NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JUN-2021
08:15 AM
Dkt. 50 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
LEONARD SPORIK, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
KÂNE#OHE DIVISION
(CASE NO. 1DTA-18-03076)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Leonard Sporik (Sporik) appeals
from the Amended Judgment and Notice of Entry of Amended
Judgment, filed on December 11, 2019,1/ and the Notice of Entry
of Judgment and/or Order and Plea Judgment, filed on January 28,
2020,2/ in the District Court of the First Circuit, Kâne#ohe
Division (District Court).3/
Sporik was convicted of Operating a Vehicle Under the
Influence of an Intoxicant (OVUII), in violation of Hawaii
1/
The Honorable Philip Doi presided.
2/
The Honorable Sherri L. Iha presided.
3/
The judgments entered on December 11, 2019, and January 28, 2020,
together constitute the District Court's judgment in this case.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2020).4/
On appeal, Sporik contends the District Court did not
apply the beyond a reasonable doubt standard when finding alcohol
he consumed contributed to his inability to drive.5/
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 Sporik's point of error as follows and affirm.
Contrary to Sporik's claim, the District Court applied
the proof beyond a reasonable doubt standard when finding him
guilty of OVUII. Sporik points to the District Court's reference
to "could" in its pronouncement of guilt as an indication it did
not apply the proof beyond a reasonable doubt standard. The
District Court stated, in relevant part:
There were no questions and therefore no answers
regarding other days when Mr. Sporik took those same
three medications. And but -- but I do have one
question and one answer regarding taking those
medications with alcohol. I've got a lot of questions
about solely one and solely -- solely medication and
solely alcohol, but only one on alcohol in addition to
those, and that was Dr. McAndrews, and he said even a
small amount of alcohol could have a -- a -- a -- a
notable increase in the effects. The words "in an
amount sufficient to impair" have been defined in case
law as to mean that it does not have to be the sole
cause. All it has to be is a factor.
And so as to the OVUII, given the testimony, there --
there ab-- absolutely was alcohol involved in this.
All it has to be is a contributing factor to the
4/
HRS § 291E-61(a)(1) states:
§291E-61 Operating a vehicle under the influence of an
intoxicant. (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[.]
5/
In his Reply Brief, Sporik raises a new argument that there was
insufficient evidence to convict him. Arguments raised for the first time in
the reply brief on appeal are waived. State v. Mark, 123 Hawai #i 205, 230,
983 P.3d 478, 503 (2010) (citing In re Hawaiian Flour Mills, Inc., 76 Hawai #i
1, 14 n. 5, 868 P.2d 419, 432 n. 5 (1994) and Rule 28(d) of the Hawai #i Rule
of Appellate Procedure).
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impairment, Mr. Sporik. I find that the State has
borne its burden. I am convinced beyond a reasonable
doubt that you were impaired at least in part by
alcohol, and I find you guilty on that count.
(Emphases added).
Sporik claims that his over-prescribed medication was
the sole cause of his behavior in this case. However, the
context of the District Court using the word "could" in its
ruling is in reference to the testimony of Sporik's expert
witness, Dr. McAndrews, who Sporik admits stated a general
proposition that it was possible for alcohol to enhance the
effects of medication that Sporik claimed he took prior to the
incident. In this regard, Dr. McAndrews testified:
Q. So what -- what is the effect here? So why -- if you have
low blood pressure, why do you experience these problems?
A. If you have low blood pressure, your vital organs aren't
getting perfused properly with oxygen from your blood and
vital organs, includes the brain, so that's why you would
experience those side effects.
Q. If -- if you had taken, say, a drink of alcohol, could
that increase these effects, or how might that interact with
the symptoms of low -- that you've already described
relating to low blood pressure?
A. I would say so because alcohol is also a central nervous
system depressant. You know, even a small amount could
compound the effects, and you could see, you know, drastic
confusion, lethargy, dizziness, fatigue, incoherence.
(Emphases added).
We further note that Sporik misleadingly argues,
multiple times, that Dr. McAndrews specifically testified that
alcohol "did not contribute" to Sporik's behavior, that "alcohol
was not a factor in enhancing the effects of overmedication"
suffered by Sporik, that "alcohol had nothing to do with the
symptoms and behavior exhibited by Sporik on the date of the
accident[,]" and that "alcohol was not a factor in this case[.]"
To support these assertions, Sporik quotes one particular part of
Dr. McAndrews' testimony, but without providing the question he
was answering. The relevant testimony, including the question,
is as follows:
Q. [defense counsel] Two glasses of bourbon and Coke, say
two just prior to driving, do you have a opinion based on a
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reasonable degree of medical probability as to whether or
not all of these problems that we've just described to the
degree that he was having them could've been caused solely
by his having drunk those two alcoholic beverages?
. . .
THE WITNESS: I do have an opinion.
Q. [defense counsel] And what is that?
A. My opinion is that based on the degree of severity of the
symptoms that he exhibited, I don't believe that those
symptoms could've been caused by the two alcoholic beverages
that you mentioned.
(Emphases added).
The District Court correctly noted alcohol need only be
a contributing factor to the diminished capacity to drive safely.
In State v. Vliet, 91 Hawai#i 288, 293, 983 P.2d 189, 194 (1999),
the Hawai#i Supreme Court interpreted HRS § 291-4 (1993 & Supp.
1998), the predecessor statute for driving under the influence of
an intoxicating liquor, and held proof that alcohol contributed
to diminishing the defendant's capacity to drive safely was
sufficient. The Hawai#i Supreme Court explained:
As for Vliet's claim that the prosecution failed to adduce
"any evidence that [his] condition was due to alcohol, [and]
not his epilepsy or his Neurontin," this contention is
patently meritless insofar as Vliet himself admitted at
trial that he had consumed two beers on the night in
question. It appears, however, that Vliet is attempting to
argue a more complex proposition, namely, that, in order
[to] be convicted of DUI under HRS § 291–4(a)(1), the
prosecution was required to prove that his condition on the
night in question was caused exclusively by intoxicating
liquor (and not by a combination of his Neurontin and
alcohol). This position is untenable.
As previously indicated, HRS § 291–4(a)(1) plainly and
simply provides that a person commits DUI if "[t]he person
operates or assumes actual physical control of the operation
of any vehicle while under the influence of intoxicating
liquor ... in an amount sufficient to impair the person's
normal mental faculties or ability to care for oneself and
guard against casualty [.]" (Underscoring and bold emphases
added.) Nothing in the statute requires that alcohol be the
sole or exclusive cause of a defendant's impairment. Rather,
what is required is proof beyond a reasonable doubt that
liquor contributed to the diminishment of the defendant's
capacity to drive safely.
Id. (Emphasis in original and added).
Therefore, IT IS HEREBY ORDERED that the Amended
Judgment and Notice of Entry of Amended Judgment, filed on
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December 11, 2019, and the Notice of Entry of Judgment and/or
Order and Plea Judgment, filed on January 28, 2020, in the
District Court of the First Circuit, Kâne#ohe Division, are
affirmed.
DATED: Honolulu, Hawai#i, June 25, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Samuel P. King, Jr.,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Donn Fudo,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
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