State v. Nakamitsu.

____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

Electronically Filed
Supreme Court
SCWC-14-0001151
29-JUN-2017
08:11 AM

IN THE SUPREME COURT OF THE STATE OF HAWAII

---o0o---
________________________________________________________________

STATE OF HAWAII,
Respondent/Plaintiff-Appellee,

vs.

RYAN NAKAMITSU,
Petitioner/Defendant-Appellant.
________________________________________________________________

SCWC-14-0001151

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0001151; CASE NO. 1DTA-14-02783)

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

JUNE 29, 2017

OPINION OF THE COURT BY WILSON, J.

Petitioner/Defendant-Appellant Ryan Nakamitsu

(Nakamitsu) was convicted of one count of Operating a Vehicle

Under the Influence of an Intoxicant (OVUII) in violation of

Hawaiʻi Revised Statutes (HRS) § 291E-61(a)(1) and/or § 291E-
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

61(a)(3).1 The Intermediate Court of Appeals (ICA) vacated the

conviction for OVUII based on HRS § 291E-61(a)(1), reversed the

conviction for OVUII based on HRS § 291E-61(a)(3), and remanded

for proceedings consistent with its opinion.

In essence, Petitioner Nakamitsu argues that his

conviction under HRS § 291E-61(a)(1) should be reversed rather

than vacated and remanded for a new trial. Four principal

issues are presented on certiorari. The first three issues are

raised by Nakamitsu: (1) whether the ICA gravely erred in

holding that the charge was not fatally defective for failing to

include the statutory definition of the term “alcohol”; (2)
1
Nakamitsu was charged with one count of Operating a Vehicle Under
the Influence of an Intoxicant under the two alternate (and/or) statutory
bases of HRS § 291E-61(a)(1) and HRS § 291E-61(a)(3). Roughly speaking, HRS
§ 291E-61(a)(1) prohibits operating a vehicle while impaired by an
intoxicant, while HRS § 291E-61(a)(3) prohibits operating a vehicle while the
driver’s blood alcohol content exceeds a statutorily-specified level.
Because the two bases can overlap, they are often charged in the
conjunctive/disjunctive. See State v. Codiamat, 131 Hawaiʻi 220, 224, 317
P.3d 664, 668 (2013)(noting that “the preferred method for charging an
offense that may be committed in more than one way is to charge in the
conjunctive/disjunctive —- alleging that the defendant committed the offense
in one way and/or in another way.”).

HRS § 291E-61 (2007) provides in relevant part:

(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; [or]

. . . .

(3) With .08 or more grams of alcohol per two hundred
ten liters of breath[.]

2
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

whether the ICA gravely erred in holding that the district court

did not err in denying Nakamitsu’s motion to strike Officer

Desiderio’s testimony; and (3) whether the ICA gravely erred in

holding that there was substantial evidence to support

Nakamitsu’s conviction under HRS § 291E-61(a)(1). We consider

sua sponte a fourth issue, whether the district court’s

admonishment of Nakamitsu for his decision to pursue trial

violated his constitutional rights to due process and against

self-incrimination.

We hold that the ICA did not err concerning the first

and third issues. We find it unnecessary to consider the second

issue as to whether the ICA erred in affirming the district

court’s denial of Nakamitsu’s motion to strike Officer

Desiderio’s testimony. On the fourth issue, we find that the

district court’s admonishment of Nakamitsu may have violated his

constitutional rights to due process and against self-

incrimination. We affirm the judgment of the ICA vacating the

conviction for OVUII in violation of HRS § 291E-61(a)(1),

reversing the conviction for OVUII in violation of HRS § 291E-

61(a)(3), and remanding for a new trial.

3
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

I. BACKGROUND

A. District Court Proceedings

Nakamitsu is an engineer at Pearl Harbor. In June,

2014, the State charged Nakamitsu with one count of Operating a

Vehicle Under the Influence of an Intoxicant as a first time

offender.2

Nakamitsu filed a Motion to Dismiss Count 1 for

Failure to State an Offense.3 He argued that the OVUII charge in

Count 1 was insufficient because it failed to include the

definition of “alcohol” as defined in HRS § 291E-1. The State

opposed the Motion, arguing that the Complaint’s reference to

“alcohol” was consistent with its commonly-understood meaning.

