Summary
holding that because the charge omitted the element of intent, “the charge was fatally defective for failure to allege a necessary element”
Summary of this case from State v. NesmithOpinion
No. 11043.
August 7, 1986.
APPEAL FROM DISTRICT COURT OF THE FIRST CIRCUIT, HONOLULU DIVISION HONORABLE ALLEN K. HOE, JUDGE.
LUM, C.J., NAKAMURA, PADGETT, HAYASHI AND WAKATSUKI, JJ.
Edward K. Harada, Deputy Public Defender, on the briefs for appellant.
Robert F. Murashige, Deputy Prosecuting Attorney, on the brief for appellee.
This is an appeal from a conviction for resisting an order to stop a motor vehicle in violation of HRS § 710-1027.
The oral charge read:
On or about April 4, 1985, in the Honolulu District, City and County of Honolulu, State of Hawaii, you, as an operator of a motor vehicle, resisted an order to stop by a police officer, thereby failing to obey his direction while on duty, violating Section 710-1027 of the Hawaii Revised Statutes.
Appellant's counsel moved to dismiss the charge because the element of intent was missing. Section 710-1027(1) reads:
A person commits the offense of resisting an order to stop a motor vehicle if he intentionally fails to obey a direction of a peace officer, acting under color of his official authority, to stop his vehicle.
Unlike State v. Robins, 66 Haw. 312, 660 P.2d 39 (1983), and State v. Treat, 67 Haw. 119, 680 P.2d 250 (1984), the charge in this case did not track the statute. It omitted the element of intent which is expressly included in the statute.
Under our holdings in State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977), and State v. Faulkner, 61 Haw. 177, 599 P.2d 285 (1979), the charge was fatally defective for failure to allege a necessary element. Accordingly, the judgment below is reversed.