State v. Davis.Â

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Electronically Filed
Supreme Court
SCWC-12-0000074
26-FEB-2014
08:59 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

vs.

TERRY J. DAVIS, Petitioner/Defendant-Appellant.

SCWC-12-0000074

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000074; 1DTC-11-032838)

FEBRUARY 26, 2014

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., WITH
ACOBA, J., CONCURRING

OPINION OF THE COURT BY POLLACK, J.

Terry Davis was convicted by the District Court of the

First Circuit (district court) of operating a vehicle after
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license and privilege have been suspended or revoked for

operating a vehicle under the influence of an intoxicant, in

violation of Hawai#i Revised Statutes (HRS) §§ 291E-62(a)(1)

and/or (2) (2007).

On appeal, the Intermediate Court of Appeals (ICA)

vacated the district court judgment, concluding that the charge

against Davis for violating HRS §§ 291E-61(a)(1) and/or (2) was

defective for failing to allege the requisite state of mind. The

ICA remanded the case to the district court with instructions to

dismiss the case without prejudice.

Davis contends in his application for writ of

certiorari (Application) that the ICA gravely erred in failing to

address whether there was sufficient evidence to sustain the

conviction and whether double jeopardy precludes retrial. Davis

requests this court to vacate the ICA’s September 13, 2013

Judgment on Appeal, and remand the case to the district court

with instructions to reverse the conviction and bar further

prosecution based on double jeopardy.

We hold that, under article I, section 10 of the

Hawai#i Constitution, a reviewing court is required to address an

express claim of insufficiency of the evidence prior to remanding

for a new trial based on a defective charge. Upon our review of

the sufficiency of the evidence, we conclude that substantial

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evidence supported the conviction, and therefore double jeopardy

does not preclude a retrial. Accordingly, we affirm the ICA’s

judgment for the reasons set forth in this opinion.

I.

On January 11, 2012, the State orally charged Davis

with committing the offense of operating a vehicle after license

and privilege have been suspended or revoked for operating a

vehicle under the influence of an intoxicant (Oral Charge),1 in

violation of HRS §§ 291E-62(a)(1) and/or (2). 2

1
The Oral Charge was as follows:

On or about July 22, 2011, in the City and County of Honolulu,
State of Hawai#i, you, Mr. Davis, as a person whose license and
privilege to operate a vehicle had been revoked, suspended, or
otherwise restricted pursuant to Section 291E-62 or to part 3 of
Chapter 291E or Section 291E-61 or 291E-61.5 or to part 7 or part
14 of Chapter 286 or Section 200-81 — 291-4, 291-4.4, 291-4.5, or
291-7 of the Hawai#i Revised Statutes as those provisions were in
effect on December 31, 2001, you did operate or assume actual
physical control of any vehicle upon a public way, street, or
highway, in violation of any restrictions placed on his license
and/or while your license or privilege to operate a vehicle
remained suspended or revoked, thereby committing the offense of
operating a vehicle after license and privilege have been
suspended or revoked for operating a vehicle under the influence
of an intoxicant, in violation of Section 291E-62(a)(1) and/or
(a)(2) of the Hawai#i Revised Statutes.

You are subject to sentencing in accordance with Section 291E-
62b(b)(2) of the Hawai#i Revised Statutes where you have committed
the instant offense within five years of a prior conviction for an
offense under Section 291E-62 or under Section 291-1.5 of the
Hawai#i Revised Statutes as that section was in effect on December
31, 2001.
2
HRS § 291E-62 provides as follows:

(a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise
restricted pursuant to this section or to part III or
(continued...)

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Davis objected to the Oral Charge as insufficient for

not including a state of mind allegation, and requested the case

be dismissed.3 The district court denied the motion to dismiss.4

The case then proceeded to trial. Honolulu Police

Department (HPD) Officer Kelvin Hayakawa (Officer Hayakawa) was

the only witness to testify.

On July 22, 2011, Officer Hayakawa responded to a motor

vehicle collision in the area of Kuala Street and Kamehameha

Highway.5 Officer Hayakawa testified that the location of the

offense on Kuala Street and Kamehameha Highway was in the City

and County of Honolulu, State of Hawai#i. Upon his arrival,

Officer Hayakawa observed a white pickup truck and a four-door

car pulled over on the shoulder of Kamehameha Highway. The

occupants were standing outside of their respective vehicles.

2
(...continued)
section 291E-61 or 291E-61.5, or to part VII or part XIV of
chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or
291-7 as those provisions were in effect on December 31,
2001, shall operate or assume actual physical control of any
vehicle:
(1) In violation of any restrictions placed on the person’s
license; or
(2) While the person’s license or privilege to operate a vehicle
remains suspended or revoked.
3
The State’s Complaint was filed on August 22, 2011. On September
26, 2011, the State filed an Amended Complaint. Neither the Complaint nor the
Amended Complaint included a state of mind allegation as part of the charge.
4
The Honorable Paula Devens presided.
5
The parties refer to “Kamehameha Highway” as “Kam Highway.”

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Davis identified himself as the driver of the pickup truck.6

Officer Hayakawa initiated a motor vehicle collision

investigation. He found damage to the front bumper of the pickup

truck and damage to the other vehicle’s rear bumper. The Officer

then conducted a background check on Davis’s driver’s license

status. Officer Hayakawa did not recall whether he checked the

status of Davis’s driver’s license on the computer in his patrol

car or through dispatch, but he recalled that he was informed

that Davis’s license had been revoked.7

Officer Hayakawa issued a citation (Citation) to Davis

for “driving with a revoked license,”8 and he gathered Davis’s

personal information including his date of birth, address, and

“whatever information [he] needed for the report and the

citation.” The Citation indicated that Davis’s name was “Terry

J. Davis,” his height and weight was 6’1” and 210 pounds, he had

brown hair and brown eyes, his date of birth, and the last four

6
During his testimony, Officer Hayakawa identified Davis in the
courtroom as the same person to whom he issued a citation on July 22, 2011.
7
Davis objected to the prosecutor’s question asking Officer
Hayakawa if he remembered the result of the background checks he performed on
Davis’s driver’s license status on hearsay and confrontation grounds. The
district court overruled the objection.
8
The “Citation for Traffic Crime(s) Arrest” (Citation) issued to
“Terry J. Davis” by Officer Hayakawa on July 22, 2011 indicated that Officer
Hayakawa cited Davis for violating HRS § 286-132 (2007), driving motor vehicle
while license revoked.

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numbers of his social security number.

The State sought to admit into evidence State’s Exhibit

1, the Judgment of Conviction and Probation Sentence for Cr. No.

06-1-0933 issued by the Circuit Court of the First Circuit

(circuit court) on March 19, 2007 (Exhibit 1 or Judgment of

Conviction), under Hawai#i Rules of Evidence (HRE) Rule 902(1)

(Supp. 2001) as a self-authenticating public document. The

Judgment of Conviction reflected that a Terry Jay Davis had been

convicted in Count I of habitually operating a vehicle under the

influence of an intoxicant, in violation of HRS § 291E-61.5

(2007),9 and in Count II of operating a vehicle after license and

privilege have been suspended or revoked for operating a vehicle

under the influence of an intoxicant, in violation of HRS § 291E-

62 (2007).10 The circuit court had imposed a sentence of:

9
HRS § 291E-61.5 states, in relevant part:

(a) A person commits the offense of habitually operating a
vehicle under the influence of an intoxicant if:
(1) The person is a habitual operator of a vehicle under
the influence of an intoxicant;
. . . .
(d) For a conviction under this section, the sentence shall be
either:
(1) An indeterminate term of imprisonment of five years;
or
(2) A term of probation of five years, with conditions
to include:
(A) Mandatory revocation of license and privilege
to operate a vehicle for a period not less than
one year but not more than five years[.]
10
HRS § 291E-62 stated, in relevant part:

(continued...)

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“PROBATION: FIVE(5) YEARS AS TO CT. 1.” As a special condition

of probation, “TERRY JAY DAVIS” was prohibited from operating a

motor vehicle throughout the period of probation.11

Davis objected to the admission of Exhibit 1, arguing,

inter alia, that it did not comport with the requirements of HRE

Rule 902(1) or 902(4). Davis argued that Exhibit 1 lacked proper

authentication because there was no attestation with regard to

the seal, and there was no evidence that the signature was made

by a custodian authorized to make such a certification.

Davis also objected to the admission of Exhibit 1 based

on hearsay grounds with respect to “the contents of the document

itself as well as the hearsay statement that is the certification

itself.”

The State responded that Exhibit 1 was generated and

filed by the circuit court and included both the judge and

clerk’s name on the document. Also, Exhibit 1 fell under the

hearsay exception set forth in HRE Rule 803(b)(8) (Supp. 2002)

because the document was a “public record.”

The district court admitted Exhibit 1 into evidence as

10
(...continued)
(b) Any person convicted of violating this section shall be
sentenced as follows:
. . . .
(C) Revocation of license and privilege to operate a
vehicle for an additional year[.]
11
Probation was not imposed in Count II.

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a self-authenticating document under HRE Rule 902(1) and as a

public record under HRE Rule 803(b)(8).

