State v. Nyberg

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-APR-2026
07:49 AM
Dkt. 50 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v.
HEATHER R. NYBERG, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
SOUTH KOHALA DIVISION
(CASE NO. 3DTA-22-01270)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Guidry, JJ.)
Defendant-Appellant Heather R. Nyberg (Nyberg) appeals

from the January 18, 2024 Judgment of Conviction (Judgment)

entered against her by the District Court of the Third Circuit,

South Kohala Division (District Court).1

On June 7, 2022, Plaintiff-Appellee State of Hawai i

(the State) charged Nyberg with one count of Operating a Vehicle

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

Hawaii Revised Statutes (HRS) § 291E-61(a)(1)(2020)2, one count

1
The Honorable Jill M. Hasegawa presided.
2
HRS § 291E-61(a)(1) states:

§ 291E-61 Operating a vehicle under the influence of
an intoxicant. (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:

(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

of Driving Without a License in violation of HRS § 286-102(b)(3)

(Supp. 2018)3, and one count of Driving without Insurance in

violation of HRS § 431:10C-104(a) (1997).

After a bench trial held on November 2, 2023, and

January 18, 2024, the District Court found that the State had

proven beyond a reasonable doubt the elements of Count 1, OVUII,

and Count 2, Driving Without a License. The District Court

acquitted on Count 3.

Nyberg raises two points of error on appeal, contending

that the District Court erred in: (1) finding sufficient

evidence of the offense of OVUII, and (2) failing to consider the

merger of Counts 1 and 2.

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 Nyberg's

points of error as follows:

2
(...continued)
(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(b) states:

§ 286-102 Licensing.

. . . .

(b) A person operating the following category or
combination of categories of motor vehicles shall be
examined as provided in section 286-108 and duly licensed by
the examiner of drivers:

. . . .

(3) Passenger cars of any gross vehicle weight rating,
buses designed to transport fifteen or fewer
occupants, [and] trucks and vans having a gross
vehicle weight rating of eighteen thousand pounds or
less[.]

2
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

(1) Nyberg argues that Hawai i Police Department

Officer Severo Ines (Officer Ines) made errors in his

administration of the standard field sobriety tests (SFSTs) that

made his testimony insufficient to support a conviction.

Specifically, Nyberg argues that Officer Ines failed to ask

whether Nyberg suffered from physical defects or speech

impediments that could have provided an alternative explanation

for her performance on the SFSTs.

To prove OVUII, the State must show beyond a reasonable

doubt that (1) the suspect was intentionally, knowingly, or

recklessly (2) "under the influence of alcohol in an amount

sufficient to impair [her] normal mental faculties or ability to

care for [herself] and guard against casualty." HRS § 291E-

61(a)(1); State v. Nesmith, 127 Hawai i 48, 53-54, 276 P.3d 617,

622-23 (2012).

It is well-established that an officer may testify

about a defendant's performance on SFSTs. See, e.g., State v.

Ferrer, 95 Hawai i 409, 427, 23 P.3d 744, 762 (App. 2001); State

v. Ah Mow, CAAP-XX-XXXXXXX, 2024 WL 4298170, *2 (Haw. App. Sept.

26, 2024) (SDO); State v. Kwong, 149 Hawai i 106, 118, 482 P.3d

1067, 1079 (2021). While a police officer may not opine as to

whether a driver is intoxicated, their observations of a

defendant's performance can constitute sufficient evidence of

OVUII. Ah Mow, 2024 WL 4298170 at *2; State v. Uchima, 147

Hawai i 64, 85, 464 P.3d 852, 873 (2020); see also State v.

Manion, 151 Hawai i 267, 274, 511 P.3d 766, 773 (2022) ("Purely

physical evidence can provide incriminating information about a

person's mental faculties yet nonetheless be nontestimonial.").

