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                                                           Electronically Filed
                                                           Supreme Court
                                                           SCWC-29659
                                                           24-APR-2012
                                                           09:07 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                               ---o0o---


                         STATE OF HAWAI#I,
                  Respondent/Plaintiff-Appellee,

                                  vs.

            SAMUEL WALKER, also known as Samuel Ahsan,
                  Petitioner/Defendant-Appellant.


                            NO. SCWC-29659

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (ICA NO. 29659; CR. NO. 08-1-0586)


                            APRIL 24, 2012


     ACOBA, DUFFY, AND MCKENNA, JJ.; WITH RECKTENWALD, C.J.,
              CONCURRING SEPARATELY IN THE RESULT,
                  WITH WHOM NAKAYAMA, J., JOINS


             AMENDED OPINION OF THE COURT BY DUFFY, J.

          Petitioner/Defendant-Appellant Samuel Walker, also

known as Samuel Ahsan, (Walker) filed a timely application for a
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writ of certiorari (Application), urging this court to review the

Intermediate Court of Appeals’ (ICA) October 18, 2011 judgment on

appeal, which vacated the January 26, 2009 notice of entry of

judgment and conviction and sentence (judgment) of the circuit

court of the first circuit (circuit court),1 and remanded the

case with instructions to dismiss Count I without prejudice.                The

circuit court found Walker guilty of three offenses2 including

(Count I) Habitually Operating a Vehicle Under the Influence of

an Intoxicant (HOVUII) in violation of Hawai#i Revised Statutes

(HRS) §§ 291E-61.5(a)(1) and (a)(2)(A) (2007 & Supp. 2008).3


      1
            The Honorable Michael A. Town presided.

      2
            The circuit court also convicted Walker of (Count II) Operating a
Vehicle After License and Privilege have been Suspended or Revoked for
Operating a Vehicle Under the Influence of an Intoxicant in violation of HRS §
291E-62(a)(2) (2007) and (Count III) Consuming or Possessing Intoxicating
Liquor While Operating Motor Vehicle in violation of HRS § 291-3.1(b) (2007).
Walker’s questions presented focus solely on his conviction of HOVUII under
Count I; he does not challenge his convictions under Counts II or III.

      3
             HRS § 291E-61.5 (2007 & Supp. 2008) provided in relevant part:

            (a)     A person commits the offense of habitually operating a
                    vehicle under the influence of an intoxicant if:
                    (1)   The person is a habitual operator of a vehicle while
                          under the influence of an intoxicant; and
                    (2)   The person operates or assumes actual physical control
                          of a vehicle:
                          (A)   While under the influence of alcohol in an
                                amount sufficient to impair the person’s normal
                                mental faculties or ability to care for the
                                person and guard against casualty[.]

            . . .

            (b)     For the purposes of this section:
                    “Convicted three or more times for offenses of operating a
                    vehicle under the influence” means that, at the time of the
                                                                     continue...

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            Walker’s Application presents the following questions:



   3
       ...continue
                     behavior for which the person is charged under this section,
                     the person had three or more times within ten years of the
                     instant offense:
                     (1)   A judgment on a verdict or a finding of guilty, or a
                           plea of guilty or nolo contendere, for a violation of
                           this section or section 291-4, 291-4.4, or 291-7 as
                           those sections were in effect on December 31, 2001, or
                           section 291E-61 or 707-702.5; [or]
                     (2)   A judgment on a verdict or a finding of guilty, or a
                           plea of guilty or nolo contendere, for an offense that
                           is comparable to this section or section 291-4, 291-
                           4.4, or 291-7 as those sections were in effect on
                           December 31, 2001, or section 291E-61 or 707-702.5;

                     . . .

                     that, at the time of the instant offense, had not been
                     expunged by pardon, reversed, or set aside. All convictions
                     that have been expunged by pardon, reversed, or set aside
                     prior to the instant offense shall not be deemed prior
                     convictions for the purposes of proving the person’s status
                     as a habitual operator of a vehicle while under the
                     influence of an intoxicant.
                           A person has the status of a “habitual operator of a
                     vehicle while under the influence of an intoxicant” if the
                     person has been convicted three or more times within ten
                     years of the instant offense, for offenses of operating a
                     vehicle under the influence of an intoxicant.
            (c)      Habitually operating a vehicle while under the influence of
                     an intoxicant is a class C felony.
            (d)      For a conviction under this section, the sentence shall be
                     either:
                     (1)   An indeterminate term of imprisonment of five years;
                           or
                     (2)   A term of probation of five years, with conditions to
                           include:
                           (A)   Mandatory revocation of license and privilege to
                                 operate a vehicle for a period not less than
                                 one year but not more than five years;
                           (B)   Not less than ten days imprisonment, of which at
                                 least forty eight hours shall be served
                                 consecutively;
                           (C)   Referral to a certified substance abuse
                                 counselor as provided in section 291E-61(d);
                           (D)   A surcharge of $25 to be deposited into the
                                 neurotrauma special fund; and
                           (E)   May be charged a surcharge of up to $50 to be
                                 deposited into the trauma system special fund if
                                 the court so orders.

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          1.    Did the ICA gravely erred [sic] in ordering Count 1 of the
                Felony Information to be remanded for dismissal without
                prejudice insofar as Count 1 adequately alleges an offense
                under HRS §§ 291E-61(a)(1) and (b)(1) (2007), and thus,
                pursuant to State v. Kekuewa, 114 Hawai#i 411, 163 P.3d 1148
                (2007), and State v. Ruggiero, 114 Hawai#i[] 227, 160 P.3d
                703 (2007), the ICA must reverse the conviction in Court 1
                if there was insufficient evidence to convict Defendant of
                HRS §§ 291E-61(a)(1) and (b)(1) (2007) or remand this case
                to the circuit court for entry of judgment of conviction and
                resentencing pursuant to HRS §§ 291E-61(a)(1) and (b)(1) if
                there was sufficient evidence to convict Defendant?

          2.    Did the ICA gravely erred [sic] in failing to analyze and
                suppress Mr. Walker’s un-Mirandized statement concerning his
                alcohol consumption that was made in response to custodial
                interrogation as part of a sufficiency analysis?

          3.    Did the ICA gravely erred [sic] in failing to analyze and
                exclude the results of Mr. Walker’s performance of the
                Horizontal Gaze Nystagmus (“HGN”) test despite the State’s
                failure to lay the proper foundation pursuant to State v.
                Toyomura, 80 Hawai#i 8, 27, 904 P.2d 893, 912 (1995), and
                State v. Ito, 90 Hawai[#]i 225, 244, 978 P.2d 191, 210 (App.
                1999), as part of a sufficiency analysis?

Notably, Walker’s Application only challenges his conviction of

Count I, HOVUII.

          We accepted Walker’s Application for the limited

purpose of clarifying and reconciling this court’s opinions in

State v. Ruggiero, 114 Hawai#i 227, 160 P.3d 703 (2007), and

State v. Kekuewa, 114 Hawai#i 411, 163 P.3d 1148 (2007), in light

of State v. Wheeler, 121 Hawai#i 383, 219 P.3d 1170 (2009).

Clarification of Ruggiero and Kekuewa in the context of Wheeler

will ensure consistency among future OVUII cases.          We hold that

an appellate court’s remand for entry of judgment of conviction

and resentencing for a lesser-included offense must be based on a

jurisdictionally valid lesser-included charge.          Under this

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holding, Walker’s HOVUII charge did not adequately allege the

lesser-included offense of Operating a Vehicle Under the

Influence of an Intoxicant (OVUII) as a first offender pursuant

to HRS §§ 291E-61(a)(1) and (b)(1) (2007)4 because his charge

failed to allege an essential element, specifically, the

     4
          HRS §§ 291E-61(a)(1) and (b)(1) (2007) provided:

          (a)   A person commits the offense of operating a vehicle under
                the influence of an intoxicant if the person operates or
                assumes actual physical control of a vehicle:
                (1)   While under the influence of alcohol in an amount
                      sufficient to impair the person's normal mental
                      faculties or ability to care for the person and guard
                      against casualty[.]