Davis then made a motion for judgment of acquittal,

arguing that there was insufficient evidence to establish a prima

facie case. He argued that there was “nothing in [Exhibit 1]

related to any continued license suspension” or that indicated

“Davis’s license was suspended on the date of the incident . . .

for the offense of DUI.” Thus, Davis maintained that the State

had not adduced any evidence to show that Davis’s license was

actually suspended at the time of the DUI offense on July 22,

2011.

The State responded that Davis was sentenced to a five-

year probation term, and Condition 7R of the Special Conditions

of Probation (Special Condition 7R) set forth in Exhibit 1

“prohibited Davis from operating a motor vehicle throughout the

period of probation.” The State pointed out that the probation

term started on March 19, 2007 and was scheduled to run until

March 18, 2012.

The district court denied the motion for judgment of

acquittal, finding that Special Condition 7R brought Davis

“within the scope of HRS § 291E-62 in that Davis was prohibited

from operating a motor vehicle throughout the period of

probation, and that constitute[d] a restriction on his license to

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operate a vehicle pursuant to HRS § 291E-61, for which Davis had

entered a plea of guilty” on March 19, 2007.

The defense rested without presenting evidence. In

closing argument, the State argued that it proved beyond a

reasonable doubt that Davis was guilty of driving while his

license was suspended or revoked for operating a motor vehicle

under the influence of an intoxicant as a second offense.

Officer Hayakawa was dispatched to a motor vehicle collision

where he observed damage to Davis’s vehicle. Davis admitted to

Officer Hayakawa that he was driving the vehicle, and he had

provided the Officer his name, date of birth, and the last four

digits of his social security number. This information was

identical to that reflected on State’s Exhibit 1.

The State maintained that Exhibit 1 demonstrated that

Davis’s license was restricted as a term of his probation when he

was found guilty of violating HRS §§ 291E-61.5 and 291E-62. The

State contended that Davis was aware of his probation terms, and

therefore he recklessly disregarded the requirements of his

probation by driving with a suspended or revoked license.

Davis countered that the evidence was insufficient to

prove that his license suspension remained in place on the date

of the incident on July 22, 2011. Davis argued that there was

nothing provided by the driver’s license bureau or the

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Administrative Driver’s License Revocation Office about his

license status on the date of the incident. There was also no

evidence that after the March 19, 2007 judgment was issued, the

terms and conditions of his probation were not modified or

changed in any way.

Additionally, Davis contended that there was no

evidence presented by the State that he actually received a copy

of the terms and conditions of probation or that he was aware of

those terms and conditions. Davis maintained that the State did

not provide a witness to identify him as the person who appeared

in court and had his license suspended or revoked on March 19,

2007. Davis asserted that the State failed to prove beyond a

reasonable doubt that he was aware or should have been aware that

his license was suspended or revoked, or that his license

actually was suspended or revoked on March 19, 2007.

Finally, Davis asserted that there was no testimony to

confirm that the accident that occurred on July 22, 2011 took

place on a public way, street, road, or highway, as required

under HRS § 291E-62.

In reply, the State argued that Officer Hayakawa

testified that “the location of the violation was on Kamehameha

Highway and Kuala Street, which is a public street, road, or

highway in the City and County of Honolulu, State of Hawai#i.”

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The State pointed out that the first page of Exhibit 1 contained

language stating that copies of the Judgment of Conviction were

mailed and delivered to all parties, which gave Davis notice

through the attached terms and conditions of probation that he

was restricted from driving a motor vehicle during the five years

of probation. The State further argued that the Judgment of

Conviction could not have been executed in circuit court without

Davis’s presence.

The district court “accept[ed] [O]fficer [Hayakawa’s]

testimony regarding obtaining information relevant to [Davis’s]

identity, which [was] corroborated by State’s Exhibit 1,” and

found the officer’s testimony to have been credible. The

district court found that the State satisfied its burden of proof

that Davis was guilty as charged. Sentence was imposed, and the

district court judgment was filed.12 Davis timely appealed.

II.

On appeal to the ICA, Davis presented four points of

error:

1. The State failed to adduce sufficient evidence to sustain
the conviction.

2. The district court erred in admitting State’s Exhibit 1
because it was not properly certified, and therefore not

12
On that same day, the district court filed a Notice of Entry of
Judgment And/Or Order and Plea/Judgment indicating that Davis was convicted of
violating HRS §§ 291E-62(a)(1) and/or (2), (b)(1).

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self-authenticating pursuant to HRE 902(4).

3. Double jeopardy precludes a retrial on the same charge.

4. Assuming arguendo that there is sufficient evidence to
sustain the conviction, State v. Nesmith mandates a new
trial.

A.

In his first point of error, Davis argued that the

State failed to adduce sufficient evidence to sustain a

conviction under HRS § 291E-62(a)(1) because the State failed to

prove “every element of the crime charged beyond a reasonable

doubt.” Davis presented five arguments in support of his first

point of error.

First, Davis argued that the State failed to establish

that the motor vehicle collision occurred on a public way,

street, road, or highway pursuant to the statutory definitions.

Officer Hayakawa testified that he responded to a motor vehicle

collision and observed two vehicles pulled over on the shoulder

of Kamehameha Highway. Davis maintained that the State failed to

prove that Kamehameha Highway fell under the definition of

“public road” or “public highway” because the State did not

“establish that the area where the accident occurred was open to

the public or “publicly maintained,” or that the highway was

built, acquired, or otherwise under the jurisdiction of the

County or the State of Hawai#i.”

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Second, Davis argued the State failed to establish by

satisfactory evidence that the “Terry Jay Davis” listed as the

defendant on the Judgment of Conviction was connected to him.

Davis asserted that the evidentiary record lacked any fingerprint

evidence or physical description to link him to Exhibit 1.

Additionally, Davis argued that the State demonstrated only that

the last four digits of his social security number (SSN) matched

the SSN on State’s Exhibit 1. He maintained that the name “Terry

Jay Davis” was not the same as “Terry J. Davis.” However, Davis

did concede that his birth date matched the birth date of “Terry

Jay Davis” on Exhibit 1.

Third, Davis argued that even if Exhibit 1 established

prior convictions under HRS §§ 291E-61.5 and 291E-62, the State

failed to call any witnesses to attest to Davis’s presence or

identity at the March 19, 2007 hearing. Davis pointed out that

the terms and conditions of probation attached to the Judgment of

Conviction were “unsigned, unacknowledged, and undated.” Davis

argued that “the district court’s assumption that he must have

been present because a plea would not have been accepted, he

would not have been sentenced . . . was insufficient.”

Additionally, Davis argued that the State failed to

establish that Davis was on probation or that the terms and

conditions of probation were in effect at the time of the

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incident on July 22, 2011. Neither HRS §§ 291E-61.5 nor 291E-62

“mandate[d] a five-year driver’s license suspension.”13

Therefore, without evidence of a specific date in which the

license revocation would become effective, any restriction on

Davis’s driver’s license “may have been completed long before

July 22, 2011” or modified by the court. Lastly, Davis argued

that Exhibit 1 was insufficient to establish that he

intentionally, knowingly, or recklessly operated a vehicle while

his driver's license was suspended or revoked.

Fourth, Davis argued that the State failed to adduce

sufficient evidence that his driver’s license had been revoked,

suspended, or restricted pursuant to any other statutory

provision enumerated in HRS §§ 291E-62(a)(1) and/or (2).

Fifth, Davis argued that even if Exhibit 1 was properly

admitted, the State failed to adduce sufficient evidence that he

was convicted for violating HRS § 291E-62 within the requisite

probationary time period or that he was the individual sentenced

in court for a second offense of HRS § 291E-62 within a five-year

period. Consequently, there was insufficient evidence to subject

him to sentencing under HRS § 291E-62(b)(2).

13
Under HRS § 291E-61.5, the mandatory driver’s license suspension
is for “not less than one year but not more than five years[.]” Under
HRS § 291E-62, the driver's license suspension is for “an additional year.”

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In his second point of error, Davis argued that the

district court erred in admitting Exhibit 1 into evidence because

Exhibit 1 failed to comply with the self-authentication

requirements under HRE Rule 902. The State was required to

establish that the document was certified as correct by either

the custodian of records or a person authorized to make such a

certification. The seal on Exhibit 1 stated as follows:

I do hereby certify that this is a full, true, and correct
copy of the original file in this office.
[Illegible Signature]
Clerk, Circuit Court, First Circuit.

Davis argued that there was “no attestation that this

[was] a seal, a public seal that [came] from an agency of the

State of Hawai#i,” and “[there was] no proof that [the] signature

[was] by the custodian or other person authorized to make

certification.” Davis contended that the district court’s error

denied him a right to a fair trial.

Davis asserted in his third point of error that the

Double Jeopardy Clauses under article I, section 10 of the

Hawai#i Constitution and the Fifth and Fourteenth Amendments of

the United States Constitution preclude retrial because the State

failed to adduce sufficient evidence to sustain the conviction

under HRS § 291E-62(a)(1). Double jeopardy principles barred

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retrial “even where [] the initial charging document was

defective.”

In his fourth point of error, Davis argued that even if

the ICA determined that the State did adduce sufficient evidence

to support Davis’s conviction, State v. Nesmith, 127 Hawai#i 48,

276 P.3d 617 (2012) required the ICA to vacate Davis’s conviction

and remand the matter for a new trial because the State failed to

allege the required state of mind in the Oral Charge.

B.

