State v. Kawakami ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-JUN-2021
07:58 AM
Dkt. 48 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
SHANA N. KAWAKAMI, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-16-00540)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Shana N. Kawakami (Kawakami)
appeals from the Notice of Entry of Judgment and/or Order and
Plea/Judgment (Judgment), entered on November 26, 2019, in the
District Court of the First Circuit, Honolulu Division (District
Court).1/ Following a bench trial, the District Court convicted
Kawakami of operating a vehicle under the influence of an
intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1) (Supp. 2015).2/
1/
The Honorable Steven L. Hartley presided over the August 20, 2019
bench trial. The Honorable James S. Kawashima entered the Judgment.
2/
HRS § 291E-61(a)(1) states:
(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[.]
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Kawakami contends that the District Court erred in
considering the portion of the arresting officer's testimony that
was based on his police report rather than his present memory,
and without that testimony, insufficient evidence supported the
conviction.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we affirm the
Judgment for the reasons set forth below.
Kawakami argues that under State v. Dibenedetto, 80
Hawai#i 138, 141, 906 P.2d 624, 627 (App. 1995), the District
Court erred in considering Officer Jonathan Wong's (Wong)
testimony regarding Kawakami's performance on a standard field
sobriety test (SFST), after Wong admitted on cross-examination
that "the majority" of his testimony regarding the SFST "is
coming from . . . the police report."
In Dibendetto, this court held:
Hawai#i Rules of Evidence (HRE) Rule 612 indicates
that "a witness may use a writing to refresh his memory for
the purpose of testifying." A writing, such as a police
report, used to refresh a witness's memory is ordinarily not
submitted into evidence. When used to refresh the witness's
present recollection, a writing is solely employed to jog
the memory of the testifying witness. Accordingly, when a
writing is used to refresh a witness's recollection, the
witness should testify from "a memory thus revived,"
resulting in testimony from present recollection, not a
memory of the writing itself. "A witness's recollection
must be revived after he or she consults the particular
writing or object offered as a stimulus so that the
resulting testimony relates to a present recollection." If
the writing fails to rekindle the witness's memory, the
witness cannot be permitted to testify as to the contents of
the writing unless the writing is otherwise admitted into
evidence.
Id. at 144, 906 P.2d at 630 (citations, brackets, & ellipses
omitted). "Because a witness cannot be permitted to testify if
the witness has no present recollection, we apply the
'right/wrong' standard in determining the correctness of a ruling
regarding the admissibility of testimony under HRE Rule 612."
State v. Wakamoto, 143 Hawai#i 443, 450, 431 P.3d 816, 823
(2018).
Here, Kawakami did not object to or move to strike
Officer Wong's testimony concerning Kawakami's SFST performance
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
at any time before the close of evidence, and addressed the issue
only during closing argument. In contrast, defense counsel in
Dibendetto moved to strike the officer's testimony after the
officer admitted on cross-examination that his testimony
regarding the defendant's SFST performance was based on his
police report rather than his present memory. 80 Hawai#i at 141,
906 P.2d at 627. The trial court ruled (incorrectly) that the
matter was for the jury to determine. Id.Under HRE Rule 103(a)(1), an "[e]rror may not be
predicated upon a ruling which admits or excludes evidence unless
a substantial right of the party is affected, and . . . [i]n case
the ruling is one admitting evidence, a timely objection or
motion to strike appears of record, stating the specific ground
of objection, if the specific ground was not apparent from the
context[.]" (Emphasis added.) The purpose of requiring a
specific objection to the introduction of inadmissible testimony
is to inform the trial court of the error. See State v. Long, 98
Hawai#i 348, 353, 48 P.3d 595, 600 (2002). Because Kawakami
failed to object to or move to strike the challenged testimony,
no error may be predicated on its admission. See HRE Rule
103(a)(1); see also State v. Metcalfe, 129 Hawai#i 206, 225, 297
P.3d 1062, 1081 (2013) ("objections to the admission of
incompetent evidence, which a party failed to raise at trial, are
generally not subject to plain error review" (citing State v.
Wallace, 80 Hawai#i 382, 410, 910 P.2d 695, 723 (1996))).
Even if we were to conclude that the District Court
erred in considering the challenged testimony, we would not
reverse the OVUII conviction, as Kawakami has failed to show that
the remaining evidence adduced at trial is insufficient to
support the conviction. In determining the legal sufficiency of
such evidence, "[t]he 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"; the evidence "must be considered in the strongest light
for the prosecution." State v. Richie, 88 Hawai#i 19, 33, 960
P.2d 1227, 1241 (1998).
Here, excluding the challenged testimony, the State
adduced the following additional evidence supporting the OVUII
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
conviction: Kawakami's vehicle was stopped for one to two
seconds, straddling the east and westbound lanes of Makaloa
Street, before reversing about 15 feet while still in both lanes,
which were marked by double solid yellow lines; Kawakami made a
hard right turn and proceeded to try to park in an open stall on
the right-hand side of Makaloa Street, initially parked out of
the stall, and while straightening out, "came close to reversing
into [Officer Wong's] vehicle"; Officer Wong smelled a "strong
odor of alcohol" coming from where Kawakami was seated in her
vehicle and "coming from her breath" as she spoke, and her eyes
"appeared red, watery, and kind of bloodshot"; when asked if she
would participate in the SFST, Kawakami said she had had her last
drink at Mai Tai's several hours earlier; Kawakami "missed heel-
to-toe on every step" of the walk-and-turn portion of the SFST;3/
and after Officer Wong drove Kawakami to the police station and
she left the rear of the vehicle, the odor of alcohol remained.
On this record, we conclude that even excluding the challenged
evidence, there was substantial evidence to support Kawakami's
OVUII conviction.
Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, entered on
November 26, 2019, in the District Court of the First Circuit,
Honolulu Division, is affirmed.
DATED: Honolulu, Hawai#i, June 3, 2021.
On the briefs:
Brian S. Kim /s/ Lisa M. Ginoza
(Park & Kim, LLLC) Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
3/
Officer Wong testified that "[f]or the [SFST], . . . the main
thing that I remember or the one thing that sticks out is the -- when she
missed heel to toe on every step." Officer Wong's testimony thus indicated a
present recollection of this event.
4