IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII
May 14, 2013
STATE OF HAWAII, PLAINTIFF-APPELLEE,
WEBSTER ALULI, DEFENDANT-APPELLANT
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (EWA DIVISION) (CASE NO. 1DTA-11-03226)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Fujise, Presiding Judge, Leonard and Ginoza, JJ.)
Defendant-Appellant Webster Aluli (Aluli) appeals from the Notice of Entry of Judgment and/or Order and Plea/Judgment entered on February 14, 2012 (Judgment), by the District Court of the First Circuit, 'Ewa Division.*fn1 Aluli was charged with and convicted of Operating a Vehicle Under the Influence of an Intoxicant (OVUII) in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2012) and Driving Without Motor Vehicle Insurance (DWMVI) in violation of HRS § 431:10C-104(a) (2005). On appeal, Aluli raises six points of error.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the issues raised by the parties, we resolve Aluli's points of error as follows:
Aluli's sole contention relating to the DWMVI conviction (which he also asserts as to the OVUII conviction), is that the District Court erred as a matter of law by failing to grant judgment in his favor due to the failure of the prosecution to prove facts establishing venue in the 'Ewa Division of the District Court. This argument is without merit. See State v. Stanley, 110 Hawaii 116, 122, 129 P.3d 1144, 1150 (App. 2005). With respect to the OVUII charge, Aluli argues, and the State acknowledges, that the District Court erred when it denied Aluli's motion to dismiss the OVUII charge because the charge does not allege the requisite state of mind. We agree. See State v. Nesmith, 127 Hawaii 48, 276 P.3d 617 (2012). Therefore, we vacate Aluli's OVUII conviction and remand this case to the District Court with instructions to dismiss the OVUII charge without prejudice. Id. at 54, 276 P.3d at 623; see also State v. Gonzalez, 128 Hawaii 314, 324, 288 P.3d 788, 798 (2012). Accordingly, we need not address Aluli's remaining arguments.
For these reasons, the District Court's February 14, 2012 Judgment is affirmed in part, with respect to Aluli's conviction for DWMVI, and vacated and remanded for dismissal without prejudice of the OVUII charge against Aluli.