NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 09-JAN-2025 08:07 AM Dkt. 70 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellant, v. DAVID JOHN MICHAELEDES, Defendant-Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NO. 5CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.)

Plaintiff-Appellant State of Hawai‘i appeals from the Circuit Court of the Fifth Circuit's August 10, 2021 (1) "Order Granting Defendant's Motion to Dismiss Based Upon Defective Charges[,]" and (2) "Order Denying the State's Motion to Amend Felony Information[.]" 1 For a brief background, the State charged Defendant- Appellee David John Michaeledes by Felony Information and Non-

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Felony Complaint with (1) Reckless Driving of Vehicle, in violation of Hawai‘i Revised Statutes (HRS) § 291-2 (2020); (2) Assault in the Second Degree, in violation of HRS § 707- 711(1)(a) and/or (d) (2014, Supp. 2019); and (3) Accidents Involving Substantial Bodily Injury, in violation of HRS § 291C- 12.5 (2020).

Michaeledes moved to dismiss the charges arguing that the information was defective; the State moved to amend the information. The circuit court denied the State's motion to amend and granted Michaeledes' motion to dismiss. The State filed a timely notice of appeal. On appeal, the State raises three points of error challenging the circuit court's orders. 2 Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the issues raised and the arguments advanced, we resolve the points of error as discussed below, and vacate and remand.

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER (1) In its first point of error, the State contends the circuit court "erred by dismissing the Reckless Driving charge, HRS § 291-2, reasoning that it was defective because it did not allege the operation of a vehicle on a public highway." (Emphasis omitted.)

Whether the information set forth all essential elements of the charged offense is reviewed de novo. State v. Wheeler, 121 Hawai‘i 383, 390, 219 P.3d 1170, 1177 (2009). The interpretation of a statute is also reviewed de novo. State v. Michaeledes, 152 Hawai‘i 217, 220, 524 P.3d 1241, 1244 (2023).

Here, the circuit court ruled the charge for Reckless Driving was defective because it "did not provide the statutory definition of 'operate.'" The circuit court relied on State v. Wheeler, 121 Hawai‘i 383, 219 P.3d 1170 (2009).

In Wheeler, the defendant was charged with Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of HRS § 291E-61(a)(1). 3 121 Hawai‘i at 385, 391, 219 P.3d at 1172, 1178. For OVUII, HRS chapter 291E defines the

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER term "operate" as driving a vehicle "upon a public way, street, road, or highway[.]" HRS § 291E-1 (2020). Thus, the Hawai‘i Supreme Court held the definition of "operate" in HRS chapter 291E established an attendant circumstance of the OVUII offense, that the driving occur "upon a public way, street, road, or highway." Wheeler, 121 Hawai‘i at 392, 219 P.3d at 1179.

Unlike HRS chapter 291E, HRS chapter 291 does not define the term "operates" as used in Reckless Driving. HRS § 291-2 provides in relevant part that "[w]hoever operates any vehicle or rides any animal recklessly in disregard of the safety of persons or property is guilty of reckless driving of vehicle or reckless riding of an animal, as appropriate[.]" (Emphasis added.) HRS chapter 291, Part I, provides definitions for the following three terms: (1) "Intoxicating liquor"; (2) "Public street, road, or highway"; and (3) "Scenic lookout[.]" But HRS chapter 291, Part I, does not provide a definition for the term "operates" as used in HRS § 291-2 and, thus, there is no attendant circumstance that the driving of the vehicle or riding of an animal must occur on a public street.

Fagaragan v. State, 132 Hawai‘i 224, 242, 320 P.3d 889, 907 (2014) (explaining the canon of construction expressio unius est exclusio alterius applies "only where in the natural association of ideas the contrast between a specific subject matter which is NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER expressed and one which is not mentioned leads to an inference that the latter was not intended to be included within the statute") (citation and internal quotation marks omitted).

By incorporating HRS chapter 291E's definition of the term "operate" into HRS § 291-2, the circuit court added an element (upon a public, street, road, or highway) to the HRS § 291-2 Reckless Driving offense, which it cannot do. See State v. Haugen, 104 Hawai‘i 71, 75, 85 P.3d 178, 182 (2004) ("A cardinal canon of statutory construction is that this court cannot change the language of the statute, supply a want, or enlarge upon it in order to make it suit a certain state of facts.") (citations and internal quotation marks omitted).

In sum, the circuit court erred in interpreting HRS § 291-2 as requiring the attendant circumstance that the defendant's conduct occur on a public street.

(2) The State's second and third points of error are related. The State contends the circuit court "erred by concluding that as a matter of law, felony informations may not be amended to allege statutory definitions or essential elements" and, thus, erred in dismissing the information. (Emphasis omitted.)

In State v. Thompson, the circuit court granted the prosecution's motion to amend a felony information. 154 Hawai‘i 422, 554 P.3d 567, No. CAAP-XX-XXXXXXX, 2024 WL 4043727 at *2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER (App. 2024) (SDO). On appeal, the defendant argued the amendment was improper because HRS § 806-9 (2014) 4 requires the laws applying to indictments apply to informations. Id. at *3.

This court affirmed the circuit court's order granting the motion to amend, explaining that Hawai‘i Rules of Penal Procedure (HRPP) Rule 7(f)(1) 5 plainly and unambiguously permits an amendment, which "makes sense as 'an indictment is an action of the grand jury and not subject to change by either the court or prosecution, except to correct formalistic errors[.]'" Id. at *3, *4 (citation and internal quotation marks omitted).

As we did in Thompson, we similarly hold here that HRPP Rule 7(f)(1) permitted amendment of the information. Thus, the circuit court erred in denying the State's motion to amend the information, and erred in granting Michaeledes' motion to dismiss.

Based on the foregoing, we vacate the circuit court's August 10, 2021 (1) "Order Granting Defendant's Motion to

DATED: Honolulu, Hawai‘i, January 9, 2025.

On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Tracy Murakami, Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth County of Kauaʻi, Associate Judge for Plaintiff-Appellant. /s/ Sonja M.P. McCullen Emmanuel G. Guerrero, Associate Judge for Defendant-Appellee.