatives of the manufacturer, and those representatives

reviewed Officer Franks’ manual.          Thus, the State urges,

sufficient evidence exists to support the court’s decision that

the calibration tests provided by the manual were recommended by

the manufacturer.




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                                     3.

          Defendant cannot establish that the court abused its

discretion by ruling that the laser gun’s accuracy was tested

according to procedures recommended by the manufacturer, as

several facts in the record support this conclusion.            See Assaye,

121 Hawai#i at 210, 216 P.3d at 1233 (“When a question arises

regarding the necessary foundation for the introduction of
evidence, the determination of whether proper foundation has been

established lies within the discretion of the trial court, and

its determination will not be overturned absent a showing of

clear abuse.”).    It is undisputed that Officer Franks possessed a

manual that recommended four procedures to verify the accuracy of

the laser gun, and that Officer Franks did in fact observe those

procedures.   The only issue is whether the State demonstrated

that the manual containing the procedures was provided by LTI,

the laser gun’s manufacturer.       Officer Franks testified at trial

that the manual was “from [LTI].”         Further, on cross-examination,
Officer Franks related that the manual bore the LTI copyright,

that it was reviewed by LTI personnel, and that information

provided by the same LTI personnel was “covered in the manual we

use to train on.”    Based on this testimony, it was within the

court’s discretion to conclude that the manual was provided by

the manufacturer and, therefore, the procedures contained therein

were recommended by the manufacturer.




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          This conclusion is not altered by Defendant’s

contention that some parts of Officer Franks’ testimony -- his

testimony that the manual was reviewed by LTI personnel and that

LTI personnel provided similar information to that covered in

Officer Franks’ manual -- were inadmissible hearsay.            Although

the transcript provides few details, it appears that the evidence

adduced was not hearsay.      The testimony that LTI personnel
“reviewed” the manual, is not hearsay because in reviewing the

manual it does not appear that the LTI personnel intended to

communicate any assertion regarding the manual.           See Commentary

to Hawai#i Rules of Evidence (HRE) Rule 801 (2011) (“[M]uch

nonverbal conduct, although tending logically to prove the

actor's belief in an event or condition, is not motivated by the

intent to assert that belief and should not be considered

hearsay.”).

          Further, the assertion that the information provided by

LTI representatives corresponded to the information in the manual
was offered not for the truth of the matter asserted, but only to

prove the similarity between information provided by LTI

personnel and information contained in the manual.           Because the

only significance of the statement was the fact that it was made,

the statement does not fall within the scope of the hearsay rule.

See Island Directory Co. v. Iva’s Kinimaka Enterprises, 10 Haw.

App. 15, 21, 859 P.2d 935, 939 (1993) (“If the significance of an

offered statement lies solely in the fact that it was made, no


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issue is raised as to the truth of anything asserted, and the

statement is not hearsay.”).

            Finally, although the State asked Officer Franks on

direct examination whether or not the laser gun was working

“properly,” and not “accurately,” the State nevertheless

established that the procedures performed by Officer Franks

demonstrate the gun’s accuracy, as required by Assaye.            Because
the purpose of the laser gun is to measure the speed of vehicles

accurately, asking whether or not the gun is working properly

amounts to asking whether or not it is accurate.           Thus, Defendant

did not show that the court abused its discretion by finding that

the tests recommended by the manufacturer supported the gun’s

accuracy.

                                     B.

                                     1.

            As to (2), Defendant notes that in Assaye, this court

held that the prosecution must also demonstrate that an officer
is qualified by training to operate the laser gun in order to lay

an adequate foundation for the readings taken from the gun.

(Citing 121 Hawai#i at 215, 216 P.3d at 1238.)          According to

Defendant, the State must demonstrate that “the nature and extent

of an officer’s training in the operation of a laser gun meets

the requirements indicated by the manufacturer.”           Here, Defendant

argues that no evidence was provided regarding the nature and

extent of the training requirements set forth by LTI, and, as the


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record is silent on this issue, the State could not possibly have

demonstrated that Officer Franks’ testimony met whatever

requirements were established by the manufacturer.

                                     2.

          In response, the State distinguishes Assaye by arguing

that the holding of Assaye was nothing more than “it is difficult

to discern how anyone can use the laser gun properly without any
training or instruction.”      Thus, the State concedes that

“testimony amounting merely to being certified to use the laser

gun without explaining the nature and extent of the training

involved to become certified is insufficient for foundational

purposes.”   However, the State argues that testimony that Officer

Franks’ training consisted of four hours of operator training and

further supplemental training is sufficient to support the

court’s decision that Officer Franks was trained properly in the

laser gun’s use.

                                     3.
          The record indicates the court abused its discretion by

ruling that the State introduced evidence sufficient to establish

that Officer Franks’ training met the requirements set by the

manufacturer.   The State introduced no evidence regarding the

manufacturer’s requirements, and therefore, regardless of the

extent of Officer Franks’ training, the court could not have

properly concluded that the manufacturer’s requirements were met.




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          To lay a sound foundation for the introduction of a

reading from a laser gun, Assaye requires the prosecution to

demonstrate that “the nature and extent of an officer’s training

in the operation of the laser gun meets the requirements

indicated by the manufacturer.”       Assaye, 121 Hawai#i at 215, 216

P.3d at 1138.    Logically, to meet this burden the prosecution

must establish both (1) the requirements indicated by the
manufacturer, and (2) the training actually received by the

operator of the laser gun.

          Here, at trial the State only provided evidence of the

extent of Officer Franks’ training.        Although the State explained

that Officer Franks received four hours of training in 2003, and

further training in 2009 and 2010, the record is silent as to

what type of training is recommended by the manufacturer.

Without a showing as to the manufacturer’s recommendations, the

court could not possibly have determined whether the training

received by Officer Franks met “the requirements indicated by the
manufacturer.”    Id.

                                   VIII.

          Based on the foregoing, we vacate the court’s June 2,

2011 judgment of conviction and order the charge dismissed

without prejudice, because HRS § 291C-105(a) is not a strict

liability offense, and the oral charge failed to allege the

requisite states of mind.      As a retrial is likely, we also

conclude that the State failed to lay a proper foundation for the


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speed reading by not introducing any evidence of the

manufacturer’s training requirements.



Brandon H. Ito,                      /s/ Mark E. Recktenwald
for petitioner
                                     /s/ Paula A. Nakayama
Trisha Y. Nakamura,
for respondent                       /s/ Simeon R. Acoba, Jr.

                                     /s/ Sabrina S. McKenna
                                     /s/ Michael D. Wilson




                                     35