After a hearing, the court denied the Motion.4

1. Direct Examination of Officer Desiderio

At trial, Officer Desiderio testified that he

responded to a vehicular accident on June 1, 2014 around

2
In Count 2, Nakamitsu was charged with Inattention to Driving
under HRS § 291-12. He entered a plea of no contest, and his motion for
deferred acceptance of his plea was granted. In Count 3, Nakamitsu was
charged with Driving Without Motor Vehicle Insurance under HRS §§ 431:10C-
104(a)and 431:10C-117(a). However, Count 3 was not prosecuted after
Nakamitsu provided proof of insurance.
3
Nakamitsu also filed a Motion to Suppress his Blood Alcohol Level
(BAC) result, arguing that Hawaiʻi's implied consent law and the HRS Chapter
291E provisions criminalizing the refusal to submit to BAC testing were
unconstitutional. The district court summarily denied the motion at trial.
4
The Honorable David W. Lo presided.

4
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

4:50 a.m. Upon arriving at the scene, he saw a vehicle on the

side of the road in front of a light post that had fallen to the

ground. A man (later identified as Nakamitsu) walked from the

vehicle and knelt on the side of the road. Nakamitsu told

Officer Desiderio that he had been driving the vehicle, and then

began crying. Officer Desiderio detected the smell of alcohol

on Nakamitsu’s body and breath. Officer Desiderio testified

that Nakamitsu was attempting to balance himself and uttering

something approximating “I’m fucked, I’m fucked.” Officer

Desiderio then conducted a Standardized Field Sobriety Test

(SFST). Nakamitsu exhibited six clues, and failed the

Horizontal Gaze Nystagmus (HGN) portion of the test. According

to Officer Desiderio, during the Walk-and-Turn section of the

test Nakamitsu kept trying to keep his balance.

On direct examination, in regard to the Walk-and-Turn

and One-Leg Stand segments of the test, the State refreshed

Officer Desiderio’s recollection with a copy of his SFST report:

[STATE]: Do you remember what -- any clues exhibited
during the instructional portion of the . . . [Walk and
Turn] test?

[OFFICER DESIDERIO]: Can’t recall it. I have it in
my report that I submitted.

[STATE]: Would anything refresh your recollection?

[OFFICER DESIDERIO]: Yes, my report that I submitted.

. . . .

[STATE]: Officer, is -- you recognize this document?

5
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

[OFFICER DESIDERIO]: Yes, ma’am.

[STATE]: What is this?

[OFFICER DESIDERIO]: This is -- what we use for [sic]
SFST sheet, the standard --

[STATE]: Is this the . . . [S]FST sheet you used that
night?

[OFFICER DESIDERIO]: Yes, ma’am.

[STATE]: Can you refresh your recollection.

[OFFICER DESIDERIO]: Okay.

After a further exchange regarding the Walk-and-Turn

segment of the test, the State then asked Officer Desiderio about

Nakamitsu’s performance on the One-Leg Stand test:

[STATE]: And do you recall what you observed?

[OFFICER DESIDERIO]: Yes. Everything is recorded in
the report I submitted.

[STATE]: All right . . . . [H]ow many clues can be
exhibited? Do you remember?

[OFFICER DESIDERIO]: No, I don’t. I -–

[STATE]: Would you like to --

. . . .

[STATE]: -- refresh your memory --

. . . .

[STATE]: -- with your report?

[OFFICER DESIDERIO]: -- yes.

. . . .

[STATE]: Do you independently remember this, once you
looked at your report? Do you remember how [Nakamitsu] did
on the test?

[OFFICER DESIDERIO]: Yeah, somewhat remember.

6
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

[STATE]: Okay. And do you remember what you observed
about how he did the test?

[OFFICER DESIDERIO]: Basically, he hops. I -- I do
remember [him] putting his foot down at 19 seconds and
[sic] kind of swayed sideways. And then –- yeah, he wasn’t
able to keep his balance during that time.

. . . .

[STATE]: Officer, how many clues did he exhibit on
the one-leg stand, do you remember?

[OFFICER DESIDERIO]: At least -- I would say four or
more.

