State v. Dellacqua

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-AUG-2023
07:51 AM
Dkt. 58 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee, v.
WAYNE L. DELLACQUA, Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NOS. 2DTA-20-00926 and 2DTC-21-001262)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Nakasone and McCullen, JJ.)

Defendant-Appellant Wayne L. Dellacqua (Dellacqua)

appeals from the District Court of the Second Circuit, Wailuku

Division's April 8, 2022 judgments and notice of entry of

judgments entered in two cases, 2DTA-20-00926 (OVUII Case) and

2DTC-21-001262 (Licensing Case). 1 In the OVUII Case, the

district court convicted Dellacqua of Operating a Vehicle Under

1 The Honorable Blaine J. Kobayashi presided.
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the Influence of an Intoxicant (OVUII), pursuant to Hawaii

Revised Statutes (HRS) § 291E-61(a)(1) (2020). 2 In the Licensing

Case, the district court convicted Dellacqua of (1) Licensing,

pursuant to HRS § 286-102 (2020); 3 (2) Driving While License

Suspended or Revoked, pursuant to HRS § 286-132 (2020); 4 and

(3) Operating a Vehicle After License and Privilege Have Been

Suspended or Revoked for OVUII, pursuant to HRS § 291E-62 (2020) 5

(collectively, Licensing Offenses). 6

2 HRS § 291E-61(a)(1) provides:

(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 the 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[.]

3 HRS § 286-102(a) provides in relevant part that "[n]o person . . .
shall operate any category of motor vehicles listed in this section without
first being appropriately examined and duly licensed as a qualified driver of
that category of motor vehicles."

4 HRS § 286-132 provides:

Except as provided in section 291E-62, no resident or
nonresident whose driver's license, right, or privilege to
operate a motor vehicle in this State has been canceled,
suspended, or revoked may drive any motor vehicle upon the
highways of this State while the license, right, or
privilege remains canceled, suspended, or revoked.

5 HRS § 291E-62(a) provides in relevant part that "[n]o person whose
license and privilege to operate a vehicle have been revoked, suspended, or
otherwise restricted pursuant to this section . . . shall operate or assume
actual physical control of any vehicle . . . [w]hile the person's license or
privilege to operate a vehicle remains suspended or revoked[.]"

6 The district court also convicted Dellacqua of Conditions of
Operation and Registration of Motor Vehicles, under HRS § 431:10C-104(a)
(2019), requiring motor vehicle insurance. Dellacqua does not challenge this
conviction.

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On appeal, Dellacqua contends the district court

plainly erred by (1) convicting him of all three Licensing

Offenses as these offenses merged, and (2) permitting Maui

Police Department (MPD) Officer Jun Hattori (Officer Hattori) to

testify as an expert, without which there would be insufficient

evidence to convict him of OVUII. Dellacqua requests that we

vacate two of the licensing convictions in the Licensing Case

and reverse the OVUII conviction in the OVUII Case.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced by the parties, we

resolve Dellacqua's points of error as discussed below, and

affirm in part and vacate in part.

(1) The district court plainly erred by convicting

Dellacqua of all three Licensing Offenses.

Though Dellacqua did not challenge his convictions for

all three Licensing Offenses below, where there is a reasonable

possibility Dellacqua was convicted of all three Licensing

Offenses based on the "same conduct" under HRS § 701-109(1)(e)

(2014), plain error review is appropriate. See State v.

Frisbee, 114 Hawai‘i 76, 84, 156 P.3d 1182, 1190 (2007)

(recognizing plain error occurred where trial court's omission

of jury instruction on merger "contravened HRS § 701-109(1)(e)

and was not harmless beyond a reasonable doubt").

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HRS § 701-109(1)(e) provides:

When the same conduct of a defendant may establish an
element of more than one offense, the defendant may be
prosecuted for each offense of which such conduct is an
element. The defendant may not, however, be convicted of
more than one offense if:

. . . .

