State v. Kiyuna

*** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-12-0000682
03-MAR-2016
09:19 AM
SCWC-12-0000682
IN THE SUPREME COURT OF THE STATE OF HAWAII
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
LINN M. KIYUNA, Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000682; CASE NO. 1DTA-11-05236)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner/Defendant-Appellant Linn M. Kiyuna seeks review
of the Intermediate Court of Appeals’ (“ICA”) May 5, 2015
Judgment on Appeal, entered pursuant to its April 7, 2015
Summary Disposition Order, which affirmed the District Court of
the First Circuit’s (“district court”) July 6, 2012 Notice of
Entry of Judgment and/or Order and Plea/Judgment (“district
court judgment”).1 The district court found Kiyuna guilty of
Operating a Vehicle Under the Influence of an Intoxicant
(“OVUII”), in violation of Hawaii Revised Statutes (“HRS”)
1
The Honorable Lono Lee presided.
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§ 291E-61(a)(1) and/or (4) (2007).2 This court accepted Kiyuna’s
Application for Writ of Certiorari, and we now affirm the ICA’s
Judgment on Appeal and the district court judgment.
On certiorari, Kiyuna contends that (1) his Miranda rights
under Article I, Section 10 of the Hawaiʻi Constitution were
violated when, while in custody, he was asked by the police,
without Miranda warnings, if he wanted to refuse to take a blood
alcohol test, which was likely to incriminate himself; (2) his
statutory right to an attorney was violated; and (3) the
district court improperly allowed the State to amend its
complaint to allege the requisite mens rea for the HRS § 291E-
61(a)(1) charge.
In this court’s recent summary disposition order in State
v. Kam, we held that “the ICA correctly concluded that the
district court properly permitted the State to amend” an HRS
§ 291E-61(a)(1) charge to allege the requisite mens rea. State
2
HRS § 291E-61(a)(1) and (4) provide in relevant part:
(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; [or]
. . . .
(4) With .08 or more grams of alcohol per one hundred
milliliters or cubic centimeters of blood.
2
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v. Kam, SCWC-12-0000897 (Haw. Feb. 25, 2016) (SDO) at 2.
Accordingly, the district court properly permitted the State to
amend Kiyuna’s HRS § 291E-61(a)(1) charge to allege mens rea.
Kiyuna was convicted for violating both HRS § 291E-61(a)(1)
and (a)(4). Either subsection can serve as the basis for a
conviction under HRS § 291E-61. See State v. Grindles, 70 Haw.
528, 530-31, 777 P.2d 1187, 1189-90 (1989); State v. Caleb, 79
Hawaii 336, 339, 902 P.2d 971, 974 (1995); State v. Mezurashi,
77 Hawaii 94, 98, 881 P.2d 1240, 1244 (1994). Insofar as the
HRS § 291E-61(a)(1) charge was properly amended, and insofar as
Kiyuna does not challenge the sufficiency of the evidence
supporting his conviction for violating HRS § 291E-61(a)(1), his
OVUII conviction still stands. There is no need for this court
to address his argument that the blood test results supporting
his HRS § 291E-61(a)(4) conviction were obtained in violation of
his Miranda rights and/or his statutory right to counsel.
IT IS HEREBY ORDERED that the ICA’s May 5, 2015 Judgment on
Appeal and the district court judgment are affirmed.
DATED: Honolulu, Hawaii, March 3, 2016.
Jonathan Burge /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
3