State v. Michaeledes

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-JAN-2025
08:07 AM
Dkt. 70 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellant, v.
DAVID JOHN MICHAELEDES, Defendant-Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.)

Plaintiff-Appellant State of Hawai‘i appeals from the

Circuit Court of the Fifth Circuit's August 10, 2021 (1) "Order

Granting Defendant's Motion to Dismiss Based Upon Defective

Charges[,]" and (2) "Order Denying the State's Motion to Amend

Felony Information[.]" 1

For a brief background, the State charged Defendant-

Appellee David John Michaeledes by Felony Information and Non-

1 The Honorable Randal G.B. Valenciano presided.
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Felony Complaint with (1) Reckless Driving of Vehicle, in

violation of Hawai‘i Revised Statutes (HRS) § 291-2 (2020);

(2) Assault in the Second Degree, in violation of HRS § 707-

711(1)(a) and/or (d) (2014, Supp. 2019); and (3) Accidents

Involving Substantial Bodily Injury, in violation of HRS § 291C-

12.5 (2020).

Michaeledes moved to dismiss the charges arguing that

the information was defective; the State moved to amend the

information. The circuit court denied the State's motion to

amend and granted Michaeledes' motion to dismiss. The State

filed a timely notice of appeal. On appeal, the State raises

three points of error challenging the circuit court's orders. 2

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve the

points of error as discussed below, and vacate and remand.

2 The State raises the following three points of error:

A. "The Circuit Court erred by dismissing the charge of Reckless
Driving, HRS §291-2, reasoning that the charge was defective because
it did not allege that Appellee operated a vehicle on a public
highway";

B. "The Circuit Court erred by concluding as a matter of law that
felony informations, like indictments, may not be amended to allege
statutory definitions or essential elements"; and

C. "Based on its erroneous conclusion that felony informations may not
be amended, the Circuit Court abused its discretion by dismissing
the felony information."

(Emphases omitted.)

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(1) In its first point of error, the State contends

the circuit court "erred by dismissing the Reckless Driving

charge, HRS § 291-2, reasoning that it was defective because it

did not allege the operation of a vehicle on a public highway."

(Emphasis omitted.)

Whether the information set forth all essential

elements of the charged offense is reviewed de novo. State v.

Wheeler, 121 Hawai‘i 383, 390, 219 P.3d 1170, 1177 (2009). The

interpretation of a statute is also reviewed de novo. State v.

Michaeledes, 152 Hawai‘i 217, 220, 524 P.3d 1241, 1244 (2023).

Here, the circuit court ruled the charge for Reckless

Driving was defective because it "did not provide the statutory

definition of 'operate.'" The circuit court relied on State v.

Wheeler, 121 Hawai‘i 383, 219 P.3d 1170 (2009).

In Wheeler, the defendant was charged with Operating a

Vehicle Under the Influence of an Intoxicant (OVUII), in

violation of HRS § 291E-61(a)(1). 3 121 Hawai‘i at 385, 391, 219

P.3d at 1172, 1178. For OVUII, HRS chapter 291E defines the

3 HRS § 291E-61 (2020) provides in pertinent 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[.]

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term "operate" as driving a vehicle "upon a public way, street,

road, or highway[.]" HRS § 291E-1 (2020). Thus, the Hawai‘i

Supreme Court held the definition of "operate" in HRS chapter

291E established an attendant circumstance of the OVUII offense,

that the driving occur "upon a public way, street, road, or

highway." Wheeler, 121 Hawai‘i at 392, 219 P.3d at 1179.

Unlike HRS chapter 291E, HRS chapter 291 does not

define the term "operates" as used in Reckless Driving. HRS

§ 291-2 provides in relevant part that "[w]hoever operates any

vehicle or rides any animal recklessly in disregard of the

safety of persons or property is guilty of reckless driving of

vehicle or reckless riding of an animal, as appropriate[.]"