3
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

During the early morning hours of January 24, 2022,

Officer Ines responded to a one-car traffic collision on Kawaihae

Road near Opelo. He observed a car with damage to the front and

saw Nyberg leaning against the car, slightly swaying side-to-

side. Officer Ines testified that Nyberg's speech was very

slurred, her eyes were glassy, and he detected the strong odor of

alcohol on her breath. He administered a horizontal gaze

nystagmus (HGN) test. Officer Ines observed lack of smooth

pursuit and sustained and distinct nystagmus in both eyes.

During the test, Nyberg swayed from side to side. Officer Ines

attempted to administer a walk-and-turn test, but Nyberg could

not keep her balance, stepped off the line, and stated her foot

hurt, preventing completion of the test. Nyberg began a one-leg-

stand test twice before Officer Ines instructed her to begin.

Because she was unable to maintain her balance, Nyberg could not

complete the test.

In addition to Officer Ines's testimony, evidence

admitted and reviewed by the District Court in this case included

Officer Ines's body-worn camera footage of Nyberg during her

interaction with the officer.

Officer Ines's failure to ask whether Nyberg suffered

from physical defects or speech impediments goes to the weight of

the evidence, not its sufficiency. We do not weigh evidence on

appeal. See, e.g., State v. Yabusaki, 58 Haw. 404, 410, 570 P.2d

844, 848 (1977). Viewing the evidence in the light most

favorable to the prosecution, we conclude that the District Court

did not err in finding substantial evidence to support a

conviction of OVUII.

4
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Nyberg also argues that there was insufficient evidence

to show the requisite mens rea to prove OVUII. Given the

difficulty in proving the mens rea element by direct evidence,

Hawai i courts "have consistently held that . . . proof by

circumstantial evidence and reasonable inferences arising from

circumstances surrounding the [defendant's conduct] is

sufficient[.] Thus, the mind of an alleged offender may be read

from his [or her] acts, conduct and inferences fairly drawn from

all the circumstances." State v. Batson, 73 Haw. 236, 254, 831

P.2d 924, 934 (1992) (quoting State v. Sadino, 64 Haw. 427, 430,

642 P.2d 534, 536–37 (1982)).

Here, the circumstantial evidence was sufficient to

show that Nyberg acted intentionally, knowingly, or recklessly.

As set forth above, Nyberg's behavior was consistent with someone

who had driven while impaired. It was reasonable for the

District Court to infer that Nyberg intentionally operated her

vehicle while impaired. Therefore, we conclude that the District

Court did not err in finding substantial evidence of OVUII.

(2) Nyberg argues that the District Court plainly

erred in failing to consider whether Count 1, OVUII, and Count 2,

Driving Without a License, constitute a continuing course of

conduct that should merge.

HRS § 701-109 (2014) states in relevant part:
§ 701-109 Method of prosecution when conduct
establishes an element of more than one offense. (1)
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:

. . . .

5
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

(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.

The Hawai i Supreme Court has held:
HRS § 701–109(1)(e) prohibits multiple convictions
where the defendant's actions constitute an uninterrupted,
continuing course of conduct. This prohibition, however,
does not apply where these actions constitute separate
offenses under the law. . . . [W]here a defendant in the
context of one criminal scheme or transaction commits
several acts independently violative of one or more
statutes, he [or she] may be punished for all of them if
charges are properly consolidated by the State in one trial.

State v. Hoopii, 68 Haw. 246, 251, 710 P.2d 1193, 1197 (1985)

(footnote and citations omitted; emphasis added).

The OVUII statute and the Driving Without a License

statute state separate offenses that do not seek to redress the

same conduct, although both involve driving. The main thrust of

the OVUII statute is to prohibit intoxicated driving, whereas the

Driving Without a License statute enforces the requirement that

one must hold a valid driver's license to drive. Violation of

these statutes constituted separate and independent offenses,

which are not subject to merger. Nyberg's argument to the

contrary is without merit.

