Default State of Mind Doesn't need to be Alleged when it can be Inferred

State v. Nesmith (ICA June 22, 2011)

OVERRULED

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.

Parental Discipline Defense Available when Conduct Results in (but not Intended to Cause) Substantial Bodily Injury

State v. Kikuta(HSC June 8, 2011)

Background. Cedric Kikuta was charged with assault in the second degree. HRS § 707-711(1). And Assault in the third degree. HRS § 707-712. At trial, his stepson, Justin, testified that when he was fourteen at the time of the incident. He was watching t.v. with his cousin, Chad, when Kikuta told him to feed the dog. He did. Then Kikuta noticed that the dog left a "stain" on the carpeted floor. Justin told him that he couldn't get the stain out. Kikuta said that if he could get it out, Justin is grounded for a year. Justin countered that if Kikuta could not, he could kick Kikuta's leg. Kikuta's leg was in a cast because he was recovering from surgery and walked around in crutches. Kikuta agreed. Kikuta left Justin's room. Then, according to Justin, Kikuta burst back into his room and started to push him. Justin grabbed one of the crutches and tried to get away. Kikuta then punched Justin in the face and head several times. Ultimately, Justin's face was swollen and his tooth was chipped. On cross-examination, Justin admitted that while it may have looked like he was going to hit Kikuta with the crutch, he wasn't going to. Chad, the cousin, also testified. Chad's testimony corroborated most of Justin's, and confirmed that Justin grabbed the crutch in a defense way. Kikuta testified. Kikuta testified that Justin was not following his instructions to feed the dog and clean up after its mess. Justin was being difficult and argumentative. He also testified that he did not notice Justin's injuries after hitting him. According to him, Justin was swinging the crutch at him and hit him a few times.

The family court refused to instruct the jury on parental discipline as a defense on the grounds that Kikuta caused substantial bodily injury. The family court also refused to give a mutual affray instruction accompanying the lesser-included assault in the third degree charge. The ICA vacated and remanded on the grounds that the parental discipline and mutual affray instructions should have been given. The prosecution petitioned for certiorari.

The Parental Discipline Defense. The parental discipline defense is composed of two elements:

The use of force upon or toward the person of another is justifiable under the following circumstances:

(1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor, or a person acting at the request of the parent, guardian, or other responsible person, and:

(a) The force is employed with due regard for the age and size of the minor and is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and

(b) The force used is not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.

HRS § 703-309(1)(a).

The Defense is Available if it Resulted in Substantial Bodily Injury, not Intended. The HSC examined the language of the section regarding the use of force. According to the HSC, the language plainly and unambiguously precludes the defense if the force was intended to cause substantial bodily injury. It does not, however, preclude the defense if the force resulted in substantial bodily injury. Thus, according to the HSC, there are cases where the conduct is justified that results in substantial bodily injury. The circuit court erred in refusing to instruct the jury on parental discipline. Here, there was some evidence that Kikuta pushed Justin harder than he intended to because he was off balance. He further testified that he punched Justin because he wanted him to let go of his crutch and was not aiming for his face. Concluding that Kikuta hit Justin in order to cause substantial bodily injury is for the jury to decide. State v. Juhn, 83 Hawai'i 472, 483, 927 P.2d 1355, 1366 (1996). A defendant is "entitled to have the trier of fact consider a defense having any support in the evidence no matter how weak, inconclusive, or unsatisfactory the evidence" may be. State v. Riveira, 59 Haw. 148, 153, 577 P.2d 793, 797 (1978).

The Error is Not Harmless. The HSC also rejected the prosecution's argument that the failure to give the instruction was harmless. An error is not harmless beyond a reasonable doubt if "there is a reasonable possibility that it might have contributed to . . . the conviction." See State v. Roman, 119 Hawai'i 468, 482, 199 P.3d 57, 71-72 (2008). The HSC noted that this was a jury trial. There is absolutely no way to determine how the jury would have resolved the conflicting evidence with the parental discipline instruction. Thus, there was a reasonable possibility that the failure to give the instruction might have contributed to the conviction.

Mutual Consent, the "Mitigating" Defense. Kikuta was also found guilty of assault in the third degree. Assault in the third degree is a "misdemeanor unless committed in a fight or scuffle entered into by mutual consent." HRS § 707-712(2). Then it becomes a petty misdemeanor. Id. The family court did not give an instruction on mutual affray. The ICA concluded that that failure to instruct was plain error. The HSC agreed with the ICA.

