State v. Kekuewa, 27248.

CourtSupreme Court of Hawai'i
Citation163 P.3d 1148
Docket NumberNo. 27248.,27248.
PartiesSTATE Of Hawai`i, Plaintiff-Appellee-Petitioner, v. Philip Kala KEKUEWA, Defendant-Appellant-Respondent.
Decision Date31 July 2007

Taryn R. Tomasa, Deputy Public Defender, for Defendant-Appellant-Respondent on the supplemental brief.

MOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ., and ACOBA, J., concurring and dissenting.

Opinion of the Court by NAKAYAMA, J.

Plaintiff-Appellee-Petitioner, State of Hawai`i ("prosecution"), petitions this court to review the Intermediate Court of Appeals' ("ICA") August 23, 2006 judgment reversing the March 22, 2005 judgment of the first circuit district court ("district court") convicting defendant-appellant-respondent, Philip Kala Kekuewa, III ("Kekuewa"), of the offenses of Operating a Vehicle Under the Influence of an Intoxicant ("OVUII"), in violation of Hawai`i Revised Statutes ("HRS") § 291E-61,1 Driving Without a License ("DWOL"), in violation of HRS § 286-102,2 and Speeding, in violation of HRS § 291C-102.3 On appeal, the prosecution argues that: (1) this court should reconsider State v. Domingues, 106 Hawai`i 480, 107 P.3d 409 (2005), in which this court stated that prior convictions are essential elements of the offense of OVUII; (2) the ICA erred by reversing Kekuewa's conviction, rather than remanding the matter for resentencing under HRS § 291E-61(b)(1); and (3) a reasonable person would have found the overwhelming evidence sufficient to support the conclusion that Kekuewa operated a vehicle under the influence of an intoxicant.

For the following reasons, we vacate Kekuewa's conviction of and sentence for the offense of OVUII under HRS §§ 291E-61(a) and (b)(2) (Supp.2004), and remand the matter for entry of judgment of conviction of and resentencing for the offense of OVUII pursuant to HRS §§ 291E-61(a) and (b)(1) (Supp. 2004). We also vacate the ICA's August 23, 2006 judgment to the extent that it reverses Kekuewa's conviction of and sentence for the offense of OVUII under HRS §§ 291E-61(a) and (b)(2) (Supp.2004).

I. BACKGROUND

On April 15, 2004, at approximately 1:45 a.m., Officer Ryan Nishibun ("Officer Nishibun") observed a black truck entering the H-1 Freeway, westbound, around the Kahala Mall area. Officer Nishibun testified that his attention was drawn to the vehicle because it was traveling at "a high rate of speed." Officer Nishibun proceeded to follow the truck and warned officers stationed along the freeway of its approach. An officer positioned on the Waialae Avenue overpass, using a laser device, measured the truck's rate of speed at 88 miles per hour.

Officer Nishibun caught up to the truck around the 6th Avenue overpass, and he observed it weaving within the left lane of the freeway. Officer Nishibun subsequently activated his blue lights and siren, but the driver did not respond. Officer Jacob Miyashiro ("Officer Miyashiro"), an officer also in pursuit, positioned his vehicle in front of the truck and decelerated to force it to slow down. When the truck eventually stopped, Officer Nishibun and other responding officers surrounded the vehicle.

Approaching the vehicle from the rear, Officer Nishibun observed two adult male occupants. Kekuewa was seated on the driver's side of the truck, and Stewart Conrad ("Conrad") was seated on the passenger's side. When Officer Nishibun asked Kekuewa to step out of his vehicle, Kekuewa appeared to fumble with the locking mechanism. When asked for his paperwork, Kekuewa was unable to produce a driver's license and later admitted that he did not have one. Officer Nishibun described Kekuewa's physical appearance as follows: "[Kekuewa's] face appeared flushed. He had bloodshot, glassy eyes. And initially when he opened the door, I could smell a strong odor of alcoholic-type beverage coming from within the cab, and then later while speaking with him, I could detect that odor coming from his breath." Officer Miyashiro also testified that Kekuewa emanated a strong odor of alcohol, and that "[h]is eyes were red, watery, glassy. When he spoke to me, his speech was slurred, very slurred." Officer Miyashiro further observed that, "from the moment [Kekuewa] got out of the vehicle, he appeared very unsteady on his feet and for the duration of my observation, while he was supposed to be standing, he appeared very unsteady on his feet."

