State v. Nahalea ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAR-2022
07:55 AM
Dkt. 54 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
NUIPITANE C. NAHALEA, also known as
Nuipitane Coen Nahale-A, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
WAI#ANAE DIVISION
(CASE NO. 1DTA-18-00011)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Nuipitane C. Nahalea, also known as
Nuipitane Coen Nahale-A (Nahalea), appeals from the August 2,
2019 Amended Notice of Entry of Judgment and/or Order and
Plea/Judgment (Amended Judgment), entered in the District Court
of the First Circuit, Wai#anae Division (District Court).1/
Following a bench trial,2/ Nahalea was convicted of Operating a
Vehicle under the Influence of an Intoxicant (OVUII), in
violation of HRS § 291E-61(a)(1), (b)(2) (Supp. 2017).3/
1/
The Honorable Sherri L. Iha presided.
2/
The Honorable Steven L. Hartley presided over the February 22,
2019 trial and entered the February 22, 2019 Notice of Entry of Judgment
and/or Order and Plea/Judgment (Judgment).
3/
At the time of the alleged offense, HRS § 291E-61 provided, in
relevant part:
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:
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
On appeal, Nahalea contends that the District Court
erred in: (1) shifting the burden of proof to Nahalea; and (2)
considering Nahalea's prior conviction for OVUII as propensity
evidence.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Nahalea's contentions as follows, and vacate and remand.
Nahalea asserts in his second point of error that the
District Court, in finding Nahalea guilty of OVUII, improperly
relied upon his prior OVUII conviction as propensity evidence to
prove that he was unable to guard against casualty at the time of
the January 1, 2018 collision that led to the OVUII charge. We
find this issue dispositive.
We recently addressed a similar issue in State v.
Ballesteros, CAAP-XX-XXXXXXX, 2021 WL 2656684 (Haw. App. June 28,
2021). We summarized the relevant legal principles as follows:
In State v. Ruggerio, the Hawai#i Supreme Court
addressed a dispute over whether the aggravating factors in
HRS § 291E-61(b) are elements of the offense that must be
charged and proven to a trier of fact beyond a reasonable
doubt or are sentencing factors to be considered by the
sentencing court. 114 Hawai#i 227, 237-38, 160 P.3d 703,
713-14 (2007), abrogated on other grounds by Christian v.
State, 131 Hawai#i 153, 158, 315 P.3d 779, 784 (App. 2013),
overruled by Schwartz v. State, 136 Hawai#i 258, 361 P.3d
1161 (2015); see State v. Wagner, 139 Hawai #i 475, 484, 394
P.3d 705, 714 (2017) (distinguishing Ruggerio, but
recognizing its continued validity). The supreme court
concluded that the aggravating factors in HRS § 291E-61(b)
are not sentencing factors, and though not explicitly
(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 without possibility of probation or suspension of
sentence as follows:
. . . .
(2) For an offense that occurs within five years of
a prior conviction for an offense under this
section or section 291E-4(a):
[Applicable sentencing provisions].
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
categorizing them as "elements," nonetheless found them to
be "attendant circumstances that are intrinsic to and
'enmeshed' in the hierarchy of offenses that HRS § 291E–61
as a whole describes," and that due process therefore
requires those factors to be alleged in the charging
instrument and proven beyond a reasonable doubt at trial.
Ruggerio, 114 Hawai#i at 238, 160 P.3d at 714. Therefore,
the District Court did not err in considering evidence of
Ballesteros's prior OVUII offenses in finding him guilty of
the offense of OVUII 3, provided such evidence was only
considered for the purpose prescribed in Ruggerio.
Id. at *1 (emphasis added); see also State v. Murray, 116 Hawai#i
3, 21, 169 P.3d 955, 973 (2007) (in a prosecution for abuse of a
family member as a class C felony, evidence of the defendant's
prior convictions could be used only to prove the prior
convictions and was not otherwise to be considered by the jury in
determining whether the defendant committed the charged offense).
In Ballesteros, we concluded that the defendant failed
to establish that the District Court had improperly considered
the defendant's prior offenses as impermissible propensity
evidence that he drove while impaired. Id. at *2. We reasoned:
As to Ballesteros's contention that the District Court
improperly considered the prior offenses as impermissible
propensity evidence that he drove while impaired, he points
to nothing in the record supporting that conclusion other
than that the District Court discussed the evidence of
impairment and the evidence of prior OVUII offenses in the
same paragraph of the trial transcript. In that same
paragraph, however, the District Court made the finding that
the State had "proven beyond a reasonable doubt the
violation of HRS § 291E-61(a)(1)(b)(3)." (Emphasis added).
