State v. Duran ( 2010 )

LAW L!BRARY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 30047
IN THE lNTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAl‘I
m? §
STATE oF HAWAI‘I, Plainciff-Appellee, v.
TOGIASO DURAN, Defendant-Appellant
5*1~‘£ HV LZ"IF?{``B!§Z
APPEAL FROM THE DIsTRIcT coURT oF THE FIRST CIRCUIT
KANE‘OHE: »DIvIsioN
(Case No. lDTC-08-O3249l)
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Fujise and Reifurth, JJ.)
Defendant-Appellant Tagiaso Duran (Duran) appeals the
Notice of Entry of Judgment and/or Order and Plea/Judgment
entered on August 7, 2009, in the District Court of the First
Kan€ohe Division (district court)F
Duran_was convicted of Excessive Speeding,
(2007).
Circuit,
in violation
of Hawaii Revised Statutes § 291C-105(a)(l)
On appeal, Duran contends that the district court
abused its discretion in admitting the laser gun reading without
adequate foundation of officer training and laser gun testing
and that,
consistent with the manufacturer's recommendations,
insufficient evidence exists to
without evidence of speed,
The State argues that the error was
sustain the conviction.
waived because Duran did not object to admissibility of the speed
reading based on any lack of foundation. Duran counters that
defense counsel's "questions were designed to challenge [Officer``
Shermon Dowkin's (Officer Dowkin)] qualifications and the
accuracy of the particular laser gun" and that the court
intervened and found, based on the officer's qualification and
training, that the laser gun was working properly.
1 The Honorable Fdauuga L. Tdotdo presided.
NOT FOR PUBLICATION ]N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
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
resolve Duran's points of error as follows.
(1) Duran waived his challenge to Officer Dowkin's
testimony regarding the laser gun reading where Duran failed to
make any objection prior to the officer's testimony establishing
Duran's speed, nor did he object to a lack of foundation at
anytime during trial, and no basis for plain error review eXists.
State v. Wallace, 80 HawaiU_382, 409-10, 910 P.2d 695, 722-23
(1996); State V. NaeOle, 62 Haw. 563, 570, 617 P.2d 820, 826
(1980). See also State v. Winfrev, No. 28737 (Haw. December 22,
2009) (order affirming judgment on appeal).
(2) There was sufficient evidence presented that Duran
committed the offense of excessive speeding. Officer Dowkin
testified that he observed Duran pass two posted City and County
35 mile-per-hour speed signs on Pali Highway. Officer Dowkin
further testified that the laser gun reflected Duran's speed at
68 miles per hour. Evidence of the laser gun speed reading,
"even though incompetent, if admitted without objection or motion
to strike, is to be given the same probative force as that to
which it would be entitled if it were competent." Wallace, 80
Hawafi at 410, 910 P.2d at 723 (quoting 2 Wharton's Criminal
Evidence § 265 n.3 (14th ed. 1986) (internal quotation marks
omitted)). Accordingly, taken in the light most favorable to the
State, State v. Grace, 107 HawaFi 133, 139, 111 P.3d 28, 34
(App. 2005), there was sufficient evidence for the conviction.
IT IS HEREBY ORDERED THAT the NO'C_iCe Of Entry of
Judgment and/or Order and Plea/Judgment, entered on August 7,
NOT_ FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
2009, in the District Court of the First Circuit, Kan€ohe
Division, is affirmed.
DATED= H@noluiu, Hawai‘i, July 27, 2010.
v On the briefs:
Thomas R. waters &@jj /Z{'
(Hawk Sing 1gnacio & Waters), Chief Judge
for Defendant~Appellant.
Anne K. Clarkin, `` `` l
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee. :y: Y¥\ §§ 1
Associate Judge