                . . .
          (b)   A person committing the offense of operating a vehicle under
                the influence of an intoxicant shall be sentenced as follows
                without possibility of probation of suspension of sentence:
                (1)   Except as provided in [paragraph] (2), for the first
                      offense, or any offense not preceded within a five-
                      year period by a conviction for an offense under this
                      section or section 291E-4(a):
                      (A)   A fourteen-hour minimum substance abuse
                            rehabilitation program, including education and
                            counseling, or other comparable program deemed
                            appropriate by the court;
                      (B)   Ninety-day prompt suspension of license and
                            privilege to operate a vehicle during the
                            suspension period, or the court may impose, in
                            lieu of the ninety-day prompt suspension of
                            license, a minimum thirty-day prompt suspension
                            of license with absolute prohibition from
                            operating a vehicle and, for the remainder of
                            the ninety-day period, a restriction on the
                            license that allows the person to drive for
                            limited work related purposes and to participate
                            in substance abuse treatment programs;
                      (C)   Any one or more of the following;
                            (i)   Seventy-two hours of community service
                                  work;
                            (ii) Not less than forty-eight hours and not
                                  more than five days of imprisonment; or
                            (iii) A fine not less than $150 but not more
                                  than $1,000; and
                      (D)   A surcharge of $25 to be deposited into the
                            neurotrauma special fund[.]

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attendant circumstance that he operated a vehicle on a public

road, way, street, or highway as mandated by Wheeler.

Accordingly, we affirm the ICA’s judgment and hold that the ICA

did not err in vacating the circuit court’s judgment and

remanding Walker’s case to the circuit court with instructions to

dismiss Count I without prejudice.         We write separately only to

clarify and reconcile Ruggiero, Kekuewa, and Wheeler.

                             I.     BACKGROUND

A.      April 17, 2008 Incident

             The charges against Walker arose out of an incident

that occurred on April 17, 2008 in the City and County of

Honolulu, State of Hawai#i.       At about 11:40 p.m., while assisting

at a traffic accident near the corner of Kilani Avenue and North

Cane Street in Wahiawa, Honolulu Police Department (HPD) Officer

Morgan Hill (Officer Hill) heard “a loud screeching of tires” and

an accelerating engine sound come from Walker’s vehicle.            Officer

Hill observed Walker’s vehicle accelerate at a high rate of speed

and, based on his training and experience, believed Walker was

driving at a higher rate than the twenty-five mile per hour

posted speed limit.       “Everything indicated to [Officer Hill] that

it was not a safe execution.”        Based solely on his observation of




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Walker’s apparent speeding,5 Officer Hill got into his vehicle

and pursued Walker at an “extremely high rate of speed” in order

to reach him.     Officer Hill activated his blue light and Walker

pulled over.

            After stopping Walker’s vehicle and notifying police

dispatch of the traffic stop, location, and Walker’s license

plate number, Officer Hill approached Walker’s vehicle from the

driver’s side.     Walker produced a Hawai#i state ID.6        Officer

Hill observed that Walker’s eyes were red and glassy and his

speech was slurred.7     Officer Hill also noted a strong odor of

alcohol coming from Walker’s breath when he spoke.8            Officer Hill

asked Walker if he had been drinking and Walker answered “[o]nly

about eight or nine beers.       I’m okay, and I live just right over

there.”   Officer Hill testified that Walker’s reported alcohol



      5
            During cross-examination, Officer Hill conceded that apart from
the speeding violation, he did not observe Walker breaking any other rules:
“his headlights were on[,]” “he was not weaving[,]” “he was not swerving[,]”
“he was not drifting in[,]” “he was driving in his own lane[,]” “he did not
cross the center line[,]” “he did not strike anything[,]” “he did not almost
strike anything[,]” and “he [did not] drive off the road[.]”

      6
            Walker was unable to produce a valid drivers license. Walker’s
license was revoked from November 10, 2006 to November 9, 2008, which included
the night of the instant offense, April 17, 2008.

      7
            During cross-examination, Officer Hill conceded that there are
many reasons a person’s eyes may be red outside of alcohol consumption.

      8
            During cross-examination, Officer Hill acknowledged that based on
smell alone, one cannot determine how much alcohol has been consumed.
Furthermore, it is possible for an individual to consume alcohol hours earlier
and not be intoxicated, but still smell of alcohol.

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consumption did not factor into his decision to arrest Walker.

He stated, “I really didn’t want to base my arrest on anything,

other than how [Walker] was going to perform the field sobriety

exercise.    At that point when I was able to determine whether I

believed him to be impaired or not, then, I would make a judgment

on whether or not to arrest, because anybody can say anything.”

            At this time, Officer Hill also noticed an open,

“sweating” beer bottle located in the center console of Walker’s

vehicle.9   Based on the totality of this information, Officer

Hill believed Walker could be impaired from alcohol consumption.

Accordingly, Officer Hill asked Walker if he was willing to

participate in a standardized field sobriety test (SFST) and

Walker consented.10

            At the time of the incident, Officer Hill had been

employed by HPD for thirteen years and, during that time, he

handled several hundred OVUII cases “either as the initial

officer or[,] at the very least, as a participating officer of

some sort.”    As part of his training with HPD, Officer Hill was

trained to conduct and evaluate SFSTs.          As part of the SFST


      9
            Officer Hill recovered the open beer bottle and submitted it as
evidence for analysis.

      10
            Officer Hill testified during cross-examination: “[o]nce I had
made my observations and decided that I had reasonable suspicion that there
was a possibility [Walker] had been operating the vehicle under the influence,
then, I asked him to step out for the SFST[.]”

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education, Officer Hill received classroom and workshop training

to administer and evaluate the Horizontal Gaze Nystagmus (HGN)

test,11 the “walk and turn” test, and the “one-leg-stand” test.

Officer’s Hill’s SFST training was conducted in accordance with

National Highway Traffic Safety Administration (NHTSA) standards.

            After Walker consented to participate in the SFST,

Officer Hill “asked him if he was wearing contacts, if he was on

any medication, if he was epileptic, diabetic, had [an]

artificial eye, fake leg, was under the care of a doctor or

dentist at that time[,]” or “had any physical defect or speech

impediments[.]”     Walker indicated that he had no medical

condition.12   Officer Hill explained to Walker that his ability

to follow instructions would be included in Officer Hill’s

evaluation of the SFST.

            Officer Hill administered the HGN and “walk and turn”

portions of the field sobriety exercise in accordance with his

training and NHTSA standards.        The HGN test revealed that Walker

exhibited equal eye tracking and equal pupil size but lacked

smooth pursuit in both eyes, in both directions.            Also, Walker



      11
            The HGN test measures involuntary movement (i.e. “jerkiness”) in
the eyes as related to alcohol consumption, motor skill, and muscle
impairment.

      12
            Later, however, Walker refused to participate in the one-leg-stand
portion of the SFST claiming that he had a rod in his left thigh.

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showed “heavy nystagmus” prior to forty-five degrees.              During the

walk and turn test, Walker misstepped, or had space in between

his heel and toe, on two of the first nine steps and raised his

arms during several steps.13        Walker refused to take the one-leg-

stand portion of the SFST.

B.      Walker’s Circuit Court Proceedings

             On April 21, 2008, the State charged Walker by Felony

Information and Non-Felony Complaint (Felony Information):
             COUNT I:    On or about the 17th day of April, 2008, in the City
             and County of Honolulu, State of Hawaii, SAMUEL WALKER, also known
             as SAMUEL AHSAN, a habitual operator of a vehicle while under the
             influence of an intoxicant, did operate or assume actual physical
             control of a vehicle while under the influence of alcohol in an
             amount sufficient to impair his normal mental faculties or ability
             to guard against casualty, thereby committing the offense of
             Habitually Operating a Vehicle Under the Influence of an
             Intoxicant, in violation of Sections 291E-61.5(a)(1) and 291E-
             61.5(a)(2)(A) of the Hawaii Revised Statutes.

Officer Hill confirmed with HPD dispatch that Walker, under his

alias Samuel Ahsan, had three OVUII convictions within the

preceding ten years.       Attached to the Felony Information, HPD

Officer Benjamin Moszkowicz submitted a declaration stating:
             A check with both the Criminal Justice Information System, as well
             as court records of the District Court of the First Circuit, State
             of Hawaii, revealed that on April 17, 2008, Walker had three (3)
             prior convictions within the State of Hawaii for Operating a
             Vehicle Under the Influence of an Intoxicant, and/or Driving Under
             the Influence of Intoxicating Liquor under HPD Report Numbers 06-
             408360, 03-515849[,] and 03-389761 and that these convictions
             occurred between April 17, 1998 and April 17, 2008.