The State presented three arguments in its Answering

Brief. First, the State conceded that Davis’s conviction must be

vacated and remanded for a retrial because the Oral Charge did

not explicitly inform Davis of the requisite state of mind and

because Davis made a timely pre-trial objection to the charge.

Second, the State argued that the district court did

not err or abuse its discretion in admitting Exhibit 1 because

the Judgment of Conviction was properly authenticated. The State

pointed out that Exhibit 1 bore a seal signed and attested to by

a clerk of the circuit court. The State asserted that Davis

failed to offer any evidence that indicated that Exhibit 1 was

not authentic.

Third, the State maintained that there was sufficient

evidence adduced at trial to establish that Davis operated his

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truck on a public highway with a revoked license, as Davis had

been previously convicted under HRS § 291E-62 within the previous

five years, and his license was revoked as a result of that

conviction.

The State argued that the section of Kamehameha Highway

where Officer Hayakawa observed Davis was a “public highway.”

Courts “are duty-bound to take ‘judicial notice’ of municipal

ordinances” which include the City and County of Honolulu Speed

Schedules established by the Department of Transportation

Services pursuant to the Revised Ordinances of Honolulu (ROH)

§ 15-7.2 (2012). The stretch of Kamehameha Highway at the

intersection of Kuala Street where Davis’s motor vehicle

collision occurred was “[a]mong the public ways listed on page 7

of Schedule VII.” Thus, the district court was required to take

judicial notice that the portion of Kamehameha Highway located at

the intersection of Kuala Street was a “public highway” under the

definition of “public way, street, road, or highway” in

HRS § 291E-1.

The State next argued that Exhibit 1 proved that Davis

was convicted on March 19, 2007 of violating HRS § 291E-61.5 and

HRS § 291E-62. Whenever probation is imposed pursuant to

HRS § 291E-61.5(d)(2)(A), the probationary term is for five

years, and there is a mandatory revocation of license and

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privilege to operate a vehicle “for a period not less than one

year but not more than five years.”

The State noted that Special Condition 7R in Exhibit 1

“prohibited [Davis] from operating a motor vehicle throughout the

period of probation.” Davis’s “five-year term of probation

continued through March 18, 2012, and Davis was found operating

his truck on July 22, 2011” in violation of the terms and

conditions of his probation. The district court judgment

occurred less than five years after the March 19, 2007 Judgment

of Conviction, and thus subjected Davis to sentencing pursuant to

HRS § 291E-62(b)(2).

Additionally, the State argued that a sufficient

foundation existed to establish that Davis was the same person

convicted by the Judgment of Conviction. The date of birth and

social security number that Officer Hayakawa obtained from Davis

at the time of the accident matched the information recorded on

the Judgment of Conviction. The State contended that “Davis

adduced no evidence to contradict the reasonable inference that

he was in fact the same person who was convicted in the March 19,

2007 Judgment [of Conviction].”

C.

The ICA concluded that the Oral Charge was defective

for failing to allege the requisite mens rea, and the case should

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have been dismissed without prejudice pursuant to Nesmith, 127

Hawai#i 48, 276 P.3d 617. State v. Davis, No. CAAP-12-0000074,

2013 WL 4102403, at *3 (App. Aug. 14, 2013) (SDO).

The ICA held that it was not necessary to reach the

sufficiency of the evidence or double jeopardy issues raised by

Davis based on its interpretation of this court’s ruling in

State v. Gonzalez, 128 Hawai#i 314, 288 P.3d 788 (2012). The ICA

noted that “where the charge did not contain the requisite state

of mind, ‘Nesmith mandates dismissal without prejudice.’” Davis,

2013 WL 4102403, at *2 (quoting Gonzalez, 128 Hawai#i at 324, 288

P.3d at 798) (emphasis omitted). The ICA noted that the supreme

court reached this conclusion even though the defendant had also

challenged whether the State had “carried its burden of proof at

trial.” Id. The ICA also noted that the Gonzalez court reached

the evidence question “only to provide guidance for the

anticipated retrial on the same charge, and notwithstanding its

determination that critical evidence was improperly admitted.”

Id. Consequently, “the court expected that a retrial on the

charge was likely.” Id. Thus, the ICA concluded: “Gonzalez

suggests that, where a charge is defective for failing to allege

the requisite mens rea, it is not necessary to reach the

questions of sufficiency of the evidence and double jeopardy.”

Id.

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The ICA ordered the district court judgment to be

vacated, and the case remanded to the district court with

instructions to dismiss the case without prejudice.

D.

In his Application to this court, Davis sets forth the

following contentions as the questions presented:

1. The ICA gravely erred in failing to address whether there
was sufficient evidence to sustain the conviction and
whether double jeopardy precludes retrial.

2. The ICA gravely erred in failing to hold that the district
court erred in admitting Exhibit 1 into evidence.

3. The ICA gravely erred in failing to hold that there was
insufficient evidence to sustain the conviction.

4. The ICA gravely erred in failing to hold that double
jeopardy precluded another trial despite State v. Nesmith.

The Application reiterates arguments that Davis made in

the Opening Brief, except as additionally noted.

In the first question presented, Davis argues that the

ICA gravely erred in failing to address whether there was

insufficient evidence to sustain a conviction against him for

violating HRS §§ 291E-62(a)(1) and/or (2) because “the reviewing

court is required to decide the sufficiency question, despite the

fact that there may be other grounds for reversal that would not

preclude retrial.” “When a defendant challenging his conviction

on appeal contends both that the trial was infected by error and

that the evidence was constitutionally insufficient, the court

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may not . . . ignore the sufficiency claim, reverse on grounds of

trial error, and remand for retrial.” Because the first trial

has plainly ended, Davis asserts that “retrial is foreclosed by

the Double Jeopardy Clause” notwithstanding a charging error,

because the State “failed to adduce sufficient evidence to

support the conviction in the first trial.”

In his second question presented, Davis argues that the

district court erred in admitting the Judgment of Conviction

because it was not properly certified by the State, and it was

not self-authenticating under HRE Rule 902(1). Davis argues that

Exhibit 1 “constituted a public record that required additional

foundation under HRE [Rule] 902(4), which the State failed to

lay.” For example, the State failed to provide evidence

“indicating that the document was certified by an authorized

custodian,” and “[t]he stamp fail[ed] to indicate that [] Exhibit

1 was certified by the custodian of records.” Additionally, the

State failed to call a witness to properly certify and

authenticate Exhibit 1.

In the third and fourth questions presented, Davis sets

forth the same arguments that were made in the Opening Brief.

The State did not file a response to the Application.

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III.

The four questions raised in the Application will be

addressed in the order presented.

A.

The first issue raises the question of whether an

appellate court is required to review a defendant’s insufficiency

of evidence claim prior to vacating the defendant’s conviction

and remanding for a new trial based on a defective charge. The

ICA held that Davis’s case should have been dismissed without

prejudice based on the faulty charge, but determined that it was

not required to address Davis’s argument that there was

insufficient evidence to support his conviction and that double

jeopardy therefore precluded a retrial on remand.

“We answer questions of constitutional law by

exercising our own independent judgment based on the facts of the

case. Thus, we review questions of constitutional law under the

right/wrong standard.” State v. Jenkins, 93 Hawai#i 87, 100, 997

P.2d 13, 26 (2000) (quotation marks and citations omitted).

1.

The double jeopardy clauses of the Fifth Amendment of

the United States Constitution and article I, section 10 of the

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Hawai#i Constitution provide that no person shall be subject for

the same offense to be twice put in jeopardy. “Based upon these

provisions, we have long recognized” that “[d]ouble jeopardy

protects individuals against: (1) a second prosecution for the

same offense after acquittal; (2) a second prosecution for the

same offense after conviction; and (3) multiple punishments for

the same offense.” State v. Rogan, 91 Hawai#i 405, 416, 984 P.2d

1231, 1242 (1999) (internal quotation marks and citations

omitted).

The U.S. Supreme Court first considered in detail “the

double jeopardy implications of an appellate reversal” in Ball v.

United States, 163 U.S. 662 (1896). Burks v. United States, 437

U.S. 1, 13 (1978). In Ball, three defendants were tried together

for murder in a jury trial. Id. at 663. Two defendants were

found guilty as charged in the indictment, and one defendant,

Millard F. Ball, was found not guilty. Id. at 663-64. On the

first appeal by the guilty defendants, the Court held that the

indictment was fatally defective and would not support a sentence

for murder, and therefore reversed the judgments against the two

defendants. Id. at 664-65. On remand, the trial court dismissed

the defective indictment, and a new indictment was returned

against all three defendants. Id. at 665. The jury then found

all three defendants guilty of murder. Id. at 665-66.

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On the second appeal, the Court held that defendant

Millard’s “acquittal by the verdict of the jury could not be

deprived of its legitimate effect by the subsequent reversal by

this court of the judgment against the other defendants[.]” Id.

at 670. As to Millard’s acquittal, “the court could take no

other action than to order his discharge.” Id. at 671. The

Court held that “the verdict of acquittal was final, and could

not be reviewed, on error or otherwise, without putting him twice

in jeopardy, and thereby violating the constitution.” Id.

As to the other two defendants who had been convicted

after the first trial, the Court held that their second trial was

not barred based on former jeopardy, as “a defendant who procures

a judgment against him upon an indictment to be set aside may be

tried anew upon the same indictment, or upon another indictment,

for the same offense of which he had been convicted.” Id. at

672.

