State v. Armitage.

Concurring and Dissenting Opinion by

RECKTENWALD, C.J.,

in which NAKAYAMA, J., joins.

For the reasons set forth in my dissenting opinion in State v. Apollonio, 130 Hawai'i 353, 364-371, 311 P.3d 676, 687-694, I respectfully dissent from the majority’s conclusion that the lack of a mens rea allegation in the charges requires that the eases be dismissed without prejudice despite the defendants’ lack of objection to the sufficiency of the charges. In my view, where a defendant does not object to a deficient charge in the trial court, the defendant is required to show how he or she was prejudiced by…