Therefore, the District Court was also addressing in that
paragraph the attendant circumstances applicable in this
case. "[W]here a case is tried without a jury, it is
presumed that the presiding judge will have disregarded the
incompetent evidence and relied upon that which was
competent." State v. Kiese, 126 Hawai#i 494, 507, 273 P.3d
1180, 1193 (2012) (citations and internal quotation marks
omitted). "This means that when evidence is admissible for
a limited purpose, we presume that the judge only considered
the evidence for the permissible purpose." State v. Lioen,
106 Hawai#i 123, 133, 102 P.3d 367, 377 (App. 2004).
Because the evidence of prior OVUII offenses is admissible
for limited purposes here, this court must presume it was
only considered for those purposes. While the presumption
is rebuttable, Ballesteros points to no evidence in the
record to rebut it. See Kiese, 126 Hawai#i at 507 n.7, 273
P.3d at 1193 n.7.
Id.Here, in contrast, Nahalea points to the following
findings by the District Court as evidence that the court
improperly considered the defendant's prior offense as
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
impermissible propensity evidence:
THE COURT: . . . .
. . . .
The next question is whether or not you were
intoxicated to a degree, to a level, as argued by your
counsel, to be unable to guard against damage -- it's called
"casualty" -- to yourself or to others. Okay. So that's
the next step. And the court finds that even without the
standard field sobriety test in this case and without any
other reasonable alternative explanations and given the fact
that the incident resulted in a -- as everybody agrees, in a
horrible accident that could have killed people including
yourself, okay, the court takes it very seriously. Okay.
And the fact that this is not a first offense, the court
also in the totality of the circumstances must factor that
in. Okay.
(Emphasis added.)
Thus, the District Court explicitly considered "the
fact that this is not a first offense" as part of the "totality
of the circumstances" in determining that Nahalea operated a
vehicle under the influence of alcohol in an amount sufficient to
impair his ability to guard against casualty. And unlike
Ballesteros, where the evidence of prior OVUII convictions was
discussed in the same paragraph of the trial transcript as the
finding of "[a] violation of HRS § 291E-61(a)(1)(b)(3)[,]" here,
the court's reference to Nahalea's prior conviction was not part
of a discussion of HRS § 291E-61(b)(2) or the attendant
circumstance of such a conviction.4/ Based on the District
Court's statements in finding Nahalea guilty of OVUII, we
conclude that Nahalea has rebutted the presumption that the court
considered the prior offense for its permissible limited purpose,
and instead considered it as impermissible propensity evidence.
Morever, in light of the entire record, we cannot
conclude that the District Court's error was harmless beyond a
reasonable doubt. See State v. Jones, 148 Hawai#i 152, 170, 468
P.3d 166, 184 (2020). The District Court expressly identified
4/
Rather, immediately after referring to "the fact that this is not
a first offense," the court stated: "And so based on all of that, Mr.
Nahalea, I do find that you were operating your vehicle -- and I find this
beyond a reasonable doubt -- at the time under the influence of an intoxicant
and that because of that, as evidenced by the accident itself, you were unable
to guard against harm to yourself and to others given your condition at the
time."
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only two facts – "the incident resulted in . . . a horrible
accident" and "this is not a first offense" – in concluding that
Nahalea was intoxicated in an amount sufficient to impair his
ability to guard against casualty. On this record, we cannot
conclude there was no reasonable possibility that the error might
have contributed to Nahalea's conviction. See State v. McCrory,
104 Hawai#i 203, 210, 87 P.3d 275, 282 (2004). Accordingly, the
Judgment and the Amended Judgment must be set aside. See id.Given our disposition, we need not address Nahalea's
first point of error.
For the reasons discussed above, we vacate the
February 22, 2019 Notice of Entry of Judgment and/or Order and
Plea/Judgment and the August 2, 2019 Amended Notice of Entry of
Judgment and/or Order and Plea/Judgment, both entered in the
District Court of the First Circuit, Wai#anae Division, and
remand the case to the District Court for further proceedings
consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai#i, March 30, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Alen M. Kaneshiro Chief Judge
for Defendant-Appellant.
Brian R. Vincent, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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