Subsequently in Burks, the Court distinguished between

the applicability of double jeopardy in cases setting aside

convictions based on trial errors and those setting aside

convictions based on the insufficiency of the evidence.

437 U.S. 1. In Burks, the defendant was convicted by jury trial.

Id. at 2-3. The defendant filed a motion for new trial, arguing

that the evidence was insufficient to support the verdict. Id.

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at 3. The district court denied the motion. The court of

appeals reversed the defendant’s conviction based on the

insufficiency of the evidence. Id. However, “rather than

terminating the case against [the defendant],” the appellate

court remanded to the district court “for a determination of

whether a directed verdict of acquittal should be entered or a

new trial ordered” and indicated that the district court “should

choose the appropriate course ‘from a balancing of the

equities.’” Id. at 4 (internal quotation marks in first

quotation omitted). The appellate court “assumed it had the

power to order this ‘balancing’ remedy by virtue of the fact that

[the defendant] had explicitly requested a new trial.” Id. at 5.

The Burks Court reversed the court of appeals and held that

double jeopardy “precludes a second trial once the reviewing

court has found the evidence legally insufficient,” regardless of

whether the defendant sought a new trial as a remedy. Id. at 17-

18.

The Court explained that the “Double Jeopardy Clause

forbids a second trial for the purpose of affording the

prosecution another opportunity to supply evidence which it

failed to muster in the first proceeding. This is central to the

objective of the prohibition against successive trials.” Id. at

11 (footnote omitted). “The Clause does not allow the State to

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make repeated attempts to convict an individual for an alleged

offense, since the constitutional prohibition against double

jeopardy was designed to protect an individual from being

subjected to the hazards of trial and possible conviction more

than once for an alleged offense.” Id. (quoting Green v. United

States, 315 U.S. 184, 187 (1957)) (brackets, ellipsis, and

quotation marks omitted).

The Court reasoned that “reversal for trial error . . .

does not constitute a decision to the effect that the government

has failed to prove its case. As such, it implies nothing with

respect to the guilt or innocence of the defendant. Rather, it

is a determination that a defendant has been convicted through a

judicial process which is defective in some fundamental

respect[.]” Id. at 15. In those situations, the defendant has a

“strong interest in obtaining a fair readjudication of his [or

her] guilt free from error,” and “society maintains a valid

concern for insuring that the guilty are punished.” Id.

However, where the defendant’s conviction is overturned

“due to a failure of proof at trial,” the prosecution has already

been “given one fair opportunity to offer whatever proof it could

assemble.” Id. at 16. “[S]uch an appellate reversal means that

the government’s case was so lacking that it should not have even

been submitted to the jury.” Id. The Court thus reasoned that

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because reviewing courts “afford absolute finality to a jury’s

verdict of acquittal—no matter how erroneous its decision—it is

difficult to conceive how society has any greater interest in

retrying a defendant when, on review, it is decided as a matter

of law that the jury could not properly have returned a verdict

of guilty.” Id. at 16.

In Justices of Boston Municipal Court v. Lydon, 466

U.S. 294 (1984), the Court upheld Massachusetts’ two-tier system

in which a defendant charged with certain minor crimes has the

option of electing either a bench trial or jury trial, and if

convicted through a bench trial, has an absolute right to a trial

de novo before a jury. Id. at 296-97. The Court held that a

defendant who was convicted after electing a bench trial could be

retried de novo by jury “without any judicial determination of

the sufficiency of the evidence at his prior bench trial.” Id.

at 303. A majority of the Court found that its decision in Burks

did not “mandate[] the conclusion that a trial de novo is barred

by the Double Jeopardy Clause if the evidence presented at the

bench trial was insufficient to support a finding of guilt.” Id.

at 306. The Court explained that the State was not “attempting

to impose multiple punishments for a single offense” or “making

another attempt to convict [the defendant] after acquittal.” Id.

at 307. Rather, the State was “satisfied with the results of the

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bench trial and would have abided the results of a jury trial had

[the defendant] taken that initial course.” Id. Additionally,

under the two-tier system, jeopardy was not terminated through an

appellate determination that the evidence was insufficient to

support a conviction; rather, the second de novo trial was “part

of a single continuous course of judicial proceedings during

which, sooner or later, a defendant receives more—rather than

less—of the process normally extended to criminal defendants[.]”

Id. at 309 (citation omitted). The Court further noted that the

two-tier system benefitted both defendants and the State, and did

not “constitute ‘governmental oppression of the sort against

which the Double Jeopardy Clause was intended to protect, . . .

even when a defendant convicted at the first tier claims

insufficiency of the evidence.” Id. at 310 (quoting United

States v. Scott, 437 U.S. 82, 91 (1978). Accordingly, double

jeopardy did not bar re-prosecution of the defendant under the

two-tier system. Id. at 310-13.

The concurring opinion in Justices of Boston read Burks

to hold that an appellate court must review a defendant’s

sufficiency of the evidence claim before vacating and remanding

for a new trial based on a trial error. Id. at 320-22 (Brennan,

J., concurring, with Marshall, J., joining). The concurrence

explained that the Burks decision “is not merely an application

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of an abstract concept of continuing jeopardy,” but “derives from

perhaps the most fundamental rule in the history of double

jeopardy jurisprudence—that a verdict of acquittal cannot be

reviewed, on error or otherwise, without putting a defendant

twice in jeopardy, and thereby violating the Constitution.” Id.

at 318 (quotation marks, brackets, ellipsis and citation omitted)

(emphasis added). Although the majority was “correct in stating

that a prerequisite to a successful Burks claim is a ‘legal

judgment’ rendered at some point that the evidence was

insufficient,” id. at 319, the concurrence noted that “[t]he fact

that a trial has ended does not . . . complete the constitutional

inquiry.” Id. at 321. Rather, once it has been determined that

a trial has ended as a matter of constitutional law, the

concurrence stated that “a court considering a double jeopardy

claim must consider the separate question of whether a second

trial would violate the Constitution.” Id. “For example, when a

defendant challenging his conviction on appeal contends both that

the trial was infected by error and that the evidence was

constitutionally insufficient, the court may not, consistent with

the rule of [Burks], ignore the sufficiency claim, reverse on

grounds of trial error, and remand for retrial.” Id. at 321-22

(emphasis added). “Because the first trial has plainly ended,

‘retrial is foreclosed by the Double Jeopardy Clause if the

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evidence fails to satisfy the constitutional standard for

sufficiency. Hence, the sufficiency issue cannot be avoided; if

retrial is to be had, the evidence must be found to be legally

sufficient . . . to sustain the jury verdict.’” Id. (quoting

Tibbs v. Florida, 457 U.S. 31, 51 (1982) (White, J., dissenting,

joined by Brennan, Marshall, and Blackmun, JJ.)) (brackets

omitted).

Two months after Justices of Boston, the Court decided

Richardson v. United States, 468 U.S. 317 (1984). In Richardson,

the jury acquitted the defendant of several counts but was unable

to agree as to other counts. Id. at 318. The district court

declared a mistrial as to the latter counts, and set them for

retrial. Id. The defendant moved to bar the retrial based on

the Double Jeopardy Clause because sufficient evidence to support

a conviction on the remaining counts had not been presented by

the government during the first trial. Id. The district court

denied the motion. Id. The Richardson Court first held that the

district court’s order denying the defendant’s double jeopardy

claim was appealable under the federal approach to the collateral

order doctrine. Id. at 321-22.

On the merits of the double jeopardy claim, the

Richardson Court determined that “[w]here, as here, there has

been only a mistrial resulting from a hung jury, Burks simply

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does not require that an appellate court rule on the sufficiency

of the evidence because retrial might be barred by the Double

Jeopardy Clause.” Id. at 323. The Court reconciled its decision

with Burks by stating that “the protection of the Double Jeopardy

Clause by its terms applies only if there has been some event,

such as an acquittal, which terminates the original jeopardy.”

Id. at 325 (citing Justices of Boston, 466 U.S. 294). A mistrial

is not an event that terminates jeopardy. Id. The Court

reiterated, “Our holding in Burks established only that an

appellate court’s finding of insufficient evidence to convict on

appeal from a judgment of conviction is for double jeopardy

purposes, the equivalent of an acquittal; it obviously did not

establish . . . that a hung jury is the equivalent of an

acquittal.” Id. Thus, regardless of the sufficiency of the

evidence at a defendant’s first mistrial, the defendant has no

valid double jeopardy claim to prevent retrial. Id. at 326.

The federal courts of appeals appear to be divided on

the question of whether Burks and Richardson require an appellate

court to review the sufficiency of the evidence before ordering a

retrial based on a trial error, “as well as on the issue of

whether sufficiency review before retrial is prudentially sound

or constitutionally required.” Hoffler v. Bezio, 726 F.3d 144,

161 (2d Cir. 2013). Compare Palmer v. Grammer, 863 F.2d 588, 592

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(8th Cir. 1988) (“it is well-established that Burks does not

allow an appellate court to reverse for trial error and remand

for retrial while ignoring a claim of insufficient evidence”)

(citing Justices of Boston, 466 U.S. at 321-22 (Brennan, J.,

concurring)); Vogel v. Pennsylvania, 790 F.2d 368, 376 (3d Cir.

