State v. Rivera
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The State charged Defendant, a native Hawaiian, of operating a vehicle under the influence of an intoxicant (OVUII). Defendant appealed, arguing, among other things, that he was denied due process because the complaint did not allege the state of mind that the State was required to prove for the charge of OVUII. The intermediate court of appeals (ICA) affirmed Defendant’s conviction. The Supreme Court vacated the ICA’s judgment and vacated the circuit court’s judgment of conviction and sentence, holding that, inasmuch as the charge against Defendant did not allege the requisite state of mind that also was an essential fact of the offense of OVUII, the complaint must be dismissed without prejudice. Remanded with instructions to dismiss.
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Electronically Filed
Supreme Court
SCWC-11-0000774
06-FEB-2014
09:01 AM
SCWC-11-0000774
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
_________________________________________________________________
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
SYLVA RIVERA,
Petitioner/Defendant-Appellant.
_________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0000774; CR. NO. 10-1-1327)
SUMMARY DISPOSITION ORDER
(By: Acoba, McKenna, and Pollack, JJ., with Recktenwald, C.J.,
concurring and dissenting, with whom Nakayama, J., joins)
In his Application for Writ of Certiorari, Sylva Rivera
(Sylva) contends that the charge “does not specify the state of
mind,” and therefore the charge was insufficient under State v.
Nesmith, 127 Hawai#i 48, 276 P.3d 617 (2012).
The Complaint1 in
this case did not allege the state of mind that the State was
required to prove for the charge of Operating a Vehicle Under the
Influence of an Intoxicant (OVUII), in violation of Hawai#i
1
The Honorable Edward H. Kubo, Jr. presided over the proceedings in
the Circuit Court of the First Circuit.
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Revised Statutes (HRS) § 291E-61(a)(1)(2010).2
Because HRS §
291E-61(a)(1) does not specify the requisite state of mind, HRS §
702-204 (2010) applies, which provides: “When the state of mind
required to establish an element of an offense is not specified by
the law, that element is established if, with respect thereto, a
person acts intentionally, knowingly, or recklessly.”
See
Nesmith, 127 Hawai#i at 53-54, 276 P.3d at 622-23.
In State v. Maharaj, No. SCWC-29520, 2013 WL 6068086, at
*5 (Haw. Nov. 18, 2013), where the issue of mens rea was raised
for the first time on appeal, we reaffirmed the “core principle”
set out in State v. Apollonio, 130 Hawai#i 353, 311 P.3d 676
(2013), that “‘[a] charge that fails to charge a requisite state
of mind cannot be construed reasonabl[y] to state an offense and
thus the charge is dismissed without prejudice because it violates
due process.’”3
2
Id. (quoting Apollonio, 130 Hawai#i at 359, 311
The Complaint read as follows:
On or about the 21st day of May, 2010, in the City and County
of Honolulu, State of Hawaii, SYLVA RIVERA did operate or
assume actual physical control of a vehicle upon a public way,
street, road, or highway while under the influence of alcohol
in an amount sufficient to impair his normal mental faculties
or ability to care for himself and guard against casualty,
thereby committing the offense of Operating a Vehicle Under
the Influence of an Intoxicant, in violation of Section 291E61 (a)(1) of the Hawaii Revised Statutes.
SYLVA RIVERA is
subject to sentencing in accordance with Section 291E-61
(b)(3) of the Hawaii Revised Statutes, where SYLVA RIVERA
committed the instant offense within five years of a prior
conviction for an offense under Section 291E-61 or Section
291E-4(a) of the Hawaii Revised Statutes.
3
In the instant case, the sufficiency of the charge was raised for
the first time by the State in its Answering Brief to the ICA.
-2-
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P.3d at 682).
We also held that “as a fact that must be alleged
in a charge, a requisite state of mind is clearly an essential
fact that must be alleged under [Hawai#i Rules of Penal Procedure]
Rule 7(d).”
