State v. Ballesteros ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUN-2021
08:19 AM
Dkt. 49 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
RUEL S. BALLESTEROS, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DTA-19-00511)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Ruel S. Ballesteros (Ballesteros)
appeals from the Notice of Entry of Judgment and/or Order and
Plea/Judgment, entered June 22, 2020, in the District Court of
the First Circuit, Honolulu Division (District Court).1
Following a bench trial, the District Court found Ballesteros
guilty of, inter alia, Operating a Vehicle Under the Influence of
an Intoxicant as a Third Offense Within Five Years (OVUII 3), in
violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1),(b)(3)
(Supp. 2016).2
1
The Honorable James C. McWhinnie presided.
2
HRS § 291E-61(a)(1),(b)(3) has since been revised; the version
applicable at the time of the offense provided, in relevant part:
(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[.]
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Ballesteros's sole point of error is that the District
Court improperly relied on Plaintiff-Appellee State of Hawai#i's
(State) Exhibits 4 through 8 in finding him guilty of OVUII 3,
when the exhibits "had no relevan[ce] to the OVUII charge other
than impermissible propensity evidence," and without that
evidence, there was no substantial evidence to support the
conviction. While he concedes Exhibits 4 through 8 were
relevant, inter alia, to "confirm [his] prior convictions for
OVUII for sentencing," he argues they could not be relied on to
prove he drove while impaired, as such use would violate Hawai#i
Rules of Evidence (HRE) Rule 404(b).3
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
affirm for the reasons set forth below.
In State v. Ruggiero, the Hawai#i Supreme Court
addressed a dispute over whether the aggravating factors in HRS §
291E-61(b) are elements of the offense that must be charged and
proven to a trier of fact beyond a reasonable doubt or are
sentencing factors to be considered by the sentencing court. 114
Hawai#i 227, 237-38, 160 P.3d 703, 713-14 (2007), abrogated on
other grounds by Christian v. State, 131 Hawai#i 153, 158, 315
P.3d 779, 784 (App. 2013), overruled by Schwartz v. State, 136
Hawai#i 258, 361 P.3d 1161 (2015); see State v. Wagner, 139
Hawai#i 475, 484, 394 P.3d 705, 714 (2017) (distinguishing
2
(...continued)
. . . .
(b) A person committing the offense of
operating a vehicle under the influence of an
intoxicant shall be sentenced without possibility of
probation or suspension of sentence as follows:
. . . .
(3) For an offense that occurs within
five years of two prior convictions for offenses under
this section or section 291E-4(a) . . . .
3
HRE Rule 404(b) provides, in relevant part: "Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person
in order to show action in conformity therewith."
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Ruggiero, but recognizing its continued validity). The supreme
court concluded that the aggravating factors in HRS § 291E-61(b)
are not sentencing factors, and though not explicitly
categorizing them as "elements," nonetheless found them to be
"attendant circumstances that are intrinsic to and 'enmeshed' in
the hierarchy of offenses that HRS § 291E–61 as a whole
describes," and that due process therefore requires those factors
to be alleged in the charging instrument and proven beyond a
reasonable doubt at trial. Ruggiero, 114 Hawai#i at 238, 160
P.3d at 714. Therefore, the District Court did not err in
considering evidence of Ballesteros's prior OVUII offenses in
finding him guilty of the offense of OVUII 3, provided such
evidence was only considered for the purpose prescribed in
Ruggerio.
As to Ballesteros's contention that the District Court
improperly considered the prior offenses as impermissible
propensity evidence that he drove while impaired, he points to
nothing in the record supporting that conclusion other than that
the District Court discussed the evidence of impairment and the
evidence of prior OVUII offenses in the same paragraph of the
trial transcript. In that same paragraph, however, the District
Court made the finding that the State had "proven beyond a
reasonable doubt the violation of HRS § 291E-61(a)(1)(b)(3)."
(Emphasis added). Therefore, the District Court was also
addressing in that paragraph the attendant circumstances
applicable in this case. "[W]here a case is tried without a
jury, it is presumed that the presiding judge will have
disregarded the incompetent evidence and relied upon that which
was competent." State v. Kiese, 126 Hawai#i 494, 507, 273 P.3d
1180, 1193 (2012) (citations and internal quotation marks
omitted). "This means that when evidence is admissible for a
limited purpose, we presume that the judge only considered the
evidence for the permissible purpose." State v. Lioen, 106
Hawai#i 123, 133, 102 P.3d 367, 377 (App. 2004). Because the
evidence of prior OVUII offenses is admissible for limited
purposes here, this court must presume it was only considered for
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
those purposes. While the presumption is rebuttable, Ballesteros
points to no evidence in the record to rebut it. See Kiese, 126
Hawai#i at 507 n.7, 273 P.3d at 1193 n.7.
Finally, even if the District Court had improperly
considered the prior OVUII offenses as propensity evidence, the
conviction would nonetheless be supported by substantial
evidence. The appellate court reviews 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. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31
(2007) (internal brackets omitted).
Here, the State produced evidence that Ballesteros
drove on the wrong side of the road and passed over a directional
arrow which should have informed him he was driving in the wrong
direction; when asked for his documents, Ballesteros had a "blank
stare" and appeared nervous; he "continuously avoid[ed] eye
contact," and Officer Janghoon Cho smelled a "moderate to strong"
odor of alcohol coming from him when he spoke; he refused to
participate in a Field Sobriety Test (FST)4; Officer Young Kim
also smelled a strong odor of alcohol coming from him and
observed that his eyes were red and watery; while Ballesteros
rode in the back of the police car, the odor of alcohol filled up
the cabin and remained there after Ballesteros exited; and during
processing, Ballesteros repeatedly said "he was sorry" and that
he is "not a perfect person." Considered in the strongest light
4
Though not a factor cited by the District Court here, a
defendant's refusal to take an FST may be used as substantial evidence to
infer guilt of OVUII. See e.g., State v. Ferm, 94 Hawai#i 17, 29, 7 P.3d 193,
205 (App. 2000) (upholding OVUII conviction based, inter alia, on trial
court's finding that the defendant's refusal to submit to FST was indicative
of guilt).
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
for the prosecution, we find there is substantial evidence in the
record supporting Ballesteros's conviction.5 See id.Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, entered June
22, 2020, in the District Court of the First Circuit, Honolulu
Division, is hereby affirmed.
DATED: Honolulu, Hawaii, June 28, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Brian S. Kim
(Park & Kim, LLLC) /s/ Clyde J. Wadsworth
for Defendant-Appellant Associate Judge
Donn Fudo /s/ Karen T. Nakasone
Deputy Prosecuting Attorney Associate Judge
for Plaintiff-Appellee
5
We do not reach Ballesteros's argument that the traffic violation
is attributable to the fact that he is not a U.S. citizen and "likely not
wholly familiar with the area and traffic markings," as he failed to raise
this argument to the District Court. See State v. Miyazaki, 64 Haw. 611, 616,
645 P.2d 1340, 1344 (1982) ("[A]n issue not preserved at trial is deemed to be
waived.").
5