For these reasons, the District Court's January 18,

2024 Judgment is affirmed.

DATED: Honolulu, Hawai i, April 17, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Lydia M. Grasso,
Deputy Public Defender, /s/ Clyde J. Wadsworth
for Defendant-Appellant Associate Judge

Nathan A. Wersal, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee

6

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

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-APR-2026
07:49 AM
Dkt. 50 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v.
HEATHER R. NYBERG, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
SOUTH KOHALA DIVISION
(CASE NO. 3DTA-22-01270)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Guidry, JJ.)
Defendant-Appellant Heather R. Nyberg (Nyberg) appeals

from the January 18, 2024 Judgment of Conviction (Judgment)

entered against her by the District Court of the Third Circuit,

South Kohala Division (District Court).1

On June 7, 2022, Plaintiff-Appellee State of Hawai i

(the State) charged Nyberg with one count of Operating a Vehicle

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

Hawaii Revised Statutes (HRS) § 291E-61(a)(1)(2020)2, one count

1
The Honorable Jill M. Hasegawa presided.
2
HRS § 291E-61(a)(1) states:

§ 291E-61 Operating a vehicle under the influence of
an intoxicant. (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:

(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

of Driving Without a License in violation of HRS § 286-102(b)(3)

(Supp. 2018)3, and one count of Driving without Insurance in

violation of HRS § 431:10C-104(a) (1997).

After a bench trial held on November 2, 2023, and

January 18, 2024, the District Court found that the State had

proven beyond a reasonable doubt the elements of Count 1, OVUII,

and Count 2, Driving Without a License. The District Court

acquitted on Count 3.

Nyberg raises two points of error on appeal, contending

that the District Court erred in: (1) finding sufficient

evidence of the offense of OVUII, and (2) failing to consider the

merger of Counts 1 and 2.

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 Nyberg's

points of error as follows:

2
(...continued)
(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(b) states:

§ 286-102 Licensing.

. . . .

(b) A person operating the following category or
combination of categories of motor vehicles shall be
examined as provided in section 286-108 and duly licensed by
the examiner of drivers:

. . . .

(3) Passenger cars of any gross vehicle weight rating,
buses designed to transport fifteen or fewer
occupants, [and] trucks and vans having a gross
vehicle weight rating of eighteen thousand pounds or
less[.]

2
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

(1) Nyberg argues that Hawai i Police Department

Officer Severo Ines (Officer Ines) made errors in his

administration of the standard field sobriety tests (SFSTs) that

made his testimony insufficient to support a conviction.

Specifically, Nyberg argues that Officer Ines failed to ask

whether Nyberg suffered from physical defects or speech

impediments that could have provided an alternative explanation

for her performance on the SFSTs.

To prove OVUII, the State must show beyond a reasonable

doubt that (1) the suspect was intentionally, knowingly, or

recklessly (2) "under the influence of alcohol in an amount

sufficient to impair [her] normal mental faculties or ability to

care for [herself] and guard against casualty." HRS § 291E-

61(a)(1); State v. Nesmith, 127 Hawai i 48, 53-54, 276 P.3d 617,

622-23 (2012).

It is well-established that an officer may testify

about a defendant's performance on SFSTs. See, e.g., State v.

Ferrer, 95 Hawai i 409, 427, 23 P.3d 744, 762 (App. 2001); State

v. Ah Mow, CAAP-XX-XXXXXXX, 2024 WL 4298170, *2 (Haw. App. Sept.

26, 2024) (SDO); State v. Kwong, 149 Hawai i 106, 118, 482 P.3d

1067, 1079 (2021). While a police officer may not opine as to

whether a driver is intoxicated, their observations of a

defendant's performance can constitute sufficient evidence of

OVUII. Ah Mow, 2024 WL 4298170 at *2; State v. Uchima, 147

Hawai i 64, 85, 464 P.3d 852, 873 (2020); see also State v.

Manion, 151 Hawai i 267, 274, 511 P.3d 766, 773 (2022) ("Purely

physical evidence can provide incriminating information about a

person's mental faculties yet nonetheless be nontestimonial.").

