*** NOT FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, Plaintiff-Appellee,
HAROLD TOMLIN HODGES, Defendant-Appellant.
APPEAL FROM THE SECOND CIRCUIT COURT
(CR. NO. 04-1-0064(1))
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
On appeal, Hodges argues that the circuit court erred by 1) instructing the jury that the criminal state of mind required for a finding of guilt under HRS § 712-1249.6 was "reckless disregard," when the statute clearly states that the Defendant must act "knowingly," and 2) finding that he knowingly distributed or possessed with intent to distribute a controlled substance, in any amount, within 750 feet of real property comprising a public or private elementary or secondary school. Hodges argues that there was insufficient evidence to support his conviction for the offense of promoting a controlled substance near a school, as charged in Count I. Hodges does not challenge his convictions on Counts II and III.
The State of Hawai`i (hereinafter, "the prosecution") concedes that the circuit court committed plain error by 1) erroneously instructing the jury that the requisite state of mind for the attendant circumstance for promoting a controlled substance near a school was either "knowing" or "reckless," and 2) by denying Hodges's motion for judgment of acquittal because there was insufficient evidence to support a conviction for the charge.
We conclude that the prosecution's confession of error is supported by the record and is well-founded in law. See State v. Wasson, 76 Hawai`i 415, 418, 879 P.2d 520, 523 (1994); Territory v. Kogami, 37 Haw. 174, 175 (1945). Therefore,
IT IS HEREBY ORDERED that the circuit court's judgment of conviction in Count I for promoting a controlled substance near a school in violation of HRS § 712-1249.6 is reversed. The circuit court's judgment with respect to Counts II and III is affirmed.
DATED: Honolulu, Hawai`i, May 27, 2005.
On the briefs:Kellen Kenji Akamu,
Peter A. Hanano, deputy
for the plaintiff-appellee
State of Hawai`i