State v. Amar ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-DEC-2023
07:54 AM
Dkt. 77 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
MADELYN E. AMAR, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DTA-18-02966)
SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, Nakasone and Guidry, JJ.)
Defendant-Appellant Madelyn Evelyn Amar (Amar) appeals
from the February 5, 2019 Notice of Entry of Judgment and/or
Order and Plea/Judgment and the March 1, 2021 Notice of Entry of
Judgment and/or Order and Plea/Judgment (collectively, Judgment)
entered by the District Court of the First Circuit, #Ewa Division
(District Court),1 convicting Amar of operating a vehicle under
the influence of an intoxicant (OVUII) in violation of Hawai#i
Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(4).2 Amar
1
The Honorable Sherri-Ann L. Iha presided over the February 5, 2019
trial. The Honorable Tracy S. Fukui presided over the March 1, 2021
restitution hearing, which is not at issue in this appeal.
2
While the trial transcript does not specifically reflect whether
Amar was convicted of violating HRS § 291E-61(a)(1) or (a)(4), it appears from
the evidence presented, which did not include any evidence of subsection
(a)(4) blood alcohol concentration, that Amar was convicted under subsection
(continued...)
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raises four points of error: (1) "[p]rosecutorial misconduct,
trial court error, and ineffective assistance by defense counsel
resulted in improper consideration of 'the [unadmitted] video,'
which formed the basis for all [Plaintiff-Appellee State of
Hawai#i's (State)] witness testimony, in violation of Amar's
rights to due process and fair trial";3 (2) "[t]he State
presented insufficient evidence that Amar drove on a 'public way,
street, road, or highway'"; (3) "[t]he trial court committed
misconduct in assisting the prosecutor by laying foundation for
the six photos contained in S-Exh. 1, 2, and 3, then admitting
them into evidence"; and (4) "Amar's rights to due process and
[a] fair trial" were violated when the District Court considered
a motor vehicle collision (MVC) diagram that was not admitted
into evidence.
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, we resolve Amar's
points one and two as follows, and reverse for insufficient
evidence.4
The evidence presented at the February 5, 2019 bench
trial came from the State's four witnesses, and Amar did not
testify or present witnesses. The State's four witnesses were
eyewitness Sabrina Saunoa (Saunoa), Honolulu Police Department
(HPD) Corporal Cary Izuka (Corporal Izuka), HPD Officer Charles
Rezentes (Officer Rezentes), and HPD Officer Kristi DeGuzman
2
(...continued)
(a)(1). HRS § 291E-61(a)(1)(2018) provides, in relevant part:
§ 291E-61 Operating a vehicle under the
influence of an intoxicant. (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[.]
3
The brackets for the word "unadmitted" are in the original.
4
In light of our disposition, we do not reach points three and
four.
2
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(Officer DeGuzman). In their testimonies, the witnesses
described two events pertinent to this case: (1) a police
investigation of a MVC involving a vehicle striking a wall then
leaving the scene, which occurred on August 19, 2018, around
11:40 p.m. near 98-731 Moanalua Loop (Accident Scene), and (2) a
police response to an argument call about "ten minutes" later,
involving two people observed walking away from a damaged vehicle
at 611 Kilinoe Street (Argument Scene), which was near the
Accident Scene.
Accident Scene testimony
Saunoa testified that at around 11:40 p.m. she heard a
"really loud" sound while in her apartment at 98-731 Moanalua
Loop. She went outside and saw a car by a wall in the "Verizon
building parking lot" across the street. She testified that "a
person jump[ed] out of the car[,]" "was yelling on the phone,"
then "went back in the car and started to . . . drive away but
couldn't." Saunoa started recording a video because the driver
was "revving the engine"; and that their "cars [we]re right
across the street" from "the parking structure–where that car
was," and that she was "scared somebody was gonna [sic] bang
[their] cars." Saunoa testified that the vehicle did not enter
the street because "it stayed on the gravel[,]" "was stuck" and
"couldn't move."5 She saw only one person in the car, and
testified she might "sort of" be able to recognize the person if
she saw them again, and stated she thought the person was female,
even though the police and "a lot of people were saying it was a
5
Saunoa testified as follows:
Q. [(By Deputy Prosecuting Attorney (DPA)] Okay.
While you're recording this incident does the vehicle ever
drive onto the street?
