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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-SEP-2025
07:52 AM
Dkt. 83 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
DANE KUPONO NAKAMA, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, McCullen and Guidry, JJ.)

Defendant-Appellant Dane Kupono Nakama (Nakama)
challenges his conviction for one count of Unauthorized Control
of a Propelled Vehicle in the First Degree (UCPV 1st),
contending the trial court plainly erred in not instructing the
jury on the included offense of UCPV in the Second Degree (UCPV
2nd). 1 We affirm.

1 The only difference between UCPV 1st and UCPV 2nd is the state of
mind required for conviction; otherwise, the offenses are identical. UCPV
1st under Hawaii Revised Statutes (HRS) § 708-836 (2014 & 2023 Supp.)
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Nakama appeals from the August 29, 2024 "Judgment of
Conviction and Sentence; Notice of Entry" (Judgment), entered by
the Circuit Court of the Second Circuit (Circuit Court). 2
Nakama's single point of error contends the Circuit Court should
have sua sponte instructed on the included offense of UCPV 2nd.
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
Nakama's point of error as follows.
Following a May 2024 jury trial, the jury found Nakama
guilty as charged of UCPV 1st. On August 29, 2024, Nakama was
sentenced to a five-year term of imprisonment, and he timely
appealed.
The pertinent trial evidence reflected that
complaining witness Alfredo Espericueta's (Espericueta) near-
mint, undamaged motorcycle was stolen from his condo parking lot
sometime between 6:00 p.m. on March 30, 2022, and the next
morning at 9:00 a.m. on March 31, 2022.
The next day, April 1, 2022 around 12:30 p.m., Maui
Police Department (MPD) Officer Teanu Rickard (Officer Rickard)
responded to a report of the motorcycle's location at mile
marker 12 on Honoapiʻilani Highway, and found it parked on the
side of the road next to a sedan. The sedan was "derelict
looking, like it had been parked and hadn't been moved in a

provides that a person commits the offense "if the person intentionally or
knowingly exerts unauthorized control over another's propelled vehicle by
operating the propelled vehicle without the owner's consent." (Emphasis
added.) UCPV 2nd under HRS § 708-836.1 (2014 & 2023 Supp.) provides that a
person commits the offense "if the person recklessly or negligently exerts
unauthorized control over another's propelled vehicle by operating the
propelled vehicle without the owner's consent." (Emphasis added.)

2 The Honorable Kelsey T. Kawano presided.

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while[,]" and there was a "Caucasian male in the passenger seat
. . . behind the driver's seat[.]" Officer Rickard observed a
second male, whom he identified as Nakama, "hunched down and
talking to the guy in the backseat" of the sedan. Officer
Rickard drew his taser and told Nakama not to move, but Nakama
became "fidgety," backed away, attempted to hide behind a tree,
and mounted the motorcycle. Officer Rickard ordered Nakama to
get off the motorcycle; Nakama complied, but then ran across the
highway and hid in the brush. Officer Rickard testified that he
and approximately five other MPD officers searched the brush for
Nakama for 20 to 30 minutes, without success. Espericueta was
called to pick up the motorcycle, which MPD released to him at
approximately 1:21 p.m.
Espericueta testified that upon arrival at the
motorcycle location, he observed that his motorcycle was hot-
wired, i.e., a key was not necessary to start it. Espericueta
also observed that the ignition switch wires had been damaged,
"the handlebar grips were all shredded," "[t]he gas cap was
broken off," the mirror had been scratched, and other parts were
missing. Less than ten minutes after the MPD officers left the
scene, a male whom Espericueta identified as Nakama "all of a
sudden . . . appear[ed]," asking, "Where's my bike?"
Espericueta responded, "What do you mean your bike? . . . That's
my bike." Nakama then ran toward the motorcycle; Espericueta
began running behind him; Nakama jumped on the motorcycle; and
Espericueta, who by that time was right beside Nakama, told
Nakama "Get off my bike[,]" but Nakama "took off" on the
motorcycle. MPD later found the motorcycle again at a different
location, unattended.

