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                                                                 Electronically Filed
                                                                 Supreme Court
                                                                 SCWC-11-0000702
                                                                 21-FEB-2013
                                                                 09:55 AM




               IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---
    ________________________________________________________________

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

                                       vs.

          SARAH V.P. SPEARMAN, Petitioner/Defendant-Appellant.

    ________________________________________________________________

                                SCWC-11-0000702

             CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-11-0000702; CASE NO. 1DTA-11-02146)

                               February 21, 2013

     RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, and POLLACK, JJ.

                    OPINION OF THE COURT BY MCKENNA, J.

I.     Introduction

        At issue in this appeal is whether double jeopardy1 bars the

re-prosecution of a defendant for violating Hawai‘i Revised


1
     Article V of the United States Constitution provides, “[N]or shall any
person be subject for the same offense to be twice put in jeopardy of life or
limb. . . .” Article I, Section 10 of the Hawai‘i State Constitution
provides, “[N]or shall any person be subject for the same offense to be twice
put in jeopardy. . . .”
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Statutes (“HRS”) § 291E-61 (2007 & Supp. 2009)2 (“Operating a

Vehicle under the Influence of an Intoxicant” or “OVUII”),

following a “judgment of acquittal” on the HRS § 291E-61(a)(3)

method of proof in an initial trial in which both HRS §§ 291E-

61(a)(1) and (a)(3) methods of proof were tried.            We reaffirm

that a “judgment of acquittal” on the HRS § 291E-61(a)(3) method

of proof in an OVUII trial is “in form only,” but that it serves

as a factual finding that the State has not met its burden of

proving the requisite breath alcohol content.           Based on our

recent holding in State v. Mundon, ___ Hawai‘i ___, ___ P.3d ___

(2012)(adopting the “collateral estoppel” principle from Ashe v.

Swenson, 397 U.S. 436 (1970)), however, the collateral estoppel

principle embodied in the double jeopardy clause prohibits the

State from re-litigating breath alcohol content, whether in a re-

prosecution of the defendant on the HRS § 291E-61(a)(3) method of

2
     HRS § 291E-61 provides, in relevant part, as it did at the time of
Spearman’s alleged offense:
            Operating a vehicle under the influence of an
            intoxicant. (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;
            (2) While under the influence of any drug that impairs the
            person's ability to operate the vehicle in a careful and
            prudent manner;
            (3) With .08 or more grams of alcohol per two hundred ten
            liters of breath; or
            (4) With .08 or more grams of alcohol per one hundred
            milliliters or cubic centimeters of blood.



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proof, or as part of the State’s evidence in a subsequent trial

on the HRS § 291E-61(a)(1) method of proof. We therefore

expressly overrule State v. Lemalu, 72 Haw. 130, 139, 809 P.2d

442, 447 (1991), which held otherwise.           The collateral estoppel

principle, however, would not prohibit the State from re-charging

the defendant on the HRS § 291E-61(a)(1) method of proof,

following a dismissal without prejudice based on the failure of

the Complaint to allege mens rea.          See State v. Nesmith, 127

Hawai‘i 48, 276 P.3d 617 (2012). Consequently, we affirm the

ICA’s Judgment on Appeal.

II.    Background

       On May 16, 2011, the State charged Spearman via Complaint

with violating HRS § 291E-61(a)(1) and/or (a)(3), but the

Complaint did not allege mens rea.          After the State orally read

the Complaint to Spearman, Spearman’s counsel moved to dismiss

the Complaint because it failed to allege mens rea.              The district

court3 denied the motion, and trial commenced.

       Among the State’s witnesses was a Honolulu Police Department

officer who testified that she administered the breath alcohol

test, using the Intoxilyzer 8000, to Spearman, who “blew a 0.251

. . . percent of alcohol liters per two tenths breath.”              After

the State rested, Spearman’s counsel moved for a judgment of

3
       The Honorable William A. Cardwell presided over the trial.

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acquittal and to strike all testimony about breath alcohol

content.    The district court interpreted this statement as a

“motion for judgment of acquittal as to the A-3.”            The district

court pointed out that the officer “testified that in fact it was

not .251 grams of alcohol per two hundred ten liters of breath.

It was something that I didn’t even understand. . . .             It’s up to

her to testify to [the units of measurement].           She tried and

failed.”    The district court then granted “the motion to judgment

of acquittal as to the A-3.”