1986) (“when a defendant raises an insufficiency of evidence

contention that the trial court finds unnecessary to address, a

court subsequently presented with a double jeopardy argument must

address and resolve that issue”); United States v. Wiles, 106

F.3d 1516, 1518 (10th Cir. 1997) (“this circuit has held that

when we reverse on appeal because of a procedural error at trial

and remand for a new trial, the prohibition against double

jeopardy requires us to address a defendant’s claim that the

evidence presented at trial on the reversed count was

insufficient”), with Foxworth v. Maloney, 515 F.3d 1, 4 (1st Cir.

2008) (adopting prudential rule requiring review of sufficiency

challenges before ordering retrial); Patterson v. Haskins, 470

F.3d 645, 659 (6th Cir. 2006) (“this court’s longstanding

prudential practice of reviewing the sufficiency of the evidence

despite reversing a conviction on other grounds was not

undermined by the Supreme Court’s decision in Richardson”);

United States v. Douglas, 874 F.2d 1145, 1149-51 (7th Cir. 1989)

(declining to hold that double jeopardy requires the court to

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review sufficiency of evidence when defendant raises the issue on

appeal, but adopting “policy . . . of routinely addressing

evidentiary sufficiency in criminal cases when a defendant

presents the issue on appeal”), abrogated on other grounds by

United States v. Durrive, 902 F.2d 1221 (7th Cir. 1990).

At a minimum, federal courts of appeals are unanimous

in concluding that sufficiency review before ordering retrial “is

warranted . . . as a matter of prudent policy.” Hoffler, 726

F.3d at 161-62. For example, federal courts have observed that

“a sufficient rationale lies in a proper ‘concern for the

preservation of scarce and costly resources.’” Id. at 162

(quoting Douglas, 874 F.2d at 1150). “All retrials involve

duplicative efforts by judges, juries, prosecutors and

defendants, at considerable expense in time and money to all, and

in anxiety to the defendant. If in fact insufficient evidence is

presented at a first trial, a retrial, on any basis, ordinarily

may be expected to be a wasted endeavor.” Douglas, 874 F.2d at

1150. See Hoffler, 726 F.3d at 162 (“[I]f a reviewing court were

to order a new trial without addressing a sufficiency challenge,

it could result in the futility of a second conviction that would

have to be reversed in a second appeal.”) (quotation marks and

citation omitted).

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2.

Consistent with the analysis in Burks and with Justice

Brennan’s concurrence in Justices of Boston, this court has

consistently examined the sufficiency of the evidence before

determining whether to remand for a new trial based on a trial

error or whether to enter a judgment of acquittal. See State v.

Kaulia, 128 Hawai#i 479, 291 P.3d 377 (2013) (vacating conviction

and remanding for new trial based on district court’s lack of

jurisdiction to proceed to trial absent filing of an amended

complaint with correct charge, and examining sufficiency of the

evidence); State v. Getz, 131 Hawai#i 19, 313 P.3d 708 (2013)

(vacating conviction and remanding for new trial based on trial

court’s lack of specific unanimity instruction, and examining

sufficiency of the evidence); State v. Arceo, 84 Hawai#i 1, 33

n.40, 928 P.2d 843, 875 n.40 (1996) (“Because our disposition of

the present appeal is grounded in ‘trial error’ and the evidence

adduced at trial was clearly sufficient to support Arceo’s

convictions, double jeopardy concerns are not implicated by a new

trial”); State v. Balanza, 93 Hawai#i 279, 1 P.3d 281 (2000)

(reversing defendant’s conviction for promoting a dangerous drug

in the second degree and remanding the case with instructions to

enter a judgment of acquittal, where the trial court erred by not

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instructing the jury on the procuring agent defense and there was

insufficient evidence to support the conviction); State v.

Silver, 125 Hawai#i 1, 249 P.3d 1141 (2011) (examining

sufficiency of the evidence claims despite other alleged trial

errors and reversing conviction on a count for insufficiency of

the evidence); State v. Bailey, 126 Hawai#i 383, 271 P.3d 1142

(2012) (holding that circuit court abused discretion in denying

motion for mistrial because juror’s comments were not harmless

beyond a reasonable doubt, and also determining that the evidence

was sufficient to support each of the defendant’s convictions,

and accordingly remanding for a new trial). See also State v.

Bannister, 60 Haw. 658, 594 P.2d 133 (1979) (holding that State’s

evidence was insufficient to support conviction because key

testimony was inadmissible, sua sponte addressing double jeopardy

issue, and remanding with instructions to enter a judgment of

acquittal because of insufficiency of evidence).

In State v. Malufau, 80 Hawai#i 126, 132, 906 P.2d 612,

618 (1995) (Malufau I), vacated in part 80 Hawai#i 126, 906 P.2d

612 (Malufau II), the court held that “challenges to the

sufficiency of the evidence must always be decided on appeal”

because “the Double Jeopardy Clause bars retrial of a defendant

once a reviewing court has found the evidence at trial to be

legally insufficient to support the conviction.” (Emphasis

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added) (internal quotation marks and citation omitted). The

exception to this rule is that the prosecution is permitted to

retry the defendant on a lesser-included offense without

offending the double jeopardy clause. Malufau II, 80 Hawai#i at

134-35, 906 P.2d at 620-21.

In Malufau I, the court vacated the defendant’s

conviction of assault in the first degree based on the circuit

court’s erroneous admission of irrelevant testimony that had a

“substantial influence” on the jury’s verdict. 80 Hawai#i at

132, 906 P.2d at 618. The court held that because it was

vacating the conviction, it was obligated to address the

defendant’s argument regarding the sufficiency of the evidence.

Id. The court ultimately concluded that there was insufficient

evidence to support the conviction for assault in the first

degree and that the prosecution was therefore not permitted to

retry him on that charge on remand, but could retry him on the

included offenses of assault in the second and third degree. Id.

at 133-34, 906 P.2d at 619-20.

In State v. Kalaola, 124 Hawai#i 43, 46, 237 P.3d 1109,

1112 (2010), the defendant was found guilty by a jury of

committing the offense of failure to disperse. On appeal, the

ICA concluded that the trial court failed to properly instruct

the jury regarding the material elements for the charged offense.

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State v. Kalaola, No. 29163, 2009 WL 1507291, at *1 (App. May 29,

2009) (SDO). The ICA vacated the conviction based on the trial

error and remanded the case for a new trial. Id. at *2-3. The

only question addressed by this court on application for writ of

certiorari was whether the conviction should have been reversed

rather than remanded for a new trial because the conviction was

not supported by sufficient evidence. Kalaola, 124 Hawai#i at

46, 237 P.3d at 1112.

This court held that sufficient evidence was presented

to establish that the defendant failed to disperse from the first

floor of the subject building, but that there was insufficient

evidence to establish that he failed to disperse from the second

floor. Id. Accordingly, the court held that the double jeopardy

clause of the Hawai#i Constitution did not bar retrial with

regard to his alleged failure to disperse from the first floor,

given that there was clearly sufficient evidence supporting the

conviction. Id. The court vacated the defendant’s conviction

and remanded for a new trial “with regard to the events that

transpired on the first floor.” Id. Accordingly, the basis for

this court’s acceptance of certiorari in Kalaola, to examine the

sufficiency of the evidence although it was undisputed that the

circuit court had committed a trial error, indicates that a

reviewing court finding trial error must also examine the

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defendant’s sufficiency of the evidence claim because of double

jeopardy concerns.

Moreover, in determining the sufficiency issue, the

Kalaola court definitively stated, “It is well-settled that, even

where this court finds trial error, ‘challenges to the

sufficiency of the evidence must always be decided on appeal.

. . . This is because the double jeopardy clause bars retrial of

a defendant once a reviewing court has found the evidence at

trial to be legally insufficient to support a conviction.’”14 Id.

at 59, 237 P.3d at 1125 (emphasis added) (brackets omitted)

(quoting Malufau I, 80 Hawai#i at 132, 906 P.2d at 618)

(quotation marks omitted)).

In the specific context of defective charges, in State

v. Elliott, the court reversed the defendant’s conviction for

resisting arrest upon finding that the charge was fatally

defective for failure to allege the requisite mens rea, rather

than vacating the conviction and remanding for a new trial. 77

Hawai#i 309, 884 P.2d 372 (1994). The court also found that a

14
A defective or faulty indictment or charge is a “trial error.”
See Burks, 437 U.S. at 14 (“The reversal in Ball was therefore based not on
insufficiency of evidence but rather on trial error, i.e., failure to dismiss
a faulty indictment.”); Kalaola, 124 Hawai#i at 52, 237 P.3d at 1118 (“[T]he
double jeopardy clause . . . imposes no limitations whatever upon the power to
retry a defendant who has succeeded in getting his conviction set aside, for
reasons other than insufficiency of the evidence. As set forth below, such
reasons are typically referred to as ‘trial error.’” (Quotation marks,
brackets and citations omitted)).