Defining Mutual Consent. The HSC held that there was some evidence of a mutual consent, a term that is undefined in the Hawai'i Penal Code. When there is no statutory definition, courts "[r]esort to legal or other well accepted dictionaries as one way to determine the ordinary meaning of certain terms." State v. Kalama, 94 Hawai'i 60, 63 n. 6, 8 P.3d 1224, 1227 n. 6 (2000). "Mutual" means "reciprocal" or "belonging to two parties." Black's Law Dictionary 1115 (9th ed. 2009). "Consent" includes an "[a]greement, approval or permission as to some act[.]" Id. at 346. Consent can be express or implied from conduct. Id.; see also State v. Hanson, 97 Hawai'i 71, 75, 34 P.3d 1, 5 (2001). The HSC held that a "mutual consent" "requires both parties to have approved of, or agreed to, a fight or scuffle, whether expressly or by conduct."

Here, according to the HSC, there was some evidence of a mutual affray. There was evidence that Kikuta pushed Justin and that Justin responded by swinging the crutch at him. It could be implied that the parties agreed to a fight. That should have prompted the family court to instruct the jury on mutual affray, even though it was never raised.

Judge Wilson's Concurrence. Judge Wilson wrote separately. He expressly pointed out that his concurrence was not in any way a limitation of the majority he formed with Justices Acoba and Duffy. He wrote separately to reiterate the holding of the majority. Judge Wilson believed that in refusing to instruct the jury on the parental discipline defense, the family court deprived Kikuta of his right to a fair trial by jury. He noted that the prosecutor in this case was able to portray Kikuta as a father figure who could not have punched his son in self defense. During the closing argument, the prosecutor told the jurors that they should reject Kikuta's self-defense argument because what he was really doing was disciplining Justin. "Legally barred from taking the very position argued by the prosecutor, [Kikuta's] chosen defense was gutted."

Justice Nakayama's Dissent. Justice Nakayama believed that the was no evidence supporting a parental discipline instruction. An "angry moment driving moderate or reasonable discipline is often part and parcel of the real world of parenting with which prosecutors and courts should not interfere." State v. Matavale, 115 Hawai'i 149, 166, 166 P.3d 322, 339 (2007). The force used by a parent must "reasonably be proportional to the misconduct being punished[.]" Id. at 164, 166 P.3d at 337. Moreover, "the viciousness of the attack" can sever "any relationship between the use of force and the welfare of [a minor] which might be considered 'reasonable.'" State v. Roman, 119 Hawai'i 468, 481, 482, 199 P.3d 57, 70, 71 (2008). Justice Nakayama wrote that Justin misbehaved by not putting the dog food away, slamming a glass door, ignoring Kikuta, and swinging a crutch at him. The use of force employed by Kikuta in response to this misbehavior was unreasonable. Moreover, Justice Nakayama wrote that the failure to give the instruction was harmless because there was no reasonable possibility that Kikuta's conduct arose to parental discipline.

Justice Nakayama also believed that the family court was not required to give a mutual affray instruction sua sponte. The trial court did not have a duty instruct the jury on a defense that was not supported by the evidence, not raised by Kikuta, and "clearly peripheral to Kikuta's defense at trial." Justice Nakayama agreed with the majority's definition of "mutual consent" but held that there was no evidence supporting that standard. She pointed out that the mere fact that a fight occurred does not prove an agreement to fight. See State v. Schroder, 359 N.W.2d 799, 804-05 (Neb. 1984). Secondly, Justice Nakayama disagreed with the majority that the trial court had to sua sponte provide the mutual consent instruction. She wrote that the majority's holding would mean that in any case involving a fight, the trial court would have to summarily provide a mutual consent instruction. This rule, according to Justice Nakayama, "is much too broad and far-reaching." Chief Justice Recktenwald joined.

Facts not Found in PSI Report must be Disclosed Prior to Sentencing

State v. Durham (HSC May 27, 2011)

Background. Cornelius Wesley Durham was indicted for two counts of sex assault in the third degree. HRS § 707-723(1)(b). He was sentenced to five years probation. One of the terms of probation required him to "participate satisfactorily in the Hawai'i Sex Offender Treatment Program . . . as approved by [his] probation officer, at [his] own expense until clinically discharged with the concurrence of [his] probation officer." Durham underwent treatment from Catholic Charities on Oahu. He was informed that he was not in compliance with the terms of treatment at Catholic Charities. Durham's friend and attorney, Leslie Iczkovitz, wrote a letter to the probation office seeking clarification on Durham's terms and conditions of probation. Catholic Charities involuntarily terminated Durham based in part on a threat of legal action inferred from Iczkovitz's letter. Six days after termination, Durham sought private treatment from a psychologist. He applied for another treatment program and was accepted with the approval of his probation officer.