      13
            On the first nine steps, Walker raised his arms on steps one,
three, seven, and eight. On the second nine steps, Walker raised his arms on
steps five, six, and seven.

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          During the circuit court proceedings, Walker filed a

Motion to Suppress Evidence and Statements (Motion to Suppress)

on May 27, 2008.    Specifically, Walker moved to suppress his

statement to Officer Hill that he consumed “eight or nine beers.”

Walker argued that Officer Hill obtained this statement in

violation of his constitutional rights under article I, sections

5 and 10 of the Hawai#i Constitution and the Fifth and Fourteenth

Amendments to the United States Constitution.

          On August 12, 2008, the circuit court denied Walker’s

Motion to Suppress.    The circuit court made the following

findings of fact:
          1.    The Court finds Officer Morgan Hill’s testimony credible.

          2.    Based on the credible testimony of Officer Morgan Hill, this
                court finds that [Walker] revved his vehicle’s engine,
                caused his vehicle’s tires to spin and screech, accelerated
                to a fast rate of speed in a residential area, and traveled
                at a speed well beyond the limit of 25 mph posted in that
                area.

          3.    When Officer Hill approached [Walker’s] vehicle after
                stopping [Walker] for the observed violation of the basic
                speed rule and asked [Walker] for his driver’s license and
                registration, Officer Hill noticed that [Walker] had red,
                glassy, bloodshot eyes, strong and distinct odor of an
                alcoholic type beverage coming from his breath[,] and a
                slight slur as [he] spoke.

          4.    At about the same time as Officer Hill asked [Walker] if he
                had been drinking[,] Officer [Hill] also observed an open
                beer container.

          5.    [Walker], while sitting in his car[,] answered to Officer
                Hill in response to a single question that he drank only
                eight or nine beers earlier, that he will be okay and that
                he lives just over here, whereas the entire interaction
                between [Walker] and Officer Hill from the time of the stop
                to the time of [Walker’s] response lasted about 15 seconds.



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Additionally, the circuit court entered the following conclusions

of law:
          1.    Based on Officer Hill’s observation of [Walker] revving
                his vehicle’s engine, spinning and screeching tires[,] and
                acceleration [sic] to a high rate of speed, above a safe
                speed under the circumstances, Officer Hill had a reasonable
                suspicion to stop Defendant for violation of the basic speed
                rule under H.R.S. [§] 291C-101.

          2.    At the time [Officer Hill] approached [Walker’s] vehicle and
                spoke to [Walker], [Walker] was not in custody under State
                v. Wyatt, 67 Haw. 293, 687 P.2d 544 (1984), and State v.
                Kuba, 68 Haw. 184, 706 P.2d 1305 (1985).

          3.    Consequently[,] because [Walker] was not in custody at the
                time a question was posed to him whether he was drinking,
                Miranda warnings did not have to be given to [Walker] prior
                to asking the question.

          4.    The Court finds that [Walker’s] response that he only drank
                eight or nine beers earlier and that he will be okay,
                because he lives just over here was given freely,
                voluntarily[,] and has a character of spontaneity, and
                therefore this statement was not elicited in violation of
                [Walker’s] right against self incrimination.

          On October 15, 2008, Walker submitted a memorandum of

law contending, inter alia, that Count I failed to allege an

essential element of the State’s accusations.         Specifically,
          Count I of the Felony Information fails to allege the attendant
          circumstances of [HRS] section 291E-61.5 (2007), namely that
          [Walker] had three (3) prior convictions for [OVUII] within ten
          (10) years of the present offense. Count I’s statement that
          [Walker] is “a habitual operator of a vehicle while under the
          influence of an intoxicant” is nothing more than a statutory
          reference. A reader must refer to the statute itself to determine
          the meaning of this phrase, and thus, it is no more useful than
          the statutory citation at the end of Count I. However, statutory
          references in the charging instrument do not cure the omission of
          essential elements. . . . Because the State failed to allege the
          attendant circumstances of [Walker’s] prior convictions, the State
          has merely charged [Walker] with OVUII as a first offense pursuant
          to HRS § 291E-61(a)(1) (2007).

          Walker waived his right to a jury trial.          During

Officer Hill’s cross-examination, Walker’s counsel presented

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Officer Hill with an alleged NHTSA manual.        Officer Hill

testified that he did not own a NHTSA manual and could not

testify to its contents in several respects.         Based on this

testimony, before sentencing on November 6, 2008, Walker

submitted his trial memorandum in which he argued that the

circuit court should disregard Officer Hill’s testimony

“regarding the administration and results of the [HGN] test

performed on [Walker] because the evidence showed that Officer

Hill was not qualified to conduct and grade the HGN test results

and Officer Hill did not perform the HGN test properly in this

case.”

          The circuit court ruled from the bench and found Walker

guilty of, inter alia, Count I, habitually operating a vehicle

under the influence of an intoxicant.       Judgment of conviction and

sentence was entered against Walker on January 26, 2009.           The

circuit court entered the following conclusions of law:
          1.    There is no defect in the charging instrument in this case.
                The State has alleged all the elements of the offense
                including the attendant circumstances in the complaint by
                specifying that [Walker] was “a habitual operator of a
                vehicle while under the influence of an intoxicant”. [sic]

          2.    “Habitual” is only used in a habitual OVUII statute, and it
                clearly has a unique meaning in the Hawaii Penal Code.
                Hawaii Revised Statutes, §291-E 61.5 [sic] (“H.R.S.”). The
                use of the words “habitual operator” under State v. Kekuewa,
                114 Haw[ai#i] 411, 418[,] [163 P.3d 1148, 1155] (2007) in
                the complaint in the instant case: (1) gives notice to
                [Walker] that he has a right to a jury trial and (2) gives
                notice to the Circuit Court that it has jurisdiction because
                the offense is a class C felony under HRS 291-E 61.5 [sic].



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             3.      The interaction between [Walker] and Officer Hill from the
                     time of the stop to the time of [Walker’s] response
                     regarding drinking [eight] or [nine] beers was not a
                     custodial interrogation under State v. Wyatt, 67 Haw. 293,
                     687 P.2d 544 (1984).

             4.      Even without considering [Walker’s] admission of drinking 8
                     or 9 beers and his performance on the HGN phase of the SFST,
                     this Court finds that [Walker] was under the influence of an
                     intoxicant as he drove on a public street and was impaired
                     beyond a reasonable doubt under State v. Ferm, 94 Haw[ai#i]
                     17, 25, 7 P.3d 193, 202 (2000) and State v. Vliet, 91
                     Haw[ai#i] 288, 293-94, [983] P.2d[] 189, 194-95 (1999).

The circuit court sentenced Walker to a five-year indeterminate

term of incarceration for Count I.            Walker appealed.

C.      ICA Appeal

             As related to this Application, Walker argued on appeal

to the ICA that the circuit court’s judgment should be reversed

or vacated because:
             1.      The Felony Information charging [Walker] with Habitually
                     Operating a Vehicle Under the Influence of an Intoxicant is
                     defective in failing to allege attendant circumstances --
                     that [Walker] had three convictions for operating a vehicle
                     under the influence of an intoxicant within ten years before
                     the present offense;

             2.      The circuit court reversibly erred by failing to suppress
                     [Walker’s] un-Mirandized statement concerning his alcohol
                     consumption that was made in response to custodial
                     interrogation, and this error was not harmless beyond a
                     reasonable doubt;

             3.      The circuit court reversibly erred by admitting and
                     considering evidence of [Walker’s] performance of the [HGN]
                     procedure despite the [State’s] failure to lay proper
                     foundation for such testimony, and this error was not
                     harmless beyond a reasonable doubt[.]

Walker primarily advanced the argument that the State’s failure

to allege the statutory definition of “habitual offender” in the

Felony Information rendered his HOVUII charge deficient under


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State v. Wheeler, 121 Hawai#i 383, 219 P.3d 1170 (2009).

            In a published decision, the ICA majority14 agreed that

Count I of the Felony Information failed to allege an essential

element, an attendant circumstance, of the charge of HOVUII;

Chief Judge Nakamura dissented.         State v. Walker, No. 29659, 2011

WL 4537771 (App. 2011).15        The ICA majority vacated and remanded

the case to the circuit court with instructions to dismiss Count

I without prejudice.      Id. at *12.