      Spearman chose not to testify.        The defense then rested, and

the district court found Spearman guilty of violating HRS § 291E-

61(a)(1) only.     Spearman appealed, on the basis that the

Complaint was legally deficient for failing to allege mens rea.

      While Spearman’s appeal was pending before the ICA, we

issued our opinion in Nesmith, which held that an HRS § 291E-

61(a)(1) charge must allege mens rea in order to give the accused

fair notice of the nature and cause of the accusation.             127

Hawai‘i at 50, 54, 276 P.3d at 619, 623.         In disposing of

Spearman’s appeal, the ICA4 accordingly held, “Pursuant to

Nesmith, we conclude that Spearman’s HRS § 291E-61(a)(1) charge

was deficient for failing to allege mens rea.” State v. Spearman,

CAAP-11-0000702 (June 27, 2012)(SDO) at 2.          It then vacated the
4
       The Honorable Craig H. Nakamura, Katherine G. Leonard, and Lisa M.
Ginoza presided over the ICA appeal.

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judgment of the district court and remanded the case “with

instructions to dismiss without prejudice the portion of the

complaint alleging a violation of HRS § 291E-61(a)(1).”           Id. at 3

(footnote omitted).    The ICA also footnoted the following

observation:   “We note that because the District Court acquitted

Spearman with respect to the alleged HRS § 291E-61(a)(3)

violation, the protection against double jeopardy would preclude

Plaintiff-Appellee State of Hawai‘i from re[-]prosecuting

Spearman for violating HRS § 291E-61(a)(3).”         Id. at 3, n.3.

III. Discussion

     On certiorari, Spearman presents the following point-by-

point argument:   First, OVUII consists of a single offense (HRS §

291E-61) for which there are four alternative methods of proof

(HRS § 291E-61(a)(1), (2), (3), and (4)).         For this proposition,

Spearman cites State v. Grindles, 70 Haw. 528, 777 P.2d 1187

(1989).   Second, once the State failed to validly charge the HRS

§ 291E-61(a)(1) method of proof and failed to prove the HRS §

291E-61(a)(3) method of proof, the district court should have

found Spearman not guilty of the offense of OVUII or at least

dismissed the entire case with prejudice.         Third, the ICA’s

footnote 3 did not go far enough:       not only should double

jeopardy bar the State from re-prosecuting Spearman on the HRS §

291E-61(a)(3) method of proof, it should also bar the State from


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re-prosecuting her on the HRS § 291E-61(a)(1) method of proof.

In other words, a dismissal without prejudice on the HRS § 291E-

61(a)(1) method of proof was an improper remedy; the proper

remedy was a dismissal of the entire HRS § 291E-61 Complaint.

Consequently, Spearman requests that this court “reverse and

vacate the District Court’s Judgment of Conviction and Sentence

on the entire HRS § 291E-61 charge herein.”

     The following sub-sections discuss several of our past

cases, which dispose of Spearman’s point-by-point argument.

     1.   State v. Grindles

     Spearman is correct that Grindles stands for the proposition

that Driving under the Influence (“DUI”) under HRS § 291-4 (now

OVUII under HRS § 291E-615) constitutes “one offense with

alternative methods of proof,” including proof of impaired

driving or proof of blood alcohol content.           70 Haw. at 530, 777

P.3d at 1189.    In that case, this court reversed an appellant’s

conviction for DUI and remanded the case for a new trial,

concluding that the trial court erred in bifurcating the DUI

trial into two separate hearings:        the first on the impaired

driving method of proof and the second on the blood alcohol

method of proof.     70 Haw. at 529, 777 P.2d at 1188.         The trial


5
      HRS § 291E-61 substantially recodified HRS § 291-4 such that cases
interpreting HRS § 291-4 apply with equal force to HRS § 291E-61. Nesmith,
127 Hawai‘i at 59, 276 P.3d at 628.

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court adjudged the appellant guilty of violating HRS § 291-4

under the impaired driving method of proof, and the hearing on

the blood alcohol content method did not take place thereafter.