A. [(By Saunoa)] Um, it stayed on the gravel.
Q. Okay
A. It was stuck. It couldn't move.
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male."6 Saunoa did not observe anyone drive away from the scene
because she went inside her apartment after recording the video,
and when she returned the car was gone.7
6
Saunoa's testimony about whether she could identify the person
with the vehicle was equivocal, as follows:
Q. [(By DPA)] If you were to see that person again,
would you be able to recognize her?
A. [(By Saunoa)] Not –- not clearly but, like, sort
of. Yeah, I can ––
Q. Okay.
A. –– but not –– I didn't –– wasn't close enough to
see that person. I was far where I could see how tall ––
kinda see how tall that person was.
Regarding the gender of the person she observed with the vehicle,
Saunoa explained she initially agreed with others who said the person was a
"he," but changed her position to the person being a "she" because of the
"female voice" she heard, as follows:
A. [(By Saunoa)] Um, the pers –– uh, just the person
was on the phone, was yelling on the phone. I'm cer –– I ––
I heard a female voice.
Q. [(By DPA)] Okay.
A. So a lot of people were saying it was a male. They
(inaudible) it was a guy. But I was like, no, I heard a
female voice.
. . . .
A. The cops were kept –– they kept saying it was a he,
so I just said okay, it's a he. But I said, no, it's a she.
I was a hundred percent sure it was a she.
Q. [(By defense counsel)] So you're changing your
testimony now? Because just a moment ago you said he jumped
out.
A. No, it was a she.
Q. So it's a she?
A. It was a she, yeah. I heard a she voice. And I
told the cops it was a she, but they said it must have been
–– well, all the witnesses said it was a he.
7
Saunoa testified as follows:
Q. [(By defense counsel)] Did you observe anyone drive
away from the scene?
(continued...)
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Saunoa provided her cell phone video to the police
officers at the Accident Scene. She also brought her cell phone
containing the video to the trial. The record reflects that at
that point during the trial, the State asked the video to be
entered into evidence; the defense objected under Hawai#i Rules
of Evidence (HRE) Rule 901; the District Court's response to the
defense's objection was inaudible; the State asked Saunoa to
"describe for the court what happens in that video"; and Saunoa
did so, as follows:
Q. [(By DPA)] Did you bring the original video –
A. [(By Saunoa)] Yeah.
Q. –– with you today?
A. (No audible response.)
[DPA]: Honor [sic], I have a copy, but, um, it's
actually clearer on her phone. Uh, State would ask to enter
the video into evidence. Um, but perhaps we should view it,
the original, on her phone.
THE COURT: Mr. [defense counsel]?
[DEFENSE COUNSEL]: Uh, yes, Your Honor? Uh, defense
objection under Hawaii Rule of Evidence I believe it's
90–901.
THE COURT: Okay. (Inaudible.)
[DEFENSE COUNSEL]: And --
Q. [(By DPA)] So, um, describe for the court what
happens in that video.
A. [(By Saunoa)] Um, I see the –– this person was in
the car and then jumped out. Oh, hold on. That was –– in
the video it was trying to get away I guess. I don't know.
Moving the car forward. That's all I saw ––
Q. Okay.
A. –– on the video itself.
Q. Okay.
A. Yeah.
7
(...continued)
A. [(By Saunoa)] No. I was trying –- that person was
trying to –– I went inside the house and when I came back
out, the car was gone so I didn't see who drove away.
