State v. Shinsato

• Court: Hawaii Supreme Court
• Decided: April 30, 2012
• Docket: SCWC-30720
• Status: Published

Opinion

***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed Supreme Court SCWC-30720 30-APR-2012 08:24 AM

NO. SCWC-30720

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

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

vs.

REW T. SHINSATO, Petitioner/Defendant-Appellant. ________________________________________________________________

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 30720; CASE NO. 1DTA-10-00597)

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

Petitioner Rew T. Shinsato (“Shinsato”) seeks review of

the Intermediate Court of Appeal’s August 2, 2011 Judgment on

Appeal, entered pursuant to its June 29, 2011 Summary Disposition

Order, which affirmed the District Court of the First Circuit’s

June 22, 2010 Judgment and Notice. The District Court adjudged

Shinsato guilty of Operating a Vehicle Under the Influence of an

Intoxicant, in violation of Hawai#i Revised Statutes (“HRS”) ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

§§ 291E-61(a)(1) and (a)(3)(2007).1 We accepted Shinsato’s

application for writ of certiorari and now affirm the ICA’s

Judgment on Appeal.

On certiorari, Shinsato contends that the ICA gravely

erred in holding that mens rea need not be alleged in either an

HRS § 291E-61(a)(1) or an HRS § 291E-61(a)(3) charge. In State

v. Nesmith, we recently held that (1) 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; and (2) mens rea need not

be alleged (or proven) in an HRS § 291E-61(a)(3) charge, as the

legislative intent to impose absolute liability for an HRS §

291E-61(a)(3) offense plainly appears. State v. Nesmith, ____

Hawai#i ___, ___ P.3d ____ (2012). Accordingly, the ICA gravely

erred in holding that mens rea need not be alleged in an HRS §

291E-61(a)(1) charge. Therefore, Shinsato’s HRS § 291E-61(a)(1)

charge was deficient for failing to allege mens rea.

1 HRS § 291E-61(a) 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: (1) While 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; (2) While under the influence of any drug that impairs the person’s ability to operate the vehicle in a careful and prudent manner; (3) With .08 or more grams of alcohol per two hundred ten liters of breath; or (4) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.

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

However, the District Court adjudged Shinsato guilty of

violating both HRS §§ 291E-61(a)(1) and (a)(3). Subsections

(a)(1) and (a)(3) can each serve as the basis for a conviction

under HRS § 291E-61. See State v. Grindles, 70 Haw. 528, 530-31,

777 P.2d 1187, 1189-90 (1989); State v. Caleb, 79 Hawai#i 336,

339, 902 P.2d 971, 974 (1995); State v. Mezurashi, 77 Hawai#i 94,

98, 881 P.2d 1240, 1244 (1994). Insofar as the HRS § 291E-

61(a)(3) charge was sufficient, and insofar as Shinsato does not

challenge the sufficiency of the evidence as to that basis, his

conviction still stands.

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

is affirmed.

DATED: Honolulu, Hawai#i, April 30, 2012.

Timothy I. MacMaster /s/ Mark E. Recktenwald for petitioner/ defendant-appellant /s/ Paula A. Nakayama

Keith M. Kaneshiro, /s/ James E. Duffy, Jr. Prosecuting Attorney, and Anne K. Clarkin, /s/ Sabrina S. McKenna Deputy Prosecuting Attorney, for respondent/plaintiff- appellee