Due to the location of the stop, Officer Nishibun subsequently ordered the transport of Kekuewa and Conrad to a safe location to conduct a field sobriety test. Kekuewa was taken to the law library parking lot on the University of Hawai`i campus. Thereafter, Officer Dexter Gapusan ("Officer Gapusan") administered a standardized field sobriety test. Based upon Kekuewa's performance on the field sobriety test, Officer Gapusan believed that Kekuewa was impaired and arrested him for OVUII.4

Kekuewa was arraigned on October 11, 2004 and charged as follows:

[Prosecution]: Mr. Kekuewa, on or about the 15th day of April 2004, in the City and County of Honolulu, State of Hawaii, island of Oahu, you did operate or assume actual physical control of a vehicle while under the influence of alcohol in an amount sufficient to impair your normal mental faculties or the ability to care for yourself and guard against casualty thereby violating Section 291E-61 of the Hawaii Revised Statutes for your second offense.

On that same date, 15th day of April, 2004, you did, in the City and County of Honolulu, State of Hawaii, operate or permit the operation of or cause the operation or (indiscernible) the vehicle on a public highway without a current official certificate of inspection in violation of Section 286-25, Hawaii Revised Statutes.

And on or about that same day, the 15th of April 2004, you did, in the City and County of Honolulu, State of Hawaii, you did operate a motor vehicle without first being appropriately examined and duly licensed as a qualified driver of that vehicle in violation of Section 286-102 of the Hawaii Revised Statutes. That's your third offense for driving without a license.

And sir, on that same day in the City and County of Honolulu, State of Hawaii, you did drive a vehicle at a speed greater than the maximum speed limit stated on signs placed by the director of transportation with respect to highways under the director's jurisdiction by traveling at a speed of 88 miles per hour in a 50-mile-per-hour zone thereby violating Section 291C-102(B) of the Hawaii Revised Statutes.

(Emphasis added.) Kekuewa pled not guilty.

At trial, Kekuewa claimed that he was not the driver of the truck and that he had switched seats with Conrad. Kekuewa explained that he had been sleeping in the passenger's seat when Conrad woke him up. Kekuewa testified that Conrad told him, "brah, I got a warrant, brah, just hop over...." Kekuewa admitted consuming alcohol earlier in the day, but claimed that he stopped drinking at approximately 4:00 p.m. He further explained that he had been surfing and barbecuing at Sandy Beach all day, and that those activities, in addition to fatigue, caused the appearance of intoxication observed by the police officers during the incident in question.

Based upon the evidence, the district court found Kekuewa guilty of the offenses of OVUII, DWOL, and Speeding.5 With respect to the offense of OVUII, the court sentenced Kekuewa to a ten-day term of incarceration, ordered him to pay a $1,000 fine, suspended his license for one year, and ordered him to obtain substance abuse treatment. With respect to the offense of DWOL, the court sentenced Kekuewa to six months of probation. With respect to the offense of Speeding, the court ordered Kekuewa to pay a $200 fine. The court filed a "Notice of Entry of Judgment and/or Order and Plea/Judgment" on March 22, 2005.

Kekuewa filed a timely notice of appeal on April 20, 2005.

On appeal, Kekuewa argued that: (1) he did not have adequate notice of the offense of OVUII because the prosecution failed to properly allege the attendant circumstances of Kekuewa's prior conviction; and (2) the record lacks sufficient evidence to support his conviction for committing the offense of OVUII. The prosecution answered that: (1) Kekuewa had sufficient notice that he was charged with OVUII, insofar as (a) prior convictions are extrinsic and need not be alleged in the prosecution's charge, and (b) Kekuewa was sufficiently apprised of the elements of the offense of OVUII, the absence of the language "within five years" notwithstanding; and (2) sufficient evidence was adduced at trial to support Kekuewa's conviction of the offense of OVUII.

On August 10, 2006, the ICA filed a published opinion reversing Kekuewa's OVUII conviction. The ICA first rejected the prosecution's "primary argument" that this court's decision in Domingues, designating prior OVUII convictions as prima facie elements, contradicts prior state and federal precedent and should be overruled. State v. Kekuewa, 112 Hawai`i 269, 276 n. 6, 145 P.3d 812, 819 n. 6 (App.2006). The ICA thereafter concluded that "[t]he five-year time period omitted from the oral charge was a critical part of the HRS § 291E-61(b)(2) attendant circumstance, one with especial resonance in this case in light of Defendant's several prior DUI convictions." Id. at 277, 145 P.3d at 820. Accordingly, the ICA held that the absence of the five-year time period rendered the prosecution's oral charge defective. Id. In light of the dispositive nature of the foregoing conclusion, the ICA did not reach Kekuewa's claim that the evidence was insufficient to support his OVUII conviction. Id.

The ICA filed a judgment on appeal on August 23, 2006, and the prosecution filed a timely application for writ of certiorari on November 6, 2006.

On December 5, 2006, this court accepted certiorari and filed an order requesting supplemental briefing as to whether this court...

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