2. Cross-Examination of Officer Desiderio

During cross-examination, Officer Desiderio described

the National Highway Traffic Safety Administration (NHTSA)

standards for administering and grading the SFST. He testified

that, in order to be valid, the SFST must be administered and

graded in accordance with the NHTSA. Nakamitsu’s counsel

proceeded to ask Officer Desiderio about Nakamitsu’s performance

on the SFST:

[NAKAMITSU’S COUNSEL]: Now, on Wednesday you
testified that [Nakamitsu] took several more steps than
instructed on the walk-and-turn. But isn’t it true that he
only took one extra step?

[OFFICER DESIDERIO]: Whatever it is in my report, that
I wrote in there, that’s basically what it --

[NAKAMITSU’S COUNSEL]: If I showed you a copy of your
report would . . . it refresh your recollection.

[OFFICER DESIDERIO]: Yes.

Yes. So on the first nine step [sic], took an
additional one. And I believe that’s the reason why I –- I
did put that made the turn, not as instructed.

[NAKAMITSU’S COUNSEL]: Okay. But not several extra
steps, just one; correct?

7
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

[OFFICER DESIDERIO]: I believe so.

Officer Desiderio continued to testify without the aid

of his report that while Nakamitsu performed the Walk-and-Turn

test, the officer was facing the sidewalk, standing mid-way

between the starting and turn points of the imaginary line used

for the test. When asked if Nakamitsu walked off the line

during the first set of steps, Officer Desiderio said he would

need his report to refresh his memory. Nakamitsu’s counsel then

asked Officer Desiderio if he had any independent recollection

of the SFST, or if his testimony was solely based on his reading

the SFST report:

[NAKAMITSU’S COUNSEL]: Okay. Now, when the prosecutor
was asking you questions and when I’m asking you questions
. . . you need to refer to your report to testify about what
your recollection is of -- of this particular field sobriety
test; correct?

[OFFICER DESIDERIO]: Yes.

[NAKAMITSU’S COUNSEL]: Do you have any independent
recollection of . . . Nakamitsu’s performance on the test?
Or is it, basically, just reading from your report?

[OFFICER DESIDERIO]: I do have independent
recollection, not necessarily of the -- when he was taking
the test.

[NAKAMITSU’S COUNSEL]: Okay. So you remember the
incident?

[OFFICER DESIDERIO]: Yes.

[NAKAMITSU’S COUNSEL]: You remember Mr. Nakamitsu?

[OFFICER DESIDERIO]: Yes.

[NAKAMITSU’S COUNSEL]: You remember administering the
test to him?

[OFFICER DESIDERIO]: Yes.
8
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

[NAKAMITSU’S COUNSEL]: But the details of the results
you don’t remember?

[OFFICER DESIDERIO]: Whatever I wrote in there --
because while I was testing, okay, I’ll be, like, making
tick marks, either when I was (indiscernible) if I have a
glove or right on my hand.

. . . .

[NAKAMITSU’S COUNSEL]: Without looking at your writing
or your notes or the -- your report, you’re not able to
testify about his performance on the field sobriety test?

[OFFICER DESIDERIO]: Well, I would need my report.

Nakamitsu’s counsel moved to strike Officer

Desiderio’s testimony describing Nakamitsu’s SFST on the grounds

that the officer could not testify without his report. The

State responded that Officer Desiderio could recall details

surrounding the SFST, but could not be expected to remember all

details about Nakamitsu’s performance without the aid of his

report. The district court denied Nakamitsu’s motion.

3. Testimony of Officer Tabanera

Officer Tabanera testified that on June 1, 2014, at

approximately 4:15 a.m., he arrived at the scene of the accident

and observed that Nakamitsu’s eyes were red and glassy. Officer

Tabanera also testified that Nakamitsu smelled like alcohol.

Officer Tabanera investigated the accident and observed

Nakamitsu’s vehicle resting at the base of a street light pole,

and the pole dislodged and laying on the ground. The front

bumper and engine area of Nakamitsu’s vehicle were severely

9
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

damaged. Officer Tabanera did not see any marks on the road

that would have resulted from use of a vehicle’s brakes, and he

did not observe any other vehicles or obstructions on the road.