70 Haw. at 529, 777 P.2d at 1189.          This court footnoted a further

concern about the bifurcated trial as follows:
             We also note that bifurcation of a DUI trial into two
             separate hearings under HRS § 291-4(a)(1) and -4(a)(2) may
             subject the defendant to double jeopardy. In this case,
             jeopardy attached when the court began to hear the State’s
             evidence. Appellant was not subjected to double jeopardy,
             however, since the trial court adjudicated him guilty at the
             conclusion of the State’s proof under § 291-4(a)(1), and did
             not proceed to hold a second hearing under § 291-4(a)(2).
             However, in the event the defendant is acquitted under §
             291-4(a)(1) and the court allows the State to proceed under
             § 291-4(a)(2), the defendant will have been twice placed in
             jeopardy for the same offense in violation of article I,
             section 10 of the Hawaii Constitution and the fifth
             amendment to the U.S. Constitution.

70 Haw. at 533, n.3, 777 P.2d at 1191, n.3.

       2.   State v. Dow

       This dicta in Grindles, at first glance, appears to support

Spearman’s double jeopardy argument.          However, this court’s

holding in State v. Dow, 72 Haw. 56, 806 P.2d 402 (1991),

demonstrates that an “acquittal” on one method of proof for DUI

does not necessarily pose a double jeopardy threat to a

subsequent prosecution on another method of proof for DUI.                  In

that case, the defendant (“Dow”) was charged with DUI under HRS §

291-4(a)(1)(driving under the influence)(count I) and HRS § 291-

4(a)(2)(driving with blood alcohol level of 0.10 or more)(count

II).    72 Haw. at 58, 806 P.2d at 403.        After the prosecution


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rested, Dow moved for a judgment of acquittal as to Count I,

which the trial court granted.      Id.   Count II was submitted to

the jury, but the jury was unable to reach a verdict on that

count, and the trial court declared a mistrial.          Id.   A second

trial on Count II was scheduled, and Dow filed a motion to

dismiss on the ground of double jeopardy.         Id.   The motion was

denied, trial commenced, and Dow was convicted on count II.            Id.

Dow appealed, and the ICA reversed his conviction.          72 Haw. at

58, 806 P.2d at 403-04.     This court then reversed the ICA’s

decision, concluding there was no double jeopardy bar to the

retrial.   72 Haw. at 57, 806 P.3d at 403.

     Preliminarily, we note that the facts in Spearman’s case are

similar to those in Dow.     Spearman was charged with violating two

alternative sections of HRS § 291E-61:        the impaired driving

subsection (HRS § 291E-61(a)(1)) and the breath alcohol content

subsection (HRS § 291E-61(a)(3)).       After the prosecution rested,

Spearman moved for a judgment of acquittal as to the HRS § 291E-

61(a)(3) method of proof, and the trial court granted her motion.

After the “acquittal,” trial proceeded on the other method of

proof, HRS § 291E-61(a)(1).      Although Spearman’s case did not

result in a mistrial on that method of proof, her appeal did

result in a vacate-and-remand of that charge, with an instruction

to the district court to dismiss that charge without prejudice.


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Here, however, the similarities between Dow’s and Spearman’s

cases end.   Spearman, unlike Dow, has not yet been re-prosecuted

on the HRS § 291E-61(a)(1) charge;       Dow, on the other hand,

appealed his conviction on the basis of double jeopardy at the

end of his second trial.     In essence, Spearman’s double jeopardy

challenge to the ICA’s decision is hypothetical, as the ICA did

not direct the district court to commence a second trial on the

HRS § 291E-61(a)(1) charge; the ICA only ordered a dismissal of

that charge without prejudice.      Spearman’s challenge to the ICA’s

SDO and Judgment on Appeal appears to be that it leaves open the

potential for a double jeopardy violation should the State re-

prosecute.   Returning to this court’s analysis in Dow, however,

the ICA’s direction to the district court to dismiss Spearman’s

HRS § 291E-61(a)(1) without prejudice was not erroneous and will

not pose a double jeopardy threat.

     In Dow, this court first recognized that the constitutional

guarantee against double jeopardy “protects against a second

prosecution for the same offense after acquittal,” whether by

jury verdict or by a direction of the court.         72 Haw. at 58-59,

806 P.2d at 404 (citations omitted).          However, it also noted

that not all acquittals are created equal:         there are situations

in which an acquittal can be “in form only”; in such a case, a




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second prosecution after a “form only” acquittal would be

constitutionally permissible.         72 Haw. at 59, 806 P.2d at 404.

In Dow, this court held that pursuant to Grindles, “DUI is one

offense that must be tried at one time.           Therefore, a trial court

should not ‘acquit’ a defendant of part of a DUI offense.”                  72

Haw. at 63, 806 P.2d at 406.