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second charge against the defendant, of assault against a police

officer, was defective because it could not be reasonably

construed to allege that offense. Id. at 312-13, 884 P.2d at

375-76. However, the court found that the defective count

purporting to charge assault against a police officer actually

charged the lesser-included offense of assault in the third

degree, and all of the essential elements of the latter offense

were proven at trial. Id. at 313, 884 P.2d at 376. Thus, rather

than reflexively vacating and remanding for a new trial based on

a defective charge, the court examined the sufficiency of the

evidence and found that there was enough evidence to support the

lesser-included offense. Because the charge was only faulty as

to the greater offense, the court remanded the case for entry of

a judgment of conviction as to the lesser included offense of

assault in the third degree and for appropriate resentencing.

Id.

Finally, this court has examined the defendant’s

sufficiency of the evidence claim prior to remand for a violation

of the speedy trial rule under Hawai#i Rules of Penal Procedure

(HRPP) Rule 48.15 In State v. Jackson, 81 Hawai#i 39, 912 P.2d 71

15
HRPP Rule 48(b)(1) (2000) generally provides that “the court
shall, on motion of the defendant, dismiss the charge, with or without
prejudice in its discretion, if trial is not commenced within 6 months” from
the date of arrest if bail is set or from the filing of the charge, whichever
(continued...)

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(1996), the court held that the trial court erred in denying the

defendant’s HRPP Rule 48 motion to dismiss. Id. at 51-52, 912

P.2d at 83-84. Based on this error, the court vacated the

defendant’s conviction and remanded for entry of an order

dismissing the charges against him, “with or without prejudice,

in the circuit court’s discretion.”16 Id. at 54-55, 912 P.2d at

86-87. Despite its disposition, the court extensively examined

the defendant’s insufficiency of evidence claim and held that

“substantial evidence was presented to support [the defendant’s]

convictions of sexual assault in the second degree and sexual

assault in the fourth degree.” Id. at 46, 912 P.2d at 78.

Justice Levinson wrote in his concurring opinion that

“[b]ecause [he] agree[d] with the majority’s holding . . . that

[the defendant’s] convictions were supported by substantial

evidence, a dismissal of the charges without prejudice and a

subsequent reinstatement of them would not compromise [the

defendant’s] constitutional right against double jeopardy.” Id.

at 55 n.1, 912 P.2d at 87 n.1 (Levinson, J., concurring) (citing

15
(...continued)
is sooner.
16
The court explained that if an appellant demonstrates that his or
her constitutional right to a speedy trial was violated (as opposed to the
statutory right), then the appellant would be entitled to have his or her
convictions vacated and the charges dismissed with prejudice. Id. at 54, 912
P.2d at 86.

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Malufau I, 80 Hawai#i at 135, 906 P.2d at 621). The majority

opinion did not disagree with this characterization of its

sufficiency of the evidence analysis.

The fact that the Jackson court examined the

sufficiency of the evidence prior to remanding the case to the

district court is instructive, as a motion to dismiss based on a

HRPP Rule 48 violation is similar to a motion to dismiss based on

a defective charge for omission of mens rea. Both involve

situations where the trial court fails to dismiss a charge prior

to trial, the case then proceeds to trial, and following appeal,

the trial court is held to have erroneously denied the pretrial

motion to dismiss the charge.

3.

In this case, the ICA, after holding that Davis’s case

should have been dismissed without prejudice based on the

defective charge, held that it need not address Davis’s argument

that there was insufficient evidence to support his conviction

and that double jeopardy therefore precluded a retrial on the

same charge. The ICA held that pursuant to Gonzalez, 128 Hawai#i

314, 288 P.3d 788, and Nesmith, 127 Hawai#i 48, 276 P.3d 617,

dismissal without prejudice is mandated where the charge failed

to allege the requisite state of mind, regardless of whether the

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defendant has also alleged that the conviction was not supported

by sufficient evidence.

However, neither Nesmith nor Gonzalez specifically

addressed the question of whether double jeopardy requires a

reviewing court to address a claim of insufficiency of evidence

when it remands for a new trial based on a separate trial error.

In Nesmith, the court held in a consolidated opinion involving

two defendants that mens rea must be alleged for a HRS § 291E-

61(a)(1) (2007) charge of operating a vehicle under the influence

of alcohol in an amount sufficient to impair the person’s normal

mental faculties, but not for a HRS § 291E-61(a)(3) (2007) charge

of operating a vehicle under the influence of .08 or more grams

of alcohol per two hundred ten liters of breath. 127 Hawai#i at

50, 276 P.3d at 619. The court held that the latter (a)(3)

offense is an “absolute liability offense for which no mens rea

need be alleged or proven.” Id. at 61, 276 P.3d at 630. The

district court had adjudged the defendants guilty of violating

both subsections, each of which can serve as the basis for a

conviction under the statute. Id. The Nesmith court held that

“insofar as the (a)(3) charge was sufficient, and insofar as

neither [defendant] challenge[d] the sufficiency of the evidence

as to that basis, each’s conviction still stands.” Id. (emphasis

added).

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Subsequently in Gonzalez, the court held that an

excessive speeding charge against the defendant was defective

because it failed to allege the requisite state of mind. 128

Hawai#i at 315, 288 P.3d at 789. As a result, the court vacated

the conviction and ordered the charge dismissed without

prejudice. Id. at 327, 288 P.3d at 801. The court explained,

“Because the charge here did not contain the requisite state of

mind, as the State concedes, Nesmith mandates dismissal without

prejudice.” 128 Hawai#i at 324, 288 P.3d at 798.

The Gonzalez court then addressed the defendant’s

second point of error, that “[t]he 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.” Id. at 316-17, 288 P.3d at 790-91. The court

explained that it was addressing this argument “[d]ue to the

likelihood of retrial on remand” and “to prevent further error.”

Id. at 324, 288 P.3d at 798. However, the propriety of a remand

based on a violation of double jeopardy was not directly

challenged by the defendant, apparently because of the

defendant’s contention that the trial court lacked subject matter

jurisdiction over the case because of the faulty charge.

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Most recently in State v. Apollonio, 130 Hawai#i 353,

311 P.3d 676 (2013), the court again held that the State’s

excessive speeding charge omitted the requisite state of mind,

and that the charge must therefore be dismissed without

prejudice. Id. at 358-59, 311 P.3d at 681-82. Consistent with

Gonzalez, the court addressed the defendant’s second argument

that the State failed to lay an adequate foundation for the

introduction of the speed reading from the laser gun, in order

“to prevent future error” “[d]ue to the likelihood of retrial.”

Id. at 359, 311 P.3d at 682. The Apollonio defendant also did

not directly challenge the sufficiency of the evidence based on

double jeopardy principles. State v. Wheeler, 121 Hawai#i 383,

385-86, 219 P.3d 1170, 1172-73 (2009) (affirming ICA’s decision

to vacate and remand with instructions to dismiss without

prejudice based on defective charge).

4.

This case, unlike Nesmith, Gonzalez and Apollonio,

squarely raises the issue of whether, when a defendant expressly

challenges his or her conviction based on a fatally defective

charge and based on insufficient evidence, a reviewing court may

ignore the sufficiency claim, vacate based on the defective

charge, and remand for a new trial.

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Although the federal courts are divided on the issue of

whether double jeopardy requires a reviewing court to examine a

defendant’s sufficiency of the evidence claim prior to remanding

for retrial based on a trial error, “we are not bound to give

provisions of the Hawai#i Constitution the same interpretations

as those given under the United States Constitution.” State v.

Lessary, 75 Haw. 446, 453, 865 P.2d 150, 154 (1994). “We have

often interpreted our double jeopardy clause to provide broader

protections than the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution where the federal

interpretation did not adequately preserve the rights and

interests sought to be protected.” Rogan, 91 Hawai#i at 423, 984

P.2d at 1249 (citations omitted).

Hawai#i courts have been consistent in examining the

sufficiency of the evidence before determining whether to remand

for a new trial based on a trial error or whether to enter a

judgment of acquittal. This court’s analysis has been grounded

in article I, section 10 of the Hawai#i Constitution. In

Kalaola, the court expressly stated that even where the court

finds trial error, challenges to the sufficiency of the evidence

must always be decided on appeal because the double jeopardy

clause bars retrial of a defendant once a reviewing court has

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found the evidence at trial to be legally insufficient to support

a conviction. 124 Hawai#i at 59, 237 P.3d at 1126.

Furthermore, any other result would be in contradiction

to the purposes of the double jeopardy clause. The double

jeopardy clause protects both defendants’ interests and societal

interests. Rogan, 91 Hawai#i at 416, 984 P.2d at 1242. With

respect to defendants’ interests, “multiple prosecutions

seriously disrupt a defendant’s personal life during trial and

create a potential for governmental harassment of the defendant.”

Id. Additionally, “repeated prosecutions enhance the likelihood

that an innocent defendant may be convicted.” Id. On the other

hand, society has an interest in “the right to one full and fair

opportunity to prove a defendant’s guilt.” Id. at 417, 984 P.2d

at 1243.

As explained by the Burks Court, in a case where the

defendant’s conviction is overturned based on the insufficiency

of the evidence, the prosecution has already “been given one fair

opportunity to offer whatever proof it could assemble.” 437 U.S.

at 16. An appellate reversal based on insufficient evidence

“means that the government’s case was so lacking that it should

not have even been submitted to the jury.” Burks, 437 U.S. at 16

(emphasis added). “In other words, ‘a reversal on the

insufficiency of the evidence is the constitutional equivalent of

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an acquittal’ barring retrial under the Double Jeopardy Clause.”