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The above record does not indicate how the District Court ruled
on the objection to the video, whether the District Court
received the video into evidence, and whether the District Court
viewed the video.8
Corporal Izuka testified that he responded to the
Accident Scene for an MVC call and spoke to two witnesses9 who
came from nearby residences after hearing the crash. Corporal
Izuka observed a hole in a "cinder block wall" of a building that
belonged to "Shred-X." He saw damage to a "large flatbed
trailer" parked in a "gravel lot" "13 feet away" from the "Shred-
X building[,]" which was located "approximately 40 feet" from
"the edge of the roadway[.]" He recovered a silver hubcap with a
"Chevy logo" from the Accident Scene. He used his phone to
record the video taken by Saunoa. Corporal Izuka did not testify
as to the contents of the Saunoa video, but related that he
created a diagram showing the vehicle's path of travel based on
the video.
Officer Rezentes testified that he responded to the
Accident Scene for an MVC call and observed "broken tile on the
building," which he identified as "a Shred-X building or a
business over there" on Moanalua Loop, by a "dirt lot" where the
"workers park." A male10 standing near the damage told him "a
car just got stuck, wedged in there, and then a dark-colored
person got out, jumped in the driver's seat, reversed out, and
drove off." Officer Rezentes also watched the video recovered at
the Accident Scene.
8
There is no indication in the remainder of the trial transcript
that the video was received into evidence and viewed by the District Court.
The court minutes, however, indicate that "[t]he court reviewed video on
witness #1 [(Saunoa)] [sic] cell phone."
9
Corporal Izuka identified the two witnesses by their last name
only, as "Saunoa" and "Snook."
10
Officer Rezentes did not identify this witness by name.
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Officer DeGuzman testified that she responded to the
Accident Scene for the MVC call and she "view[ed] the video that
was provided by a witness" at the scene.
Argument Scene testimony
Approximately ten minutes after the police officers
responded to the MVC call, they responded to a call about "a
couple arguing fronting . . . 611 Kilinoe Street[,]" which was
"less than two minutes away[.]" At the Argument Scene, Officer
Rezentes saw "two people," later identified as Amar and her wife,
Angelique, on the sidewalk "walking away from" a parked "silver"
car with "severe front end damage."11 The damaged vehicle
appeared "similar" to the "silver four-door sedan" in the video
that Officer Rezentes had previously watched at the Accident
Scene. Officer Rezentes testified that Amar was wearing the same
clothes as the person in the video; he was able to identify Amar
as the person in the video; and Amar was "driving away from the
scene of the accident on the video[,]" as follows:
Q. [(By DPA)] Okay. Um, on the first scene there was
a video recovered. Did you watch that video?
A. [(By Officer Rezentes)] Yes.
Q. Okay. And from that video were you able to
positively identify Evelyn Madelyn [sic] [(Amar)]?
A. Yes.
. . . .
Q. [(By DPA)] Okay. And do you interact with Evelyn
Madelyn [sic] [(Amar)] at that time?
A. [(By Officer Rezentes)] Yes.
11
Officer Rezentes testified as follows:
Q. [(By DPA)] And could you describe, um, the scene
when you arrived there.
A. [(By Officer Rezentes)] Uh, we got sent to a couple
arguing fronting the I think it was 611 Kilinoe Street.
When I pulled up, I seen [sic] a silver car parked on the
right. It looked like had [sic], um, severe front end
damage. And I observed two people on the sidewalk, like,
walking away from the car, and that was Mrs. Amar and I
believe it's her wife Angelique in the seat over there.
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Q. And did you make any observations at that time?
A. She was wearing the exact same clothes as the
person I saw in the video.
. . . .
Q. [(By defense counsel)] Can you describe for the
court today the driving behavior or conduct by Madelyn Amar
that suggested to you that she might be impaired?
A. [(By Officer Rezentes)] Her driving and conduct?
Q. That you personally observed.
A. I just seen [sic] her driving away from the scene
of the accident on the video.
Officer Rezentes also testified that at the Argument Scene, he
observed Amar had an "odor of alcoholic type beverage coming from
her breath," and "red, watery eyes."