       It then turned to Hawai‘i Rules of Penal Procedure (“HRPP”)

Rule 29(a)(1977) for further support.           That rule stated at the

time of Dow’s case, as it does now:
             Motions for directed verdict are abolished and motions for
             judgment of acquittal shall be used in their place. The
             court on motion of a defendant or of its own motion shall
             order the entry of judgment of acquittal of one or more
             offenses alleged in the charge after the evidence on either
             side is closed if the evidence is insufficient to sustain a
             conviction of such offense or offenses. If a defendant’s
             motion for judgment of acquittal at the close of the
             evidence offered by the prosecution is not granted, the
             defendant may offer evidence without having reserved the
             right.

Id.    (emphasis added in Dow).       This court stated, “[T]he rule

makes clear that the court may not acquit a defendant of less

than the entire offense of DUI.          We find, therefore, that the

trial court erred in entering a judgment of acquittal.”              Id.

This court concluded that such a “judgment of acquittal was not

valid. . . .”      72 Haw. at 65, 806 P.2d at 407.

       Further, this court stated that it did not believe that the

trial court even intended to enter a “judgment of acquittal”:
             [I]t is obvious from the record that the trial court did not
             intend to dismiss the entire offense since the case
             [proceeded on the other method of proof of DUI]. We find

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          that the trial court did not acquit the defendant of
          anything. Instead, we conclude that the trial court made a
          factual finding, equivalent to a jury’s special verdict.

72 Haw. at 63, 806 P.2d at 406.       This court then rejected the

trial court’s characterization of its action as an “acquittal,”

holding that the “acquittal” was “in form only and not in

substance”; therefore, it concluded that “Dow was not twice

placed in jeopardy for the same offense when he was retried

following a mistrial on the (a)(2) count, despite the trial

court’s entry of judgment of acquittal on the (a)(1) count.”               72

Haw. at 65-66, 806 P.2d at 407.

     Similarly, in Spearman’s case, the district court erred in

entering a “judgment of acquittal” as to just the HRS § 291E-

61(a)(3) charge.    As in Dow’s case, it was “obvious” that the

district court did not intend to dismiss the entire HRS § 291E-61

offense of OVUII because the district court proceeded to render

its decision on the HRS § 291E-61(a)(1) charge.          Instead,

pursuant to Dow, the district court’s “judgment of acquittal” on

the HRS § 291E-61(a)(3) charge was really a “factual finding”

that the State had not proven what Spearman’s breath alcohol

content was.    The district court’s “judgment of acquittal” was,

thus, in form only and would not prevent the State from re-

prosecuting Spearman on the HRS § 291E-61(a)(1) charge.

Consequently, the ICA did not err in directing the district court

to dismiss the HRS § 291E-61(a)(1) charge without prejudice, with

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the potential existing that Spearman could be re-prosecuted on

that method of proof.

3.   State v. Lemalu

      The ICA did not err in the instant case in further

footnoting the following:         “We note that because the District

Court acquitted Spearman with respect to the alleged HRS § 291E-

61(a)(3) violation, the protection against double jeopardy would

preclude Plaintiff-Appellee State of Hawai‘i from re[-

]prosecuting Spearman for violating HRS § 291E-61(a)(3).”

Spearman, SDO at 3, n.3.       We acknowledge that this statement is

contrary to our holding in Lemalu, 72 Haw. 130, 809 P.2d 442, but

for reasons discussed further in Section III.4, we believe the

ICA was correct.

      In Lemalu, this court held that the State was not precluded,

on double jeopardy grounds, from re-prosecuting both methods of

proof of DUI/OVUII, notwithstanding a “judgment of acquittal” on

one method of proof.      72 Haw. at 139, 809 P.2d at 447.         The

defendant (“Lemalu”) was charged with violating HRS § 291-

4(a)(1)(impaired driving)(count I) and (a)(2)(blood alcohol

content)(count II).      72 Haw. at 131-32, 809 P.2d at 443.          A jury

acquitted him of count I but convicted him of count II.             72 Haw.

at 132, 809 P.2d at 443.       This court remanded the case for

retrial based on its determination that Lemalu was prejudiced by


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the use of certain jury instructions combined with multiple

special verdict forms.        Id.   This court then considered whether

its remand of the case raised double jeopardy concerns, in light

of Lemalu’s judgment of acquittal on count I.         72 Haw. at 139-40,

809 P.2d at 447.     It stated that there was “no question” that

Lemalu could be retried on count II.        72 Haw. at 139, 809 P.2d at

447.    As to whether he could also be retried on count I, this

court concluded that the jury’s “judgment of acquittal” as to

that count was, as in Dow, “in form only and not in substance”;

therefore, it held, “It is thus constitutionally permissible for

the State to retry Lemalu on the DUI offense, which includes

count I as well as count II of the complaint.”          Id.