      1.    The ICA Majority Opinion

            The ICA majority examined Walker’s charge16 and

explained that “[t]he minimum requirements for a criminal charge

      14
            Judges Fujise and Leonard comprised the ICA majority.

      15
             Pinpoint citations to State v. Walker, No. 29659, 2011 WL 4537771
(App. 2011) are based on the hard copy opinion attached to Walker’s
Application.

      16
            Because Walker first objected   to the sufficiency of the HOVUII
charge prior to the circuit court finding   him guilty, the ICA did not apply
the Motta/Wells liberal construction rule   in evaluating the sufficiency of his
charge. State v. Walker, No. 29659, 2011    WL 4537771 at *3 (App. 2011). Under
the Motta/Wells rule,

            there is a “presumption of validity,” [State v.] Sprattling, 99
            Hawai#i [312,] 318, 55 P.3d [276,] 282 [(2002)], for charges
            challenged subsequent to a conviction. In those circumstances,
            this court will “not reverse a conviction based upon a defective
            indictment [or complaint] unless the defendant can show prejudice
            or that the indictment [or complaint] cannot within reason be
            construed to charge a crime.” [State v.] Merino, 81 Hawai#i [198,]
            212, 915 P.2d [672,] 686 [(1996)] (citation omitted).

State v. Wheeler, 121 Hawai#i 383, 399-400, 219 P.3d 1170, 1186-87 (2009)
(some brackets in original). The ICA’s analysis in Walker is consistent with
this court’s principle that the “liberal construction standard is limited to
construing indictments[] when the issue is only raised after trial.” State v.
Motta, 66 Haw. 89, 94, 657 P.2d 1019, 1022 (1983) (emphasis in original)
(footnote omitted).

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are set by statute[]” in HRS § 806-34:
          In an indictment the offense may be charged either by name or by
          reference to the statute defining or making it punishable; and the
          transaction may be stated with so much detail of time, place, and
          circumstances and such particulars as to the person (if any)
          against whom, and the thing (if any) in respect to which the
          offense was committed, as are necessary to identify the
          transaction, to bring it within the statutory definition of the
          offense charged, to show that the court has jurisdiction, and to
          give the accused reasonable notice of the facts.

          Averments which so charge the offense and the transaction shall be
          held to be sufficient.

Id. (quoting HRS § 806-34 (1993)).        In State v. Stan’s

Contracting, Inc., 111 Hawai#i 17, 31, 137 P.3d 331, 345 (2006),

this court construed HRS § 806-34 as containing mandatory

requirements for a charge.     Id.    The ICA majority’s analysis

explained that “the factual description of the transaction has a

jurisdictional component and is in addition to the requirement of

giving the defendant ‘reasonable notice of the facts.’”           Walker,

No. 29659, 2011 WL 4537771 at *6 (citing HRS § 806-34 (1993)).

          Furthermore, the ICA majority also examined Hawai#i

Rules of Penal Procedure (HRPP) Rule 7(d) and noted that the rule

“reflects a similar distinction between the requirements for the

description of the offense charged and the facts giving rise to

the charge.”   Id.   The majority explained:
          With respect to the identification of the charge, HRPP Rule 7(d)
          requires that “[t]he charge shall state for each count the
          official or customary citation of the statute, rule, regulation[,]
          or other provision of law[.]” With respect to the description of
          the transaction, HRPP Rule 7(d) requires that “[t]he charge shall
          be a plain, concise[,] and definite statement of the essential
          facts constituting the offense charged.”

Id.
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          Beyond HRS § 806-34 and HRPP Rule 7(d), the ICA

majority acknowledged that in some circumstances, “compliance

with the requirements for identification of the charge . . . does

not necessarily satisfy the requirements for the allegation of

the transaction.”    Id. at *7.   In such a situation, a mere

“citation to the statute would not cure the failure to allege an

element of an offense.”    Id.    For example, in Wheeler, “[t]he use

of the phrase ‘operate’ [in the charge] did not provide adequate

notice to [the defendant] that the State was required to prove

that [the defendant’s] operation of the vehicle occurred on a

public way, street, road, or highway.”       Id. (quoting Wheeler,

121 Hawai#i at 395, 219 P.3d at 1182).       The ICA analogized Walker

to Wheeler:   “[j]ust as the word ‘operate’ does not suggest

operation on a public road, ‘habitual operator’ does not convey

the narrow definition that the person charged had three prior

convictions within the previous ten years[]” as required for a

conviction under HRS §§ 291E-61.5(a)(1) and (a)(2)(A).        Id. at

*8.

          State v. Mita, 124 Hawai#i 385, 245 P.3d 458 (2010), a

case involving an animal nuisance charge pursuant to the Revised

Ordinances of Honolulu (ROH), also provided guidance to the ICA

majority’s opinion.    Id. at *9-10.     Two significant factors

distinguished Mita from Wheeler.        First, in Mita, the definition

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of “animal nuisance” as used in the ROH did not create an

additional element of the offense of animal nuisance as the

definition of “operate” created an additional element of the

offense of OVUII in Wheeler.     See id. at *10 (citing Mita, 124

Hawai#i at 391, 245 P.3d at 464).       Second, the definition of

“animal nuisance” as used in the ROH is consistent with the

commonly understood meaning of the term unlike the definition of

“operate” in Wheeler that carried a narrow, statutory definition.

See id. (citing Mita, 124 Hawai#i at 391, 245 P.3d at 464).

Ultimately, Mita’s charge “sufficiently alleged all of the

essential elements of the offense of animal nuisance[]” by

tracking the language of the ROH.       Id. (quoting Mita, 124 Hawai#i

at 391, 245 P.3d at 464).

          Following Wheeler and Mita, the ICA majority concluded

that “the charge of HOVUII is essentially a recidivist offense

and virtually the only difference between it and the offense of

[OVUII] under HRS § 291E-61 is the number of previous convictions

required for an HOVUII conviction.”       Id.   Furthermore, “[t]he

term ‘habitual,’ or even ‘habitual operator,’ does not convey the

specificity of the term for HOVUII purposes.”        Id. at *10-11.

Therefore, the ICA majority determined that the terms “habitual”

and “habitual operator” do not qualify as terms that may be used

in a criminal charge under their commonly understood definitions

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as allowed by HRS § 806-31 (1993).17        Id. at *9.
            Proof beyond a reasonable doubt that Walker was a “habitual
            operator of a vehicle while under the influence of an intoxicant”
            as that phrase might be understood given the words usual meaning
            (see HRS § 1–14 (2009)),[ 18] would not necessarily result in a
            conviction. A conviction would only lie upon proof that Walker
            “has been convicted three or more times within ten years of the
            instant offense, for offenses of operating a vehicle under the
            influence of an intoxicant” as prescribed in HRS § 291E–61.5(b).
            Thus, the three prior convictions are attendant circumstance
            elements of the offense. See Ruggiero, 114 Hawai#i at 239, 160
            P.3d at 715.

Id. at *12.    For the ICA majority, “[s]ince proof of each element

of the offense is required for a conviction (HRS §

701–114(1)(a)),[19] the proof of three or more convictions within

the previous ten years is an element of the offense and therefore

should have been included in the charge.”          Id.   Accordingly,

based on this analysis alone, the ICA majority vacated the

circuit court’s judgment and remanded the case with instructions

to the circuit court to dismiss Count I without prejudice.              Id.

The ICA majority’s opinion is silent as to Walker’s other points


      17
            HRS § 806-31 (1993) provides:

            No indictment or bill of particulars is invalid or insufficient
            for the reason merely that it alleges indirectly and by inference
            instead of directly any matters, facts, or circumstances connected
            with or constituting the offense, provided that the nature and
            cause of the accusation can be understood by a person of common
            understanding.

      18
            HRS § 1-14 (2009) provides that “[t]he words of a law are
generally to be understood in their most known and usual signification,
without attending so much to the literal and strictly grammatical construction
of the words as to their general or popular use or meaning.”

      19
            HRS § 701–114(1)(a) provides: “(1) Except as otherwise provided in
section 701-115, no person may be convicted of an offense unless the following
are proved beyond a reasonable doubt: (a) Each element of the offense[.]”

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of error presented in his opening brief.          Id. at *1-12.

     2.     Chief Judge Nakamura’s Dissent

            Chief Judge Nakamura dissented; in his view, Count I of

the Felony Information adequately apprised Walker of the charges

he faced so as to adequately prepare his defense.            State v.

