As Corrected April 9, 2014.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CAAP-12-0000074; 1DTC-11-032838.
John M. Tonaki and Taryn R. Tomasa, for petitioner.
Keith M. Kaneshiro and Brian R. Vincent, for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., WITH ACOBA, J., CONCURRING.
[133 Hawai'i 104] POLLACK, J.
Terry Davis was convicted by the District Court of the First Circuit (district court) of operating a vehicle after license and privilege have been suspended or revoked for operating a vehicle under the influence of an intoxicant, in violation of Hawai'i Revised Statutes (HRS) § § 291E-62(a)(1) and/or (2) (2007).
On appeal, the Intermediate Court of Appeals (ICA) vacated the district court judgment, concluding that the charge against Davis for violating HRS § § 291E-61(a)(1) and/or (2) was defective for failing to allege the requisite state of mind. The ICA remanded the case to the district court with instructions to dismiss the case without prejudice.
Davis contends in his application for writ of certiorari (Application) that the ICA gravely erred in failing to address whether there was sufficient evidence to sustain the conviction and whether double jeopardy precludes retrial. Davis requests this court to vacate the ICA's September 10, 2013 Judgment on Appeal, and remand the case to the district court with instructions to reverse the conviction and bar further prosecution based on double jeopardy.
We hold that, under article I, section 10 of the Hawai'i Constitution, a reviewing court is required to address an express claim of insufficiency of the evidence prior to remanding for a new trial based on a defective charge. Upon our review of the sufficiency of the evidence, we conclude that substantial evidence supported the conviction, and therefore double jeopardy does not preclude a retrial. Accordingly, we affirm the ICA's judgment for the reasons set forth in this opinion.
On January 11, 2012, the State orally charged Davis with committing the offense of operating a vehicle after license and privilege have been suspended or revoked for operating a vehicle under the influence of an intoxicant (Oral Charge), in violation of HRS § § 291E-62(a)(1) and/or (2).
[133 Hawai'i 105] Davis objected to the Oral Charge as insufficient for not including a state of mind allegation, and requested the case be dismissed. The district court denied the motion to dismiss.
The case then proceeded to trial. Honolulu Police Department (HPD) Officer Kelvin Hayakawa (Officer Hayakawa) was the only witness to testify.
On July 22, 2011, Officer Hayakawa responded to a motor vehicle collision in the area of Kuala Street and Kamehameha Highway. Officer Hayakawa testified that the location of the offense on Kuala Street and Kamehameha Highway was in the City and County of Honolulu, State of Hawai'i. Upon his arrival, Officer Hayakawa observed a white pickup truck and a four-door car pulled over on the shoulder of Kamehameha Highway. The occupants were standing outside of their respective vehicles. Davis identified himself as the driver of the pickup truck.
Officer Hayakawa initiated a motor vehicle collision investigation. He found damage to the front bumper of the pickup truck and damage to the other vehicle's rear bumper. The Officer then conducted a background check on Davis's driver's license status. Officer Hayakawa did not recall whether he checked the status of Davis's driver's license on the computer in his patrol car or through dispatch, but he recalled that he was informed that Davis's license had been revoked.
Officer Hayakawa issued a citation (Citation) to Davis for " driving with a revoked license,"  and he gathered Davis's personal information including his date of birth, address, and " whatever information [he] needed for the report and the citation." The Citation indicated that Davis's name was " Terry J. Davis," his height and weight was 6'1" and 210 pounds, he had brown hair and brown eyes, his date of birth, and the last four numbers of his social security number.
The State sought to admit into evidence State's Exhibit 1, the Judgment of Conviction and Probation Sentence for Cr. No. 06-1-0933 issued by the Circuit Court of the First Circuit (circuit court) on March 19, 2007 (Exhibit 1 or Judgment of Conviction), under Hawai'i Rules of Evidence (HRE) Rule 902(1) (Supp. 2001) as a self-authenticating
[133 Hawai'i 106] public document. The Judgment of Conviction reflected that a Terry Jay Davis had been convicted in Count I of habitually operating a vehicle under the influence of an intoxicant, in violation of HRS § 291E-61.5 (2007), and in Count II of operating a vehicle after license and privilege have been suspended or revoked for operating a vehicle under the influence of an intoxicant, in violation of HRS § 291E-62 (2007). The circuit court had imposed a sentence of: " PROBATION: FIVE(5) YEARS AS TO CT. 1." As a special condition of probation, " TERRY JAY DAVIS" was prohibited from operating a motor vehicle throughout the period of probation.
