State v. Nesmith (ICA June 22, 2011)
Background. Kevin Nesmith was charged by complaint of operating a vehicle under the influence of an toxicant:
On or about the 7th day of January , 2010, in the City and County of Honolulu, State of Hawaii, KEVIN K. NESMITH did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway while under the influence of alcohol in an amount sufficient to impair his normal mental faculties or ability to care for himself and guard against casualty; and/or did operate or assume actual physical control of a vehicle upon a public way, street, road, or highway with .08 or more grams of alcohol per two hundred ten liters of breath, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant . . . . KEVIN K. NESMITH is subject to sentencing as a first offender in accordance with Section 291E-61(1)(b) of the Hawaii Revised Statutes.
Nesmith moved to dismiss on the grounds that the complaint was deficient because it failed to allege the "essential fact" that Nesmith acted intentionally, knowingly, or recklessly. The prosecution opposed on the grounds that that was not an essential element. The district court denied the motion. Nesmith was tried, found guilty, sentenced, and appealed.
Essential Elements must be Alleged in the Charging Instrument. "It is well settled that an accusation must sufficiently allege all of the essential elements of the offense charged . . . ." State v. Wheeler, 121 Hawai'i 383, 391, 219 P.3d 1170, 1178 (2009). Essential elements are "(1) conduct; (2) attendant circumstances; and (3) results of conduct." State v. Mita, 124 Hawai'i 385, 390, 245 P.3d 458, 463 (2010); HRS § 702-205. The state of mind is not an element. State v. Klinge, 92 Hawai'i 577, 584 n. 3, 994 P.2d 509, 516 n. 3 (2000). However, the prosecution must prove the state of mind for each element beyond a reasonable doubt at trial. HRS §§ 701-114 and 702-204. The big issue in this case came down to whether the state of mind must be alleged along with the essential elements in the complaint. The ICA held it did not; at least not here.
The Default States of Mind. "When the state of mind required to establish an element of an offense is not specified by the law, that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly." HRS § 702-204. No state of mind is required for a "crime defined by statute other than [the Hawai'i Penal Code], insofar as a legislative purpose to impose absolute liability for such offense or with respect to any element thereof plainly appears." HRS § 702-212(2).
"Legally Drunk" is an Absolute Liability Offense . . . Still. A person commits OUI when the person "if the person operates or assumes actual physical control of a vehicle . . . [w]ith .08 or more grams of alcohol per two hundred ten liters of breath[.]" HRS § 291E-61(a)(3). The predecessor to the current statute was HRS § 291-4(a)(2), which was interpreted to be an absolute liability offense. State v. Young, 8 Haw. App. 145, 153-54, 795 P.2d 285, 291 (1990). The ICA noted that there was no substantial difference in the statutes with regard to the mens rea. Accordingly, the ICA held that it was still an absolute liability offense requiring no state of mind and there was no error in failing to allege that portion of the complaint.
And as for the Other OUI . . . A person also commits OUI if the person is "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[.]" HRS § 291E-61(a)(1). The prosecution conceded that the complaint failed to allege the default states of mind--intentional, knowingly, and reckless--for this kind of OUI, but argued that the default states of mind could be inferred. The ICA held that the prosecution did not need to allege the default states of mind.
States of Mind can be Inferred. An indictment "need no allege that the offense was committed or the act done 'feloniously,' 'unlawfully,' wilfully', 'knowingly', maliciously,' 'with force an arms,' or otherwise except where such characterization is used int he statutory definition." HRS § 806-28. The ICA, in a footnote, extended this statute to other charging instruments. The OUI statute does not have a specified state of mind. Thus, according to the ICA, there was no need to allege the default states of mind. The ICA also turned to four cases.
In State v. Torres, 66 Haw. 281, 660 P.2d 522 (1983), the HSC held that for the crime of incest, the intentional state of mind could be inferred from the offense itself. "Incest as charged here is an offense where intent can be inferred because 'sexual intercourse' under the circumstances alleged could only be a willful act." The ICA came to a similar holding in State v. Kane, 3 Haw. App. 450, 652 P.2d 642 (1982), where it held that the offense of carrying on his or her person a pistol or revolver without a permit was the kind of crime "was sufficient to imply that Kane did so intentionally, knowingly, or recklessly." Id. at 458, 652 P.2d at 648. The HSC relied on Kane and held that the default states of mind can be inferred in alleging possession of a sawed-off rifle. State v. McDowell, 66 Haw. 650, 651, 672 P.2d 554, 555 (1983). Finally, there's Territory v. Tacuban, 40 Haw. 208 (1953), where the Territorial supreme court held that in charging a gambling offense, the "allegation of participation or taking part in a gambling game connotes guilty knowledge, and inferentially alleges scienter." Id. at 212.
Here, the ICA held that the default states of mind can be inferred in charging the offense of driving under the influence with an amount sufficient to impair normal mental faculties and protect against casualty. The ICA explained that impaired driving "creates a grave danger to public safety."
Introducing the Nesmith Analysis. The ICA seems to have created a step-by-step analysis for determining if the state of mind must be alleged. First, does the criminal statute provide a state of mind? If not, then the next question is whether the default states of mind apply. See HRS §§ 702-204 and 702-212. If they do apply and must be proven beyond a reasonable doubt at trial, then the final question is whether the default states of mens rea can be inferred from the nature of offense alleged. Here, the ICA like Torres, Kane, McDowell, and Tacuban, the default states of mind can be inferred from the offense of driving with an amount of alcohol that impairs the person's normal mental faculties and ability to guard against casualty.
This raises tricky questions. Are there any offenses in which the default states of mind cannot be inferred? In other words, are there offenses in which the default states of mind apply--meaning that it must be proven beyond a reasonable doubt--but they are the kind of offenses in which the default states of mind cannot be inferred from the conduct? Or has the ICA created a situation so that every offense in which the default states of mind apply is the kind of offense where mens rea can be inferred? Is this an analysis with the same answer every time? Perhaps what creates this oddity is the fact that the ICA never examined whether HRS § 291E-61(a)(1) indeed does carry the default states of mind. The prosecution conceded that it did apply, and the ICA went along with that concession without examining it independently.Judge Foley's Concurrence. Judge Foley wrote that the pleading was consistent with State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), and thus sufficient. That was all he wrote. It is unclear if he agreed with the majority's analyses.