LAWHJEHAHY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 29906
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAfI
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STATE OF HAWAfI, Plaintiff-Appellee, `Ҥ\
v.
ROBERT E. KENYON, Defendant-Appellant
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ISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
APPEAL FROM THE D
lDTA-08-lO457)
(Case No.
SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Foley, and Fujise, JJ.)
Defendant-Appellant Robert E. Kenyon (Kenyon) appeals
from the Judgment filed on May 22, 2OO9,9 in the District Court
of the First Circuit (district court).Y
Kenyon was convicted of Operating a vehicle Under the
in violation of Hawaii
Influence of an Intoxicant (OVUII),
2008).
Revised Statutes (HRS) § 291E-61(a)(1) and (b)(l) (Supp.
On appeal, Kenyon argues that the district court erred
by denying his motion to dismiss the OVUII charge because the
written complaint and oral charge failed to state an essential
that Kenyon operated or assumed
element of the offense, namely,
actual physical control of a vehicle upon a public way, street,
road, or highway.Y
2009, but
l/
The bar code affixed to the Judgment bears the date May 20,
the Judgment is file-stamped May 22,
2009.
” The Honorable William A. Cardwell presided.
3 Kenyon moved pretrial to dismiss the OVUII charge as insufficient and
the district court denied Kenyon's motion before trial.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties, we resolve Kenyon's arguments on appeal
follows:
"[T]he operation [or the assumption of actual physical
control] of a vehicle on a public way, street, road, or highway
is an attendant circumstance of the offense of OVUII, and is
therefore an element of the offense." State v. Wheeler, 121
Hawai‘i 383, 393, 219 P.3d 1170, 1180 (2009) . The OVUII charge
brought against Kenyon was insufficient because it failed to
allege that Kenyon operated or assumed actual physical control of
a vehicle upon a public way, street, road, or highway. lQ4
Therefore,
IT IS HEREBY ORDERED that the district court's Judgment
filed on May 22, 2009, is vacated, and this case is remanded to
the district court with instructions to dismiss the OVUII charge
without prejudice.
DATED= Honolulu, Hawai‘i, May 24, 2010.
On the briefs: di ' 7¥';zZ;éi 5
Timothy I. MacMaster Chief Judge
for Defendant-Appellant dé;Lv%y¢7 ,__
\
Stephen K. Tsushima %;H7
Deputy Prosecuting Attorney Associate Judge
City and County of Honolulu
for Plaintiff-Appellee :;Z 1 n
Associate Jud