State of Mind is not an Essential Element, but it is Essential to Pleading

State v. Nesmith & State v. Yamamoto (HSC April 12, 2012)

Background. Kevin Nesmith and Chris Yamamoto were each charged with operating a vehicle while under the influence of an intoxicant. Both charges alleged alternate theories of the offense. They both alleged that they were operating a vehicle 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" in violation HRS §291E-61(a)(1) and operating a vehicle "with .08 or more grams of alcohol per two hundred ten liters of breath" in violation of HRS § 291E-61(a)(3). Yamamoto was additionally charged with committing either offense while a "highly intoxicated driver"; that is, "a person whose measurable amount of alcohol is 0.15 or more grams of alcohol per one hundred milliliters or cubic centimeters of the person's blood, or 0.15 or more grams of alcohol per two hundred ten liters of the person's breath" as defined in HRS § 291E-61(b)(2).

Both Nesmith and Yamamoto moved to dismiss the complaints on tehg rounds that they were deficient. They argued that "mens rea" requirements had to have been pleaded in both theories of the offense. The motions were denied, and they were found guilty under both theories. Both appealed. The ICA affirmed and held that mens rea need not be alleged in the charging instrument. Both sought certiorari; the cases were consolidated by the HSC.

Operating with an "Amount Sufficient to Impair" Requires Proof of the State of Mind. OUI under HRS § 291E-61(a)(1) does not require a specific amount of alcohol, but instead requires proof that the operator had "an amount sufficient to impair the person's normal faculties or ability to care for the person and guard against casualty." Conviction requires proof of a state of mind for each element. HRS § 701-114. When there is no state of mind expressly stated in the statute, "that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly." HRS § 702-204. Put differently, the state of mind "with which the defendant acts applies to all elements of the offense, unless otherwise specified in the statute defining the offense." State v. Vilet, 95 Hawai'i 94, 99, 19 P.3d 42, 47 (2001).

. . . and so it must be Pleaded too. The HSC agreed with Nesmith and Yamamoto that if the intentional, knowing, or reckless state of mind is needed to convict, then it must also be pleaded in the charging instrument too. Relying on State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009), the HSC noted that the state of mind--intentional, knowing, or reckless (but not negligent)--for HRS § 291E-61(a)(1) is not part of our common understanding of "drunk driving." According to the HSC, "a charge alleging a violation of HRS § 291E-61(a)(1) that omits the statutorily incorporated culpability states of mind from HRS § 702-204 is not readily comprehensible to persons of common understanding." Thus, the charge was deficient.

State of Mind is not an Element, but still must be Proven and Pleaded. The HSC noted tension between two rules. First, the charge must contain the "elements of the offense." The "elements" are defined as conduct, attendant circumstances, and the results of that conduct. HRS § 702-205. The state of mind is not included in that list and is not an element. State v. Klinge, 92 Hawai'i 577, 584 n. 3, 994 P.2d 509, 516 n. 3 (2000). On the other hand, the charge must contain "a plain, concise and definite statement of the essential facts constituting the offense charged[.]" HRPP Rule 7(d). Then there is a long line of cases that have struck down charging instruments for failing to allege mens rea as an "element." State v. Jendrusch, 58 Haw. 279, 282, 567 P.2d 1242, 1244 (1977); State v. Faulkner, 61 Haw. 177, 178, 599 P.2d 285, 286 (1979); State v. Yonaha, 68 Haw. 586, 586, 723 P.2d 185, 185-86 (1986).

The HSC resolved the tension by noting that the charge needs to contain more than just the elements. Territory v. Goto, 27 Haw. 65,102 (Terr. 1923) (Peters, J., concurring) (failure to state "facts sufficient to constitute an offense" is jurisdictionally deficient); State v. Vanstory, 91 Hawai'i 33, 44, 979 P.2d 1059, 1070 (1999); State v. Elliott, 77 Hawai'i 309, 313, 889 P.2d 372, 376 (1994). The facts won out over the elements.

The Constitutional Dimension. The HSC clearly articulated the tension between case law and the statutory framework in the Hawai'i Penal Code. But what is missing from the analysis is the constitutional requirement that the accused "be informed of the nature and cause of the accusation." Haw. Const. Art. I, Sec. 14. This was part of the underlying rationale in Wheeler and Jendrusch. With that in mind (no pun intended), it seems that although the statutes only require the essential element, the constitutional demands essential facts. Justice Acoba noted the constitutional dimension in his dissent, which was why he believed that there was no jurisdiction to proceed further. He wrote that there was no real tension at all.