Davis objected to the admission of Exhibit 1, arguing, inter alia, that it did not comport with the requirements of HRE Rule 902(1) or 902(4). Davis argued that Exhibit 1 lacked proper authentication because there was no attestation with regard to the seal, and there was no evidence that the signature was made by a custodian authorized to make such a certification.
Davis also objected to the admission of Exhibit 1 based on hearsay grounds with respect to " the contents of the document itself as well as the hearsay statement that is the certification itself."
The State responded that Exhibit 1 was generated and filed by the circuit court and included both the judge and clerk's name on the document. Also, Exhibit 1 fell under the hearsay exception set forth in HRE Rule 803(b)(8) (Supp. 2002) because the document was a " public record."
The district court admitted Exhibit 1 into evidence as a self-authenticating document under HRE Rule 902(1) and as a public record under HRE Rule 803(b)(8).
Davis then made a motion for judgment of acquittal, arguing that there was insufficient evidence to establish a prima facie case. He argued that there was " nothing in [Exhibit 1] related to any continued license suspension" or that indicated " Davis's license was suspended on the date of the incident . . . for the offense of DUI." Thus, Davis maintained that the State had not adduced any evidence to show that Davis's license was actually suspended at the time of the DUI offense on July 22, 2011.
The State responded that Davis was sentenced to a five-year probation term, and Condition 7R of the Special Conditions of Probation (Special Condition 7R) set forth in Exhibit 1 " prohibited Davis from operating a motor vehicle throughout the period of probation." The State pointed out that the probation term started on March 19, 2007 and was scheduled to run until March 18, 2012.
The district court denied the motion for judgment of acquittal, finding that Special Condition 7R brought Davis " within the scope of HRS § 291E-62 in that Davis was prohibited from operating a motor vehicle throughout the period of probation, and that constitute[d] a restriction on his license to operate a vehicle pursuant to HRS § 291E-61, for which Davis had entered a plea of guilty" on March 19, 2007.
The defense rested without presenting evidence. In closing argument, the State argued that it proved beyond a reasonable doubt that Davis was guilty of driving while his license was suspended or revoked for operating a motor vehicle under the influence of an intoxicant as a second offense. Officer Hayakawa was dispatched to a motor vehicle collision where he observed damage to Davis's vehicle. Davis admitted to Officer
[133 Hawai'i 107] Hayakawa that he was driving the vehicle, and he had provided the Officer his name, date of birth, and the last four digits of his social security number. This information was identical to that reflected on State's Exhibit 1.
The State maintained that Exhibit 1 demonstrated that Davis's license was restricted as a term of his probation when he was found guilty of violating HRS § § 291E-61.5 and 291E-62. The State contended that Davis was aware of his probation terms, and therefore he recklessly disregarded the requirements of his probation by driving with a suspended or revoked license.
Davis countered that the evidence was insufficient to prove that his license suspension remained in place on the date of the incident on July 22, 2011. Davis argued that there was nothing provided by the driver's license bureau or the Administrative Driver's License Revocation Office about his license status on the date of the incident. There was also no evidence that after the March 19, 2007 judgment was issued, the terms and conditions of his probation were not modified or changed in any way.
Additionally, Davis contended that there was no evidence presented by the State that he actually received a copy of the terms and conditions of probation or that he was aware of those terms and conditions. Davis maintained that the State did not provide a witness to identify him as the person who appeared in court and had his license suspended or revoked on March 19, 2007. Davis asserted that the State failed to prove beyond a reasonable doubt that he was aware or should have been aware that his license was suspended or revoked, or that his license actually was suspended or revoked on March 19, 2007.
Finally, Davis asserted that there was no testimony to confirm that the accident that occurred on July 22, 2011 took place on a public way, street, road, or highway, as required under HRS § 291E-62.
In reply, the State argued that Officer Hayakawa testified that " the location of the violation was on Kamehameha Highway and Kuala Street, which is a public street, road, or highway in the City and County of Honolulu, State of Hawai'i." The State pointed out that the first page of Exhibit 1 contained language stating that copies of the Judgment of Conviction were mailed and delivered to all parties, which gave Davis notice through the attached terms and conditions of probation that he was restricted from driving a motor vehicle during the five years of probation. The State further argued that the Judgment of Conviction could not have been executed in circuit court without Davis's presence.