Douglas, 874 F.2d at 1149-50 (ellipsis omitted) (quoting Webster

v. Duckworth, 767 F.2d 1206, 1214 (7th Cir. 1985)). “[I]t is

difficult to conceive how society has any greater interest in

retrying a defendant when, on review, it is decided as a matter

of law that the jury could not properly have returned a verdict

of guilty.” Burks, 437 U.S. at 16.

These reasons for prohibiting a second trial under the

double jeopardy clause where an appellate court finds that the

evidence adduced at trial was insufficient as a matter of law are

equally applicable in cases where there are other bases for

reversing conviction, such as a defective charge. If double

jeopardy prohibits a second trial based on the insufficiency of

the evidence, then there is no reason that the double jeopardy

clause should permit the government a second opportunity to

supply the evidence it failed to produce in the first trial in

cases where the appellate court finds that the State’s case was

both brought upon a fatally defective charge and was insufficient

as a matter of law.

The defective charge would not have affected the

State’s “fair opportunity to offer whatever proof it could

assemble.” See id. at 16. In other words, “[t]his is not a case

in which the trial error leading to reversal may have prejudiced

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the prosecution.” United States v. Marolda, 648 F.2d 623, 624

(9th Cir. 1981) (prejudicial variance between the offense as

charged in the indictment and that defined by the court’s

instructions required reversal but was not the type of trial

error that may have prejudiced prosecution, and because evidence

was insufficient at first trial, defendant’s motion to dismiss on

double jeopardy grounds should have been granted). Accordingly,

the general rule, that “[t]he Double Jeopardy Clause forbids a

second trial for the purpose of affording the prosecution another

opportunity to supply evidence which it failed to muster in the

first proceeding,” should apply. Burks, 437 U.S. at 11.

Therefore, if it is found that the State failed to

provide sufficient evidence and that no jury could have properly

returned a verdict of guilty, then double jeopardy should

preclude a retrial based on the defective charge.

The alternative, in which the appellate court would

remand for a second trial based on a defective charge without

reviewing the defendant’s sufficiency claim, is problematic for

several reasons. First, if a defendant raises two points of

error, one of which is insufficiency of the evidence, then a

different result could occur depending on which error the

appellate court decided to consider first, or which error the

court decided was dispositive. The defendant’s entitlement to

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the protections of the double jeopardy clause would then be

wholly dependent on the appellate court’s inclinations.

Second, a defendant who was acquitted would be in a

better position than a defendant who was convicted through a

trial in which the State produced insufficient evidence as a

matter of law, even though an acquittal and insufficient evidence

are essentially equivalent for constitutional purposes. See

Lockhart v. Nelson, 488 U.S. 33, 39 (1988) (“Burks was based on

the view that an appellate court’s reversal for insufficiency of

the evidence is in effect a determination that the government’s

case against the defendant was so lacking that the trial court

should have entered a judgment of acquittal[.]”). The acquitted

defendant would be absolutely protected from retrial by the

double jeopardy clause, while the convicted defendant would be

subject to retrial as long as there was a reversible trial error.

This difference would be based on pure fortuity, in one case the

defendant was acquitted based on the insufficiency of the

evidence and in the other case the trial court erred by

permitting the government’s case to be submitted to the jury.

Third, a defendant would be penalized because of the

State’s multiple errors. If there was no other trial error

raised on appeal, then a defendant who had been convicted despite

insufficient evidence could not be retried because the appellate

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court must decide the insufficiency issue pursuant to Burks.

However, the defendant who raises multiple errors, including a

valid insufficiency of the evidence claim, is penalized because

the appellate court can vacate and remand for a new trial based

on the trial error and completely ignore the insufficiency claim.

Such a result is completely contrary to the purpose of

the double jeopardy clause, “to protect an individual from being

subjected to the hazards of trial and possible conviction more

than once for an alleged offense.” Burks, 437 U.S. at 11

(internal quotations and citations omitted). The government

should not be afforded “an opportunity for the proverbial ‘second

bite at the apple,’” id. at 17, where the government’s case was

insufficient as a matter of law and should never have been

submitted to the jury, simply because the government also erred

in charging the defendant with a defective charge. See People v.

Barrett, 1 Johns. 66, 74 (N.Y. Sup. Ct. 1806) (Livingston, J.,

dissenting) (“[S]uppose an acquittal to take place, the

prosecutor, if he be dissatisfied, and bent on conviction, has

nothing to do but to tell the court that his own indictment was

good for nothing; that it has no venue, or is deficient in other

particulars, and that, therefore, he has a right to a second

chance of convicting the prisoner[.]”).

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As stated, although federal courts disagree on whether

a sufficiency review is constitutionally required when ordering a

retrial based on a trial error, all federal courts have concluded

that sufficiency review is warranted at least minimally “as a

matter of prudent policy.” Hoffler, 726 F.3d at 161-62. The

long-standing federal practice of undertaking a sufficiency

review demonstrates the concern that retrials involve

“considerable expense in time and money” to all parties involved,

and “in anxiety to the defendant.” Douglas, 874 F.2d at 1150.

“If in fact insufficient evidence [was] presented at a first

trial, a retrial, on any basis, ordinarily may be expected to be

a wasted endeavor.” Id. Thus, it is in the interest of the

court, juries, prosecutors, and defendants to determine on review

whether the State’s evidence was insufficient as a matter of law

before remanding for a new trial, notwithstanding the existence

of a trial error such as a faulty charge.

Accordingly, based on this court’s precedent construing

the double jeopardy clause of the Hawai#i Constitution, the

purposes of the double jeopardy clause, and policy reasons, a

reviewing court is required under article I, section 10 of the

Hawai#i Constitution to address a defendant’s express claim of

insufficiency of the evidence prior to remanding for a new trial

based on a defective charge.

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B.

The second question presented is whether the ICA

gravely erred in failing to hold that the district court

erroneously admitted Exhibit 1 into evidence as a self-

authenticating document.

Davis contends that the district court erred in

admitting Exhibit 1 because it was not properly certified as

correct by a custodian of records or a person authorized to make

such a certification, and therefore it was not self-

authenticating under HRE Rule 902(1). Davis maintains that

pursuant to HRE Rule 902(4), Exhibit 1 constituted a “public

record” that required additional foundation for authentication,

which the State failed to provide. Davis notes that the

certification on Exhibit 1 included an illegible signature of the

circuit court clerk, and the State failed to establish through a

witness or other evidence that the signature on Exhibit 1

belonged to a person authorized to make the certification

pursuant to HRE Rule 902(4).

HRE Rule 902 states, in relevant part:

Extrinsic evidence of authenticating as a condition
precedent to admissibility is not required with respect to
the following:

(1) Domestic public documents under seal. A document
bearing a seal purporting to be that of the United States,
or of any state, district, commonwealth, territory, or

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insular possession thereof, or the Panama Canal Zone, or the
Trust Territory of the Pacific Islands, or of a political
subdivision, department, officer, or agency thereof, and a
signature purporting to be an attestation or execution.
. . . .
(4) Certified copies of public records. A copy of an
official record or report or entry therein, or of a document
authorized by law to be recorded or filed and actually
recorded or filed in a public office, including data
compilations in any form, certified as correct by the
custodian or other person authorized to make the
certification, by certificate complying with paragraph (1),
(2), or (3) or complying with any statute or rule prescribed
by the supreme court.

(Emphases added).

Under our law, “[t]he clerks of the supreme,

intermediate appellate court, circuit, and district courts shall

have the custody of all records, books, papers, moneys, exhibits,

and other things pertaining to their respective courts.” HRS

§ 606-4 (1993) (emphasis added). Additionally, “[t]he clerks of

the courts of record may issue process, administer oaths, take

depositions, and perform all other duties pertaining to their

office.” HRS § 606-8 (1993). A clerk must also “attend and

record the proceedings at all sittings of courts of record.” HRS

§ 606-8.

In this case, Exhibit 1 bears an impressed seal of the

circuit court in compliance with HRE Rule 902(1), and contains

the signature of the court clerk of the circuit court. As noted,

court clerks “have the custody of all records, . . . exhibits,

and other things pertaining to their respective courts” and may

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“perform all other duties pertaining to their office.”

HRS §§ 606-4, 606-8. In accordance with HRE Rule 902(1) and

HRS § 606-4, the court clerk of the circuit court was a

“custodian or other person authorized to make the certification”

of the Judgment of Conviction, which was filed in a public office

as required by law.

The certification affixed to Exhibit 1 states: “I do

hereby certify that this is a full, true, and correct copy of the

document on file in this office.” The signature line of the

certification below the clerk’s signature states: “Clerk, Circuit

Court, First Circuit.” Clearly, a duty of the clerk is to

certify copies of documents filed and retained in the clerk’s

office as full, true, and correct.

Thus, Exhibit 1 met the requirements of a self-

authenticating document under HRE Rule 902(1) and (4), based upon

the seal, certification, and attestation of the court clerk

acting as the custodian authorized to certify that Exhibit 1 was

a full, true, and correct copy of the Judgment of Conviction.

C.