4. District Court Ruling and Sentencing

The court found Nakamitsu guilty as charged under both

HRS § 291E-61(a)(1) and HRS § 291E-61(a)(3), deciding that

Officer Desiderio’s testimony was unnecessary for the

conviction:

THE COURT: Court finds the evidence beyond a
reasonable doubt to find [Nakamitsu] guilty on both the
291E-61(a)(1) as well as the [291E]-61(a)(3) charge. And
the court finds [Nakamitsu] guilty based on what happened.

And Court also finds that evidence concerning the
[SFST], while there is some questions as to the weight or
. . . the manner in which Officer Desiderio gave his
testimony that it was not even necessary to convict the
defendant, find the defendant guilty on the (a)(1) charge.

After issuing the court ruling, the district judge

asked Nakamitsu for any final words before imposing the

sentence. Nakamitsu expressed remorse for his actions affecting

his job and family, and apologized to the court. The judge then

heard from the State, which asked for a $500.00 fine and minimum

sentencing. Nakamitsu’s counsel agreed to the $500.00 fine,

acknowledging his client’s remorse. The judge accepted

Nakamitsu’s apology, but raised his concern that Nakamitsu did

not readily accept responsibility at the outset of trial:

[THE COURT]: I am totally convinced he’s very
remorseful. I’m totally convinced that it’s not going to
happen again. I really find that Mr. Nakamitsu was

10
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

remorseful at the scene of the accident. But what bothers
the Court the most is that acceptance of responsibility was
not readily done.

[COUNSEL FOR NAKAMITSU]: And, Your Honor, there are
cases -- there are cases where we -- people are not willing
to accept responsibility because they are just not those
types of people. In this case there are two legal issues
that I explained to Mr. Nakamitsu and explained the issues
on appeal. And it’s not because he didn’t want to accept
responsibility; it was because these issues are out there
and we would like to appeal.

. . . .

[THE COURT]: I mean, does he have to hit a person on
the sidewalk for you folks to accept responsibility? I
mean, that’s -- the conduct is no different. That’s what I
find so bothersome.

[COUNSEL FOR NAKAMITSU]: I understand.

[THE COURT]: And you were warned about this. You
guys wanted to play with fire, and somebody’s going to get
burned.
. . . .

[THE COURT]: What is it going to take to accept
responsibility? You know, after Wednesday’s testimony -- I
didn’t want to pre-judge this case, but just on what
happened, this is a person that should be in jail. So you
guys want to play with fire, you suffer the consequences.
Someone’s going to get burned. All I can say is, best of
luck on appeal. But I have to do what I have to do.

[COUNSEL FOR NAKAMITSU]: Yes, Your Honor.

[THE COURT]: You’re not the type I think needs to go
to jail, Mr. Nakamitsu. But what really bothers me is your
-- the four of you discussing that you want to roll the
dice.

You know, somebody on your behalf came to court on
June 30th, within 30 days after this incident. If you’re
really remorseful, that’s when responsibility should have
been taken. I don’t fault you. You hired an attorney.
You hired a good attorney, that advised you. I think all
of you made the wrong decision. That’s what I find
bothersome.

[COUNSEL FOR NAKAMITSU]: And, Your Honor, I -- I -–
I would ask that, you know, maybe my advice wasn’t --
wasn’t the good advice; but I would -- I would ask you to
not take that out against my client. I -- I understand
that ultimately it’s his choice. But he hires an attorney
11
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

for advice. If you’re going to take it out against
somebody, I ask that you take it out against me and -- not
my client.

[THE COURT]: Well, I am.

[COUNSEL FOR NAKAMITSU]: Yeah.

[THE COURT]: And, you know, I don’t want to take it
out against any -- any -- any -- any -- any defendant
personally. But, Mr. [Counsel for Nakamitsu], I’ve been
talking to you for over a year now -- and I’m going to put
this on the record.

[COUNSEL FOR NAKAMITSU]: Okay.

[THE COURT]: I admire you as an attorney, but you
have a history of all take and no give. I don’t -- I don’t
see you accepting responsibility when you should.

You were warned about this. I told you on Wednesday.
I asked you, you want to roll the dice on this one? You
say, let me talk to my client. All right, talk to him; and
that was his decision. But you guys want to play with
fire, you’re going to get burned, guarantee.