Walker, No. 29659, 2011 WL 4537771 at *1 (App. 2011) (Nakamura,

C.J., dissenting).20     In the charge at issue, Chief Judge

Nakamura believed that “[t]he habitual offender phrase [(i.e., “a

habitual operator of a vehicle while under the influence of an

intoxicant”)] tracked the language of the statute proscribing the

offense and is statutorily defined to mean a person with three or

more prior OVUII convictions within ten years of the charged

offense.”    Id. (Nakamura, C.J., dissenting).         The dissent

explained:
            As used in the context of the criminal offender, the term
            “habitual” is commonly understood to mean a recidivist, a person
            with multiple convictions for the same offense. In my view, the
            Habitual OVUII charge gave Walker, who was represented by counsel,
            fair notice of the attendant circumstances element regarding his
            habitual offender status . . . and adequately apprised him of what
            he must be prepared to meet.

Id. at *1-2 (Nakamura, C.J., dissenting).

            Chief Judge Nakamura also examined State v. Mita and

noted:


     20
            Pinpoint citations to State v. Walker, No. 29659, 2011 WL 4537771
(App. 2011) (Nakamura, C.J., dissenting) are based on the hard copy opinion
attached to Walker’s Application. In hard copy format, Chief Judge Nakamura’s
dissent pagination restarts at *1.

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          Wheeler does not require that the State provide statutory
          definitions in every charge which tracks the language of a statute
          that includes terms defined elsewhere in the code. Requiring the
          State to do so would render charges unduly complex, in
          contravention of the policy reflected in HRPP Rule 7(d) that
          “[t]he charge shall be a plain, concise[,] and definite statement
          of the essential facts constituting the offense charged.” Rather,
          as this court concluded in Wheeler, the State need only allege the
          statutory definition of a term when it creates an additional
          essential element of the offense, and the term itself does not
          provide a person of common understanding with fair notice of that
          element.

Id. at *9 (Nakamura, C.J., dissenting) (citation omitted)

(quoting Mita, 124 Hawai#i at 391-92, 245 P.3d at 464-65).

Generally, “where the statute sets forth with reasonable clarity

all essential elements of the crime intended to be punished, and

fully defines the offense in unmistakable terms readily

comprehensible to persons of common understanding, a charge drawn

in the language of the statute is sufficient.”         Id. at *7

(Nakamura, C.J., dissenting) (citing Wheeler, 121 Hawai#i at 393,

219 P.3d at 1180).    According to Chief Judge Nakamura,
          [u]nlike in Wheeler, the statutory definition of the habitual
          offender phrase [in Walker’s case] does not create an additional
          essential element for the Habitual OVUII offense. The habitual
          offender element is already embodied in the habitual offender
          phrase which is part of the offense statute. The statutory
          definition of the habitual offender phrase simply elaborates on
          the meaning of that phrase with details that are consistent with
          the phrase’s commonly understood meaning.

Id. at *9 (Nakamura, C.J., dissenting).

          Furthermore, in the dissent’s view, neither of Walker’s

additional arguments (i.e., that the circuit court erred by

declining to suppress his statement to Officer Hill that he

consumed eight or nine beers and that the circuit court erred by

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admitting evidence of his HGN test performance) entitled him to

relief.     Id. at *2 (Nakamura, C.J., dissenting).        For these

reasons, inter alia, Chief Judge Nakamura would have affirmed

Walker’s HOVUII conviction.           Id. (Nakamura, C.J., dissenting).

D.      Application for Writ of Certiorari

             Walker filed the instant, timely Application on January

17, 2012.      The State filed a response on January 27, 2012.

                         II.    STANDARDS OF REVIEW

A.      Sufficiency of a Charge

             “Whether a charge sets forth all the essential elements

of a charged offense is a question of law, which [this court]

review[s] under the de novo, or right/wrong, standard.”            State v.

Wheeler, 121 Hawai#i at 390, 219 P.3d at 1177 (citation, internal

quotation marks, ellipses, and brackets omitted).

B.      Motion to Suppress Evidence

             “A trial court’s ruling on a motion to suppress

evidence is reviewed de novo” under the right/wrong standard.

State v. Spillner, 116 Hawai#i 351, 357, 173 P.3d 498, 504 (2007)

(quoting State v. Kaleohano, 99 Hawai#i 370, 375, 56 P.3d 138,

143 (2002)).

                               III.     DISCUSSION

             Notably, Walker does not challenge the ICA majority’s

determination that the language of Count I is defective for

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failing to allege an essential element, the attendant

circumstance that Walker was convicted three or more times within

ten years of OVUII, as required for a conviction of HOVUII under

HRS §§ 291E-61.5(a)(1) and (a)(2)(A).         Rather, Walker contends

that the ICA improperly remanded his case to the circuit court

with instructions to dismiss Count I without prejudice.            Walker

first argues that there was insufficient evidence to convict him

of HRS §§ 291E-61(a) and (b)(1), and that the circuit court’s

judgment should be reversed.        In the alternative, Walker argues

that if there was sufficient evidence to convict him, “the

circuit court judgment pursuant to Count [I] . . . must be

vacated and this case remanded to the circuit court for entry of

judgment of conviction and resentencing pursuant to HRS §§ 291E-

61(a) and (b)(1).”

A.      The ICA did not err by vacating the circuit court’s judgment
        and remanding the case with instructions to the circuit
        court to dismiss Count I without prejudice.

             In support of his argument that the ICA was required to

remand his case to the circuit court for entry of judgment of

conviction and sentencing pursuant to HRS §§ 291E-61(a)(1) and

(b)(1), Walker asserts that his case is “on all fours” with State

v. Ruggiero, 114 Hawai#i 227, 160 P.3d 703 (2007) and State v.

Kekuewa, 114 Hawai#i 411, 163 P.3d 1148 (2007).          While Walker

correctly characterizes Ruggiero and Kekuewa in his Application,

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his argument fails to account for more recent developments in

OVUII case law.     Specifically, under this court’s decision in

Wheeler, Walker’s HOVUII charge did not adequately allege the

lesser-included offense of OVUII as a first offender pursuant to

HRS §§ 291E-61(a)(1) and (b)(1).          As such, it would be improper

to remand this case for entry of judgment of conviction and

sentencing based upon a deficient lesser-included charge.

Accordingly, the ICA did not err by vacating the circuit court’s

judgment and remanding the case with instructions to the circuit

court to dismiss Count I without prejudice.

     1.    State v. Ruggiero Analysis

           Walker analogizes his case to the remanding and

resentencing principles utilized in Ruggiero.          On March 10 2004,

Ruggiero was arrested for OVUII.21         Ruggiero, 114 Hawai#i at 229,

160 P.3d at 705.     The State charged him by complaint on April 19,

2004, in relevant part:
           [O]n or about the 10th day of March, 2004, in the Division of
           Wailuku, County of Maui, State of Hawai#i, ADAM M. RUGGIERO did
           operate or assume actual physical control of a vehicle while under
           the influence of an intoxicant meaning that he was 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 291E-
           61 of the Hawai#i Revised Statutes.




      21
            Ruggiero classifies the March 10, 2004 arrest and subsequent
charge and conviction as a “DUI.” For consistency purposes, this memorandum
uses the term “OVUII” as specified by statute.

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Id. at 229 n.3, 160 P.3d at 705 n.3 (capitalization in original,

brackets omitted).    At that time, Ruggiero’s appeal from a

January 29, 2003 conviction for OVUII in violation of HRS § 291E-

61(a)(1) (Supp. 2002) was pending before this court.          Id. at 229,

160 P.3d at 705.     On March 19, 2004, nine days after his arrest,

this court reversed his January 29, 2003 conviction on the

grounds that the State failed to prove an essential element of

the offense.   Id.

          The trial court convicted Ruggiero of the March 10,

2004 OVUII charge and “then proceeded to the sentencing phase of

the trial, whereupon the [State] moved for an enhanced sentence

based on the prior January 29, 2003 conviction.”          Id. at 230, 160

P.3d at 706.   The trial court found that this was Ruggiero’s

second offense within a five year period and sentenced him, “as a

second-time offender, to fines, fourteen days in jail, and a one-

year license suspension.”     Id. at 231, 160 P.3d at 707.