       4.   State v. Mundon

        This court recently decided Mundon, ___ Hawai‘i ___, ___

P.3d ___.     In that case, we unanimously recognized the

“collateral estoppel” principle embodied in the right against

double jeopardy:     “when an issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot again

be litigated between the same parties in any future lawsuit.”

___ Hawai‘i at ___, ___ P.3d at ___.        In adopting the collateral

estoppel principle, we called into question Lemalu as

“inconsistent with our holding that once an acquittal is based on

a finding that the defendant did not commit certain acts,


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collateral estoppel prevents the prosecution from introducing

evidence of those acts in a subsequent trial.”          ___ Hawai‘i at

___, n.34, ___ P.3d at ___, n.34.

     We now expressly overrule Lemalu to the extent that it would

permit re-prosecution of an HRS § 291E-61(a)(3) offense following

the district court’s factual finding that the State had not

proven breath alcohol content in the initial prosecution.

Determination of breath alcohol content under HRS § 291E-61(a)(3)

involves “an issue of ultimate fact”:        under that method of

proof, proof of breath alcohol content of .08 or more grams of

alcohol per two hundred ten liters of breath alone is enough to

support a conviction under HRS § 291E-61(a)(3), as that method of

proof is one of absolute liability.       See Nesmith, 127 Hawai‘i at

50, 276 P.3d at 619.

     Although a district court’s factual finding that the State

did not prove breath alcohol content is not a “valid and final

judgment” under HRPP Rule 29(a) as to the entire HRS § 291E-61

offense if other methods of proving the offense are

contemporaneously tried, under Mundon, such a factual finding

would serve to collaterally estop the State from re-litigating

breath alcohol content in a subsequent OVUII trial.

Specifically, collateral estoppel would preclude a re-trial on

the HRS § 291E-61(a)(3) method of proof, as well as bar


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introduction of evidence concerning Spearman’s breath alcohol

content at a retrial on the HRS § 291E-61(a)(1) method of proof.

Cf. State v. Mezurashi, 77 Hawai‘i 94, 96, 881 P.2d 1240, 1243

(1994)(holding that blood alcohol content can be used as evidence

of impaired driving).

       We also note that even before Mundon, we observed that

“[t]he Double Jeopardy Clause forbids a second trial for the

purpose of affording the prosecution another opportunity to

supply evidence which it failed to muster in the first

proceeding.”      State v. Kalaola, 124 Hawai‘i 43, 62, 237 P.3d

1109, 1128 (2010)(citing Green v. United States, 355 U.S. 184,

187 (1957)).      In short, at Spearman’s first trial, the State

failed to prove Spearman’s breath alcohol content was at a level

necessary to violate HRS § 291E-61(a)(3).            The State cannot

attempt to newly prove what Spearman’s breath alcohol content was

in a subsequent trial.

IV.    Conclusion

       A prior “judgment of acquittal” on an HRS § 291E-61(a)(3)

method of proof in an OVUII trial is “in form only,” but it

serves as a factual finding that the State has not met its burden

of proving breath alcohol content.          As such, the collateral

estoppel principle embodied in the double jeopardy clause

prohibits the State from re-litigating breath alcohol content,


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whether in a re-prosecution of the defendant on the HRS § 291E-

61(a)(3) method of proof, or as part of the State’s evidence in a

subsequent trial on the HRS § 291E-61(a)(1) method of proof.               The

collateral estoppel principle alone, however, would not prohibit

the State from re-charging the defendant on the HRS § 291E-

61(a)(1) method of proof, following a dismissal without prejudice

pursuant to Nesmith, 127 Hawai‘i 48, 276 P.3d 617. Consequently,

we affirm the ICA’s Judgment on Appeal.

Timothy I. MacMaster for          /s/ Mark E. Recktenwald
petitioner
                                  /s/ Paula A. Nakayama

Keith M. Kaneshiro and            /s/ Simeon R. Acoba, Jr.
Stephen K. Tsushima
for respondent                    /s/ Sabrina S. McKenna
                                  /s/ Richard W. Pollack




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