State v. Giugliano

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2022
07:55 AM
Dkt. 59 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
RYAN M. GIUGLIANO, Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH AND SOUTH KONA DIVISION
(CASE NO. 3DTA-19-03328)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)

Defendant-Appellant Ryan M. Giugliano (Giugliano)

appeals from the District Court of the Third Circuit's1

July 29, 2020 Judgment and Notice of Entry of Judgment,
convicting him of Operating a Vehicle Under the Influence of an

Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)

§ 291E-61(a)(1) (2020), as a second offense within ten years of a

prior OVUII conviction, subjecting him to enhanced sentencing

pursuant to HRS § 291E-61(b)(2) (2020).2

1
The Honorable Margaret K. Masunaga presided.
2
HRS § 291E-61 provides as follows:
(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
(continued...)
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On appeal, Giugliano contends there was insufficient

evidence to convict him of OVUII and demonstrate a prior

conviction for OVUII within the prior ten years of the instant

offense.

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, we resolve

Giugliano's contentions as follows, and reverse.

Hawai#i County Police Department Officer Michael
Collings (Officer Collings) testified that he responded to a one-

moped accident fronting the Ali#i Lani Condominiums (Ali#i Lani)

on October 29, 2019, at approximately 1:00 in the afternoon.

When he arrived on the scene, he observed medics attempting to

speak with Giugliano.

Officer Collings first made contact with the witness

who reported the accident, Matt Flugy (Flugy). Flugy provided

Officer Collings with the keys to the moped and a bottle of

medication prescribed to Giugliano.

While Officer Collings spoke with Flugy, Giugliano "had

pushed the moped farther north through the parking lot and [was]

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(...continued)
mental faculties or ability to care for the
person and guard against casualty;
. . . .

(b) A person committing the offense of operating a
vehicle under the influence of an intoxicant shall be
sentenced without possibility of probation or suspension of
sentence as follows:
. . . .

(2) For an offense that occurs within ten years of a
prior conviction for an offense under this
section[.]

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detained by Officer Toloumu . . . ." After speaking with Flugy,

Officer Collings went over to Giugliano and saw that the moped

was damaged on both sides. Giugliano was uncooperative and only

provided his first name, but a registered owner check of the

moped came back as belonging to Giugliano.

Officer Collings testified that Giugliano was unsteady

on his feet, swayed back and forth, stumbled a little bit, and

had a strong odor of an alcoholic beverage emanating from his

breath. At the police station, Officer Collings observed that
Giugliano had glassy eyes and dilated pupils.

Officer Collings obtained video surveillance from

cameras pointing at the entrance of Ali#i Lani and north through

its parking lot. Officer Collings testified that the video

showed Giugliano walking into the parking lot with no moped.

The video then showed Flugy pushing a moped from Ali#i Drive into

the parking lot. Giugliano returned near the entrance, took the

moped, and pushed it through the parking lot until he was stopped

by an officer.

Officer Collings also testified that Ali#i Drive is a
public road and that traffic can freely enter and exit the Ali#i

Lani parking lot:
[Deputy Prosecuting Attorney (DPA):] Oh, I have one
further question actually. Um, is Ali#i Drive a, um, public
road?

[Officer Collings:] Yes, it is.
[DPA:] And, um, is there any, uh, kind of locked gate
or fence, um, at the entrance of the [Ali#i] Lani condo
complex?

[Officer Collings:] No, there is not.
[DPA:] Can traffic, um, foot and vehicle traffic come
and go freely from that parking lot?
[Officer Collings:] Yes.

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A copy of the surveillance video was admitted into evidence.

Flugy did not testify. After reviewing the evidence and finding

Officer Collings credible, the district court adjudged Giugliano

guilty.

Here, the State was required to prove beyond a

reasonable doubt that Giugliano "operate[d] or assume[d] actual

physical control of a vehicle . . . [w]hile 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[.]" HRS § 291E-61(a)(1). "Operate" means "to

drive or assume actual physical control of a vehicle upon a

public way, street, road, or highway . . ." and "[p]ublic way,

street, road, or highway" includes a "parking lot, when any part

thereof is open for use by the public or to which the public is

invited for entertainment or business purposes[.]" HRS § 291E-1

(2020) (emphases added).

The dispositive question here is whether there was

sufficient evidence to support a conclusion that Giugliano

operated his moped on a public way, street, road, or highway.
State v. Wheeler, 121 Hawai#i 383, 393, 219 P.3d 1170, 1180

(2009) (holding that "the operation 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").

The test on appeal is whether, viewing the evidence in the

strongest light for the prosecution, "there was substantial

evidence to support" the district court's conclusion. State v.

Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31 (2007).

Substantial evidence is "credible evidence which is of sufficient

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quality and probative value to enable [a person] of reasonable

caution to support a conclusion. And as trier of fact, the trial

judge is free to make all reasonable and rational inferences

under the facts in evidence, including circumstantial evidence."

Id. at 158, 166 P.3d at 331 (citation omitted).

Even when considering the evidence in the strongest

light for the State, there was insufficient evidence to support

the district court's conclusion that Giugliano operated the moped

on a public way, street, road, or highway. There was no direct
evidence of Giugliano operating the moped on Ali#i Drive. Based

on the record, an accident was reported on Ali#i Drive, the

damaged moped was registered to Giugliano, and there was

medication prescribed to Giugliano. It cannot be reasonably or

rationally inferred from this evidence that Giugliano operated or

assumed control of the moped on Ali#i Drive. Video surveillance

showed Giugliano walking into the parking lot from Ali#i Drive

with no moped, and it was Flugy who was pushing the moped from

Ali#i Drive and in possession of the keys. Also, there was no

evidence to infer that the damages to the moped resulted from the
reported accident. Without more, the evidence adduced was not

sufficient to reasonably or rationally infer that Giugliano

operated or assumed control of the moped on Ali#i Drive.

Moreover, the district court appears to have reached

its ruling based on Giugliano pushing the moped through the

parking lot by finding that there was "no locked fence at [Ali#i]

Lani condominium. It's, um, right by the Ali#i Drive public

road." However, for a parking lot to be a public way, street,

road, or highway for HRS § 291E-61 purposes, the State must prove

that "any part thereof is open for use by the public or to which

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the public is invited for entertainment or business purposes."

HRS § 291E-1.

Officer Collings testified that there was no locked

gate or fence and that traffic could freely come and go, but the

mere ability to ingress and egress did not establish that part of

the parking lot was open for the public's use or that the public

was invited for entertainment or business purposes. The

testimony referred to the property as a condominium, and the

video in evidence showed numbered parking spaces marked with the
word "reserved." Without more, the evidence adduced was not

sufficient to establish that the parking lot was a public way,

street, road, or highway as defined by HRS § 291E-1.

Accordingly, there was insufficient evidence to support

the district court's conclusion that Giugliano was guilty of

OVUII and, thus, we need not address Giugliano's challenge to the

enhanced sentencing.

Based on the foregoing, we reverse the district court's

July 29, 2020 Judgment and Notice of Entry of Judgment. See

State v. Abel, 134 Hawai#i 333, 334, 341 P.3d 539, 540 (2014)
(reversing the judgment of conviction where insufficient evidence

was adduced to prove an element of the offense).

DATED: Honolulu, Hawai#i, June 30, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Andrew I. Kim,
Deputy Public Defender, /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge

Kori A. Weinberger, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
County of Hawai#i,
for Plaintiff-Appellee.

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