          Ruggiero appealed “to reduce his sentence to that of a

first-time offender.”    Id. at 240, 160 P.3d 716.        He conceded

that he was subject to sentencing as a first-time offender under

HRS § 291E-61(b)(1).    Id.   This court reasoned:
          on its face, the complaint can reasonably be construed to charge
          the crime of [OVUII] as a first offense, in violation of HRS §
          291E-61(a) and (b)(1). It plainly states the elements set forth
          in HRS § 291E-61(a) (“operates or assumes actual physical control
          of a vehicle”) and -61(a)(1) (“[w]hile under the influence of
          alcohol in an amount sufficient to impair the person’s normal


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            mental faculties or ability to care for the person and guard
            against casualty”). While the complaint is silent as to the lack
            of prior [OVUII] convictions, given the unique nature of the
            element -- the presence of an empty set, that is, the absence of
            any prior convictions -- silence with respect to prior violations
            can only betoken that their absence, i.e., the import of HRS §
            291E-61(b)(1), is implicit in the charge.

Id. (internal citations and footnotes omitted; some brackets in

original).    “Inasmuch as . . . the [trial] court made the

appropriate findings and conclusions to convict Ruggiero of

[OVUII] as a first time offender,” this court remanded the case

to the trial court “for entry of judgment of conviction of that

offense.”    Id. at 241, 160 P.3d at 717 (citation omitted).

      2.    State v. Kekuewa Analysis

            Walker also analogizes his case to the remanding and

resentencing principles employed in Kekuewa.           In October 2004,

Kekuewa was arraigned and charged, in relevant part:
            [O]n 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[ 22] for your second offense.

Kekuewa, 114 Hawai#i at 415, 163 P.3d at 1152 (emphasis in


      22
            For reference purposes, both Kekuewa and Ruggiero, as described
above, were charged with violating HRS § 291E-61 (Supp. 2004). The
legislature first created HRS § 291E-61.5 during the 2003 legislative section.
This new subsection removed sentencing “for an offense that occurs within ten
years of three or more prior convictions” of OVUII from HRS § 291E-61(b)(4)
(Supp. 2002) and created the new offense of “habitually operating a vehicle
under the influence of an intoxicant.” HRS § 291E-61.5 became effective on
January 1, 2004. HRS § 291E-61.5 (Supp. 2003). Neither Kekuewa nor
Ruggiero’s actions qualified for a charge of HOVUII under HRS § 291E-61.5
(2004).

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original).   At the end of the state’s case-in-chief, the trial

court admitted a certified court abstract and court calendar for

the purpose of proving Kekuewa’s prior OVUII convictions within

the previous five years.     State v. Kekuewa, 112 Hawai#i 269, 272-

73, 145 P.3d 812, 815-16 (App. 2006).       The trial court found

Kekuewa guilty as charged.     Kekuewa, 114 Hawai#i at 415, 163 P.3d

at 1152.

           On appeal, the ICA reversed Kekuewa’s conviction and

held that his charge was deficient because it failed to allege

the attendant circumstance that Kekuewa’s prior convictions

occurred within five years of the offense charged.        Kekuewa, 112

Hawai#i at 277, 145 P.3d at 820.     The State filed an application

for writ of certiorari, contending, inter alia, that “the ICA

erred by reversing Kekuewa’s conviction rather than remanding the

matter for resentencing under HRS § 291E-61(b)(1).”        Kekuewa, 114

Hawai#i at 414, 163 P.3d at 1151.       This court affirmed the ICA’s

determination 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 [OVUII] convictions.”         Id.

at 416, 163 P.3d at 1153.     Ultimately, the absence of the five-

year time period from the State’s oral charge rendered it

defective.   Id.

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           This court, however, agreed with the State that the ICA

improperly remanded Kekuewa’s case to the trial court.            Id. at

423, 163 P.3d at 1160.     Instead of simply remanding for

resentencing as a first offender under HRS § 291E-61(b)(1) (Supp.

2004), the ICA should have remanded the matter for entry of

judgment of conviction of OVUII pursuant to HRS §§ 291E-61(a) and

(b)(1) (Supp. 2004) and resentencing in accordance therewith.

Id.   This court explained:
           a defect in a complaint is not one of mere form, which is
           waivable, nor simply one of notice, which may be deemed harmless
           if a defendant was actually aware of the nature of the accusations
           against him or her, but rather, is one of substantive subject
           matter jurisdiction, “which may not be waived or dispensed with,”
           see [State v.] Jendrusch, 58 Haw. [279,] 281, 567 P.2d [1242,]
           1244 [(1977)], and that is per se prejudicial, see [State v.]
           Motta, 66 Haw. [89,] 91, 657 P.2d [1019,] 1020 [(1983)][.] Our
           case law further supports the proposition that an appellate court
           may nevertheless remand for entry of judgment of conviction and
           resentencing as to any offense adequately set forth in the
           accusation (i.e., the complaint, indictment, oral charge, or
           information).

Id. at 424, 163 P.3d at 1161 (emphases added, some internal

citations omitted, some brackets in original).          By analogizing

Kekuewa to State v. Elliott, 77 Hawai#i 309, 884 P.2d 372 (1994),

this court concluded that Kekuewa’s
           charge contained one factual accusation that could have supported
           two separate offenses. . . . [T]he prosecution’s oral charge . .
           . failed to adequately set forth the essential elements of the
           offense described by HRS §§ 291E-61(a) and (b)(2) (Supp. 2004).
           Nevertheless, absent the phrase “for your second offense,” the
           prosecution’s oral charge set forth the essential elements of the
           included offense described by HRS §§ 291E-61(a) and (b)(1) (Supp.
           2004).

Id. at 425-26, 163 P.3d at 1162-63 (generally citing Ruggiero,


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114 Hawai#i at 240, 160 P.3d at 716).

     3.      The ICA properly remanded Walker’s case to the circuit
             court.

             Based on Ruggiero and Kekuewa, Walker contends that

this court should similarly remand his case for entry of judgment

of conviction and resentencing under HRS §§ 291E-61(a)(1) and

(b)(1) (2007).     Walker’s argument that his original charge

adequately alleged the lesser-included offense of HRS §§ 291E-

61(a)(1) and (b)(1) is flawed in two respects.       First, Walker’s

charge is distinguishable from the charges and issues presented

in Ruggiero and Kekuewa in two notable ways.       Second, Walker’s

argument fails to account for recent changes in Hawaii’s OVUII

case law.

             i.   Walker is distinguishable from both Ruggiero and
                  Kekuewa.

             The State correctly maintains that Walker’s case is

distinguishable from both Ruggiero and Kekuewa in two notable

ways.     First, “in Ruggiero, the evidence in support of the

charged offense was insufficient, for the prosecution failed to

adduce proof of a prior [OVUII] conviction in its case-in-chief

as . . . required[.]”     Second, “[i]n Kekuewa, it was the

prosecution who asked this [c]ourt to remand for an entry of

judgment of conviction as to the first [OVUII] offense if the

court found that the conviction of the greater offense could not

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stand.”   In both cases, this court exercised its discretion to

remand to the trial court for entry of judgment of conviction as

to a lesser-included offense.       Significantly, and as the State’s

response to Walker’s Application correctly noted, the issues

presented in Ruggiero and Kekuewa are distinguishable from those

raised in the present case:
           Here, the [State] did not ask for an entry of judgment of
           conviction as to any lesser-includ[ed] offense, nor was there
           insufficient evidence adduced with respect to the charged offense.
           As to the sufficiency of the evidence in support of the habitual
           OVUII charge, the [State] proved that [Walker] was a habitual
           offender, who operated a vehicle 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 . . . . HRS §§ 291E-61.5(a)(1) and (a)(2)(A).

Because Walker is materially distinguishable from Ruggiero and

Kekuewa, the ICA properly remanded the case to the circuit court.

           ii.   Walker’s argument fails to account for Wheeler’s
                 contribution to Hawaii’s OVUII case law.

