State v. Baxter

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-MAY-2021
07:53 AM
Dkt. 58 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
GREG KALEO BAXTER, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-18-04169)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendant-Appellant Greg Kaleo Baxter was convicted of
Operating a Vehicle Under the Influence of an Intoxicant (OVUII)
in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1).1
Baxter appeals from: (1) the "Notice of Entry of Judgment and/or
Order and Plea/Judgment" entered by the District Court of the
First Circuit, Honolulu Division,2 on August 29, 2019; and (2)
the "Notice of Entry of Judgment and/or Order and Plea/Judgment"

1
HRS § 291E-61 (Supp. 2017) provides, in relevant part:
(a) A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person operates
or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal mental
faculties or ability to care for the person and guard
against casualty[.]
(Emphasis added.)
2
The Honorable Summer M.M. Kupau-Odo presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

entered by the district court3 on November 15, 2019.4 For the
reasons explained below, we affirm both judgments.
On December 29, 2018, Baxter was charged by complaint
with OVUII. He was arraigned on January 8, 2019. He appeared
through counsel, who was given a copy of the complaint. Through
counsel he waived his presence, waived reading of the charge, and
entered a plea of not guilty.
Trial began on August 12, 2019. Baxter's counsel
acknowledged receipt of the complaint. The district court asked
the deputy prosecuting attorney (DPA) to arraign Baxter. The DPA
stated:

On or about December 11th, 2018, in the City and
County of Honolulu, state of Hawaii, Greg Kaleo Baxter did
intentionally, knowingly, or recklessly operate or assume
actual physical control of a vehicle upon a public way,
street, road, or highway while under the influence of
alcohol in an amount sufficient to impair his normal mental
facilities [sic] or ability to care for himself and guard
against casualty, thereby committing the offense of
operating a vehicle under the influence of an intoxicant in
violation of Section 291E-61(a)(1) of the Hawaii Revised
Statutes.

Greg Kaleo Baxter is subject to sentencing in
accordance with Section 291E-61(b)(1) of the Hawaii Revised
Statutes as a first offender.

(Emphasis added.)
The district court asked Baxter's counsel if he had
received a copy of the complaint.
Baxter's counsel affirmed that he received a copy of
the complaint.
The district court asked Baxter if he understood the
charge.
Baxter replied, "Yes, yes."
The district court asked Baxter how he pleaded.
Baxter replied, "Not guilty."
The State called two police officers as witnesses and
rested its case. Baxter moved for a judgment of acquittal or a

3
The Honorable James S. Kawashima presided.
4
The August 29, 2019 judgment found Baxter guilty and sentenced him
to pay a fine and fees, but did not decide the issue of license revocation.
The November 15, 2019 judgment revoked Baxter's license for one year.

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dismissal on the grounds that the DPA incorrectly read the oral
charge, saying "mental facilities" rather than "mental faculties"
as set forth in HRS § 291E-61(a)(1). The district court agreed
that the DPA mispoke, saying "facilities" instead of "faculties."
The district court invited counsel to submit memoranda, and took
the motion under advisement.5
The district court reconvened on August 29, 2019. The
State argued that the DPA's misstatement was harmless error,
because Baxter and his counsel had the complaint, which correctly
stated "mental faculties." The district court ruled:

I'll go through the facts or the history of the case first.

Before trial, the defense said it received a copy of
the complaint. [The DPA] then proceeded to arraign the
defendant and mispronounced the word "faculties" and instead
said "facilities." When asked, the defendant said he
understood the charge. There was no objection at that time.
No, actually, I'll go back.
Before that, the start of the case, the minutes
reflect that the defendant's arraignment and plea was held
on January 8th of this year, when Mr. [Pedric] Arrisgado
waived his presence and reading of the charge at that time,
entered a not guilty plea, and was given a copy of the
complaint. And so Mr. Baxter has been represented by
Mr. McPherson's office this entire time.

And, again, at the start of trial at the last court
date, the defendant said "yes" to understanding the charge
that was read to him. And Mr. McPherson raised the issue of
"facilities" at the judgment of acquittal stage, after the
State rested.

