State v. Johnson

°§ 29lE-6l(a)

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 2847l

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIT

STATE OF HAWA1I, Pla1ntiff-Appellee, vx §
CHRISTIAN JOHNSON, Defendant-Appellant

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APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
(CaSe NO. 2DTA-06-O2260)

SUMMARY DISPOSITION ORDER
(By: Foley and Fujise, JJ.,
with Nakamura, C.J. concurring separately)

Defendant-Appellant Christian K. Johnson (Johnson)
appeals from the February 23, 2007 judgment of the District Court
of the Second Circuit, Wailuku Division (district court),1
convicting Johnson of operating a vehicle under the influence of
an intoxicant, in violation of Hawaii Revised Statutes (HRS)
(Supp. 2006) (OVUlI), and operating a motor vehicle
without no-fault insurance, in violation of HRS § 431:1OC-104(b)
(2005).

After a careful review of the issues raised, arguments
advanced, applicable law, and the record in the instant case, we
resolve Johnson's appeal as follows:

1. As for Johnson's conviction for OVUII, in light of
the Hawai‘i Supreme Court's recent opinion in State v. Wheeler,
121 Hawafi 383, 219 P.3d 1170 (2009), "the failure of the charge
to allege that [Johnson] was driving his vehicle upon a public
way, street, road, or highway at the time of the offense rendered
the charge deficient." Wheeler, 121 Hawai‘i at 393, 219 P.3d at
1180. Although this matter has not been raised by the parties, a
"court sua sponte will, for unless jurisdiction of the court over

the subject matter eXists, any judgment rendered is invalid."

1 The H0norable Kelsey Kawano presided.

~€33"!~!.:;!

NOT FOR PUBLICATION IN WEST'S HAWAI°-I REPORTS AND PACIFIC REPORTER

Mever v. Territory, 36 Haw. 75, 78 (Haw. Terr. 1942), quoted with
approval in Application of Rice, 68 Haw. 334, 335, 713 P.2d 426,
427 (1986).

2. As for Johnson's conviction for operating a motor
vehicle without no-fault insurance, inasmuch as HRS § 431:10C-
107(b) (2005) requires a motor vehicle insurance identification
card to "be exhibited to a law enforcement officer upon demand,"
the testimony of the arresting officer -- that he asked Johnson
for proof of insurance and Johnson produced an oil change receipt
~~ as well as Johnson's failure to produce, at any time, proof of
insurance, was sufficient for the district court to infer Johnson
did not have insurance.

Accordingly, we vacate that portion of the District
Court of the Second Circuit, Wailuku Division's judgment
convicting Johnson of OVUII, affirm the portion of the judgment'
convicting Johnson of operating a motor vehicle without no-fault
insurance, and remand for dismissal of the OVUII charge without
prejudice.

DATED= H@n@luiu, Hawai‘i, April 29, 2010.

On the briefs:

F,_
James S. Tabe, 7 ~ 0;>
Deputy Public Defender, -

for Defendant-Appe1lant. 4 Associate Judge

Scott K. Hanano and iii §§ 6 w
Renee Ishikawa Delizo,

Deputy Prosecuting Attorneys, Associate Judge

County of Maui
for Plaintiff-Appellee.