(Emphasis added.) HRS chapter 291, Part I, provides definitions

for the following three terms: (1) "Intoxicating liquor";

(2) "Public street, road, or highway"; and (3) "Scenic

lookout[.]"

But HRS chapter 291, Part I, does not provide a

definition for the term "operates" as used in HRS § 291-2 and,

thus, there is no attendant circumstance that the driving of the

vehicle or riding of an animal must occur on a public street.

Fagaragan v. State, 132 Hawai‘i 224, 242, 320 P.3d 889, 907

(2014) (explaining the canon of construction expressio unius est

exclusio alterius applies "only where in the natural association

of ideas the contrast between a specific subject matter which is

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expressed and one which is not mentioned leads to an inference

that the latter was not intended to be included within the

statute") (citation and internal quotation marks omitted).

By incorporating HRS chapter 291E's definition of the

term "operate" into HRS § 291-2, the circuit court added an

element (upon a public, street, road, or highway) to the HRS

§ 291-2 Reckless Driving offense, which it cannot do. See State

v. Haugen, 104 Hawai‘i 71, 75, 85 P.3d 178, 182 (2004) ("A

cardinal canon of statutory construction is that this court

cannot change the language of the statute, supply a want, or

enlarge upon it in order to make it suit a certain state of

facts.") (citations and internal quotation marks omitted).

In sum, the circuit court erred in interpreting HRS

§ 291-2 as requiring the attendant circumstance that the

defendant's conduct occur on a public street.

(2) The State's second and third points of error are

related. The State contends the circuit court "erred by

concluding that as a matter of law, felony informations may not

be amended to allege statutory definitions or essential

elements" and, thus, erred in dismissing the information.

(Emphasis omitted.)

In State v. Thompson, the circuit court granted the

prosecution's motion to amend a felony information. 154 Hawai‘i

422, 554 P.3d 567, No. CAAP-XX-XXXXXXX, 2024 WL 4043727 at *2

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(App. 2024) (SDO). On appeal, the defendant argued the

amendment was improper because HRS § 806-9 (2014) 4 requires the

laws applying to indictments apply to informations. Id. at *3.

This court affirmed the circuit court's order granting

the motion to amend, explaining that Hawai‘i Rules of Penal

Procedure (HRPP) Rule 7(f)(1) 5 plainly and unambiguously permits

an amendment, which "makes sense as 'an indictment is an action

of the grand jury and not subject to change by either the court

or prosecution, except to correct formalistic errors[.]'" Id.

at *3, *4 (citation and internal quotation marks omitted).

As we did in Thompson, we similarly hold here that

HRPP Rule 7(f)(1) permitted amendment of the information. Thus,

the circuit court erred in denying the State's motion to amend

the information, and erred in granting Michaeledes' motion to

dismiss.

Based on the foregoing, we vacate the circuit court's

August 10, 2021 (1) "Order Granting Defendant's Motion to

4 HRS § 806-9 provides:

All provisions of law applying to prosecutions upon
indictments, to writs and process therein, and the issuing
and service thereof, to motions, pleadings, trials, and
punishments, or the passing or execution of any sentence,
and to all proceedings in cases of indictment, whether in
the court of original or appellate jurisdiction, shall in
the same manner and to the same extent as near as may be,
apply to information and all prosecutions and proceedings
thereon.

5 HRPP Rule 7(f)(1) provides, "[t]he court may permit a charge other
than an indictment to be amended at any time before trial commences if
substantial rights of the defendant are not prejudiced."

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Dismiss Based Upon Defective Charges" and (2) "Order Denying the

State's Motion to Amend Felony Information[,]" and remand this

case to the circuit court for further proceedings consistent

with this summary disposition order.

DATED: Honolulu, Hawai‘i, January 9, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Tracy Murakami,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
County of Kauaʻi, Associate Judge
for Plaintiff-Appellant.
/s/ Sonja M.P. McCullen
Emmanuel G. Guerrero, Associate Judge
for Defendant-Appellee.

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