State v. Yamashita
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Petitioner Kevin Yamahata was adjudged guilty by the district court of operating a vehicle under the influence of an intoxicant (OVUII) in violation of Haw. Rev. Stat. 291E-61(a)(1) and (a)(3). The intermediate court of appeal (ICA) affirmed. Yamahata appealed, contending that the ICA gravely erred in holding that mens rea need not be alleged in either a section 291E-61(a)(1) or (a)(3) charge pursuant to State v. Nesmith. The Supreme Court affirmed, holding (1) the ICA gravely erred in holding that mens rea need not be alleged in a section 291E-61(a)(1) charge, and therefore, Yamahata's section 291E-61(a)(1) charge was deficient for failing to allege mens rea; but (2) insofar as the section 291E-61(a)(3) charge was sufficient, and insofar as Yamahata did not challenge the sufficiency of the evidence as to that basis, his conviction still stood.
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*** NOT FOR PUBLICATION IN W EST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-30718
03-MAY-2012
08:39 AM
NO. SCWC-30718
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
KEVIN M. YAMAHATA, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30718; HPD TRAFFIC 1DTA-10-02094)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, Duffy, and McKenna, JJ.,
with Acoba, J., Concurring and Dissenting Separately)
Petitioner/Defendant-Appellant Kevin M. Yamahata, seeks
review of the Intermediate Court of Appeal’s September 12, 2011
Judgment on Appeal, entered pursuant to its August 22, 2011
Summary Disposition Order (“SDO”).
State v. Yamahata, No. 30718,
2011 WL 3671969 (App. Aug. 22, 2011) (SDO).
The SDO affirmed the
District Court of the First Circuit’s August 11, 2011 Order and
Notice of Entry of Order.
The District Court1 adjudged Yamahata
guilty of Operating a Vehicle Under the Influence of an
1
The Honorable William Cardwell presided.
*** NOT FOR PUBLICATION IN W EST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Intoxicant “OVUII,” in violation of Hawai#i Revised Statutes
(“HRS”) § 291E-61(a)(1) and (a)(3).2
We accepted Yamahata’s
application for writ of certiorari and now affirm the ICA’s
Judgment on Appeal.
On certiorari, Yamahata 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
2
HRS § 291E-61(a) provided, at the time of Yamahata’s offense:
(a) 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.
HRS § 291E-61(a) (Supp. 2010).
2
*** NOT FOR PUBLICATION IN W EST’S HAWAII REPORTS AND PACIFIC REPORTER ***
legislative intent to impose absolute liability for an HRS §
291E-61(a)(3) offense plainly appears.
Hawai#i ___, ___ P.3d ___ (2012).
State v. Nesmith, ___
Accordingly, the ICA gravely
erred in holding that mens rea need not be alleged in an HRS §
291E-61(a)(1) charge.
Therefore, Yamahata’s HRS § 291E-61(a)(1)
charge was deficient for failing to allege mens rea.
However, the District Court adjudged Yamahata 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 Yamahata 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, May 3, 2012.
Timothy I. MacMaster for
petitioner/defendantappellant
/s/ Mark E. Recktenwald
Delanie D. Prescott-Tate,
Deputy Prosecuting Attorney,
for respondent/plaintiffappellee
/s/ James E. Duffy, Jr.
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
3
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