In his third question, Davis contends that the ICA

gravely erred in failing to hold that there was insufficient

evidence to sustain the conviction on three grounds. First,

Davis contends that the State failed to establish that he

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operated a vehicle on a “public way, street, or highway” because

the State did not prove that the location of the incident on the

shoulder of Kamehameha Highway was a “true location open to the

public or that the highway was built, acquired, or otherwise

under the jurisdiction of the [City and County of Honolulu] or

the State of Hawai#i.”

The City and County Of Honolulu Speed Schedules were

established by the Department of Transportation Services pursuant

to the Revised Ordinances of Honolulu § 15-7.2 (1990).17 Schedule

VII18 lists streets and portions thereof as “public ways”19

17
Although not applicable to this case, ROH § 15-7.2 provides that
“[n]o person shall drive a vehicle on a public highway or street at a speed in
excess of the following speed limit zones established or hereafter established
by ordinance of the city council.” (Emphasis added).
ROH § 15-7.2(d) establishes a speed limit of 35 miles per hour
“[o]n those streets or portions thereof described in Schedule VII attached to
the ordinance codified in this section and made part hereof . . . .”
18
Table 15.0 on page 2 of ROH “Chapter 15 Traffic Code” provides a
table that shows the corresponding schedule for each section of the traffic
note. The Editor’s Note on the bottom of page 2 states that “[t]he schedules
referred to in this table are on file with the office of the city and county
clerk and the department of transportation services, City and County of
Honolulu, and are available for examination by the general public during
reasonable hours.”
19
Under HRS § 291E-1 (2007), a “[p]ublic way, street, road, or
highway” includes:

(1) The entire width, including berm or shoulder, of every
road, alley, street, way, right of way, lane trail, highway,
or bridge;

(2) A parking lot, when any part thereof is open for use by
the public or to which the public is invited for
entertainment or business purposes;
(continued...)

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governed by the ordinance. Among the “public ways” listed in

Schedule VII is “KAMEHAMEHA HWY., from a pt. 500’ Honolulu side

of Plantation Dr. intx. through Wahiawa Interchange to a pt. 750’

Wahiawa of Lumiaina S. intx.” See Schedule VII.

The section of Kamehameha Highway where Officer

Hayakawa observed Davis and his pickup truck was located within

the stretch of Kamehameha Highway that intersects with Kuala

Street. This portion of the street is designated as a “public

19
(...continued)
(3) Any bicycle lane, bicycle path, bicycle route, bikeway,
controlled-access highway, laned roadway, roadway, or
street, as defined in section 291C-1; or

(4) Any public highway, as defined in section 264-1.

According to HRS § 264-1 (Supp. 2011), a “public highway”
includes:

(a) All roads, alleys, streets, ways, lanes, bikeways,
bridges, and all other real property highway related
interests in the State, opened, laid out, subdivided,
consolidated, and acquired and built by the government are
declared to be public highways. Public highways are of two
types:
(1) State highways, which are those lands, interests,
or other real property rights, as defined above,
having an alignment or possession of a real property
highway related interest as established by law,
subdivided and acquired in accordance with policies
and procedures of the department of transportation,
separate and exempt from any county subdivision
ordinances, and all those under the jurisdiction of
the department of transportation; and

(2) County highways, which are all other public
highways.

(Emphasis added).

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way” because it falls within the above description set forth in

Schedule VII.

A court must take judicial notice of, inter alia, the

constitutions and statutes of the United States and of every

state and all duly enacted ordinances of cities or counties of

the State of Hawai#i. HRE Rule 202(b) (1993). This court has

held that “courts are duty-bound to take ‘judicial notice’ of

municipal ordinances.” State v. West, 95 Hawai#i 22, 26, 18 P.3d

884, 888 (2001); State v. Schnabel, 127 Hawai#i 432, 444, 279

P.3d 1237, 1249 (2012) (“it is universally accepted that a court

must judicially notice the public law of its own jurisdiction”

(quotation marks and citation omitted)). Judicial notice may be

taken at any stage of the proceeding. HRE Rule 201(f) (1993).

Accordingly, pursuant to West and Schnabel, judicial notice is

taken of the fact that the section of Kamehameha Highway where

the incident occurred in this case was on a “public highway”

pursuant to ROH § 15-7.2 and HRS § 291E-1. Therefore, sufficient

evidence was adduced to prove that Davis operated his vehicle on

a “public way.”

Second, Davis argues that the State failed to establish

that Exhibit 1 relating to the conviction for “Terry Jay Davis”

was applicable to Davis, who was identified as “Terry J. Davis”

in the July 22, 2011 citation issued by Officer Hayakawa. Thus,

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it is contended that there was insufficient evidence to identify

Davis as the person convicted in the Judgment of Conviction.

A “[p]rior conviction may be proved by any evidence

. . . made in connection with arrest, conviction, or imprisonment

that reasonably satisfies the court that the defendant was

convicted.” HRS § 706-666(2) (1993). In State v. Nishi, the ICA

held that the information contained in a certified traffic

abstract, which includes the person’s name, social security

number, and birth date, “is adequate to connect a defendant with

a prior conviction.” 9 Haw. App. 516, 527, 852 P.2d 476, 482

(1993), reconsideration granted, 9 Haw. App. 660, 853 P.2d 543

(1993). However, in that case, “[t]he State presented no

evidence of Defendant’s driver’s license number or social

security number or birth date that could be compared with

information appearing on the traffic abstract.” Nishi, 9 Haw.

App. at 528, 852 P.2d at 482. Accordingly, the court held that

the defendant had been erroneously sentenced as a second-time

offender because the prosecution failed to submit any evidence

beyond an identical name, connecting the defendant to the

previously convicted individual. Id., 852 P.2d at 482-83.

Here, the Judgment of Conviction of “Terry Jay Davis”

included the final four digits of Davis’s social security number

and Davis’s date of birth. Officer Hayakawa testified that he

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obtained Davis’s social security number and date of birth from

Davis. The citation issued to “Terry J. Davis” by Officer

Hayakawa on July 22, 2011 indicated Davis’s date of birth, and

the last four digits of his social security number. This

information matched the information recorded on the Judgment of

Conviction, which provided the requisite proof tying the

defendant to the previously convicted individual.20 See id., 852

P.2d at 482.

Third, Davis contends that the State failed to adduce

substantial evidence to establish that he was on probation on

July 22, 2011, and his driver's license was restricted at the

time of the motor vehicle collision on July 22, 2011.

HRS § 291E-61.5(d)(2)(A) provides that whenever

probation is imposed pursuant to a conviction under this statute,

the probation term is five years with conditions to include a

“[m]andatory revocation of license and privilege to operate a

vehicle for a period not less than one year but not more than

five years.”

The Judgment of Conviction sentenced Davis to five

years of probation as to Count 1, habitually operating a vehicle

under the influence of an intoxicant (HRS § 291E-61.5). Special

20
Additionally, “J.” and “Jay” appear to be interchangeable
variations.

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Condition 7R provided that Davis was “[p]rohibited from operating

a motor vehicle throughout the period of probation.” The five-

year term of probation was imposed on March 19, 2007, and

therefore probation would expire on March 18, 2012. Davis was

found to have operated his truck on July 22, 2011.

Accordingly, the State produced substantial evidence to

show that Davis was on probation on July 22, 2011, and his

driver’s license was restricted at the time of the motor vehicle

collision on July 22, 2011, based upon his conviction for

violation of HRS § 291E-61.5.

Davis further asserts that even if the terms and

conditions of his probation restricting his driver’s license were

in effect on July 22, 2011, the State failed to adduce “any

evidence from the driver’s license bureau or from the

Administrative Driver’s License Revocation Office,” that he was

aware that his license was restricted. Thus, without further

evidence, Davis argues that Exhibit 1 was insufficient to

establish that he “intentionally, knowingly, or recklessly”

operated a vehicle while his driver's license was revoked or

suspended on July 22, 2011.

The Judgment of Conviction specifically stated, “This

judgment has been entered and copies mailed or delivered to all.”

Additionally, a defendant is required to be present for

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imposition of sentence for a felony offense under HRPP Rule 43.

The record thus contained substantial evidence that Davis was

aware that he was prohibited from operating a motor vehicle

throughout the period of probation. Accordingly, the State

produced sufficient evidence to establish that Davis

intentionally, knowingly, or recklessly operated a vehicle on

July 22, 2011, while his driver’s license was revoked or

suspended.

D.

In his fourth question presented, Davis contends

that the ICA gravely erred in failing to hold that double

jeopardy precluded another trial despite Nesmith. However,

in light of our determination that the State adduced

substantial evidence to support a conviction under

HRS §§ 291E-62(a)(1) and (2), double jeopardy does not

preclude a retrial on the charge.

IV.

In conclusion, we hold that where a defendant expressly

claims both a charging error and insufficient evidence to support

the conviction, the reviewing court is required under article I,

section 10 of the Hawai#i Constitution to examine the sufficiency

of the evidence claim before vacating the conviction and

remanding for a new trial based on the charging error. In this

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case, we conclude that the State did adduce substantial evidence

to support the district court judgment. Accordingly, we affirm

the ICA’s September 10, 2013 Judgment on Appeal, but for the

reasons stated.

John M. Tonaki and /s/ Mark E. Recktenwald
Taryn R. Tomasa
for petitioner /s/ Paula A. Nakayama

Keith M. Kaneshiro and /s/ Sabrina S. McKenna
Brian R. Vincent
for respondent /s/ Richard W. Pollack

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