(e) The offense is defined as a continuing course
of conduct and the defendant's course of
conduct was uninterrupted, unless the law
provides that specific periods of conduct
constitute separate offenses.

(Emphases added.) Here, the conduct of all three Licensing

Offenses was driving or operating a vehicle. See HRS §§ 286-

102, 286-132, 291E-62. We must then consider whether this

conduct (driving or operating a vehicle) was continuous and

uninterrupted. See HRS § 701-109(1)(e).

MPD Officer Zachary Kamaka (Officer Kamaka) testified

that, on April 5, 2021, he observed Dellacqua turning right from

Central Avenue to Main Street, without using a turn signal.

Officer Kamaka then followed Dellacqua, and observed him turning

left from Main Street to Church Street, again without using a

turn signal. At that point, Officer Kamaka stopped Dellacqua.

Based on Officer Kamaka's testimony, Dellacqua's

conduct of driving the car was continuous until Officer Kamaka

stopped him. See State v. Lavoie, 145 Hawai‘i 409, 431, 453 P.3d

229, 251 (2019) (setting forth the test for continuous course of

conduct). There was no evidence presented to show that

Dellacqua's driving was interrupted or that Dellacqua had

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separate and distinct intentions to commit three separate

Licensing Offenses. State v. Matias, 102 Hawai‘i 300, 305, 75

P.3d 1191, 1196 (2003) ("Where there is one intention, one

general impulse, and one plan, there is but one offense.")

(citation omitted).

Moreover, the plain language of the charged Licensing

Offenses do not "provide[] that specific periods of conduct

constitute separate offenses." HRS § 701-109(1)(e). Although

it was permissible to charge Dellacqua with the Licensing

Offenses, it was not permissible to convict him of more than one

offense if "[t]he offense [was] defined as a continuing course

of conduct and the defendant's course of conduct was

uninterrupted." See HRS § 701-109(1)(e).

(2) Dellacqua's challenge to the admission of

evidence was waived.

As Dellacqua acknowledges, he did not object to

Officer Hattori's testimony and, thus, waived this point of

error. See HRS § 641-16 (2016) ("[e]xcept as otherwise provided

by the rules of court, there shall be no reversal for any

alleged error in the admission or rejection of evidence . . .

unless such alleged error was made the subject of an objection

noted at the time it was committed or brought to the attention

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of the court in another appropriate manner"); Hawai‘i Rules of

Evidence Rule 103 ("[e]rror may not be predicated upon a ruling

which admits or excludes evidence unless a substantial right of

the party is affected, and . . . a timely objection or motion to

strike appears of record, stating the specific ground of

objection"); State v. Boyer, 153 Hawai‘i 238, 530 P.3d 430,

No. CAAP-XX-XXXXXXX, 2023 WL 3916181 at *8 (App. June 9, 2023)

(SDO) (holding that challenge to testimony regarding HGN test

was waived where defendant did not object).

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

April 8, 2022 judgment and notice of entry of judgment entered

in the OVUII Case. We vacate the district court's April 8, 2022

judgment and notice of entry of judgment entered in the

Licensing Case, and remand the Licensing Case to the district

court for the State to elect whether (1) it will dismiss two of

the licensing convictions, or (2) retry Dellacqua. See State v.

Padilla, 114 Hawai‘i 507, 517-18, 164 P.3d 765, 775-76

(App. 2007).

If the State chooses to dismiss two of the licensing

convictions, the district court shall enter an Amended Judgment

that reinstates the non-dismissed licensing conviction, as well

as the unchallenged Conditions of Operation and Registration of

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Motor Vehicles conviction, and reflects the dismissal with

prejudice of two of the licensing convictions.

DATED: Honolulu, Hawai‘i, August 7, 2023.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Phyllis J. Hironaka,
Deputy Public Defender, /s/ Karen T. Nakasone
for Defendant-Appellant. Associate Judge

Gerald K. Enriques, /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney, Associate Judge
County of Maui,
for Plaintiff-Appellee.

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