State v. Primo ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-MAY-2023
07:58 AM
Dkt. 62 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
ADANACIO PRIMO, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
(CASE NO. 2DTC-21-000275)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Adanacio Primo (Primo) appeals
from the (1) February 25, 2022 "Findings of Fact, Conclusions of
Law and Order [(FOFs/COLs)] Denying [Primo]'s Motion to
Dismiss," and (2) April 20, 2022 "Judgment and Notice of Entry
of Judgment," both entered and filed by the District Court of
the Second Circuit (District Court),1 convicting Primo of
Operating a Vehicle after License and Privilege have been
Suspended or Revoked for Operating a Vehicle Under the Influence
1 The Honorable Blaine J. Kobayashi presided.
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of an Intoxicant (OVLPSR-OVUII), in violation of Hawaii Revised
Statutes (HRS) § 291E-62(a).
On appeal, Primo raises a single point of error,
contending that the District Court "erred in denying Primo's
motion to dismiss Count 5 of the State's Second Amended
Complaint," and with respect to the FOFs/COLs, specifically
challenges FOF 22 and COLs 1, 1(a), 1(c), 1(f), the last sentence
of 1(g), 1(h), 2, 2(a), the second sentence of 2(b), and the
second to the last and last sentences of 2(f).3
2 While Primo includes a challenge to FOF 2 within the point, Primo
presents no argument in support. See Hawai‘i Rules of Appellate Procedure
Rule 28(b)(7) (requiring argument on the points presented). The challenge to
FOF 2 is waived. See id. ("Points not argued may be deemed waived.").
3 The challenged COLs state:
CONCLUSIONS OF LAW
1. The requirements of Hawai‘i revised [sic] Statute [sic]
("HRS") § 805-1 and Thompson do not apply where the State did not
seek an arrest warrant or penal summons contemporaneously with
the filing of the Complaint.
a. HRS § 805-1 is concerned with cases where the
prosecution seeks an arrest warrant or penal summons
contemporaneously with the filing of a complaint. Stated
differently, the requirements of the statute do not apply where
the defendant is already in custody or has posted bail/bond when
a complaint is filed against them.
. . . .
c. Although HRS § 805-1 provides requirements for the
filing of a complaint, it also requires the issuance of an arrest
warrant upon presentation of the complaint. Simply, it would be
inapposite for a court to issue an arrest warrant for a defendant
who is already in custody by virtue of a previously issued arrest
warrant or a warrantless arrest. To potentially subject a
defendant to two warrants of arrest – and potentially two bail
amounts - or issue a warrant to a defendant who is already in
custody cannot be within the contemplation of the statute.
. . . .
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Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve Primo's
point of error as follows, and affirm.
f. HRS § 805-1 is only concerned with cases where the
prosecution seeks an arrest warrant or penal summons
concomitantly with the filing of a complaint. Its requirements do
not apply to the instant case, where the prosecution did not seek
an arrest warrant or penal summons along with the filing of the
complaint.
g. . . . [Thompson] did not hold that the reach of the
statute extends to cases where a complaint is not used to seek
either.
h. Accordingly, HRS § 805-1 and Thompson do not apply to
the instant case, where the prosecution did not seek an arrest
warrant or penal summons contemporaneously with the filing of the
complaint.
2. The State's Second Amended Complaint complies with HRS
§ 805-1.
a. Assuming arguendo HRS § 805-1 applies to the instant
case, the State's Second Amended Criminal Complaint complies with
HRS § 805-1 because it contains a declaration in accordance with
the Rules of Court.
b. . . . The second amended complaint in this case
complies with the requirements of HRS § 805-1 and Thompson
because it contains a declaration in compliance with all
applicable rules of court.
. . . .
f. . . . The rules of court have no other requirements to
perfect a complaint, nor does Thompson impose any further
prerequisites for the filing of a complaint. The amended
complaint in this case was perfected by a "declaration in
accordance with the rules of court," exactly as required by HRS
§ 805-1 and Thompson, when it was signed by the prosecutor
pursuant to Rule 7(d) and declared under Rule 47(d). Unlike the
complaint in Thompson, the complaint in this case complies with
HRS § 805-1.
(Internal footnote omitted).
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The following background is from the District Court's
findings and from the record.4 On September 29, 2021, Primo was
issued a citation for Leaving the Scene of Accident Involving
Vehicle Damage, Inattention to Driving, Reckless Driving, and
Driving Without Valid License, and was ordered to appear in the
Wailuku District Court on November 4, 2021. FOF 1. On
September 30, 2022, the State filed an Amended Complaint. FOF
2. On December 10, 2021, the Hawai‘i Supreme Court issued State
v. Thompson, 150 Hawai‘i 262, 267, 500 P.3d 447, 452 (2021).5
FOF 6. On January 21, 2022, Primo filed a Motion to Dismiss,
arguing that the Amended Complaint was "fatally defective"
pursuant to Thompson and HRS § 805-1, which require that the
complaint "be subscribed under oath by the complainant or made
by declaration in lieu of an affidavit[.]" FOF 7. On February
9, 2022, the State filed a Second Amended Complaint (SAC),
adding a declaration pursuant to Hawai‘i Rules of Penal Procedure
(HRPP) Rule 47(d) by the prosecutor who authored the SAC, that
stated: "I [] declare under penalty of law that the foregoing
is true and correct to the best of my knowledge and belief[.]"
FOF 8. "The State did not seek an arrest warrant or penal
summons contemporaneously with the filing of the [SAC] or at any
time in this case[.]" FOF 3.
On February 9, 2022, the State filed a Memorandum in
Opposition to the Motion to Dismiss, in which the State argued
that the SAC was only required to comply with HRPP Rule 7(d),
4 "[U]nchallenged findings of fact are binding upon appellate
courts." State v. Rodrigues, 145 Hawai‘i 487, 497, 454 P.3d 428, 438 (2019)
(citations omitted).
5 In Thompson, 150 Hawai‘i at 267-68, 500 P.3d at 452-53, the Hawai‘i
Supreme Court held that failure to comply with HRS § 805-1 renders a
complaint "fatally defective," and that such a complaint cannot be used to
support the issuance of an arrest warrant or penal summons.
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and that HRS § 805-1 only applies to a complaint requesting a
penal summons.
At a February 16, 2022 hearing on the Motion to
Dismiss, the District Court denied the motion. On February 25,
2022, the District Court filed its FOFs/COLs, in which it
concluded in COL 1 that HRS § 805-1 and Thompson were not
applicable where the State "did not seek an arrest warrant or
penal summons[.]" In COL 2, the District Court concluded that
if HRS § 805-1 and Thompson did apply, the SAC complied with the
statute.
At the April 20, 2022 bench trial, the State's motion
to dismiss with prejudice all counts except for count 5, OVLPSR-
OVUII was granted, and Primo was tried and convicted of OVLPSR-
OVUII. This appeal followed.
Primo argues that the District Court erred in denying
the Motion to Dismiss because the State's SAC was defective
under HRS § 805-1,6 as no witness with direct observations of
Primo's misconduct executed a "sworn affidavit" or "declaration
in lieu of affidavit" that the allegations contained in the SAC
were true and correct. Primo argues that the District Court
erred in COL 1 in concluding that the "requirements of HRS §
805-1 do not apply when the State does not seek to obtain an
arrest or penal summons[.]" Primo further argues that the
District Court erred in COL 2 in concluding that if HRS § 805-1
6 HRS § 805-1 (2014) provides:
§805-1. Complaint; form of warrant. When a complaint
is made to any prosecuting officer of the commission of any
offense, the prosecuting officer shall examine the
complainant, shall reduce the substance of the complaint to
writing, and shall cause the complaint to be subscribed by
the complainant under oath, which the prosecuting officer
is hereby authorized to administer, or the complaint shall
be made by declaration in accordance with the rules of
court. . . .
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did apply, "the declaration language in the State's [SAC]
satisfied the requirement of the statute."7 Primo's arguments
are without merit, in light of State v. Mortensen-Young, 152
Hawai‘i 385, 526 P.3d 362 (2023).8
Whether a complaint complied with an applicable
statute and/or rule is a question of law we review de novo.
Thompson, 150 Hawai‘i at 266, 500 P.3d at 451. "A trial court's
ruling on a motion to dismiss charge is reviewed for an abuse of
discretion." Id. at 266-67, 500 P.3d at 451-52 (internal
citation, brackets, and quotation marks omitted) (quoting State
v. Hinton, 120 Hawai‘i 265, 273, 204 P.3d 484, 492 (2009)). COLs
are reviewed under the "right/wrong" standard and will not be
overturned when supported by the "trial court's [FOFs]" and
reflect an "application of the correct rule of law[.]"
Mortensen-Young, 152 Hawai‘i at 392, 526 P.3d at 369 (citation
and internal quotation marks omitted).
In Mortensen-Young, the Hawai‘i Supreme Court held that
HRS § 805-1 applies only to criminal complaints used to obtain a
penal summons or arrest warrant. Id. at 397, 526 P.3d at 374.
In other cases, such as the OVUII prosecutions at issue in
Mortensen-Young, HRPP Rule 79 provides the proper framework to
7 We do not address this argument in light of our disposition.
8 On May 1, 2023, the State filed a statement of supplemental
authority, stating that Mortensen-Young, which the supreme court issued on
March 15, 2023, "clarifies" Primo's single point of error. [JROA dkt. 58 at
2.]
9 HRPP Rule 7(d) states, in pertinent part:
Rule 7. INDICTMENT, INFORMATION, OR COMPLAINT.
. . . .
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analyze the sufficiency of complaints. Id. at 399, 526 P.3d at
376. In Mortensen-Young, the supreme court held that each of
the appellees was properly charged with the offense of OVUII by
a complaint signed by the prosecutor, pursuant to HRPP Rule
7(d), which does not require that a "'charging instrument in a
misdemeanor case be signed by anyone other than a prosecutor'"
or be "'subscribed under oath or made by declaration in lieu of
an affidavit by anyone.'" Id.
Here, as in Mortensen-Young, HRS § 805-1 is
inapplicable because the SAC was not used to obtain a penal
summons or arrest warrant. The SAC set forth a concise and
definite statement of the essential facts, was signed by the
prosecutor, and referenced the statute that Primo allegedly
violated, as required by HRPP Rule 7(d). The SAC was sufficient
to initiate the subject OVLPSR-OVUII prosecution, and Primo's
contention is without merit. See id. at 397, 399, 526 P.3d at
374, 376. COL 1 was correct, and it is not necessary to address
COL 2, which was an alternative conclusion "[a]ssuming arguendo
HRS § 805-1 applie[d]." See id. at 392, 526 P.3d 369. The
District Court did not abuse its discretion in denying the
Motion to Dismiss. See Thompson, 150 Hawai‘i at 266-67, 500 P.3d
at 451-52.
For the foregoing reasons, we affirm the
(1) February 25, 2022 "Findings of Fact, Conclusions of Law and
Order Denying [Primo]'s Motion to Dismiss," and (2) April 20,
(d) Nature and contents. The charge shall be a plain,
concise and definite statement of the essential facts
constituting the offense charged. . . . A complaint shall
be signed by the prosecutor. The charge need not contain a
formal conclusion or any other matter not necessary to such
statement. . . . The charge shall state for each count the
official or customary citation of the statute, rule,
regulation or other provision of law which the defendant is
alleged therein to have violated. . . .
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2022 "Judgment and Notice of Entry of Judgment," both entered
and filed by the District Court of the Second Circuit.
DATED: Honolulu, Hawai‘i, May 18, 2023.
On the briefs:
/s/ Katherine G. Leonard
William H. Jameson, Jr.,
Presiding Judge
Public Defender
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Associate Judge
Richard B. Rost,
Deputy Prosecuting Attorney
/s/ Karen T. Nakasone
for Plaintiff-Appellee.
Associate Judge
8