           Two primary yet distinct functions stem from a criminal

charge.   First, a charge must sufficiently allege an offense in

order to properly confer jurisdiction upon the presiding court.
           The failure sufficiently to allege the essential elements of an
           offense in an oral charge, complaint, or indictment constitutes a
           denial of liberty without due process of law, which results from
           the failure to invoke the subject matter jurisdiction of the
           court. In other words, an oral charge, complaint, or indictment
           that does not state an offense contains within it a substantive
           jurisdictional defect, rather than simply a defect in form, which
           renders any subsequent trial, judgment of conviction, or sentence
           a nullity. See [State v.] Israel, 78 Hawai#i [66,] 73, 890 P.2d
           [303,] 310 (quoting Elliott, 77 Hawai#i at 311, 884 P.2d at 374
           (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at 1244)); Elliott,
           77 Hawai#i at 312, 884 P.2d at 375 (“the omission of an essential
           element of the crime charged is a defect in substance rather than
           form” (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at 1244));
           Territory v. Koa Gora, 37 Haw. 1, 6 (1944) (failure to state an
           offense is a “jurisdictional point”); Territory v. Goto, 27 Haw.
           65, 102 (1923) (Peters, C.J., concurring) (“[f]ailure of an

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           indictment[,] [complaint, or oral charge] to state facts
           sufficient to constitute an offense against the law is
           jurisdictional[;] . . . an indictment[,] [complaint, or oral
           charge] . . . is essential to the court's jurisdiction,” (brackets
           added)).

State v. Sprattling, 99 Hawai#i 312, 327, 55 P.3d 276, 291

(2002); see HRS § 806-34 (1993) (explaining that, in a criminal

charge, “the transaction may be stated with so much detail of

time, place, and circumstances and such particulars as to the

person (if any) against whom, and the thing (if any) in respect

to which the offense was committed,” which serves “to show that

the court has jurisdiction[] and to give the accused reasonable

notice of the facts.”).

           Second, a criminal charge must inform a defendant of

the “nature and cause of the accusation” against him or her

pursuant to the Sixth Amendment to the United States Constitution

and article I, section 14 of the Hawai#i Constitution.           Mita, 124

Hawai#i at 390, 245 P.3d at 463.       A charge that fails to satisfy

both of these prongs is fundamentally flawed and strips the court

of subject matter jurisdiction.       “[A]n appellate court has . . .

an independent obligation to ensure jurisdiction over each case

and to dismiss the appeal sua sponte if a jurisdictional defect

exists.”   State v. Graybeard, 93 Hawai#i 513, 516, 6 P.3d 385,

388 (App. 2000) (citing Bacon v. Karlin, 68 Haw. 648, 650, 727

P.2d 1127, 1129 (1986)).


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            The question arises in the instant Application:

because Walker’s original HOVUII charge was deficient for failing

to allege an attendant circumstance, would a lesser-included

charge of OVUII as a first offender sufficiently (1) confer

jurisdiction to the circuit court and (2) apprise Walker of the

charges he must be prepared to meet?         Under Ruggiero and Kekuewa,

remanding for entry of judgment of conviction and resentencing in

Walker under HRS §§ 291E-61(a)(1) and (b)(1) would only be proper

if the original complaint could reasonably be construed to charge

OVUII as a first offense under that statute.           See Ruggiero, 114

Hawai#i at 240, 163 P.3d 716.       Walker’s charge cannot reasonably

be construed to charge the lesser-included offense of OVUII as a

first offender under HRS §§ 291E-61(a)(1) and (b)(1) because such

charging language would fail to allege that Walker “operated his

vehicle upon a public way, street, road, or highway” as required

by Wheeler, explained below.23       121 Hawai#i 383, 219 P.3d 1170.

            On March 18, 2008, the State orally charged Wheeler

with OVUII in violation of HRS § 291E-61(a)(1) (2007):24
            [O]n or about May 31, 2007, in the City and County of Honolulu,
            State of Hawaii, you did operate or assume actual physical control
            of a motor vehicle while under the influence of alcohol in amounts
            sufficient to impair your normal mental faculties and your ability


      23
            This court issued its decision in Wheeler in 2009, subsequent to
Ruggiero and Kekuewa.

      24
            HRS 2007 is the same codification of the OVUII statute that Walker
asks this court to consider.

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            to care for yourself and guard against casualty, and thereby
            committing [sic] the offense of Operating a Vehicle Under the
            Influence of Intoxicants in violation of 291E-61(a)(1) of the
            Hawaii Revised Statutes.

            This being your first offense without any prior convictions for
            either 291E-61 and/or 291E . . . in the last five years. . . .

Id. at 386-87, 219 P.3d at 1173-74.         Upon accepting certiorari,

this court determined that Wheeler’s charge was deficient for

failing to allege an attendant circumstance of OVUII under HRS §

291E-61 (2007), namely operating a vehicle upon a public way,

street, road, or highway.       Id. at 393, 219 P.3d at 1180.

            After reaching its conclusion, Wheeler clarified its

consistency with Ruggiero and Kekuewa and declined to overrule

those cases, noting that Ruggiero and Kekuewa presented different

issues for the court, specifically, “whether a charge that failed

to adequately allege that the defendant had a prior OVUII

conviction within the past five years was nevertheless sufficient

to charge a first-offense OVUII.”         Id. at 399, 219 P.3d at 1186.

In those cases, “[n]either defendant raised the issue of whether

the proscribed conduct must take place ‘upon a public way,

street, road, or highway’ and, if so, whether it had been

adequately alleged in the charge.”         Id.   Accordingly, this court

declined to address that issue in Ruggiero and Kekuewa.25            Id.


      25
            Additionally, Wheeler distinguished itself from Ruggiero and
Kekuewa regarding the application of the Motta/Wells liberal construction
rule:
                                                                   continue...

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              Walker’s Application, however, requires us to clarify

Ruggiero and Kekuewa in the context of Wheeler.              The current

essential elements that the State must include in an OVUII charge

differ from those required in 2007 at the time of the Ruggiero

and Kekuewa decisions.         Again, post-Wheeler, OVUII charges must

now allege the attendant circumstance that the defendant operated

a vehicle “on a public way, street, road, or highway.”                Id. at

393, 219 P.3d at 1180.

              Notably, Walker only contested the sufficiency of his

charge on the basis that it failed to allege the attendant

circumstance of his prior convictions within the previous ten

years.      Walker did not contest the sufficiency of his complaint

on the grounds that it failed to allege the attendant


     25
          ...continue
               Ruggiero and Kekuewa are factually distinguishable from the
               circumstances of [Wheeler]. Unlike Wheeler, neither of those
               defendants made a timely objection to the sufficiency of the OVUII
               charge in the trial court. Ruggiero never challenged the
               sufficiency of the complaint, including on appeal, and, according
               to the plurality, even conceded that he was subject to sentencing
               as a first-time offender. Although Kekuewa challenged the
               sufficiency of the prosecution’s charge on appeal, he did so only
               with regard to whether it adequately alleged his prior offense.
               In contrast, Wheeler immediately objected to the sufficiency of
               the oral charge, prior to the commencement of trial.

Wheeler, 121 Hawai#i at 399, 219 P.3d at 1186 (internal citations omitted).
            As in Wheeler, Walker challenged the sufficiency of his charge
before the circuit court entered judgment. Accordingly, in both Wheeler and
Walker, the appellate courts correctly declined to engage in a “Motta/Wells
post-conviction liberal construction rule” (meaning that charges challenged
for the first time on appeal are liberally construed) as they did in Ruggiero
and Kekuewa. Wheeler, 121 Hawai#i at 399, 219 P.3d at 1186. The Motta/Wells
“rule does not apply when reviewing timely motions challenging the sufficiency
of an indictment.” Id. at 400, 219 P.3d at 1187.

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circumstance that he operated a vehicle on a public road, way,

street, or highway under Wheeler.       In State v. Tominiko, the

State charged the defendant, in part, with OVUII under HRS §§

291E-61(a)(1) and/or (a)(3) (Supp. 2009) and Driving Without

Motor Vehicle Insurance under HRS § 431:10C-104(a) (2005).          126

Hawai#i 68, 71-72, 266 P.3d at 1125-26 (2011).       “The Driving

Without Motor Vehicle Insurance charge contained the allegation

that the conduct occurred on a public roadway, but the OVUII

charge did not.”   Id. at 70, 266 P.3d at 1124.      At trial, the

court dismissed the charge of Driving Without Motor Vehicle

Insurance.   “Tominiko did not object to the charge or move to

dismiss it at any point during the district court’s proceeding.”

