NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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").
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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).
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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. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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").
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
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.