Status of the license?

. . . .

[THE COURT]: I’m revoking it for one year,
forthwith. 750 dollar fine. Undergo substance abuse
assessment and classes. 107 DE. 30 CVCF. 25 neurotrauma.
100 DDRA.

You know, my thoughts were to – to give you 1,000
dollar fine and – and make you perform 72 hours of
community service, as well. I’ll back off on that. All
right. That’s all.

B. ICA Decision

In a memorandum opinion, the ICA affirmed the district

court’s rulings regarding the issues raised by Nakamitsu in his

appeal. First, the ICA explained that in State v. Turping, 136

Hawaiʻi 333, 361 P.3d 1236 (App. 2015), the court rejected the

argument that a charge was deficient for failing to include the

12
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

definition of alcohol. The ICA also noted its previous

rejection of the argument that alcohol, as defined by HRS §

291E-1, is limited to distilled forms in State v. Tsujimura, 137

Hawaiʻi 117, 120, 366 P.3d 173, 176 (App. 2016), as corrected

(May 2, 2016). The ICA in Tsujimura read the plain language of

HRS § 291E-1’s definition of “alcohol” as specifically including

ethyl alcohol. Because ethyl alcohol is the intoxicating agent

in beer and wine, the Tsujimura court reasoned that the

statutory definition includes both beer and wine, as well as

distilled liquors. Id. at 120, 366 P.3d at 176.5

Second, regarding the admissibility of Officer

Desiderio’s testimony, the ICA concluded that “although Officer

Desiderio’s recollection of Nakamitsu’s performance on the SFST

had to be repeatedly refreshed, his testimony was not based on

his memory of the report only” because Officer Desiderio

remembered significant details about the incident prior to

refreshing his memory with the report, and did not state that

his testimony was based only on reading the report.

Third, the ICA examined the record of the two

colloquies required in cases where a defendant chooses not to

5
We recently upheld the ICA’s holding in Tsujimura that “alcohol”
is not limited to alcohol produced through distillation, but we vacated the
judgment and remanded the case for a new trial on constitutional grounds.
State v. Tsujimura, Slip Op. at 15-19, 52, 2017 WL 2361154, at *6-7, *18 (May
31, 2017).

13
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

testify: (1) the “prior-to-trial colloquy,” and (2) the

“ultimate colloquy.” Although Nakamitsu had not raised the

issue, the ICA reviewed it for plain error. In light of

Tachibana v. State, 79 Hawaiʻi 226, 236, 900 P.2d 1293, 1303

(1995), the ICA held that the ultimate colloquy between the

district court and Nakamitsu was deficient. Because the ICA

could not say that the deficiency was harmless beyond a

reasonable doubt, it vacated Nakamitsu’s conviction for OVUII

under HRS § 291E-61(a)(1).

Fourth, having determined that the ultimate colloquy

was deficient and that it was not harmless error, the ICA

conducted a review of the sufficiency of the evidence to

convict. See State v. Davis, 133 Hawaiʻi 102, 120, 324 P.3d 912,

930 (2014) (given the constitutional protection against double

jeopardy, as well as policy reasons, “a reviewing court is

required under article I, section 10 of the Hawaiʻi Constitution

to address a defendant’s express claim of insufficiency of the

evidence prior to remanding for a new trial based on a defective

charge.”) The ICA found sufficient evidence to convict

Nakamitsu of OVUII in violation of HRS § 291E-61(a)(1). It

based this conclusion on Officer Desiderio’s testimony that

Nakamitsu walked away from a vehicle on the side of the road

that was in front of a fallen light post, that he smelled of

14
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

alcohol, tried to balance himself, knelt down, and volunteered

expletives lamenting the seriousness of his actions, and that he

had failed the SFST. In reaching its holding, the ICA also

considered Officer Tabanera’s testimony that Nakamitsu had red

and glassy eyes, that the vehicle’s front bumper and engine were

severely damaged, and that there were no marks on the road

suggesting the vehicle’s brakes were applied.

