State v. Kam

Opinion

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Electronically Filed

Supreme Court

SCWC-12-0000897

25-FEB-2016

03:04 PM

SCWC-12-0000897

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

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

vs.

CIERRA ANN M. KAM, Petitioner/Defendant-Appellant.

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000897; CASE NO. 1DTA-12-00359)

SUMMARY DISPOSITION ORDER (By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

Petitioner/Defendant-Appellant Cierra Ann Kam seeks

review of the Intermediate Court of Appeals’ (ICA) January 20,

2015 Judgment, entered pursuant to its November 26, 2014 Opinion,

affirming the District Court of the First Circuit’s September 28,

2012 Judgment and Notice of Entry of Judgment.1 The district

court found Kam guilty of Operating a Vehicle Under the Influence

1 The Honorable David W. Lo presided.

***NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***

of an Intoxicant (OVUII) as a repeat offender, in violation of Hawai'i Revised Statutes (HRS) § 291E-61; and Operating a Vehicle after License and Privilege Have Been Suspended or Revoked for Operating a Vehicle Under the Influence of an Intoxicant (OVLPSR-OVUII) as a first-time offender, in violation of HRS § 291E-62.

On certiorari, Kam contends, inter alia, that the ICA

erred in holding that the district court properly permitted the

State to amend the charge against Kam to allege the required mens

rea for the offense. Kam argues that the defective charge

rendered the district court without jurisdiction over the case,

and, therefore, without jurisdiction to permit the State to amend

the charge. We disagree. In Schwartz v. State, we recently held

that “the failure of a charging instrument to allege an element

of an offense does not constitute a jurisdictional defect that

fails to confer subject-matter jurisdiction to the district

court.” No. SCWC-10-199, 2015 WL 7370086, at *21 (Haw. Nov. 19,

2015). Accordingly, the ICA correctly concluded that the

district court properly permitted the State to amend the charge.

We further conclude that Kam’s remaining claims lack

merit.

3

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

DATED: Honolulu, Hawai'i, February 25, 2016.

Taryn R. Tomasa /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama

Brian R. Vincent for respondent /s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson