State v. Gonzalez. , 128 Haw. 314 ( 2012 )

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Electronically Filed
Supreme Court
SCAP-11-0000500
28-NOV-2012
08:55 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Petitioner/Plaintiff-Appellee,
vs.
JOSE R. GONZALEZ, III, Respondent/Defendant-Appellant.
SCAP-11-0000500
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DTC-11-001356)
November 28, 2012
RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND MCKENNA, JJ., AND CIRCUIT
JUDGE WILSON, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY ACOBA, J.
We hold that the offense of driving at an excessive
speed, Hawai#i Revised Statutes (HRS) § 291C-105(a),1 is not a
strict liability offense and requires proof that the defendant
acted intentionally, knowingly, or recklessly. Thus, the
requisite states of mind must be alleged in a charge of this
1
HRS § 291C-105(a) provides in relevant parts as follows:
(a) No person shall drive a motor vehicle at a speed
exceeding:
(1) The applicable state or county speed limit by
thirty miles per hour or more; or
(2) Eighty miles per hour or more irrespective of
the applicable state or county speed limit.
(Emphases added.)
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offense. Because the HRS §291C-105(a) charge against Defendant-
Appellant Joseph R. Gonzalez, III (Defendant) failed to allege
the requisite states of mind, we vacate the June 2, 2011 judgment
of the district court of the first circuit (the court)2 and
instruct the court to dismiss the charge without prejudice. We
conclude also that Plaintiff-Appellee State of Hawai#i (State),
failed to lay an adequate foundation to admit the laser
instrument reading of Defendant’s vehicle’s speed into evidence.
I.
A.
On June 2, 2011, Defendant was orally arraigned and
charged in the court with excessive speeding, HRS §§ 291C-
105(a)(1) and/or (a)(2). The charge alleged as follows:
[Defendant], you’re charged with on or about the
14 th of January, 2011, in the City and County of
Honolulu, State of [Hawai#i], you did drive a motor
vehicle at a speed exceeding the applicable State of
[Hawai#i] or county speed limit by 30 miles per hour
or more and/or 80 miles per hour or more irrespective
of the applicable State of Hawai#i or county speed
limit. By doing so you violated Section 291C-105
(a)(1) and/or (a)(2) of the [HRS].
You are subject to sentencing in accordance with
Section 291C-105(c)(1)[3 ] of the [HRS] where you have
2
The Honorable Paula Devens presided.
3
HRS § 291C-105(c)(1) (2011) provides in relevant part as follows:
(c) Any person who violates this section shall be
guilty of a petty misdemeanor and shall be sentenced as
follows without the possibility of probation or suspension
of sentence:
(1) For a first offense not preceded by a prior
conviction for an offense under this section in
the preceding five years:
(A) A fine of not less than $500 and not more
than $1,000;
(B) Thirty-day prompt suspension of license
and privilege to operate a vehicle during
(continued...)
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no prior convictions under Section 291C-105 in the
preceding five years. And you are charged with going
96 in a 55 mile per hour zone.
After the charge was read, Defendant orally moved to dismiss the
charge, arguing that the oral charge “fail[ed] to state the
requisite state of mind” under HRS § 702-204.4 The State
responded by arguing that a defendant’s state of mind is not an
element of an offense, and, as such, need not be alleged in an
oral charge. The court denied Defendant’s motion, ruling that
when a statute does not expressly set forth the culpable state of
3
(...continued)
the suspension period, or the court may
impose, in lieu of the thirty-day prompt
suspension of license, a minimum
fifteen-day prompt suspension of license
with absolute prohibition from operating a
vehicle and, for the remainder of the
thirty-day period, a restriction on the
license that allows the person to drive
for limited work-related purposes;
(C) Attendance in a course of instruction in
driver retraining;
(D) A surcharge of $25 to be deposited into
the neurotrauma special fund;
(E) May be charged a surcharge of up to $100
to be deposited into the trauma system
special fund if the court so orders;
(F) An assessment for driver education
pursuant to section 286G-3; and
(G) Either one of the following:
(i) Thirty-six hours of community
service work; or
(ii) Not less than forty-eight hours and
not more than five days of
imprisonment.
(Emphases added.)
4
HRS § 702-204 provides in relevant part as follows:
Except as provided in section 702-212, a person
is not guilty of an offense unless the person acted
intentionally, knowingly, recklessly, or negligently,
as the law specifies, with respect to each element of
the offense. 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.
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mind, but rather imports the mens rea element from HRS § 702-212
(2011), that “obviates the need of the [S]tate to articulate a
state of mind.”
B.
Officer Jeremy Franks (Franks) of the Honolulu Police
Department testified on behalf of the State. He related that on
January 14, 2011, he was on duty and positioned along the H-2
freeway, northbound, before the Mililani Mauka off-ramp. While
on duty, he observed a vehicle approaching his location and
“passing traffic.” Officer Franks testified that he used his
Laser Technology Incorporated (LTI) Ultralyte 100 Laser (laser
gun) to measure the oncoming vehicle’s speed. The laser gun
provided a reading of ninety-six miles per hour, and because the
vehicle was traveling in a fifty-five-mile-per-hour zone, he
proceeded to stop the vehicle.
Officer Franks testified that he was trained in the use
of the laser gun and that he had verified its accuracy on the
date in question. Officer Franks’ training consisted of “four
hours of operator training in January of [2003] in the police
academy,” and “further training as an instructor by LTI
representatives themselves as well as laser instructor currently
retired Sergeant Bobby Lung.” As to accuracy, Officer Franks
explained that at his initial training in the use of the laser
gun in 2003, he was provided with a manual “from [LTI].” That
manual provides four separate tests “that an operator must do
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prior to using the laser on the shift.” Officer Franks related
that he performed all four tests prior to using the laser gun on
January 14, 2011.
On cross-examination, Officer Franks testified that
although the manual containing the four tests was not the manual
that was provided with the laser gun, it did contain both the HPD
seal and the LTI copyright. He further recounted that he
received additional training directly from LTI personnel, where
the LTI personnel reviewed the HPD manual, and that all the
information covered by the LTI personnel was replicated in the
manual.
C.
Defendant testified that he was a military police
officer in the United States Army. Defendant also stated that he
had training in the use of both radar guns and laser guns. On
January 14, 2011, Defendant was pulled over at approximately 9
p.m. According to Defendant, he was driving at a speed of fifty-
five miles per hour “on average.” As he was driving, Defendant
observed a black Jeep Wrangler in the lane next to him, which
drove erratically, often speeding up to pass him before slowing
down to return to a position next to him. Defendant believed
that the Wrangler was traveling seventy miles per hour.
Defendant also related that the struts in his vehicle
were functioning poorly. Due to this mechanical defect,
Defendant explained that whenever he tried to go faster than
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sixty miles per hour, his car would shake and was difficult to
control. He stated that on January 14, 2011, his car did not
shake or become difficult to control while he was driving.
D.
At the end of trial, the court found Defendant guilty
as charged. The court ruled that it found Officer Franks’
testimony credible, and based on Officer Franks’ testimony it
found Defendant guilty beyond a reasonable doubt “on each and
every element that the State needs to prove.” The court noted
that this included the state of mind element, and held that “the
State did prove [that Defendant] acted recklessly.”
II.
On appeal, Defendant raises the following points of
error:
I. The trial court erred in denying [Defendant’s]
motion to dismiss because the prosecution’s citation
and oral charge for excessive speeding was fatally
insufficient because it failed to allege the requisite
mens rea.
II. The trial court erred in finding that the State
put forth a prima facie case and receiving evidence of
the laser gun speed reading because the State failed
to lay a sufficient foundation for the speed reading
taken by the laser gun.
III.
A.
As to the first point of error, Defendant argues that
state of mind is an “essential element” of the charged offense,
and because the oral charge did not allege Defendant’s state
mind, the charge must be dismissed. (Citing State v. Jendrusch,
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58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977).) Defendant also
argues that “the State’s failure to allege the state of mind
amounts to a failure to state an offense, and a conviction based
upon it cannot be sustained, for that would constitute a denial
of due process.” (Quoting State v. Elliot, 77 Hawai#i 309, 311,
884 P.2d 372, 374 (1994).) (Punctuation omitted.)
B.
1.
In its Answering Brief, the State argues that it was
not required to allege a mens rea element, because HRS § 291C-
105(a) is a strict liability offense and, therefore, the state of
mind requirements in HRS § 702-204 do not apply. As an initial
matter, the State argues that although it did not raise before
the court the argument that HRS § 291C-105(a) (2011) is a strict
liability offense, it is not precluded from raising this argument
for the first time on appeal because the court ruled in its favor
on this issue. According to the State, “[a]n appellate court may
affirm a judgement of the lower court on any ground in the record
that supports affirmance,” and “[the State] is merely submitting
a different reason explaining why the trial court’s denial of
[Defendant’s] oral motion to dismiss is the correct result.”
(Citing State v. Fukagawa, 100 Hawai#i 498, 506, 60 P.3d 899, 907
(2002); State v. Dow, 96 Hawai#i 320, 326, 30 P.3d 926, 932
(2001); Poe v. Hawai#i Labor Relations Bd., 87 Hawai#i 191, 197,
953 P.2d 569, 575 (1998).)
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2.
It is questionable whether the State may argue on
appeal that HRS § 291C-105(a) is a strict liability offense. It
is a “well-settled maxim” that “the failure to properly raise an
issue at the trial level precludes a party from raising that
issue on appeal.” State v. Kikuta, 125 Hawai#i 78, 89, 253 P.3d
639, 650 (2011); see also State v. Ildefonso, 72 Hawai#i 573,
584, 827 P.2d 648, 655 (1992) (“Our review of the record reveals
that [the defendant] did not raise this argument at trial, and
thus it is deemed to have been waived.”); State v. Hoglund, 71
Haw. 147, 150, 785 P.2d 1311, 1313 (1990) (“Generally, the
failure to properly raise an issue at the trial level precludes a
party from raising that issue on appeal.”). The cases cited by
the State do not negate this proposition. None deal with
circumstances where the prevailing party waived the argument
raised on appeal. Our precedent clearly demonstrates that a
party can waive an argument by failing to raise it at trial even
if the party ultimately prevails on that issue. Kikuta, 125
Hawai#i at 89, 253 P.3d at 650.
Although the State prevailed in the trial court, Kikuta
held that the State waived the argument that the parental use of
force was not for disciplinary reasons because it did not raise
that argument before the trial court. Id.; see also State v.
Harada, 98 Hawai#i 18, 30, 41 P.3d 174, 186 (2002) (holding that
the State waived the argument that exigent circumstances
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justified a violation of the knock-and-announce rule by failing
to raise it at trial even though the State prevailed on a
different argument at trial); State v. Rodrigues, 67 Haw. 496,
498, 692 P.2d 1156. 1158 (1985) (precluding the State from
raising arguments regarding exigent circumstances and the good
faith exception on appeal when they were not raised in the trial
court, even though the State prevailed on other grounds at
trial); but see State v. Moses, 102 Hawai#i 449, 456, 77 P.3d
940, 947 (2003) (holding, under similar circumstances, that
“[c]onsideration of the appellee’s argument in this situation is
appropriate, even though not raised before the circuit court,
because the appellee never had the need to raise such an argument
before the circuit court”).
In the instant case, the State had the opportunity to
raise before the court the argument that HRS § 291C-105(a) is a
strict liability offense. At the beginning of trial, Defendant
raised the State’s failure to allege a state of mind when the
State read the oral charge. Instead of responding that the
charge was not deficient because the statute was a strict
liability offense that contained no mens rea requirement, the
State relied on its argument that mens rea was not an element of
the offense, and therefore did not have to be included in the
oral charge. At that point, the State chose to forego reliance
on a strict liability argument, and, under Kikuta, Harada, and
Rodrigues, that argument would be waived.
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None of the cases cited by the State allow a party to
raise an issue on appeal when that issue was not raised before
the trial court. Fukagawa, for example, held that even if the
trial court had incorrectly rejected the defendant’s argument
that he had possessed a de minimis amount of methamphetamine,
based on the evidence, the defendant would still be convicted
because he could not possibly meet his burden of demonstrating
that this was a de minimis offense. 100 Hawai#i at 507, 60 P.3d
at 908. To show that his offense was de minimis, the defendant
was required to address both the nature of the conduct alleged
and the nature of the attendant circumstances. Id. Based on the
record below, the defendant had only addressed the former. Id.Because of the defendant’s failure to address the nature of the
attendant circumstances, Fukagawa held that the trial court did
not abuse its discretion in refusing to find the offense a de
minimis violation. Id. Fukagawa could not have dealt with
waiver, as the court’s holding was not based on any affirmative
argument made by the prosecution. Id. Instead, this court ruled
only that the evidence provided by the defendant was legally
insufficient. Id.Dow is even less relevant to the present case. 96
Hawai#i at 323, 30 P.3d at 929. In Dow, the trial court held
that recorded test result of “19% mgm Ethanol per cc” supported a
DUI conviction. Id. The trial court erred by concluding that
the written result was the equivalent of a blood alcohol content
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of .19 -- in fact, the recorded result was expressed using the
wrong unit of measure. Id. Nevertheless, this court noted that
“the record indicates that the recorded test result was not the
only evidence presented at the time of trial.” Id.The record also contained additional evidence presented
by the State at trial, including the testimony of the medical
technician that the results of the blood-alcohol test were “a .20
and a .19,” and the testimony of two lay witnesses that the
defendant’s eyes were bloodshot and he smelled of alcohol. Id.
at 325, 30 P.3d at 931. On the basis of the additional evidence
presented at trial, this court affirmed the decision of the trial
court. Id. The State could not have waived the arguments
eventually relied on by this court, because this court’s decision
was based on the additional evidence presented by the State at
trial.
Similarly, in Poe, this court held that “where the
circuit court’s decision is correct, its conclusion will not be
disturbed on the ground that it gave the wrong reason for its
ruling” only after adopting an alternative argument that the
prevailing party presented to the trial court. 87 Hawai#i at
197, 953 P.2d at 575. Poe consolidated two cases before the
Hawai#i Labor Relations Board. In the first, the State argued
the plaintiff’s employer had designated him as an essential
employee, and the board disagreed. Id. at 194, 953 P.2d at 572.
In the second case, the plaintiff argued that because he was not
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an essential employee, his employer had engaged in a prohibited
practice by refusing to allow him to strike. Again, the board
disagreed. Id.On appeal, this court ruled that the board’s first
decision was incorrect -- the plaintiff was indeed an essential
employee. Id. at 196, 953 P.2d at 574. Because the plaintiff
was an essential employee, it became impossible for the
plaintiff’s employer to have engaged in prohibited labor
practices, and therefore this court affirmed the second decision
of the board on this new ground. Id. at 196-97, 953 P.2d at 574-
75. The argument regarding the plaintiff’s status as an
essential employee could not have been waived, because the labor
board had addressed it in the plaintiff’s initial case. Id. at
194, 953 P.2d at 572. In sum, Fukagawa, Dow, and Poe provide no
support for the State’s position that it can raise an argument
for the first time on appeal because it prevailed in the trial
court.
IV.
Although the State may have waived its strict liability
argument, because of the likelihood that this case will be
retried, and because this court accepted transfer due to the
public importance of clarifying the charging requirements in an
excessive speeding case, the appropriate resolution of this issue
is discussed.
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A.
The State argues that the language of HRS
§ 291C-105(a) is absolute on its face because it states that “no
person” shall drive at a speed exceeding the statute’s limits.
According to the State, “no” is ordinarily defined as “not any,”
or “not one.” (Quoting Webster’s New World Dictionary 919 [sic].)
The State maintains that if only persons who intentionally,
knowingly, or recklessly drive at speeds exceeding the statute’s
limits could be charged under the statute, it would no longer be
true that “all” persons would be prohibited from exceeding the
statute’s speed limits. Therefore, the State argues, the
unqualified language in HRS § 291C-105(a) can only be given
effect if the statute imposes strict liability. On this basis,
the State argues that the language of HRS § 291C-105(a) meets the
requirements of HRS § 702-212,5 because “a legislative purpose to
impose absolute liability . . . plainly appears.”
In support of its strict liability argument, the State
relies on the Commentary to HRS § 702-212. According to the
5
HRS § 702-212 provides in relevant part as follows:
The state of mind requirements prescribed by sections
702-204 and 702-207 through 702-211 do not apply to:
(1) An offense which constitutes a violation, unless
the state of mind requirement involved is
included in the definition of the violation or a
legislative purpose to impose such a requirement
plainly appears; or
(2) A crime defined by statute other than this Code,
insofar as a legislative purpose to impose
absolute liability for such offense or with
respect to any element thereof plainly appears.
(Emphasis added.)
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State, although the Commentary notes that “[o]ften regulatory
statutes are absolute on their face when it is doubtful that
absolute criminal liability was intended,” it also provides
examples of several pre-1968 statutes that did impose absolute
liability. (Quoting Commentary to HRS § 702-212 nn.1, 3.)
According to the Commentary, two examples of statutes that did
impose absolute liability were HRS § 453-14 (1968),6 requiring
the reporting of knife and bullet wounds within twenty-four
hours, and HRS § 403-146 (1968),7 which prohibited officers or
directors of banks from delivering guaranties or endorsements
which the bank could not legally make. In contrast, the
Commentary lists HRS §§ 403-141 (1968),8 403-142 (1968),9 and
6
HRS § 453-14 provided in relevant part as follows:
Every physician and surgeon attending or treating a
case of knife wound, bullet wound, gunshot wound, powder
burn, or any injury that would seriously maim, produce
death, or has rendered the injured person unconscious,
caused by the use of violence or sustained in a suspicious
or unusual manner . . . , shall report such case to the
chief of police.
(Emphases added.)
7
HRS § 403-146 provided in relevant part as follows
Any officer, director, or agent of a bank who makes or
delivers any guaranty or indorsement on behalf of the bank
whereby it may become liable on any of its discounted notes,
bills, or obligations, in any sum beyond the amount of loans
and discounts which the bank may legally make, shall be
fined not more than $1,000 or imprisoned not more that one
year, or both.
(Emphases added.)
8
HRS § 403-141 provided in relevant part as follows:
Any officer, director, or employee of a bank who
wilfully or knowingly subscribes to or makes or causes to be
made any false statement or report to the director of
(continued...)
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403-147 (1968)10 as statutes that, although appearing absolute on
their faces, do not impose strict liability.
The State observes that in all of the statutes the
Commentary notes as imposing strict liability, the statute begins
8
(...continued)
regulatory agencies, or any false entry in the books or
accounts of the bank; or who knowingly subscribes to or
exhibits false papers with the intent to deceive any person
authorized to examine into the affairs of the bank or its
directors; or who knowingly states or publishes any false
report or statement of the bank or prepares any false
minutes, with intent to deceive any examiner or any person
authorized to examine the affairs of the bank or the
directors thereof; or who fails to make proper entry upon
the books or records of the bank; to disclose the true
condition of the bank; or who makes any entry upon the books
or records of the bank with intent to deceive or conceal the
true condition thereof; shall be fined not more than $1,000
or imprisoned not more than two years, or both.
(Emphases added.)
9
HRS § 403-142 provided in relevant part as follows:
Any officer, director, employee, or agent of a bank
who makes a false or misleading entry or wilfully omits to
make entry in any book, report, or statement of the
business, affairs, or condition, in whole or in part, of the
bank, with respect to any matter particularly pertaining to
the business with intent to deceive or conceal the true
condition of the business from any officer, director, or any
agent, examiner, or other person employed or lawfully
appointed to examine into the condition of any of its
affairs, or any public officer, office, or board to whom or
which the bank is required by law to report, or having
authority by law to examine into any of its affairs, or who,
with like intent, causes, aids, or abets any other person to
make any false entry or to fail to make a requisite entry,
shall be fined not more than $1,000 or imprisoned not more
than two years, or both.
(Emphases added.)
10
HRS § 403-147 provided in relevant part as follows:
Any officer or director of a bank who, in case of the
fraudulent insolvency of the bank, has participated in the
fraud, or any officer or director who wilfully does any act,
as such officer or director, which is expressly forbidden by
law, or wilfully omits to perform any duty imposed upon him
as such officer or director by law, shall be fined not more
than $1,000 or imprisoned not more than five years, or both.
(Emphases added.)
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with unqualified language (“every” or “any”) and contains no
further qualification. In contrast, the State maintains that the
Commentary’s examples of statutes that do not impose strict
liability, although beginning with the same unqualified language,
are subsequently qualified by terms such as “wilfully” or
“knowingly.” From this, the State infers a general rule that
whenever a statute begins with unqualified language, and contains
no further qualifying language, the requirement imposed by HRS
§ 702-212 is met, and a legislative purpose to impose absolute
liability plainly appears.
The State further compares HRS § 291C-102 (2011),11
enacted in 1973, to the statute at issue in this case, HRS §
291C-105. According to the State, while HRS § 291C-102, which
provides penalties for ordinary speeding offenses, contains no
unqualified language and is not punishable by incarceration,12
11
HRS § 291C-102 provides, in relevant part as follows:
(a) A person violates this section if the person
drives:
(1) A motor vehicle at a speed greater than the
maximum speed limit other than provided in
section 291C-105; or
(2) A motor vehicle at a speed less than the minimum
speed limit,
where the maximum or minimum speed limit is
established by county ordinance or by official signs
placed by the director of transportation on highways
under the director's jurisdiction.
(b) If the maximum speed limit is exceeded by more
than ten miles per hour, a surcharge of $10 shall be
imposed, in addition to any other penalties, and shall be
deposited into the neurotrauma special fund.
(Emphasis added.)
12
The penalty for a violation of HRS § 291C-102 is set by HRS §
291C-161 (2011). HRS § 291C-161 provides in relevant part as follows:
(continued...)
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HRS § 291C-105, which provides penalties for excessive speeding,
does contain unqualified language and provides more significant
penalties, including the possibility of incarceration. The State
reasons, therefore, that “it is reasonable to infer that the
legislature intended to emphasize the more severe penalties
imposed by HRS § 291-105(c) to apply to every person found to
violate HRS § 291-105(a), regardless of a person’s state of
mind.”
B.
Defendant argues in his Reply that “there is no express
language in HRS § 291C-105(a) to indicate the legislature’s
intent to make excessive speeding an absolute liability crime.”
Examining the legislative history of HRS § 291C-105(a), Defendant
argues that “nowhere in the accompanying committee reports is
there even the mere suggestion that the legislature intended to
impose absolute liability on excessive speeding.”
12
(...continued)
(a) It is a violation for any person to violate any of
the provisions of this chapter, except as otherwise
specified in subsections (c) and (d) and unless the
violation is by other law of this State declared to be a
felony, misdemeanor, or petty misdemeanor.
(b) Except as provided in subsections (c) and (d),
every person who is determined to have violated any
provision of this chapter for which another penalty is not
provided shall be fined:
(1) Not more than $200 for a first violation
thereof;
(2) Not more than $300 for a second violation
committed within one year after the date of the
first violation; and
(3) Not more than $500 for a third or subsequent
violation committed within one year after the
date of the first violation.
(Emphases added.)
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V.
Both HRS § 702-212 and its commentary suggest that a
strong showing is required before courts interpret a statute as
imposing strict liability. The commentary to HRS § 702–204
states that a “state of mind [ ] will, in most instances, be
required for the imposition of penal liability[,]” and,
consequently, HRS § 702–212 “provides for those relatively few
instances when absolute or strict liability will be recognized.”
(Emphasis added.) Thus, HRS § 702–212 states that, for “crime[s]
defined by statute other than [the HPC],” the states of mind
specified by the HPC “do not apply . . . insofar as a legislative
purpose to impose absolute liability for such offense or with
respect to any element thereof plainly appears.” (Emphasis
added.)
Previous decisions have construed the language of HRS §
702-212 as interpreting penal statutes as strict liability
offenses only if (1) the statutory language “expressly impos[es]
absolute liability,” State v. Eastman, 81 Hawai#i 131, 140, 913
P.2d 57, 60 (1996) (citing State v. Rushing, 62 Haw. 102, 105,
612 P.2d 103, 106 (1980)), or (2) the legislative history
“unequivocally indicates” an intent to eliminate the state of
mind requirement. State v. Buch, 83 Hawai#i 308, 316, 926 P.2d
599, 607 (1996) (holding that the legislature plainly intended to
impose strict liability when the legislative history indicated
that the law had been amended to “eliminate the requirement of
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actual knowledge”); see also State v. Nesmith, 127 Hawai#i 48,
59, 276 P.3d 617, 628 (2012). (holding that the legislature
plainly intended to impose strict liability for drunk driving
offenses based on the statute’s legislative history).
Neither the statutory language nor the legislative
history can support the imposition of strict liability in this
case. The State’s argument that a statute “expressly imposes”
strict liability when it uses unqualified language such as
“every,” “any,” or “no person” is precluded by Rushing. In that
case, the section of the statute at issue also used unqualified
language, without a subsequent reference to “wilfully” or
“knowingly.”13 Nevertheless, this court rejected any contention
that the language alone could support a finding of strict
liability, holding that “we do not find the legislative purpose
to impose absolute liability plainly to appear from the wording
of HRS § 346-34.” Rushing, 62 Haw. at 105, 612 P.2d at 106.
Moreover, if unqualified language standing alone
plainly demonstrated a legislative intent to impose strict
13
The statute at issue in Rushing provided in relevant part:
If, at any time while the recipient of public
assistance is receiving such assistance, his living
requirements are reduced and he fails to report the
reduction within thirty days from the date of the reduction
to the department, or he acquires from any source real
property, funds, income, or other resources and fails to
report the amount of same together with the source of the
resources to the department within thirty days of receipt of
same, or prior to spending or otherwise disposing of all or
any portion of the same, he shall be deemed guilty of fraud.
62 Haw. at 103, 612 P.2d at 104 (quoting HRS § 346-34 (1976)) (emphases
added).
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liability, dozens of statutes would be transformed into strict
liability offenses. See, e.g., HRS § 6E-10 (2011)14 (construction
on privately owned historic property), HRS § 21-15(c) (2011),15
and HRS §§ 21-12(g), (h) (2011),16 (violations of legislative
confidentiality), HRS § 46-45 (2011)17 (preventing county
14
HRS § 6E-10 provides in relevant part as follows:
(a) Before any construction . . . by, for, or
permitted by a private landowner may be commenced which will
affect an historic property on the Hawai#i register of
historic places, the landowner shall notify the department
of the construction . . . and allow the department
opportunity for review of the effect of the proposed
construction . . .
. . . .
(c) Any person, natural or corporate, who violates the
provisions of this section shall be fined not more than
$1,000, and each day of continued violation shall constitute
a distinct and separate offense under this section for which
the offender may be punished.
(Emphases added.)
15
HRS § 21-15(c) provides in relevant part as follows:
Any person other than the witness concerned or the
witness’ counsel who violates subsection 21-12(g) or (h)
shall be fined not more than $500 or imprisoned not more
than six months, or both.
(Emphasis added.)
16
HRS § 21-12 provides in relevant part as follows:
(g) Testimony and other evidence given or adduced at a
hearing closed to the public shall not be made public unless
authorized by majority vote of all of the members of the
committee, which authorization shall also specify the form
and manner in which the testimony or other evidence may be
released.
(h) All information of a defamatory or highly
prejudicial nature received by or for the committee other
than in an open or closed hearing shall be deemed to be
confidential. No such information shall be made public
unless authorized by majority vote of all of the members of
the committee for legislative purposes, or unless its use is
required for judicial purposes.
17
HRS § 46-45 provides in relevant part as follows:
No council, or other board, committee, department,
(continued...)
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employees from spending money without prior appropriation), HRS §
142-61(f) (2011)18 (regulating electric fences), HRS § 142-95
(2011)19 (keeping Belgian hares off of the ground), HRS § 142-96
(2011)20 (frightening animals and endangering others), HRS § 264-
17
(...continued)
bureau, officer, or employee of any county shall expend, or
aid or participate in expending, during any period of time
for any purpose, except for and in the exercise by the
county of the power of eminent domain, any sum in the
absence of an appropriation for the purpose for the period,
or any sum in excess of an appropriation, if any, for the
purpose for the period, or incur, authorize, or contract, or
aid or participate in incurring, authorizing, or
contracting, during any fiscal year, liabilities or
obligations, whether payable during the fiscal year or not,
for any or all purposes, except for and in the exercise by
the county of the power of eminent domain, in excess of the
amount of money available for the purposes for the county
during the year. Any person who violates this section shall
be fined not more than $1,000 or imprisoned not more than
one year, or both.
(Emphases added.)
18
HRS § 142-61(f) provides in relevant part as follows:
Any person who constructs or maintains an electrically
charged fence or fence with electrically charged attachments
not conforming to the requirements of this section shall be
fined not more than $500, or imprisoned not more than one
year, or both.
(Emphases added.)
19
HRS § 142-95 provides in relevant part as follows:
Any person who breeds, raises or keeps rabbits or
Belgian hares shall keep them off the ground.
Any person who violates this section shall be fined
not more than $100 or imprisoned not more than six months,
or both.
(Emphases added.)
20
HRS § 142-96 provides in relevant part as follows:
Whoever frightens, exasperates, or animates a horse or
other animal, and thereby endangers the personal safety or
the personal property of any person, or the animal itself,
being that of another, shall, in case the personal safety of
any person is thereby imminently endangered, be fined not
less than $5 nor more than $500; or in case the personal
(continued...)
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12 (2011)21 and HRS § 264-6 (2011)22 (preventing persons from
breaking up or “disturbing” state highways), HRS § 448-3(a)
(2011)23 (preventing the employment of unlicensed dental
practitioners). Many of these statutes impose significant prison
sentences for their violation. Such widespread application of
20
(...continued)
safety of any person is not so endangered, be fined not less
than $5 nor more than $100.
(Emphasis added.)
21
HRS § 264-12 provides in relevant part as follows:
Any person, including any public officer or employee
who violates section 264-6, shall be fined not more than
$250 or imprisoned not more than three months, or both.
(Emphases added.)
22
HRS § 264-6 provides in relevant part as follows:
No person or government agency, whether federal,
state, or county, shall, in any manner or for any purpose do
any of the following acts without a written permit from the
director of transportation or the director's authorized
representative:
(1) Break up, dig up, disturb, undermine or dig
under, or cause to be broken up, dug up,
disturbed, undermined, or dug under, the
right-of-way of any state highway; or
(2) Place, erect, leave, or store any structure,
motor or other vehicle, equipment, or any other
object wholly or partially within the
right-of-way of any state highway; provided that
this paragraph shall not apply to the holding or
displaying of movable signs, for the purpose of
carrying on political campaign activities.
23
HRS § 448-3(a) provides in relevant part as follows:
Except as provided in section 447-3, no person who
manages or conducts as manager, proprietor, conductor, or
otherwise a place where dental operations are performed,
shall employ any person as operator in dental surgery or as
a practitioner, or cause to permit any person to so act, who
is not duly licensed to practice dentistry; provided that
nothing in this chapter shall prohibit any unlicensed person
from performing merely mechanical work upon inert matter in
a dental laboratory.
(Emphasis added.)
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strict liability cannot be reconciled with the Commentary to HRS
§ 702-212, which counsels that strict liability “should not be
discerned lightly by the courts,” that HRS § 702-212(2) “severely
limits the situations which will allow the imposition of absolute
criminal liability,” and that “strict liability in the penal law
is indefensible in principle if conviction results in the
possibility of imprisonment.” Commentary to HRS § 702-212.
Finally, the State’s argument that a comparison between
HRS § 291C-102 and HRS § 291C-105 supports the imposition of
strict liability is contradicted by the Commentary to HRS § 702-
212. The State argues that because HRS § 291C-105 imposes
stricter penalties than HRS § 291C-102, and because only HRS §
291C-105 utilizes unqualified language, it is reasonable to infer
that the legislature intended that the more severe penalties in
HRS § 291C-105 apply regardless of a defendant’s state of mind.
As the State notes, violations of HRS § 291C-105 may be punished
by imprisonment, although violations of HRS § 291C-102 may not.
To reiterate, the Commentary to the HPC suggests that “absolute
or strict liability in the penal law is indefensible in principle
if conviction results in the possibility of imprisonment and
condemnation.” Commentary to HRS § 702-212. Thus, contrary to
the State’s position, the fact that HRS § 291C-105 carries
stricter penalties, including the possibility of imprisonment, is
in fact evidence that the legislature did not intend to make HRS
§ 291C-105(a) a strict liability offense.
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Because the statute’s use of “no person,” standing
alone, is insufficient to impose strict liability, and no other
language in the statute refers to strict liability, the State’s
argument that the statutory language demonstrates that HRS §
291C-105 is absolute on its face must be rejected.
Moreover, the State cannot rely on the legislative
history of HRS § 291C-105(a) to demonstrate that excessive
speeding is a strict liability offense. In both its Application
for Transfer and its Answering Brief, the State eschews any
reliance on the statute’s legislative history, and instead argues
solely from the plain language of the statute. (“[N]o Hawai#i
appellate court has yet addressed whether absolute liability may
‘plainly appear’ from the language of the statute
itself.”)(emphasis added). Further, nothing in the legislative
history of HRS § 291C-105(a) “unequivocally indicates” an intent
to impose strict liability. Buch, 83 Hawai#i at 316, 926 P.2d at
607; see also State v. Wells, 78 Hawai#i 373, 376, 894 P.2d 70, 73
(1995) (“[I]n determining the purpose of the statute, we are not
limited to the words of the statute to discern the underlying
policy which the legislature seeks to promulgate[,] but may look
to relevant legislative history.”) (internal quotation marks,
brackets and citations omitted.)
In 2006, the legislature enacted HRS § 291C-105, which
for the first time provided additional penalties to drivers who
exceeded the speed limit by more than thirty miles per hour, or
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who drove faster than eighty miles per hour. The relevant
legislative history demonstrates a legislative intent to “define
excessive speeding as exceeding the speed limit by [twenty-five]
miles per hour24 or driving eighty miles per hour or more
irrespective of the speed limit,” Conf. Comm. Rep. No. 57-06, in
2006 House Journal, at 1796, to “improve public safety” by
“creating severe penalties for those who drive at excessive
speeds,” id., and to “clamp down on highway speeding and racing.”
2006 House Journal, at 939 (statement of Rep. Caldwell). None of
these statements demonstrate a clear intent to make excessive
speeding a strict liability crime.
In creating the offense of excessive speeding, the
legislature intended to “fix or mark the limits” of the offense
at speeds of thirty miles per hour greater than the posted speed
limit, or at speeds of eighty miles per hour, irrespective of the
speed limit. Demarcating the offense of excessive speeding from
ordinary speeding does not indicate an intent to omit a state of
mind requirement from the law. It only demonstrates an intent to
set the parameters at which a defendant meeting the applicable
state of mind requirement may be found guilty.
The remaining legislative history, which indicates an
intent to “improve public safety” and “clamp down on highway
speeding or racing” makes no reference to omitting a state of
24
The conference committee would change this limit to thirty miles
per hour in the final bill. Conf. Comm. Rep. No. 57-06, in 2006 House
Journal, at 1796.
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mind requirement or precluding any defenses to excessive
speeding. The legislative history demonstrates only an intent to
punish severely those who are ultimately found guilty, not to
increase the class of guilty persons to those lacking any
culpable mental state.25 Consequently, the legislative history of
HRS § 291C-105 does not support the conclusion that HRS
§ 291C-105(a) is a strict liability offense.
In sum, neither the plain language of the statute nor
the legislative history supports the State’s contention that HRS
§ 291C-105(a) is a strict liability offense. Buch, 83 Hawai#i at
316, 926 P.2d at 607. Therefore, HRS § 702-204 applies to HRS
§ 291C-105(a), and in future cases the State must prove that a
defendant acted intentionally, knowingly, or recklessly. Id.
VI.
As discussed above, HRS § 291C-105(a) is not a strict
liability offense, but instead requires that the State prove that
a defendant acted intentionally, knowingly, or recklessly. The
State concedes that, if HRS § 291C-105(a) contains a mens rea
requirement, then the oral charge is insufficient pursuant to
Nesmith. In this case, as in Nesmith, the defendant objected to
25
In 2008, the legislature amended several statutes, including HRS
§ 291C-105, to impose additional fees which would be paid to the Trauma System
Special Fund. 2008 Haw. Sess. Laws Act 231, § 16 at 846-47. Although the
legislative history to the amendment indicates an intent to “establish
additional funding mechanisms to enhance the availability of revenues in the
Trauma System Special Fund,” Conf. Comm. Rep. No. 172-08, in 2008 Senate
Journal, at 871, and to “impose higher penalties and fines on irresponsible
and dangerous drivers,” 2008 Senate Journal, at 684 (statement of Sen. Baker),
nothing indicates an intent to modify the underlying state of mind requirement
for HRS § 291C-105.
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the failure to allege the requisite state of mind at trial. See
Nesmith, 127 Hawai#i at 51, 276 P.3d at 620. In Nesmith, this
court reasoned that “state of mind requirements, though not an
element of an offense” were required to be included in the
charges against the defendants in order “to alert the defendants
of precisely what they needed to defend against to avoid a
conviction.” 127 Hawai#i at 56, 276 P.3d at 625 (internal
quotation marks and citations omitted). Nesmith held that state
of mind must be included in a charge or the case must be
dismissed without prejudice. Id. at 54, 276 P.3d at 623.
Because the charge here did not contain the requisite state of
mind, as the State concedes, Nesmith mandates dismissal without
prejudice.
VII.
Due to the likelihood of retrial on remand, Defendant’s
argument that the State failed to lay an adequate foundation for
the introduction of the speed reading from the laser gun is
addressed to prevent further error.
A.
With respect to his second point of error, Defendant
contends that, in order to lay an adequate foundation for the
introduction of a speed reading from a laser gun, the State must
demonstrate (1) that the laser gun’s accuracy was tested
according to manufacturer recommended procedures and determined
to be operating properly prior to use, and (2) that the nature
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and extent of the officer’s training in the operation of laser
guns meets the requirements indicated by the manufacturer.
(Citing Assaye, 121 Hawai#i at 213-15, 216 P.3d at 1236-38.)
Defendant argues that the State met neither of the foundational
requirements.
1.
As to (1), Defendant argues that the evidence
introduced at trial demonstrates only that Officer Franks
followed the procedures for testing the laser gun contained in
his manual, and does not demonstrate that the manual or the
procedures therein were sanctioned by LTI (the laser gun’s
manufacturer). Therefore, Defendant argues that introduction of
the laser gun’s reading violates Assaye, which held that a
foundation for the accuracy of a particular laser gun must be
laid through a demonstration that the officer using the gun has
complied with “‘accepted procedures’ for testing the accuracy of
a particular laser gun,” which are “recommended by the
manufacturer.” (Quoting 121 Hawai#i at 213, 216 P.3d at 1236.)
In connection with this argument, Defendant challenges
Officer Franks’ testimony on cross-examination, wherein he stated
that LTI representatives reviewed his manual and that his manual
contained identical information to that offered by the LTI
representatives. Defendant argues that this testimony contained
out-of-court communicative statements offered to prove
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substantive facts, and therefore “was inadmissible hearsay
without an applicable exception.” As such, Defendant argues, it
constituted plain error for the trial court to have considered
such evidence.
Finally, Defendant points out that on direct
examination, the State asked Officer Franks whether the tests in
his manual established that the laser gun was “working properly.”
According to Defendant, this proves that “[a]t best, Officer
Franks demonstrated that they were tests to establish that the
laser gun was working properly, not accurately.” (Citing Assaye,
121 Hawai#i at 215, 216 P.3d at 1238.) (Emphases in original.)
2.
In response, the State distinguishes Assaye by arguing
that in that case there was no evidence which could demonstrate
that the calibration tests performed were recommended by the
manufacturer. Here, however, Officer Franks testified that the
tests were set forth in a manual from LTI, bearing the
manufacturer’s copyright. Further, the information contained in
the manual corresponded to information provided by the
representatives of the manufacturer, and those representatives
reviewed Officer Franks’ manual. Thus, the State urges,
sufficient evidence exists to support the court’s decision that
the calibration tests provided by the manual were recommended by
the manufacturer.
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3.
Defendant cannot establish that the court abused its
discretion by ruling that the laser gun’s accuracy was tested
according to procedures recommended by the manufacturer, as
several facts in the record support this conclusion. See Assaye,
121 Hawai#i at 210, 216 P.3d at 1233 (“When a question arises
regarding the necessary foundation for the introduction of
evidence, the determination of whether proper foundation has been
established lies within the discretion of the trial court, and
its determination will not be overturned absent a showing of
clear abuse.”). It is undisputed that Officer Franks possessed a
manual that recommended four procedures to verify the accuracy of
the laser gun, and that Officer Franks did in fact observe those
procedures. The only issue is whether the State demonstrated
that the manual containing the procedures was provided by LTI,
the laser gun’s manufacturer. Officer Franks testified at trial
that the manual was “from [LTI].” Further, on cross-examination,
Officer Franks related that the manual bore the LTI copyright,
that it was reviewed by LTI personnel, and that information
provided by the same LTI personnel was “covered in the manual we
use to train on.” Based on this testimony, it was within the
court’s discretion to conclude that the manual was provided by
the manufacturer and, therefore, the procedures contained therein
were recommended by the manufacturer.
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This conclusion is not altered by Defendant’s
contention that some parts of Officer Franks’ testimony -- his
testimony that the manual was reviewed by LTI personnel and that
LTI personnel provided similar information to that covered in
Officer Franks’ manual -- were inadmissible hearsay. Although
the transcript provides few details, it appears that the evidence
adduced was not hearsay. The testimony that LTI personnel
“reviewed” the manual, is not hearsay because in reviewing the
manual it does not appear that the LTI personnel intended to
communicate any assertion regarding the manual. See Commentary
to Hawai#i Rules of Evidence (HRE) Rule 801 (2011) (“[M]uch
nonverbal conduct, although tending logically to prove the
actor's belief in an event or condition, is not motivated by the
intent to assert that belief and should not be considered
hearsay.”).
Further, the assertion that the information provided by
LTI representatives corresponded to the information in the manual
was offered not for the truth of the matter asserted, but only to
prove the similarity between information provided by LTI
personnel and information contained in the manual. Because the
only significance of the statement was the fact that it was made,
the statement does not fall within the scope of the hearsay rule.
See Island Directory Co. v. Iva’s Kinimaka Enterprises, 10 Haw.
App. 15, 21, 859 P.2d 935, 939 (1993) (“If the significance of an
offered statement lies solely in the fact that it was made, no
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issue is raised as to the truth of anything asserted, and the
statement is not hearsay.”).
Finally, although the State asked Officer Franks on
direct examination whether or not the laser gun was working
“properly,” and not “accurately,” the State nevertheless
established that the procedures performed by Officer Franks
demonstrate the gun’s accuracy, as required by Assaye. Because
the purpose of the laser gun is to measure the speed of vehicles
accurately, asking whether or not the gun is working properly
amounts to asking whether or not it is accurate. Thus, Defendant
did not show that the court abused its discretion by finding that
the tests recommended by the manufacturer supported the gun’s
accuracy.
B.
1.
As to (2), Defendant notes that in Assaye, this court
held that the prosecution must also demonstrate that an officer
is qualified by training to operate the laser gun in order to lay
an adequate foundation for the readings taken from the gun.
(Citing 121 Hawai#i at 215, 216 P.3d at 1238.) According to
Defendant, the State must demonstrate that “the nature and extent
of an officer’s training in the operation of a laser gun meets
the requirements indicated by the manufacturer.” Here, Defendant
argues that no evidence was provided regarding the nature and
extent of the training requirements set forth by LTI, and, as the
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record is silent on this issue, the State could not possibly have
demonstrated that Officer Franks’ testimony met whatever
requirements were established by the manufacturer.
2.
In response, the State distinguishes Assaye by arguing
that the holding of Assaye was nothing more than “it is difficult
to discern how anyone can use the laser gun properly without any
training or instruction.” Thus, the State concedes that
“testimony amounting merely to being certified to use the laser
gun without explaining the nature and extent of the training
involved to become certified is insufficient for foundational
purposes.” However, the State argues that testimony that Officer
Franks’ training consisted of four hours of operator training and
further supplemental training is sufficient to support the
court’s decision that Officer Franks was trained properly in the
laser gun’s use.
3.
The record indicates the court abused its discretion by
ruling that the State introduced evidence sufficient to establish
that Officer Franks’ training met the requirements set by the
manufacturer. The State introduced no evidence regarding the
manufacturer’s requirements, and therefore, regardless of the
extent of Officer Franks’ training, the court could not have
properly concluded that the manufacturer’s requirements were met.
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To lay a sound foundation for the introduction of a
reading from a laser gun, Assaye requires the prosecution to
demonstrate that “the nature and extent of an officer’s training
in the operation of the laser gun meets the requirements
indicated by the manufacturer.” Assaye, 121 Hawai#i at 215, 216
P.3d at 1138. Logically, to meet this burden the prosecution
must establish both (1) the requirements indicated by the
manufacturer, and (2) the training actually received by the
operator of the laser gun.
Here, at trial the State only provided evidence of the
extent of Officer Franks’ training. Although the State explained
that Officer Franks received four hours of training in 2003, and
further training in 2009 and 2010, the record is silent as to
what type of training is recommended by the manufacturer.
Without a showing as to the manufacturer’s recommendations, the
court could not possibly have determined whether the training
received by Officer Franks met “the requirements indicated by the
manufacturer.” Id.
VIII.
Based on the foregoing, we vacate the court’s June 2,
2011 judgment of conviction and order the charge dismissed
without prejudice, because HRS § 291C-105(a) is not a strict
liability offense, and the oral charge failed to allege the
requisite states of mind. As a retrial is likely, we also
conclude that the State failed to lay a proper foundation for the
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speed reading by not introducing any evidence of the
manufacturer’s training requirements.
Brandon H. Ito, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Trisha Y. Nakamura,
for respondent /s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
35