Fifth, the ICA held that the district court erred in

denying Nakamitsu’s motion in limine to suppress his blood

alcohol content measurement. Without the inadmissible BAC

evidence, there was insufficient evidence to support the

conviction for OVUII under HRS § 291E-61(a)(3). Accordingly,

the ICA reversed Nakamitsu’s conviction under HRS § 291E-

61(a)(3).6

II. STANDARDS OF REVIEW

A. Statutory Interpretation

“When construing a statute, this court’s foremost

obligation is to ascertain and give effect to the intention of

the legislature, which is to be obtained primarily from the

language contained in the statute itself. In addition, we must

read statutory language in the context of the entire statute and

6
Nakamitsu does not appeal the ICA’s favorable holdings regarding
the deficiency of the ultimate colloquy and the insufficiency of the evidence
to support a conviction under HRS § 291E-61(a)(3).

15
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

construe it in a manner consistent with its purpose.” State v.

McKnight, 131 Hawaiʻi 379, 388, 319 P.3d 298, 307 (2013)

(citations, internal quotation marks, and brackets omitted).

B. Sufficiency of the Evidence

“[E]vidence adduced in the trial court must be

considered in the strongest light for the prosecution when the

appellate court passes on the legal sufficiency of such evidence

to support a conviction . . . . The test on appeal is not

whether guilt is established beyond a reasonable doubt, but

whether there was substantial evidence to support the conclusion

of the trier of fact.” State v. Richie, 88 Hawaiʻi 19, 33, 960

P.2d 1227, 1241 (1998)(citation omitted).

III. DISCUSSION

A. The OVUII Charge Was Not Defective for Failing to Define
“Alcohol”

On appeal, Nakamitsu argues the ICA gravely erred in

holding that the OVUII charge was not fatally defective for

failing to define “alcohol.” According to Nakamitsu, the

definition of “alcohol” in HRS § 291E-17 is limited to the

7
For purposes of the OVUII offense at issue here, “alcohol” is
defined as follows:

Alcohol means the product of distillation of any fermented
liquid, regardless of whether rectified, whatever may be
the origin thereof, and includes ethyl alcohol, lower
aliphatic alcohol, and phenol as well as synthetic ethyl
alcohol, but not denatured or other alcohol that is
(continued. . .)
16
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

products of distillation, and does not include beer or wine. He

argues that a plain reading of the definition shows that for

purposes of the statute, “alcohol” only encompasses “products of

distillation” —- i.e., liquor. Thus, he contends the OVUII

charge did not adequately inform him of the nature and cause of

the accusation against him because it failed to include the

definition of alcohol.

We recently addressed this issue in State v.

Tsujimura, Slip Op. at 15-19, 2017 WL 2361154, at *6-7 (May 31,

2017). Like Nakamitsu, the defendant in Tsujimura argued that

the definition of “alcohol” in HRS § 291E-1 is limited to the

products of distillation. After carefully analyzing the

statute, we concluded that the meaning of “alcohol” in that

statute “is inclusive of ethyl alcohol, also commonly known as

ethanol, which ‘is the intoxicating agent in beer, wine, and

other fermented and distilled liquors.’ Accordingly, the

statutory definition of ‘alcohol’ includes beer, wine, and other

fermented liquors because these substances contain ethanol.”

Tsujimura, Slip Op. at 18, 2017 WL 2361154, at *7 (citation

(. . . continued)
considered not potable under the customs laws of the United
States.

HRS § 291E-1 (2007). In 2016, the legislature simplified and
clarified the definition. 2016 Haw. Sess. Laws, Act 231, § 59
(“‘Alcohol’ means ethanol or any substance containing ethanol.”)

17
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

omitted, footnotes omitted). Given our recent holding in

Tsujimura, we conclude that the ICA properly determined that

Nakamitsu’s charge was not fatally defective for failing to

include the statutory definition of “alcohol.”

