  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***




                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-11-0000774
                                                               06-FEB-2014
                                                               09:01 AM




                              SCWC-11-0000774

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I
_________________________________________________________________

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

                                    vs.

                          SYLVA RIVERA,
                 Petitioner/Defendant-Appellant.
_________________________________________________________________

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-11-0000774; CR. NO. 10-1-1327)

                    SUMMARY DISPOSITION ORDER
 (By: Acoba, McKenna, and Pollack, JJ., with Recktenwald, C.J.,
   concurring and dissenting, with whom Nakayama, J., joins)

            In his Application for Writ of Certiorari, Sylva Rivera

(Sylva) contends that the charge “does not specify the state of

mind,” and therefore the charge was insufficient under State v.

Nesmith, 127 Hawai#i 48, 276 P.3d 617 (2012).           The Complaint1 in

this case did not allege the state of mind that the State was

required to prove for the charge of Operating a Vehicle Under the

Influence of an Intoxicant (OVUII), in violation of Hawai#i


      1
            The Honorable Edward H. Kubo, Jr. presided over the proceedings in
the Circuit Court of the First Circuit.
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Revised Statutes (HRS) § 291E-61(a)(1)(2010).2            Because HRS §

291E-61(a)(1) does not specify the requisite state of mind, HRS §

702-204 (2010) applies, which provides: “When the state of mind

required to establish an element of an offense is not specified by

the law, that element is established if, with respect thereto, a

person acts intentionally, knowingly, or recklessly.”              See

Nesmith, 127 Hawai#i at 53-54, 276 P.3d at 622-23.

            In State v. Maharaj, No. SCWC-29520, 2013 WL 6068086, at

*5 (Haw. Nov. 18, 2013), where the issue of mens rea was raised

for the first time on appeal, we reaffirmed the “core principle”

set out in State v. Apollonio, 130 Hawai#i 353, 311 P.3d 676

(2013), that “‘[a] charge that fails to charge a requisite state

of mind cannot be construed reasonabl[y] to state an offense and

thus the charge is dismissed without prejudice because it violates

due process.’”3     Id. (quoting Apollonio, 130 Hawai#i at 359, 311


      2
            The Complaint read as follows:

            On or about the 21st day of May, 2010, in the City and County
            of Honolulu, State of Hawaii, SYLVA RIVERA did operate or
            assume actual physical control of a vehicle upon a public way,
            street, road, or highway while under the influence of alcohol
            in an amount sufficient to impair his normal mental faculties
            or ability to care for himself and guard against casualty,
            thereby committing the offense of Operating a Vehicle Under
            the Influence of an Intoxicant, in violation of Section 291E-
            61 (a)(1) of the Hawaii Revised Statutes.     SYLVA RIVERA is
            subject to sentencing in accordance with Section 291E-61
            (b)(3) of the Hawaii Revised Statutes, where SYLVA RIVERA
            committed the instant offense within five years of a prior
            conviction for an offense under Section 291E-61 or Section
            291E-4(a) of the Hawaii Revised Statutes.

      3
            In the instant case, the sufficiency of the charge was raised for
the first time by the State in its Answering Brief to the ICA.

                                      -2-
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


P.3d at 682).    We also held that “as a fact that must be alleged

in a charge, a requisite state of mind is clearly an essential

fact that must be alleged under [Hawai#i Rules of Penal Procedure]

Rule 7(d).”   Maharaj, No. SCWC-29520, 2013 WL 6068086, at *5

(internal quotation marks omitted).        Thus, inasmuch as the

Complaint against Sylva failed to allege the requisite state of

mind that also was an essential fact of the offense of OVUII, the

Complaint must be dismissed without prejudice.           Id.

           In the second question presented in the Application,

Sylva contends that the Intermediate Court of Appeals (ICA)

gravely erred in holding that the circuit court had jurisdiction

over him as a Native Hawaiian.       The ICA held that this contention

was without merit based on its decision in State v. Fergerstrom,

106 Hawai‘i 43, 55, 101 P.3d 652, 664 (App. 2004).             State v.

Rivera, No. CAAP-11-0000774 (App. Sept. 24, 2012) (SDO) at 2.                 Our

decision in State v. Kaulia, 128 Hawai#i 479, 291 P.3d 377 (2013),

affirmed the principle set forth in Fergerstrom.           128 Hawai#i at

487, 291 P.3d at 385.

           As to the third question, Sylva argues that the ICA

erred in affirming the circuit court’s denial of his Hawai#i Rules

of Penal Procedures (HRPP) Rule 48 motion to dismiss because the

circuit court erroneously excluded the time period between October

6, 2010 and November 15, 2010 from its HRPP Rule 48 computation

for trial commencement.      The ICA found that Sylva’s failure to

                                     -3-
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


appear at the September 27, 2010 trial call presumably required

the circuit court to reschedule his trial to November 15, 2010.

State v. Rivera, No. CAAP-11-0000774 (App. Sept. 24, 2012) (SDO)

at 2.   Therefore, the ICA held that the circuit court properly

excluded this period pursuant to HRPP Rule 48(c)(5).            Id.

           Although Sylva argues that he was available from October

6, 2010 when the court recalled the bench warrant, his prior

unavailability at the September 27, 2010 trial call resulted in

the circuit court resetting the trial for the week of November 15,

2010.   Thus, the circuit court did not err in ruling that the

period between September 27, 2010 and November 15, 2010 was

excludable under HRPP Rule 48(c)(5) based on Sylva’s

unavailability at the trial call.

           In Sylva’s fourth question presented, he asserted that the

ICA gravely erred in holding that there was substantial evidence to

support his conviction.

           At trial, Officer Rivera testified that Sylva swayed

four to five times within his lane, crossed over a double-solid

yellow line into the opposite lane for oncoming traffic by

approximately three feet, and drove at a speed that appeared to

exceed the posted speed limit.       Officers Rivera and Foote each

observed that Sylva had glassy red eyes, a strong odor of alcohol

on his breath, and slurred speech.



                                     -4-
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


           Officer Foote testified that during the walk-and-turn

test of the field sobriety test, Sylva was unable to perform all

of the heel-to-toe steps correctly and lost his balance three

times.   Officer Foote also testified that during the one-leg-stand

test, Sylva “put his leg down three times, swayed three times, and

put his arms out three times, indicating a loss of balance.”

Officer Foote thus determined that Sylva failed the field sobriety

test and arrested Sylva for OVUII.

            Accordingly, the evidence adduced at trial was

sufficient to support the trial court’s finding that Sylva was

impaired and to sustain Sylva’s OVUII conviction.           State v.

Lubong, 77 Hawai‘i 429, 432, 886 P.2d 766, 769 (App. 1994).

Therefore, the ICA did not err in finding that there was

substantial evidence in support of Sylva’s conviction.

           For the reasons set forth herein, the ICA’s Judgment on

Appeal, filed on October 30, 2012, is vacated, and the circuit

court’s judgment of conviction and sentence, filed on September 9,

2011, is vacated.    The case is remanded to the circuit court with

instructions to dismiss the case without prejudice.

           DATED: Honolulu, Hawai#i, February 6, 2014.

Jeffrey A. Hawk                            /s/ Simeon R. Acoba, Jr.
for petitioner
                                           /s/ Sabrina S. McKenna

                                           /s/ Richard W. Pollack



                                     -5-
