State v. Gray

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
02-JUN-2022
11:18 AM
Dkt. 51 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
CONNOR B. GRAY, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTC-19-041405)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Connor B. Gray (Gray) appeals from
the Notice of Entry of Judgment and/or Order and Plea/Judgment,
filed February 11, 2020, in the District Court of the First
Circuit (District Court).1 Gray was convicted of Operating a
Vehicle After License and Privilege Have Been Suspended or
Revoked for Operating a Vehicle Under the Influence of an
Intoxicant (OVLPSR-OVUII), in violation of Hawaii Revised
Statutes (HRS) § 291E-62(a)(1) and/or (a)(2) (Supp. 2018).2

1
The Honorable Harlan Y. Kimura presided.
2
HRS § 291E-62 provides in part:

(a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise
restricted pursuant to this section or to part III or
section 291E-61 . . . shall operate or assume actual
physical control of any vehicle:
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Gray raises a single point of error on appeal,
contending that there was not substantial evidence to support his
conviction.
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 by the parties, we
resolve Gray's point of error as follows and affirm.
Gray is alleged to have committed OVLPSR-OVUII for an
incident that occurred on May 14, 2019. He was previously
arrested for Operating a Vehicle Under the Influence of an
Intoxicant (OVUII) on May 6, 2018. Gray contends there was
insufficient proof to demonstrate the requisite intent to commit
OVLPSR-OVUII because there was no substantial evidence that he
had received the Administrative Driver's License Revocation
Office's (ADLRO) decision that "affirm[ed]" his license
revocation and set forth the dates of the revocation.
We review a sufficiency of the evidence challenge as
follows:
[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. . . . "Substantial
evidence" . . . is credible evidence which is of
sufficient quality and probative value to enable a
person of reasonable caution to support a conclusion.

State v. Calaycay, 145 Hawai#i 186, 196, 449 P.3d 1184, 1194
(2019) (brackets omitted).
The state of mind required to establish an offense
under HRS § 291E-62 is not specified and, therefore,
is established if a person acts intentionally, knowingly, or

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(...continued)
(1) In violation of any restrictions placed on the
person's license;
(2) While the person's license or privilege to
operate a vehicle remains suspended or
revoked[.]

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

recklessly. HRS § 702-204 (2014). "A person acts recklessly
with respect to attendant circumstances when he consciously
disregards a substantial and unjustifiable risk that such
circumstances exist." HRS § 702-206(3)(b) (2014).
A risk is substantial and unjustifiable within the
meaning of this section if, considering the nature and
purpose of the person's conduct and the circumstances
known to him, the disregard of the risk involves a
gross deviation from the standard of conduct that a
law-abiding person would observe in the same
situation.

HRS § 702-206(3)(d) (2014).
"[G]iven the difficulty of proving the requisite state
of mind by direct evidence in criminal cases, we have
consistently held that proof by circumstantial evidence and
reasonable inferences arising from circumstances surrounding the
defendant's conduct is sufficient." State v. Stocker, 90
Hawai#i 85, 92, 976 P.2d 399, 406 (1999) (brackets, ellipsis,
citation & internal quotation marks omitted). "Thus, the mind
of an alleged offender may be read from his acts, conduct and
inferences fairly drawn from all the circumstances." Id.
(citation & internal quotation marks omitted).
Here, there is substantial evidence that Gray received
an administrative review decision, or at a minimum was informed
about the administrative review decision, that revoked his
license. He requested an administrative hearing, and a request
for a hearing can only be made after an administrative review
decision is issued that revoked a license. See HRS § 291E-38(a)
(Supp. 2018). The ADLRO's August 10, 2018 "Notice of Withdrawal
of Request for Hearing" (August 10, 2018 Notice), which states
"ADMINISTRATIVE REVOCATION SUSTAINED" and that Gray's license and
privilege to operate a vehicle was revoked from "6/6/2018 to
6/5/2019," also includes the following remarks:
Prior to the commencement of the hearing scheduled for
8/8/18, Respondent, through and as approved by
Counsel, withdrew his request for a hearing. See,
Withdrawal dated 8/8/18. Therefore, the Notice of
Administrative Review Decision dated 5/14/18 is
affirmed and shall continue and remain in full force
and effect.

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

(Emphasis added.) The August 10, 2018 Notice is addressed to
"Connor B. Gray c/o Scott Collins, Esq.," and Gray testified that
Scott Collins (Collins) represented him at that time. Thus, it
is reasonable to infer from the evidence that Gray was aware his
license was revoked because he requested an administrative
hearing. Gray consciously disregarded the substantial and
unjustifiable risk that his license remained revoked or
restricted when he drove on May 14, 2019, the date of the subject
incident in this case. See State v. Benitez, CAAP-XX-XXXXXXX,
2018 WL 2752359, at *2 (App. June 8, 2018) (SDO).
Additionally, Officer Jesse Takushi (Officer Takushi)
testified regarding events that previously occurred on May 6,
2018, when Officer Takushi arrested Gray for OVUII. Officer
Takushi testified that after arresting Gray, he read a four-page
Notice of Administrative Revocation form (Revocation Form)
"verbatim" to Gray, and that Gray signed the form. Officer
Takushi informed Gray that ADLRO may revoke his license, and that
ADLRO would mail Gray a copy of the administrative review
decision. The Revocation Form indicated, inter alia, that Gray
was arrested for OVUII; the administrative review decision shall
be mailed to him no later than eight days after the date of the
issuance of "this Notice" (the Revocation Form); and if his
license is not administratively revoked after the administrative
review or if an administrative revocation is reversed, he would
receive, inter alia, a certified statement that the
administrative revocation proceedings have been terminated. Gray
does not contend that he received any indication that the
revocation proceedings were terminated; rather, he testified that
he never received notice of the ADLRO decision stating the time
period that his license was revoked and that when he was stopped
on May 14, 2019, he did not know whether his license had been
revoked. Based on the foregoing, this testimony and documentary
evidence also establishes sufficient evidence that Gray
consciously disregarded a substantial and unjustifiable risk that

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

his license was revoked when he drove on May 14, 2019. See State
v. Rios, CAAP-XX-XXXXXXX, 2021 WL 964862, at *2 (App. Mar. 15,
2021) (SDO).
Accordingly, the District Court's February 11, 2020
Notice of Entry of Judgment and/or Order and Plea/Judgment is
affirmed.
DATED: Honolulu, Hawai#i, June 2, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Susan L. Arnett,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant Associate Judge
Stephen K. Tsushima, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee

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