B. Substantial Evidence Supports Nakamitsu’s Conviction Under
HRS § 291E-61(a)(1)

In reviewing for sufficiency of the evidence to

support a conviction, we consider evidence admitted at trial “in

the strongest light for the prosecution . . . . The test on

appeal is not whether guilt is established beyond a reasonable

doubt, but whether there was substantial evidence to support the

conclusion of the trier of fact.” Richie, 88 Hawaiʻi at 33, 960

P.2d at 1241 (citation omitted); Davis, 133 Hawaiʻi at 116, 324

P.3d 926 (noting that even where the appellate court finds trial

error, “challenges to the sufficiency of the evidence must

always be decided on appeal” or retrial would raise double

jeopardy concerns (citation omitted)). Nakamitsu argues that

without Officer Desiderio’s testimony regarding the SFST, and

given the absence of any direct evidence establishing how the

accident occurred, there was insufficient evidence to convict

him of OVUII.

In addition to testifying regarding the SFST, Officer

Desiderio also testified that he observed the vehicle on the

side of the road in front of a light post that had fallen, and
18
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

that Nakamitsu walked away from the vehicle, had some difficulty

keeping his balance, knelt down, cried, admitted he was the

driver of the vehicle, and smelled of alcohol. His speech was

slurred and his face was flushed. In addition, Officer Tabanera

described Nakamitsu as having red and glassy eyes and emitting

the smell of an intoxicant. Officer Tabanera testified that the

vehicle had come to rest on top of the streetlight post, and

that the vehicle’s front bumper and engine area were severely

damaged. He also testified that there were no marks on the

ground indicating the brakes had been applied, and that there

were no other obstructions on the roadway.

Considering the testimony of the two officers in the

most favorable light for the prosecution, we conclude that —-

even absent the testimony of Officer Desiderio regarding

Nakamitsu’s performance on the SFST —- there was substantial

evidence that Nakamitsu operated his vehicle under the influence

of alcohol in violation of HRS § 291E-61(a)(1). Accordingly, we

find it unnecessary to consider whether Officer Desiderio’s

recollection was refreshed when he testified about Nakamitsu’s

performance on the SFST.

19
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

C. The District Court’s Admonishment of Nakamitsu for His
Decision to Pursue Trial May Have Violated His
Constitutional Rights to Due Process and Against Self-
incrimination

At sentencing, the district court judge made comments

to Nakamitsu and his counsel regarding Nakamitsu’s decision to

proceed with trial. Before discussing those comments, we note

that the ICA remanded for a new trial based on the deficiency of

the ultimate colloquy. While we affirm the ICA’s decision, we

nonetheless address this issue in order to provide guidance

regarding a court’s reliance on a defendant’s refusal to admit

guilt in imposing a sentence. See Chun v. Bd. of Trustees of

Employees’ Ret. Sys. of State of Hawaii, 92 Hawaiʻi 432, 434–35,

992 P.2d 127, 129–30 (2000)(noting that although the court’s

holding on one point “is outcome-dispositive of the present

appeal,” the court would address an additional issue “in order

to provide guidance to the parties and the circuit court on

remand”).

Due process, as guaranteed under article I, section 5,

of the Hawaiʻi Constitution,8 requires that a defendant be

sentenced by an impartial judge. Peters v. Jamieson, 48 Haw.

247, 255, 397 P.2d 575, 582 (1964); State v. Silva, 78 Hawaiʻi

8
The Hawaiʻi Constitution provides, in relevant part, “No person
shall be deprived of life, liberty or property without due process of law . .
. .” Haw. Const. art. I, § 5.

20
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

115, 118, 890 P.2d 702, 705 (1995), abrogated on other grounds

by Tachibana v. State, 79 Hawaiʻi 226, 900 P.2d 1293 (1995). A

judge must remain impartial during trial, never “assum[ing] the

role of an advocate for either party.” State v. Schutter, 60

Haw. 221, 222, 588 P.2d 428, 429 (1978). If a judge succumbs to

partiality, the resulting sentence must be set aside. Territory

v. Van Culin, 36 Haw. 153, 162 (1942).

During sentencing, a judge may consider a defendant’s

guilty plea, indications of remorse, and commitment to

rehabilitation. State v. Mata, 71 Haw. 319, 326, 789 P.2d 1122,

1126 (1990). However, a judge may not “induce a plea of guilty

by hinting at more lenient sentencing without violating . . . a

defendant’s constitutional rights.” Id. Nor may a court “infer

a lack of remorse from a criminal defendant’s refusal to admit

guilt.” State v. Kamanaʻo, 103 Hawaiʻi 315, 321, 82 P.3d 401,

407 (2003), as corrected (Dec. 17, 2003). In other words, while

lack of remorse legitimately may be considered as a factor in

sentencing, a court may never cross the line into attempting “to

compel an admission of guilt or punish the defendant for

maintaining his innocence.” Kamanaʻo, 103 Hawaiʻi at 321, 82

P.3d at 407 (citation omitted). Such an attempt would raise due

process questions concerning the court’s impartiality. It would

also violate the defendant’s right against self-incrimination.