Maharaj, No. SCWC-29520, 2013 WL 6068086, at *5
(internal quotation marks omitted).
Thus, inasmuch as the
Complaint against Sylva failed to allege the requisite state of
mind that also was an essential fact of the offense of OVUII, the
Complaint must be dismissed without prejudice.
Id.
In the second question presented in the Application,
Sylva contends that the Intermediate Court of Appeals (ICA)
gravely erred in holding that the circuit court had jurisdiction
over him as a Native Hawaiian.
The ICA held that this contention
was without merit based on its decision in State v. Fergerstrom,
106 Hawai‘i 43, 55, 101 P.3d 652, 664 (App. 2004).
State v.
Rivera, No. CAAP-11-0000774 (App. Sept. 24, 2012) (SDO) at 2.
Our
decision in State v. Kaulia, 128 Hawai#i 479, 291 P.3d 377 (2013),
affirmed the principle set forth in Fergerstrom.
128 Hawai#i at
487, 291 P.3d at 385.
As to the third question, Sylva argues that the ICA
erred in affirming the circuit court’s denial of his Hawai#i Rules
of Penal Procedures (HRPP) Rule 48 motion to dismiss because the
circuit court erroneously excluded the time period between October
6, 2010 and November 15, 2010 from its HRPP Rule 48 computation
for trial commencement.
The ICA found that Sylva’s failure to
-3-
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appear at the September 27, 2010 trial call presumably required
the circuit court to reschedule his trial to November 15, 2010.
State v. Rivera, No. CAAP-11-0000774 (App. Sept. 24, 2012) (SDO)
at 2.
Therefore, the ICA held that the circuit court properly
excluded this period pursuant to HRPP Rule 48(c)(5).
Id.
Although Sylva argues that he was available from October
6, 2010 when the court recalled the bench warrant, his prior
unavailability at the September 27, 2010 trial call resulted in
the circuit court resetting the trial for the week of November 15,
2010.
Thus, the circuit court did not err in ruling that the
period between September 27, 2010 and November 15, 2010 was
excludable under HRPP Rule 48(c)(5) based on Sylva’s
unavailability at the trial call.
In Sylva’s fourth question presented, he asserted that the
ICA gravely erred in holding that there was substantial evidence to
support his conviction.
At trial, Officer Rivera testified that Sylva swayed
four to five times within his lane, crossed over a double-solid
yellow line into the opposite lane for oncoming traffic by
approximately three feet, and drove at a speed that appeared to
exceed the posted speed limit.
Officers Rivera and Foote each
observed that Sylva had glassy red eyes, a strong odor of alcohol
on his breath, and slurred speech.
-4-
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Officer Foote testified that during the walk-and-turn
test of the field sobriety test, Sylva was unable to perform all
of the heel-to-toe steps correctly and lost his balance three
times.
Officer Foote also testified that during the one-leg-stand
test, Sylva “put his leg down three times, swayed three times, and
put his arms out three times, indicating a loss of balance.”
Officer Foote thus determined that Sylva failed the field sobriety
test and arrested Sylva for OVUII.
Accordingly, the evidence adduced at trial was
sufficient to support the trial court’s finding that Sylva was
impaired and to sustain Sylva’s OVUII conviction.
State v.
Lubong, 77 Hawai‘i 429, 432, 886 P.2d 766, 769 (App. 1994).
Therefore, the ICA did not err in finding that there was
substantial evidence in support of Sylva’s conviction.
For the reasons set forth herein, the ICA’s Judgment on
Appeal, filed on October 30, 2012, is vacated, and the circuit
court’s judgment of conviction and sentence, filed on September 9,
2011, is vacated.
The case is remanded to the circuit court with
instructions to dismiss the case without prejudice.
DATED: Honolulu, Hawai#i, February 6, 2014.
Jeffrey A. Hawk
for petitioner
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
-5-
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