April 17, 2013
STATE of Hawaii, Plaintiff-Appellee,
Daniel S. NAKANO, Defendant-Appellant.
This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35
Appeal from the District Court of the First Circuit, Honolulu Division (Case No. 1DTA-11-02743).
Samuel P. King, Jr., on the briefs, for Defendant-Appellant.
Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff-Appellee.
FUJISE, Presiding Judge, REIFURTH and GINOZA, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Daniel S. Nakano (Nakano) appeals from the January 23, 2012 Judgment entered by the District Court of the First Circuit, Honolulu Division (District Court).
Nakano was charged with Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(3) (2007) arising from an incident occurring on June 10, 2011. The District Court accepted Nakano's conditional change of plea that reserved for appeal the issue raised herein.
On appeal, Nakano contends that the District Court erred in failing to grant his oral motion to dismiss the complaint for OVUII because it did not allege a state of mind.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Nakano's point of error as follows.
Based on the Hawaii Supreme Court's decision in State v. Nesmith, 127 Hawaii 48, 61, 276 P.3d 617, 630 (2012), we conclude that the complaint was sufficient to charge OVUII in violation of HRS § 291E-61(a)(3), but was insufficient to charge OVUII in violation of HRS § 291E-61(a)(1). Thus, Plaintiff-Appellee State of Hawaii was entitled to proceed to trial on the OVUII offense charged under HRS § 291E-61(a)(3).
IT IS HEREBY ORDERED THAT the Judgment filed on January 23, 2012 in the District Court of the First Circuit, Honolulu Division is affirmed as to Nakano's conviction under HRS § 291E-61(a)(3) but is vacated as to Nakano's conviction under HRS § 291E-61(a)(1).