State v. Tongg

***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed Supreme Court SCWC-11-0000127 15-JAN-2014 08:43 AM

SCWC-11-0000127

IN THE SUPREME COURT OF THE STATE OF HAWAI#I STATE OF HAWAI#I, Respondent/Plaintiff-Appellee, vs. RICKY W. TONGG, Petitioner/Defendant-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-11-0000127; CASE NO. 1DTA-10-02411)

SUMMARY DISPOSITION ORDER (By: Acoba, McKenna, and Pollack, JJ; with Recktenwald, C.J., dissenting, with whom Nakayama, J., joins) Petitioner/Defendant-Appellant Ricky W. Tongg

(Petitioner) seeks review of the July 26, 2012 judgment of the Intermediate Court of Appeals (ICA) filed pursuant to its June 29, 2012 Summary Disposition Order (SDO), affirming the Notice of Entry of Judgment and/or Order and Pleas/Judgment entered on February 3, 2011 in the District Court of the First Circuit (the court).1 Petitioner was convicted by the court of one count of Operating a Vehicle Under the Influence of an Intoxicant (“OVUII”) in violation of the Hawai#i Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(3) and HRS § 291E-61(b)(1) (Supp. 2009) and one count of Accidents involving Damage to Vehicle or Property in violation of HRS § 291C-13 (Supp. 2011)2 (hereinafter referred to as Count II). On April 12, 2012, after Petitioner appeared in the court for trial (February 1, 2011) and after Petitioner filed his opening brief in the ICA (January 17, 2012) and before the ICA issued its SDO in this case (June 29, 2012), this Court in State v. Nesmith, 127 Hawai#i 48, 56, 276 P.3d 617, 625 (2012), held that a charge that fails to allege the requisite state of mind does not provide fair notice to the accused of the nature and cause of the accusation.

In his Application, Petitioner only raises a challenge to the sufficiency of the Complaint with respect to Count II, which charged him with Accidents Involving Damage to Vehicle or Property in violation of HRS § 291C-13. Petitioner claims that Count II failed to allege the requisite intentional, knowing, and reckless states of mind required to “‘alert the defendant[] of precisely what [he] needs to defend against to avoid a conviction.’” (Quoting Nesmith, 127 Hawai#i at 56, 276 P.3d at 625.) Therefore, he asserts that the charge should be dismissed pursuant to this court’s opinion in Nesmith. Petitioner also argued that Count II was fatally defective under Hawai#i Rules of Penal Procedure (HRPP) Rule 7(d)3 because state of mind is an “essential fact” but was not alleged.

In State v. Maharaj, No. SCWC-29520, --- P.3d ----, 2013 WL 6068086, at *5 (Haw. Nov. 18, 2013), we reaffirmed the “core principle” set out in State v. Apollonio, 130 Hawai#i 353, 311 P.3d 676 (2013), that “‘[a] charge that fails to charge a requisite state of mind cannot be construed reasonabl[y] to state an offense and thus the charge is dismissed without prejudice because it violates due process.’” Id. at *5 (quoting Apollonio, 130 Hawai#i at 539, 311 P.3d at 682). We also held that “as a fact that must be alleged in a charge, a requisite state of mind is clearly an essential fact that must be alleged under HRPP Rule 7(d).” Id. at *5 (internal quotation marks omitted). Thus, inasmuch as Count II of the Complaint against Petitioner failed to allege the requisite state of mind, Count II must be dismissed without prejudice. Id. at *5.

IT IS HEREBY ORDERED that the July 26, 2012 judgment of the ICA and the February 3, 2011 Notice of Entry of Judgment and/or Order and Pleas/Judgment of the court are vacated, and this case is remanded to the court with instructions to dismiss Count II of the Complaint without prejudice.

DATED: Honolulu, Hawai#i, January 15, 2014. James S. Tabe, /s/ Simeon R. Acoba, Jr. for petitioner

/s/ Sabrina S. McKenna Donn Fudo (on the brief), /s/ Richard W. Pollack for respondent