And by the way, "General Intent" has no Place in Our Jurisprudence. The HSC corrected the ICA's error. When the ICA affirmed Yamamoto's conviction, it characterized the offense as a "general intent" offense. The distinction between "general intent" and "specific intent" no longer applies. When the Hawai'i Penal Code was adopted in 1973, the distinction was abolished and the only relevant states of mind in our State are intentional, knowing, reckless, and negligent. So "arguments concerning specific and general intent are no longer relevant." State v. Kalama, 94 Hawai'i 60, 65, 8 P.3d 1224, 1229 (2000).

HRS § 806-26 does not Apply to District Court. The ICA also erred in dealing with HRS § 806-28:

The indictment need not allege that the offense was committed or the act done "feloniously," "unlawfully," "willfully," "knowingly," "maliciously," "with force and arms," or otherwise except where such characterization is used in the statutory definition of the offense. Where the characterization is so used the indictment may employ the words of the statute or other words substantially of the same import.

In Nesmith, the ICA saw "no logical reason why its provisions would not also apply to a complaint used to charge a petty misdemeanor offense." In Yamamoto's case, however, the ICA (under a different panel) concluded that "the provisions of HRS § 806-28 are not applicable to district court proceedings[.]" Seeing the inconsistency, the HSC addressed the issue.

Chapter 806 regulates circuit courts. "Notwithstanding any provision of this chapter that the same applies to courts of record, such provision shall not, without more, apply to district courts." HRS § 806-2. Moreover, "the starting point for interpreting a statute is the language of the statute itself." State v. Moniz, 69 Haw. 370, 374, 742 P.2d 373, 376 (1987). The plain language of HRS § 806-2 prohibits extension of the entire chapter to district court proceedings "without more." The Nesmith majority did not provide any reason for extending HRS § 806-28 to petty misdemeanors other than logic. This extension also contradicts the legislative history underlying the statute. See H. Stand. Comm. Rep. No. 333, in 1971 House Journal, at 845.

Operating with at Least 0.08 of Alcohol in Blood or Breath is an Absolute Liability Offense. The HSC held that offenses under HRS § 291E-61(a)(3) are absolute liability offenses and so a state of mind is not required to plead or prove. This kind of OUI offense has always intended to be an absolute liability offense. State v. Christie, 7 Haw. App. 368, 370, 764 P.2d 1245, 1246 (1988); State v. Mezurashi, 77 Hawai'i 94, 96, 881 P.2d 1240, 1242 (1994); State v. Young, 8 Haw. App. 145, 153-54, 795 P.2d 285, 291 (1990); State v. Wetzel, 7 Haw. App. 532, 539 n. 8, 782 P.2d 891, 895 n. 8 (1989). The HSC examined a great deal of legislative history and noted that when the U.S. Congress conditioned federal funds for States that condition their drunk driving laws to at least 0.10. Hawai'i responded by changing its laws in order to "enhance qualification for such federal funds." S. Conf. Com. Rep. No. 999, in 1983 Senate Journal, at 1478. Even the first drunk driving statute adopted by the territorial legislature in 1949 suggested absolute liability (back then, the limit was 0.15).

Affirmed . . . at Least Here. The district court found Nesmith and Yamamoto guilty under either form of OUI. Thus, the error in pleading HRS § 291E-61(a)(1) did not call for reversal.

Justice Acoba's Dissent and Concurrence. Justice Acoba agreed with the majority that HRS § 291E-61(a)(1) requires proof and pleading of a state of mind. However, Justice Acoba wrote that the failure to plead that state of mind deprived the court of any jurisdiction. He also wrote that the other form of OUI is not an absolute liability offense. Justice Acoba broke down what must be alleged in the complaint: elements and jurisdictional facts. The state of mind may not be an element, but the state of mind is necessary to confer jurisdiction. And because there was no jurisdictional fact in the complaints here, there was no jurisdiction to go any further.

As for the other kind of OUI, Justice Acoba believed that it was not an absolute liability offense. Offenses defined outside the Hawai'i Penal Code can only be absolute liabitliy offenses when "a legislative purpose to impose absolute liability for such offense or with respect to any element thereof plainly appears." HRS § 702-212. For Justice Acoba, there was nothing plainly appearing in the legislative purpose underlying that form of OUI. The state-of-mind requirement "will generally apply because we will not lightly discern a legislative purpose to impose absolute liability." State v. Eastman, 81 Hawai'i 131, 140, 913 P.2d 57, 66 (1996). There is nothing in the legislative record for Justice Acoba that showed any reason to not impose the state-of-mind requirements.