Corporal Izuka went to the Argument Scene with the
hubcap he had recovered from the Accident Scene, to compare it to
the damaged vehicle at the Argument Scene that was missing a
hubcap. He photographed the hubcap alongside the damaged vehicle
at the Argument Scene, and the photograph was admitted into
evidence. Corporal Izuka stated the hubcap and the vehicle
appeared to match.
Officer DeGuzman went to the Argument Scene after
Officer Rezentes told her the occupants of the vehicle involved
in the MVC were there, and that "one of the occupants was
identified as the driver of the vehicle" from the MVC. At the
Argument Scene, the officer administered a standard field
sobriety test (SFST) on Amar, who had an odor of alcohol, red,
glassy eyes, and slurred speech. The SFST was administered
because Officer DeGuzman had "view[ed] the video that was
provided by a witness" at the Accident Scene, and "[Amar] also
appeared to . . . be the female that was identified as the driver
on that incident prior."
At the conclusion of the trial, Amar's counsel argued
Amar was not guilty because the "testimony of Rezentes and maybe
one other witness" was not sufficient to establish "positive ID"
of Amar as the person who operated the vehicle. In addition to
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"contesting the issue of who's operating the vehicle[,]" Amar's
counsel argued there was insufficient evidence of "impaired
driving or conduct" because:
[i]n order for somebody to be convicted of DUI, the
government has to produce evidence tending to suggest
that Madelyn Amar on the date and time at issue
operated a motor vehicle in a manner tending to
suggest she was impaired, couldn't care for herself
and guard against casualty. That burden hasn't been
met.
Amar's counsel argued that at the Argument Scene, "[n]obody is
driving" and that "[a]t most[,] the facts in this case . . .
support a finding or conclusion that, if anything, Madelyn Amar
on the date and time at issue may be guilty of walking around in
public while intoxicated."
The District Court found Amar guilty of OVUII as
follows:
THE COURT: Mr. [defense counsel], I disagree
with you. I believe that the court [sic] has proved
the identity of the driver that was involved in the
motor vehicle collision as [Amar],[12] and the court is
gonna [sic] find that given the totality of the
circumstances, the extent of the injury –– uh, damages
as well as the performance on the field sobriety test
and the court is gonna [sic] find that [Amar] was
operating the vehicle in a manner likely to not be
able to guard against casualty or injury.
So sentencing. [sic]
(Footnote added.)
12
The District Court did not specifically reference what evidence
established identification of Amar as the driver involved in the MVC. In an
earlier ruling on Amar's pre-trial "Motion to Dismiss Complaint for Lack of
Probable Cause" that was consolidated with trial, however, the District Court
expressly pointed to Officer Rezentes's testimony regarding the video as
establishing identification:
THE COURT: Okay. And based on Officer
Rezentes' testimony that he observed the video and
identified her as the same person in the video and
that she was wearing the same clothes, the car had the
same –– the matching damage and the hubcap was
missing, the hubcap recovered at the scene was missing
[sic], the court is going to deny the motion to
suppress [sic].
The District Court erroneously referred to Amar's "Motion to Dismiss Complaint
for Lack of Probable Cause" as a "motion to suppress" during its ruling.
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POE 1 - Inadmissible evidence of identification
Amar argues, among other things, that the District
Court erroneously admitted Saunoa's video due to lack of
foundation, and that the record on appeal does not contain the
video. Amar argues that the police officer witnesses "who
claimed to have identified Amar based on the video should have
been precluded from so testifying." Amar asserts that "Saunoa,
the only eyewitness to any part of the actual incident, was
unable to positively identify the person driving the car[.]"
The trial court has discretion to determine whether a
proper foundation is established for admission of evidence, and
we will not disturb such a determination absent an abuse of
discretion. State v. Assaye, 121 Hawai#i 204, 210, 216 P.3d
1227, 1233 (2009). HRE Rule 901(a) requires "authentication or
identification as a condition precedent to admissibility" and
this standard is satisfied by a foundation "sufficient to support
a finding that the matter in question is what its proponent
claims."
