State v. Pedro ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-APR-2021
08:03 AM
Dkt. 65 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
TERI WAINANI PEDRO, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CASE NO. 3DTA-17-00495)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)
The State of Hawai#i (State) charged Defendant-
Appellant Teri Wainani Pedro (Pedro) with Operating a Vehicle
Under the Influence of an Intoxicant (OVUII), in violation of
Hawaii Revised Statutes (HRS) § 291E-61(a)(1).1/ After a bench
trial, the District Court of the Third Circuit, Kona Division
(District Court), found Pedro guilty as charged of OVUII.2/
1/
HRS § 291E-61(a)(1) (Supp. 2016) provides as follows:
(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:
(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[.]
2/
The Honorable Margaret K. Masunaga presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Pedro appeals from the Judgment and Notice of Entry of
Judgment (Judgment), entered on March 29, 2019, in the District
Court. On appeal, Pedro contends that: (1) the District Court
erred in admitting at trial the results of her horizontal gaze
nystagmus (HGN) test as substantive evidence of intoxication; and
(2) there was insufficient evidence to support her conviction.
As explained below, we affirm the District Court's Judgment.
We resolve Pedro's arguments on appeal as follows.
1. Pedro argues that the District Court erred in
admitting her HGN test results at trial on the sole ground that
evidence of HGN test results is admissible only to determine
probable cause for arrest, and not as substantive evidence of
intoxication.
In State v. Jones, 148 Hawai#i 152, 468 P.3d 166,
(2020), the Hawai#i Supreme Court recently addressed the question
of whether standard field sobriety tests (SFSTs), which include
the HGN test, "were admissible for the purpose of establishing
substantive evidence of intoxication beyond probable cause." Id.
at 171, 468 P.3d 185. The supreme court held that "evidence of a
driver's conduct and physical actions while performing a SFST is
not only relevant to probable cause for an arrest, but is also
admissible as indicia of whether a driver was OVUII beyond a
reasonable doubt." Id. at 172, 468 P.3d 186. Based on Jones, we
conclude that Pedro's argument that evidence of HGN test results
is categorically inadmissible as substantive evidence of
intoxication is without merit.3/
2. Pedro argues that there was insufficient evidence
to support her OVUII conviction because the State failed to show
that: (1) she had been the driver of the subject vehicle
3/
Pedro does not contend that her HGN test results were otherwise
inadmissible at trial due to lack of foundation. To the extent that Pedro
intended to raise such a claim, we conclude that she waived it by failing to
present any argument to support it. See Hawai #i Rules of Appellate Procedure
Rule 28(b)(7) ("Points not argued may be deemed waived."); State v. Guidry,
105 Hawai#i 222, 236-38, 96 P.3d 242, 256-58 (2004); State v. Fitzwater, 122
Hawai#i 354, 370 n.10, 227 P.3d 520, 536 n.10 (2010). Indeed, in her reply
brief, Pedro appears to confirm that she did not intend to raise a lack-of-
foundation argument, stating: "[Pedro] does not concede that [the arresting
officer] was properly trained and properly administered the HGN test, but
argues that the HGN test should not have been admitted and relied upon as
substantive evidence of [Pedro's] intoxication ." (Emphasis added.)
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(operator element); and (2) assuming that she had been the
driver, that she was 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 (alcohol impairment
element). We disagree.
With respect to the operator element, the State
presented evidence that on July 18, 2016, at about 5:00 a.m.,
Pedro was outside an overturned pick-up truck involved in a
single-vehicle accident; she admitted that "she was the driver;"
she said she had come from a Jack-in–the Box; and the arresting
officer detected the smell of Jack-In-the–Box food coming from
Pedro and the vehicle.
With respect to the alcohol impairment element, the
State, among other things, presented evidence that the arresting
officer detected the odor of an "intoxication beverage" coming
from Pedro; her eyes were "red, glassy, . . . slightly watery[,]"
and "kind of half closed," and she appeared to be "fazed[ and] a
little confused"; the arresting officer had been trained to look
for indicators of alcohol intoxication, which included red,
watery, and glassy eyes, and the smell of alcohol; Pedro's truck
appeared to have gone off the road, hit an embankment, and
overturned before coming to rest upside-down in the middle of the
highway; and Pedro performed poorly on the SFSTs. In particular,
the arresting officer observed nystagmus in both of Pedro's eyes
during the tracking, maximum deviation, and forty-five degree
phases of the HGN test; during the walk-and-turn test, Pedro
could not keep her balance while receiving instructions and
swayed heavily from left to right; in performing the test, Pedro
failed to walk heel to toe as instructed, leaving gaps of one to
four inches on every step, kept her arms raised the entire time,
and made an improper turn; during the instructional phase of the
one-leg stand test, Pedro heavily swayed from front to back and
left to right; in performing the test, Pedro swayed, hopped, put
her foot down, and raised her arms. When viewed in the light
most favorable to the prosecution, State v. Ildefonso, 72 Haw.
573, 576-77, 827 P.2d 648, 651 (1992), we conclude that there was
sufficient evidence to support Pedro's OVUII conviction.
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Therefore, IT IS HEREBY ORDERED that the Judgment and
Notice of Entry of Judgment, entered on March 29, 2019, in the
District Court of the Third Circuit, Kona Division, is affirmed.
DATED: Honolulu, Hawai#i, April 20, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Andrew I. Kim, Chief Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Stephen L. Frye, Associate Judge
Deputy Prosecuting Attorney,
County of Hawai#i,
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge
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