So the standard I'm applying is, does the charge
provide defendant with fair notice of the essential
elements? And as [the DPA] just argued, the charge here is
a written complaint that was filed on December 29th, 2018.
And pursuant to Rule 7,[6] that charge -- that is the

5
The record does not indicate that either side submitted a
memorandum of law on the motion.
6
Rule 7 of the Hawai#i Rules of Penal Procedure (HRPP) provides, in
relevant part:
(a) Use of indictment, information, or complaint.
The charge against a defendant is . . . a complaint filed in
court . . . .
. . . .

(d) Nature and contents. The charge shall be a
plain, concise and definite statement of the essential facts
constituting the offense charged. . . . Formal defects,
(continued...)

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charge. And it has all of the elements, and properly refers
to "mental faculties," as the statute states.
So I find that under all of these circumstances, the
defendant did have fair notice of the charge and its
elements. There is an offense charged.

And viewing the evidence in the light most favorable
to the State at this stage, the motion for judgment of
acquittal is denied.

The defense called no witnesses. After hearing closing
arguments, the district court found Baxter guilty as charged.
This appeal followed.
Baxter's single point of error is that the district
court erred in denying his motion for judgment of acquittal or
dismissal because the DPA said "facilities" rather than
"faculties" when reciting the charge. "Whether a charge sets
forth all the essential elements of a charged offense is a
question of law, which we review under the de novo, or
'right/wrong,' standard." State v. Wheeler, 121 Hawai#i 383,
390, 219 P.3d 1170, 1177 (2009) (cleaned up).
Baxter argues "the State amended the charge when the
oral charge was read, and that is the charge that went to trial."
The argument lacks merit for several reasons. First, there is no
indication in the record that the State moved to amend the
criminal complaint, or that the district court granted leave to
amend.
Second, when Baxter was arraigned, the State was
required to charge OVUII by a written complaint. Wheeler, 121
Hawai#i at 386 n.3, 219 P.3d at 1173 n.3 (citing HRPP Rules
5(b)(1) and 7(d)). A subsequent oral charge could not legally
amend a written OVUII complaint.
Third, Baxter appeared at arraignment through counsel,
received a copy of the written complaint, waived his presence,
waived reading of the charge, and entered a plea of not guilty,

6
(...continued)
including erroneous reference to the statute, rule,
regulation or other provision of law, or the omission of
such reference, shall not be ground for dismissal of the
charge or for reversal of a conviction if the defect did not
prejudice the defendant.

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all consistent with HRPP Rule 5(b)(1). At trial, Baxter's
counsel acknowledged receiving a copy of the complaint. After
the DPA read the charge, Baxter did not object to the sufficiency
of the charge. Baxter affirmed that he understood the charge,
and pleaded not guilty. There is no evidence in the record to
show that Baxter was prejudiced by the DPA saying the word
"facilities" instead of "faculties" when reciting the written
complaint at trial. See HRPP Rule 7(d) ("Formal defects,
including erroneous reference to the statute . . . shall not be
ground for dismissal of the charge or for reversal of a
conviction if the defect did not prejudice the defendant.").
Moreover, because Baxter did not object to the charge until after
the State had presented its case, we consider all of the
information supplied to him up to the point that he objected.
State v. Hitchcock, 123 Hawai#i 369, 379, 235 P.3d 365, 375
(2010).
Based upon the foregoing, we conclude that the district
court was not wrong to deny Baxter's motion for judgment of
acquittal or dismissal. The August 29, 2019 "Notice of Entry of
Judgment and/or Order and Plea/Judgment" and the November 15,
2019 "Notice of Entry of Judgment and/or Order and Plea/Judgment"
are affirmed.
DATED: Honolulu, Hawai#i, May 21, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Donn Fudo, Chief Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Katherine G. Leonard
for Plaintiff-Appellee. Associate Judge

Earle A. Partington, /s/ Keith K. Hiraoka
R. Patrick McPherson, Associate Judge
for Defendant-Appellant.

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