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State v. Kam

Intermediate Court of Appeals of Hawai'i

November 26, 2014

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
CIERRA ANN KAM, Defendant-Appellant

As Corrected January 20, 2015.

Page 1082

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT, HONOLULU DIVISION. (1DTA-12-00359).

For Defendant-Appellant: Titiimaea N. Ta'ase, Deputy Public Defender.

For Plaintiff-Appellee: Brandon H. Ito, Deputy Prosecuting Attorney, City and County of Honolulu.

NAKAMURA, CHIEF JUDGE, AND FUJISE AND REIFURTH, JJ.

OPINION

Page 1083

[134 Hawai'i 282] NAKAMURA. C.J.

Defendant-Appellant Cierra Ann Kam (Kam)[1] was convicted of (1) Operating a Vehicle Under the Influence of an Intoxicant (OVUII), as a repeat offender, and (2) Operating a Vehicle After License and Privilege Have Been Suspended or Revoked for Operating a Vehicle Under the Influence of an Intoxicant (OVLPSR-OVUII).

On appeal, Kam contends that the District Court of the First Circuit (District Court)[2] erred in permitting Plaintiff-Appellee State of Hawai'i (State) to amend the charges against her to allege the required mens rea. Kam relies on a footnote in an unpublished summary disposition order of the Hawai'i Supreme Court, State v. Castro, 128 Haw. 115, 283 P.3d 721, 2012 WL 3089722, at *1 n.3 (Hawaii 2012). The State concedes error based on the Castro footnote. For several reasons, including that the Castro footnote has been undermined by State v. Davis, 133 Hawai'i 102, 324 P.3d 912 (2014), a more recent Hawai'i Supreme Court published opinion, we conclude that the Castro footnote does not control our decision. We hold that the District Court did not err in permitting the State to amend the charges. We also hold that Kam's contention that the State failed to present sufficient evidence to prove that she had previously been convicted of OVUII, proof that was necessary to support her conviction for OVUII as a repeat offender, is without merit. Accordingly, we affirm Kam's convictions.

BACKGROUND

I.[3]

On January 11, 2012, at about 2:47 a.m., Honolulu Police Department (HPD) Officer Mykle Moya (Officer Moya) observed the car Kam was driving " weaving heavily" on the H-1 Freeway. Officer Moya followed Kam's car and observed it drift back and forth across lane markings and weaving within its lane. Officer Moya effected a traffic stop of Kam's car. Upon approaching Kam, Officer Moya noticed that Kam's eyes were red, bloodshot, and glassy, that there was a very strong odor of alcohol on her breath, and that her speech was slurred.

Officer Moya asked Kam for her driver's license and vehicle documents. Kam stated that she did not have a license and provided Officer Moya with vehicle documents.

Kam participated in field sobriety tests conducted by Officer Moya. Kam performed poorly. On the horizontal gaze nystagmus test, Officer Moya noted that in both eyes, Kam showed a lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to 45 degrees, and that she also showed circular sway. On the walk and turn test, Officer Moya noted that Kam lost her balance five times during the instruction stage, and that during the walking stage, Kam stopped walking, missed heel-toe, stepped off line, and raised her arms multiple times. On the one leg stand test, Officer Moya observed that Kam swayed and raised her arms throughout the test, put her foot down once, counted the number 3 twice, and skipped number 19.

Kam agreed to participate in a preliminary alcohol screening test, which she " failed." Kam was placed under arrest and taken to the police station, where she agreed to take a breath test. The breath test administered by an Intoxilyzer operator showed that Kam had a breath alcohol concentration of 0.173 grams of alcohol per 210 liters of breath, which is above the legal limit.

Page 1084

A Case Detail Report for District Court " Case ID: 1DTA-11-02742 -- State v. Cierra A M Kam" shows that on October 21, 2011, " Cierra A M Kam" pleaded no contest to OVUII under Hawaii Revised Statutes (HRS) § 291E-61(a)(1) [134 Hawai'i 283] and (a)(3) and that the plea was accepted by the District Court. The Case Detail Report further shows that sentence was imposed and that a " Judgment and Notice" was entered on October 21, 2011. A traffic abstract for " Kam, Cierra Ann M" shows that her driver's license was administratively revoked, pursuant to HRS Chapter 291E, part III, from July 17, 2011 to July 16, 2012.

II.

On January 19, 2012, the State charged Kam by complaint with: (1) OVUII, as a repeat offender who committed the charged OVUII offense within five years of a prior conviction for OVUII, in violation of HRS § 291E-61(a) (1) and/or (a) (3) and (b) (2) (Supp. 2013); [4] and (2) OVLPSR-OVUII, as a first offender, in violation of HRS 291E-62(a)(1) and/or (a)(2) and (b)(1) (Supp. 2013).[5] The complaint alleged that Kam committed the OVUII and OVLPSR-OVUII offenses on or about January 11, 2012. The complaint, however, failed to allege the required mens rea of " ...


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