State v. Kam

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Defendant was found guilty of operating a vehicle under the influence of an intoxicant and operating a vehicle after license and privilege have been suspended or revoked for operating a vehicle under the influence of an intoxicant. Defendant appealed, arguing, among other things, that the district court erred in permitting the State to amend the charge against to Defendant to allege the required mens rea for the offense. The Intermediate Court of Appeals (ICA) affirmed. The Supreme Court affirmed, holding (1) the ICA correctly concluded that the district court properly permitted the State to amend the charge; and (2) Defendant’s remaining claims lacked merit.

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***NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*** Electronically Filed Supreme Court SCWC-12-0000897 25-FEB-2016 03:04 PM SCWC-12-0000897 IN THE SUPREME COURT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 ***NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*** of an Intoxicant (OVUII) as a repeat offender, in violation of Hawai'i Revised Statutes (HRS) § 291E-61; and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.” 2015). No. SCWC-10-199, 2015 WL 7370086, at *21 (Haw. Nov. 19, 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. 2 ***NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*** IT IS HEREBY ORDERED that the ICA’s Judgment on Appeal is affirmed. DATED: Taryn R. Tomasa for petitioner Honolulu, Hawai'i, February 25, 2016. /s/ Mark E. Recktenwald /s/ Paula A. Nakayama Brian R. Vincent for respondent /s/ Sabrina S. McKenna /s/ Richard W. Pollack /s/ Michael D. Wilson 3

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