The State filed a motion to show cause why probation should not be terminated. Attached to the motion was an affidavit from Durham's Maui probation officer, Lara Nishikawa. Nishikawa cited Durham's termination from Catholic Charities. Prior to the hearing on the revocation motion, Nishikawa submitted to the court a confidential report. The report recited much of the facts regarding Catholic Charities. Nishikawa also submitted a letter to the court, which stated that there was a high risk that Durham would re-offend based on a polygraph examination in which Durham stated that he assaulted four other people. In her letter, Nishikawa recommended five more years of probation and one year jail. At the revocation hearing, the judge revoked probation and resentenced him to five years probation and one year of jail. Durham appealed. The ICA affirmed. Shortly thereafter, Iczkowitz--now Durham's counsel--discovered Nishikawa's letter. Durham filed a motion for reconsideration based on the new evidence. The ICA denied the motion.

Confidential Recommendation Letters Remain Confidential, but must Stick to the Facts in the PSI Report. Before imposing a sentence, court personnel shall make a "pre-sentence diagnosis and report[.]" HRS § 706-602. The court shall then provide the parties with copies of the diagnosis and report "and afford fair opportunity, if the defendant or the prosecuting attorney so requests, to controvert or supplement them." HRS § 706-604(2). Probation officers typically write pre-sentence reports. They also have submitted confidential recommendation letters to the sentencing court. In State v. Paaaina, 67 Haw. 408, 689 P.2d 754 (1984), the HSC held that the defense has no right to examine the confidential recommendation. However, "[i]f the judge finds new factual information in the recommendation letter, it is incumbent on the judge to make it available to the defendant." Id. at 410, 689 P.2d at 757.

In Paaaina, the HSC held that the confidential recommendation letter did not allege new facts or any facts that were not in the PSI report. Thus, there was no error. Here, however, the HSC noted that it was "incumbent" on Nishikawa to draft her recommendation based on the facts in the PSI report. She didn't. Thus, it was "incumbent" on the sentencing court to disclose the facts contained in the recommendation letter. It didn't.

Due Process Requires Disclosure of Facts not Found in the PSI Report for Sentencing AND Probation Revocation. A defendant has the statutory right to controvert or supplement facts that will be used at sentencing. "[T]he legislature was not unmindful of the dangers posed to the defendant in terms of those portions of the report which might be misleading, incomplete, or inaccurate." State v. Lessary, 83 Hawai'i 280, 284-85, 925 P.2d 1104, 1108-09 (App. 1996). Here, however, there was no chance for Durham to controvert or supplement the allegation that he had assaulted four others. The HSC also noted that due process requires the defendant to receive the factual information upon which the revocation is being sought. See State v. Shannon, 118 Hawai'i 15, 32, 185 P.3d 200, 217 (2008). The HSC held that Durham's due process rights had been violated because the factual assertions in Nishikawa's letter were not disclosed to him prior to the revocation hearing.

The Remedy: New Judge. The sentencing court had Nishikawa's letter at the time of the resentencing, but did not disclose the factual assertions in it to Durham. Thus, the HSC vacated the resentencing order and remanded for a new hearing on the motion for revocation. The HSC further held that a judge other than the judges that heard the motion and resentencing. Remanding to the judges that had already passed sentence, according to the HSC, would be an "inadequate remedy." Schutter v. Soong, 76 Hawai'i 187, 208 n. 6, 873 P.2d 66, 87 n. 6 (1994); State v. Chow, 77 Hawai'i 241, 251 n. 13, 883 P.2d 663, 673 n. 13 (App. 1994) (remanded to new judge for sentencing because "the district court judge who originally sentenced [the d]efendant ha[d] already made a sentencing determination.").

Not Quite Overturning Paaaina . . . The HSC did not overturn Paaaina, which authorizes the probation officer to submit to the sentencing court an ex parte communication recommending an appropriate sentence. Instead, when the confidential letter contains factual assertions that are not found in the pre-sentencing materials that were disclosed to the defendant, it is "incumbent" on the sentencing court to make those facts known. So what is a practitioner to do? How is a defense attorney supposed to know what that letter says?

Perhaps it means that at every sentencing hearing, there should be a finding by the sentencing court that all of the facts used by the court in determining a sentence have been disclosed. Does it mean that defense counsel should inquire at a sentencing hearing to ensure compliance with this case and Paaaina? Maybe so. Does it mean that defense should urge the sentencing court to disclose the ex parte letter? Maybe that too.

On the other hand, how is it different from a court's in camera review during discovery? Is it different from a counsel's reliance on the court's determination as to what is relevant and should be disclosed to the parties and what is not and should be left under seal? Maybe it's not different at all. But that issue has yet to come to court.