3
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

During the early morning hours of January 24, 2022,

Officer Ines responded to a one-car traffic collision on Kawaihae

Road near Opelo. He observed a car with damage to the front and

saw Nyberg leaning against the car, slightly swaying side-to-

side. Officer Ines testified that Nyberg's speech was very

slurred, her eyes were glassy, and he detected the strong odor of

alcohol on her breath. He administered a horizontal gaze

nystagmus (HGN) test. Officer Ines observed lack of smooth

pursuit and sustained and distinct nystagmus in both eyes.

During the test, Nyberg swayed from side to side. Officer Ines

attempted to administer a walk-and-turn test, but Nyberg could

not keep her balance, stepped off the line, and stated her foot

hurt, preventing completion of the test. Nyberg began a one-leg-

stand test twice before Officer Ines instructed her to begin.

Because she was unable to maintain her balance, Nyberg could not

complete the test.

In addition to Officer Ines's testimony, evidence

admitted and reviewed by the District Court in this case included

Officer Ines's body-worn camera footage of Nyberg during her

interaction with the officer.

Officer Ines's failure to ask whether Nyberg suffered

from physical defects or speech impediments goes to the weight of

the evidence, not its sufficiency. We do not weigh evidence on

appeal. See, e.g., State v. Yabusaki, 58 Haw. 404, 410, 570 P.2d

844, 848 (1977). Viewing the evidence in the light most

favorable to the prosecution, we conclude that the District Court

did not err in finding substantial evidence to support a

conviction of OVUII.

4
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Nyberg also argues that there was insufficient evidence

to show the requisite mens rea to prove OVUII. Given the

difficulty in proving the mens rea element by direct evidence,

Hawai i courts "have consistently held that . . . proof by

circumstantial evidence and reasonable inferences arising from

circumstances surrounding the [defendant's conduct] is

sufficient[.] Thus, the mind of an alleged offender may be read

from his [or her] acts, conduct and inferences fairly drawn from

all the circumstances." State v. Batson, 73 Haw. 236, 254, 831

P.2d 924, 934 (1992) (quoting State v. Sadino, 64 Haw. 427, 430,

642 P.2d 534, 536–37 (1982)).

Here, the circumstantial evidence was sufficient to

show that Nyberg acted intentionally, knowingly, or recklessly.

As set forth above, Nyberg's behavior was consistent with someone

who had driven while impaired. It was reasonable for the

District Court to infer that Nyberg intentionally operated her

vehicle while impaired. Therefore, we conclude that the District

Court did not err in finding substantial evidence of OVUII.

(2) Nyberg argues that the District Court plainly

erred in failing to consider whether Count 1, OVUII, and Count 2,

Driving Without a License, constitute a continuing course of

conduct that should merge.

HRS § 701-109 (2014) states in relevant part:
§ 701-109 Method of prosecution when conduct
establishes an element of more than one offense. (1)
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:

. . . .

5
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

(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.

The Hawai i Supreme Court has held:
HRS § 701–109(1)(e) prohibits multiple convictions
where the defendant's actions constitute an uninterrupted,
continuing course of conduct. This prohibition, however,
does not apply where these actions constitute separate
offenses under the law. . . . [W]here a defendant in the
context of one criminal scheme or transaction commits
several acts independently violative of one or more
statutes, he [or she] may be punished for all of them if
charges are properly consolidated by the State in one trial.

State v. Hoopii, 68 Haw. 246, 251, 710 P.2d 1193, 1197 (1985)

(footnote and citations omitted; emphasis added).

The OVUII statute and the Driving Without a License

statute state separate offenses that do not seek to redress the

same conduct, although both involve driving. The main thrust of

the OVUII statute is to prohibit intoxicated driving, whereas the

Driving Without a License statute enforces the requirement that

one must hold a valid driver's license to drive. Violation of

these statutes constituted separate and independent offenses,

which are not subject to merger. Nyberg's argument to the

contrary is without merit.

For these reasons, the District Court's January 18,

2024 Judgment is affirmed.

DATED: Honolulu, Hawai i, April 17, 2026.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Lydia M. Grasso,
Deputy Public Defender, /s/ Clyde J. Wadsworth
for Defendant-Appellant Associate Judge

Nathan A. Wersal, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee

6