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Nakama exercised his right to not testify and did not
present any evidence. Defense counsel argued lack of
identification in closing argument. The jury was instructed on
UCPV 1st, and the record reflects neither party requested a UCPV
2nd instruction.
Nakama contends that the record presented "a rational
basis to conclude that [Nakama] exerted unauthorized control
over the motorcycle without the knowing or intentional state of
mind required for the felony offense."
HRS § 701-109(5) (2014 & 2023 Supp.) provides: "The
court is not obligated to charge the jury with respect to an
included offense unless there is a rational basis in the
evidence for a verdict acquitting the defendant of the offense
charged and convicting the defendant of the included offense."
"[J]ury instructions on lesser-included offenses must be given
where there is a rational basis in the evidence for a verdict
acquitting the defendant of the offense charged and convicting
the defendant of the included offense." State v. Flores,
131 Hawaiʻi 43, 51, 314 P.3d 120, 128 (2013) (citation omitted).
Nakama argues "it is reasonable to infer that [Nakama]
may have received or purchased the motorcycle second-hand"
because "there was no evidence presented by the State showing
how or when [Nakama] first came into possession of the
motorcycle." This argument is unpersuasive. Showing "how or
when" Nakama first possessed the motorcycle is not an element of
UCPV that the State must prove.
Nakama argues "[a] rational juror could have concluded
that [Nakama] encountered or purchased the motorcycle in its
already-damaged state and either failed to consider the
implications (i.e., negligence) or ignored suspicious signs

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(i.e., recklessness) without forming the specific intent or
knowledge that the motorcycle was stolen." This argument lacks
any basis in the evidence. There was no testimony by any
witness or any other evidence to support a reasonable inference
that Nakama "may have received or purchased the motorcycle
second-hand" or that Nakama "encountered or purchased the
motorcycle in its already-damaged state."
Nakama argues that his words and conduct in his
interactions with Officer Rickard and Espericueta supported a
rational basis for the Circuit Court to give the UCPV 2nd
instruction. Specifically, Nakama claims his conduct "when
first contacted by Officer Rickard," where Nakama "did not flee
with the vehicle[,]" and his subsequent actions, could be
interpreted as "inconsistent with the mindset of someone
intentionally trying to permanently deprive the owner of the
vehicle, and more consistent with negligent or reckless use
without proper awareness of ownership rights"; and Nakama's
first words when he encountered Espericueta ("Where's my bike?")
reflected "a subjective belief of ownership or entitlement."
"[T]he intentional or knowing state of mind required
by HRS § 708-836 applies to the authorization element," that is,
it applies to "the attendant circumstance of the person's
control/operation being without the registered owner's consent."
State v. Mainaaupo, 117 Hawaiʻi 235, 249-50, 178 P.3d 1, 15-16
(2008) (italics omitted). In this case, the grade of offense of
UCPV 1st or UCPV 2nd, turns on whether the evidence showed
Nakama was "aware" that his control was unauthorized,
establishing a knowing state of mind under HRS § 702-206(2)(b)
for UCPV 1st, or whether Nakama consciously disregarded a
substantial and unjustifiable risk that his control was

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unauthorized, establishing a reckless state of mind under HRS §
702-206(3)(b) for UCPV 2nd.
Here, the record, which includes Officer Rickard's
body-worn-camera video, reflects that Nakama was evasive
throughout his encounter with Officer Rickard. Nakama kept
moving and fidgeting when told not to do so; Nakama tried to
hide from the officer behind a tree; Nakama mounted the
motorcycle, then got off when ordered to do so; and Nakama ran
across the highway and disappeared, leaving the motorcycle.
Such conduct reflects Nakama's awareness that his control of the
motorcycle was unauthorized, establishing a knowing state of
mind for UCPV 1st, and does not show a rational basis for the
jury to acquit Nakama of the charged offense. See HRS § 701-
109(5).
The sole basis for Nakama's purported claim of
ownership rests on his words, "Where's my bike?". This
statement, viewed in its evidentiary context, does not support
Nakama's argument. Nakama left the motorcycle on the side of
the highway while the MPD searched for him in the bushes for 20
to 30 minutes. Less than ten minutes after the officers left,
Nakama reappeared, asking Espericueta, "Where's my bike?"; and
Espericueta immediately corrected Nakama, saying "What do you
mean your bike? . . . That's my bike[,]" and instructing Nakama,
"Get off my bike." This record, along with the hot-wired,
damaged state of the motorcycle and Nakama's conduct with the
officers, reflects Nakama was aware that his control of the
motorcycle was without the registered owner's consent and
established the knowing state of mind for UCPV 1st. Thus, the
record does not show a rational basis for the jury to acquit
Nakama of UCPV 1st in favor of the included offense UCPV 2nd.

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See id. We conclude the Circuit Court did not plainly err in
not instructing the jury on UCPV 2nd.
For the foregoing reasons, we affirm the August 29,
2024 Judgment entered by the Circuit Court of the Second
Circuit.
DATED: Honolulu, Hawai‘i, September 26, 2025.
On the briefs:
/s/ Karen T. Nakasone
Brandon M. Segal,
Chief Judge
for Defendant-Appellant.
/s/ Sonja M.P. McCullen
Arleen Y. Watanabe,
Associate Judge
Deputy Prosecuting Attorney
County of Maui,
/s/ Kimberly T. Guidry
for Plaintiff-Appellee.
Associate Judge