The district court " accept[ed] [O]fficer [Hayakawa's] testimony regarding obtaining information relevant to [Davis's] identity, which [was] corroborated by State's Exhibit 1," and found the officer's testimony to have been credible. The district court found that the State satisfied its burden of proof that Davis was guilty as charged. Sentence was imposed, and the district court judgment was filed. Davis timely appealed.
On appeal to the ICA, Davis presented four points of error:
1. The State failed to adduce sufficient evidence to sustain the conviction.
2. The district court erred in admitting State's Exhibit 1 because it was not properly certified, and therefore not self-authenticating pursuant to HRE 902(4).
3. Double jeopardy precludes a retrial on the same charge.
4. Assuming arguendo that there is sufficient evidence to sustain the conviction, State v. Nesmith mandates a new trial.
In his first point of error, Davis argued that the State failed to adduce sufficient evidence to sustain a conviction under HRS § 291E-62(a)(1) because the State failed to prove " every element of the crime charged
[133 Hawai'i 108] beyond a reasonable doubt." Davis presented five arguments in support of his first point of error.
First, Davis argued that the State failed to establish that the motor vehicle collision occurred on a public way, street, road, or highway pursuant to the statutory definitions. Officer Hayakawa testified that he responded to a motor vehicle collision and observed two vehicles pulled over on the shoulder of Kamehameha Highway. Davis maintained that the State failed to prove that Kamehameha Highway fell under the definition of " public road" or " public highway" because the State did not " establish that the area where the accident occurred was open to the public or " publicly maintained," or that the highway was built, acquired, or otherwise under the jurisdiction of the County or the State of Hawai'i."
Second, Davis argued the State failed to establish by satisfactory evidence that the " Terry Jay Davis" listed as the defendant on the Judgment of Conviction was connected to him. Davis asserted that the evidentiary record lacked any fingerprint evidence or physical description to link him to Exhibit 1. Additionally, Davis argued that the State demonstrated only that the last four digits of his social security number (SSN) matched the SSN on State's Exhibit 1. He maintained that the name " Terry Jay Davis" was not the same as " Terry J. Davis." However, Davis did concede that his birth date matched the birth date of " Terry Jay Davis" on Exhibit 1.
Third, Davis argued that even if Exhibit 1 established prior convictions under HRS § § 291E-61.5 and 291E-62, the State failed to call any witnesses to attest to Davis's presence or identity at the March 19, 2007 hearing. Davis pointed out that the terms and conditions of probation attached to the Judgment of Conviction were " unsigned, unacknowledged, and undated." Davis argued that " the district court's assumption that he must have been present because a plea would not have been accepted, he would not have been sentenced . . . was insufficient."
Additionally, Davis argued that the State failed to establish that Davis was on probation or that the terms and conditions of probation were in effect at the time of the incident on July 22, 2011. Neither HRS § § 291E-61.5 nor 291E-62 " mandate[d] a five-year driver's license suspension."  Therefore, without evidence of a specific date in which the license revocation would become effective, any restriction on Davis's driver's license " may have been completed long before July 22, 2011" or modified by the court. Lastly, Davis argued that Exhibit 1 was insufficient to establish that he intentionally, knowingly, or recklessly operated a vehicle while his driver's license was suspended or revoked.
Fourth, Davis argued that the State failed to adduce sufficient evidence that his driver's license had been revoked, suspended, or restricted pursuant to any other statutory provision enumerated in HRS § § 291E-62(a)(1) and/or (2).
Fifth, Davis argued that even if Exhibit 1 was properly admitted, the State failed to adduce sufficient evidence that he was convicted for violating HRS § 291E-62 within the requisite probationary time period or that he was the individual sentenced in court for a second offense of HRS § 291E-62 within a five-year period. Consequently, there was insufficient evidence to subject him to sentencing under HRS § 291E-62(b)(2).
In his second point of error, Davis argued that the district court erred in admitting Exhibit 1 into evidence because Exhibit 1 failed to comply with the self-authentication requirements under HRE Rule 902. The State was required to establish that the document was certified as correct by either the custodian of records or a person authorized to make such a certification. The seal on Exhibit 1 stated as follows:
I do hereby certify that this is a full, true, and correct copy of the original file in this office.
Clerk, Circuit Court, First ...