21
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

See id. at 320-321, 82 P.3d at 406-407 (“Although most commonly

reviewed in the context of the adjudicatory phase of a trial

proceeding, the privilege against self-incrimination applies

with equal force during sentencing.”).

In Kamanaʻo, this court adopted a three-factor test

from the Michigan Supreme Court to determine whether the

sentencing court erroneously relied on a defendant’s refusal to

admit guilt in imposing a sentence. Id. at 323, 82 P.3d at 409.

The factors we considered were (1) the defendant’s maintenance

of innocence after the conviction, (2) the judge’s attempt to

get the defendant to admit guilt, and (3) the appearance that,

had the defendant affirmatively admitted guilt, his sentence

would not have been so severe. Id. We explained that “if there

is an indication of the three factors, then the sentence was

likely to have been improperly influenced by the defendant’s

persistence in his innocence.” Id. (quoting People v. Wesley,

411 N.W.2d 159, 162 (Mich. 1987)).

Applying these factors to Nakamitsu’s case, we note

that the district court clearly exhibited frustration with

Nakamitsu’s decision to maintain his innocence and assert his

right to trial. The court stated that Nakamitsu’s expression of

remorse at sentencing was questionable because his counsel did

not take responsibility for the accident at the first court

22
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

date, and “[i]f you’re really remorseful, that’s when

responsibility should have been taken.” The court unequivocally

identified Nakamitsu’s decision not to take responsibility as

“the wrong decision.” Nakamitsu was told his decision to

proceed to trial rather than plead guilty constituted a decision

to “play with fire” for which “you’re going to get burned”:

You were warned about this. I told you on Wednesday. I
asked you, you want to roll the dice on this one? You say,
let me talk to my client. All right, talk to him; and that
was his decision. But you guys want to play with fire,
you’re going to get burned, guarantee [sic].

Based on this record, it is reasonable to infer that

the sentence was “likely to have been improperly influenced by

the defendant’s persistence in his innocence.” Kamanaʻo, 103

Hawaiʻi at 323, 82 P.3d at 409 (quoting People v. Wesley, 411

N.W.2d 159, 162 (Mich. 1987). If the district court erroneously

relied on Nakamitsu’s refusal to admit guilt in imposing its

sentence, that reliance would have violated Nakamitsu’s

constitutional right to due process and his right against self-

incrimination. See Bordenkircher v. Hayes, 434 U.S. 357, 363

(1978) (“To punish a person because he has done what the law

plainly allows him to do is a due process violation of the most

basic sort” (citation omitted)); Kamanaʻo, 103 Hawaiʻi at 320, 82

P.3d at 406-407. It is not necessary for us to resolve the

question of improper influence in this case, as we affirm the

23
____*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***____

ICA’s judgment vacating and remanding for a new trial on another

ground. Nonetheless, we stress that, under article I, section 5

of the Hawaiʻi Constitution, a sentencing court may not rely on a

defendant’s persistence in maintaining his or her innocence in

imposing a sentence.

IV. CONCLUSION

The ICA reversed Nakamitsu’s conviction for OVUII in

violation of HRS § 291E-61(a)(3), vacated his conviction for

OVUII in violation of HRS § 291E-61(a)(1) based on the

deficiency of the ultimate colloquy, and remanded for a new

trial. For the reasons detailed above, we affirm the ICA’s

February 25, 2016 judgment on appeal.

Alen M. Kaneshiro for /s/ Mark E. Recktenwald
Petitioner/Defendant-
Appellant /s/ Paula A. Nakayama

Keith M. Kaneshiro /s/ Sabrina S. McKenna
Sonja P. McCullen for
Respondent/Plaintiff- /s/ Richard W. Pollack
Appellee
/s/ Michael D. Wilson

24