Id. at 72, 266 P.3d at 1126.     Accordingly, the liberal

construction standard applied to this court’s review of

Tominiko’s OVUII charge on appeal.       See id. at 76, 266 P.3d at

1130.   “Under the liberal construction standard, when a party

raises an objection to the indictment for the first time on

appeal, the indictment is liberally construed.”       Id. (citing

State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019 (1983)).         By

applying the liberal construction standard in Tominiko, we held

that an OVUII charge, which did not allege the public road

requirement, was sufficient.     Id. at 76-77, 266 at P.3d at 1130-

31.   We explained that “Count 3 alleged that Tominiko ‘did

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operate or use a motor vehicle upon a public street, road, or

highway of the State of Hawaii. . . .’      Under the liberal

construction standard, two counts can be read together.”         Id. at

76, 266 P.3d at 1130 (citing State v. Elliot, 77 Hawai<i 309,

312, 884 P.2d 372, 375 (1994); State v. Sprattling, 99 Hawai<i

312, 319, 55 P.3d 276, 283 (2002)).

          Walker is distinct from Tominiko.       Here, Walker

challenged the sufficiency of his HOVUII charge at the circuit

court on the ground that it failed to allege an essential element

of the offense, namely that Walker had three prior OVUII

convictions within ten years of the present offense.        While

Walker did not challenge his charge on the basis that it failed

to define the term “operate,” he nevertheless objected to the

sufficiency of his charge at trial, unlike Tominiko.        Walker is

more similar to Wheeler, in which the defendant generally moved

to dismiss on the ground that the charge failed to state an

offense without specifying which element of the offense was

deficient.   Wheeler, 121 Hawai#i at 387, 219 P.3d at 1174.         This

court noted, “because Wheeler timely objected to the oral charge

in the district court, the Motta/Wells [liberal construction]

analysis [was] not applicable[.]”       Id. at 400, 219 P.3d at 1187.

Therefore, Wheeler’s general objection was sufficient to prompt

this court’s rejection of the liberal construction standard in

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that case.   Similarly, Walker’s objection to the charge at the

circuit court is sufficient to support this court’s rejection of

the liberal construction standard here.

          Furthermore, appellate courts have an affirmative,

independent duty to “ensure jurisdiction over each case and to

dismiss the appeal sua sponte if a jurisdictional defect exists.”

Graybeard, 93 Hawai#i at 516, 6 P.3d at 388.      It follows that if

an appellate court remands a case for entry of conviction of

judgment and resentencing, it must do so based on a

jurisdictionally valid charge.     Therefore, Wheeler’s requirement

that the charge allege the attendant circumstance that the

defendant operated a vehicle on a public way, street, road, or

highway applies to the instant case.      Both HRS § 291E-61(a)

(2007) and HRS § 291E-61.5(a)(2) (2007) require that a “person

operates or assumes actual physical control of a vehicle” in

order to sustain a conviction.     This court explained that the

definition of “operate” under HRS § 291E-1 (2007) (i.e., “to

drive or assume actual physical control of a vehicle upon a

public way, street, road, or highway . . .”) is an essential

element -- an attendant circumstance -- of the crime of OVUII.

Wheeler, 121 Hawai#i at 393, 219 P.3d at 1180.       Thus, just as

Wheeler’s charge under HRS § 291E-61(a) (2007) was deficient for

failing to allege an attendant circumstance, so too would an

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alternative reading of Walker’s HOVUII charge (without the

“habitual” language) be deficient for failing to allege the same

attendant circumstance.

          Indeed, a revised version of Walker’s charge without

the “habitual” language reads:
          On or about the 17th day of April, 2008, in the City and County of
          Honolulu, State of Hawaii, SAMUEL WALKER, also known as SAMUEL
          AHSAN, . . . did operate or assume actual physical control of a
          vehicle while under the influence of alcohol in an amount
          sufficient to impair his normal mental faculties or ability to
          guard against casualty, thereby committing the offense of [OVUII]
          . . . .

(Emphasis added).    Following Wheeler’s attendant circumstance

requirement, Walker’s charge fails to “set forth the essential

elements of the included offense” required for an OVUII charge

under HRS §§ 291E-61(a)(1) and (b)(1) (Supp. 2007) as the charge

did in Kekuewa, 114 Hawai#i at 426, 163 P.3d at 1163.

Furthermore, because Walker’s lesser-included charge is missing

an essential element, it cannot “reasonably be construed to

charge the crime of [OVUII] as a first offense[]” in violation of

HRS §§ 291E-61(a)(1) and (b)(1)” as the lesser-included charge

did in Ruggiero, 114 Hawai#i at 240, 160 P.3d at 716.

          Because Walker’s lesser-included charge fails to allege

an essential element of the crime of OVUII as a first offense, it

would fail to confer jurisdiction to the circuit court.           To

remand Walker’s case with instructions to enter judgment of



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conviction and sentence based on such a jurisdictionally

defective charge would be clearly erroneous and in contravention

of constitutional principles.26

             iii. The ICA properly followed Wheeler in remanding
                  Walker to the circuit court with instructions to
                  dismiss without prejudice.

             In Wheeler, because the charging document failed to

allege an essential element of the charged crime, this court

affirmed the ICA’s judgment vacating and remanding the case to

the trial court with instructions to dismiss without prejudice.

Wheeler, 121 Hawai#i at 390, 400, 219 P.3d. at 1177, 1187.

Similarly, because Walker’s charge failed to allege an essential

element of the charged crime (i.e., proof of three or more

convictions within the previous ten years), the ICA properly

remanded Walker’s case to the circuit court with instructions to

dismiss without prejudice.        Walker, 2011 WL 4537771 at *12.

B.      Walker’s statement to Officer Hill and the results of his
        HGN test were not required to be suppressed.

             Walker also argues that the ICA gravely erred in

failing to analyze and suppress his statement to Officer Hill

that he drank eight or nine beers and in failing to analyze and

exclude the results of his performance on the HGN test.             Though

        26
            Because, as discussed infra, we hold that the circuit court lacked
jurisdiction, Walker’s contention that the ICA was required to remand for
entry of judgment of conviction and sentencing on the lesser-included offense
need not be reached.

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the ICA majority declined to address Walker’s points of error in

this regard, Chief Judge Nakamura accurately clarified that

Walker’s arguments lack merit.       Neither of these arguments

entitle Walker to relief.      The circuit court specifically found:
           Even without considering [Walker’s] admission of drinking [eight]
           or [nine] beers and his performance on the HGN phase of the SFST,
           this Court finds that [Walker] was under the influence of an
           intoxicant as he drove on a public street and was impaired beyond
           a reasonable doubt under State v. Ferm, 94 Haw[ai#i] 17, 25, 7
           P.3d 193, 202 (2000) and State v, Vliet, 91 Haw[ai#i] 288, 293-94,
           988 P.2d 189, 194-95 (1999).

As articulated by Chief Judge Nakamura, “[t]he [c]ircuit

[c]ourt’s ruling establishes that any error in failing to

suppress Walker’s statement and in admitting evidence of his

performance on the HGN test was harmless beyond a reasonable

doubt.”   Walker, 2011 WL 4537771 at *13-14 (Nakamura, C.J.,

dissenting).   “[E]ven without Walker’s statement or the HGN

evidence, the [c]ircuit [c]ourt would have found Walker guilty of

Habitual OVUII.”    Id. at *14 (Nakamura, C.J., dissenting).

Similarly, the State correctly contends,
           [t]he record in this case reflects that the admission of
           [Walker’s] statement and the HGN testimony were harmless beyond a
           reasonable doubt because they did not . . . contribute to his
           conviction, inasmuch as there was sufficient evidence that
           [Walker] was driving on a public road “[w]hile 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[.]” HRS § 291E-61.5(a)(2)(A).

Furthermore, “[w]here there is a wealth of overwhelming and

compelling evidence tending to show the defendant guilty beyond a

reasonable doubt,” as concluded by the circuit court in this

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case, “errors in the admission or exclusion of evidence are

deemed harmless.”    State v. Toyomura, 80 Hawai#i 8, 27, 904 P.2d

893, 912 (1995).    Accordingly, the ICA majority did not err by

failing to analyze the circuit court’s denial of Walker’s Motion

to Suppress.

                           IV.    CONCLUSION

          For the foregoing reasons, we hold that an appellate

court’s remand for entry of judgment of conviction and sentencing

for a lesser-included offense must be based on a jurisdictionally

valid lesser-included charge.     Accordingly, we affirm the

judgment of the ICA.


On the briefs:

Henry P. Ting,                   /s/ Simeon R. Acoba, Jr.
Deputy Public Defender,
for petitioner/defendant-        /s/ James E. Duffy, Jr.
appellant
                                 /s/ Sabrina S. McKenna
James B. Anderson,
Deputy Prosecuting
Attorney, for respondent/
plaintiff-appellee




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