Here, Saunoa's cell phone video was offered into
evidence, but the record does not reflect whether or not it was
received. The trial transcript does not reflect any ruling on
the request to admit the video or the defense's HRE Rule 901
objection to the video's admission. Although the State asserts
on appeal that a duplicate copy of the video Corporal Izuka made
of Saunoa's cell phone video was received in evidence, the video
is not listed as an exhibit in the record on appeal, which is
required for consideration on appeal. See Hawai#i Rules of
Appellate Procedure Rule 10 (requiring the record on appeal
"consist of the trial court . . . record, as set out in Rule 4 of
the Hawai#i Court Records Rules"); Hawai#i Court Records Rules
(HCRR) Rule 4(c) (requiring the record of each case to include
exhibits).13 Thus, the record on appeal contains no video, which
13
HCRR Rule 4, setting forth the content of court records, provides:
The record of each case, whether electronic, paper, or
a combination thereof, shall include:
(continued...)
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was the only evidence that purportedly provided the basis for the
officers' identification of Amar as the operator of the vehicle
when the MVC occurred.
The only evidence of identification of Amar as the
driver of the vehicle when the MVC occurred is Officer Rezentes's
and Officer DeGuzman's recollections of what they observed on the
video. The officers were not eyewitnesses to, and had no
personal knowledge of, the circumstances immediately after the
MVC depicted in Saunoa's video. See HRE Rule 602 (prohibiting
testimony by one who lacks personal knowledge). There was no
required foundation laid through Saunoa, the only witness with
personal knowledge, that the video was a fair and accurate
depiction of the vehicle and its operator immediately after the
MVC. See HRE Rule 901 (requiring authentication of evidence as a
condition precedent to admissibility). Thus, allowing the
officers' testimonies of what the video depicted, when no
foundation was laid for the admission of the video, was an abuse
of discretion. See Assaye, 121 Hawai#i at 210, 216 P.3d at 1233.
"[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 omitted). On this record, however, where the District
Court relied on Officer Rezentes's and/or Officer DeGuzman's
13
(...continued)
(a) all documents related to the case, including
correspondence, submitted for filing in any form;
(b) any written jury instructions given or refused;
(c) exhibits, including, but not limited to,
presentence reports, social work reports, and tangible
items, whether admitted into evidence or refused, provided
that exhibits marked for identification but never offered
shall not be included;
(d) court reporters' notes, audio or video recordings
of court proceedings, and any transcripts prepared from
them;
(e) a docket;
(f) minutes; and
(g) information contained in the electronic case
management system . . . .
(Emphases added.)
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inadmissible testimony regarding the video to establish
identification of Amar as the driver of the vehicle when the MVC
occurred, we conclude that Amar has rebutted the presumption.
See id. The record thus lacks admissible evidence of
identification of Amar as the driver of the vehicle involved in
the MVC at the Accident Scene. See State v. Wallace, 80 Hawai#i
382, 413, 910 P.2d 695, 726 (1996)(requiring that review for
evidentiary sufficiency be based on "admissible evidence[.]").
POE 2 - Insufficient evidence of operation of the
vehicle on a public way, street, road, or highway
Amar also contends that "[t]he State presented
insufficient evidence that Amar drove on a 'public way, street,
road, or highway.'" Amar argues that since "the parking lot was
not a public way, street, road, or highway" and "[s]ince Saunoa
only witnessed driving in the parking lot, Amar cannot be
convicted of OVUII."
When reviewing the sufficiency of evidence on appeal,
the court applies the following deferential standard of review:
[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 same standard applies whether the case was before
a judge or jury. 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.
State v. Kalaola, 124 Hawai#i 43, 56, 237 P.3d 1109, 1123 (2010)
(citations omitted). "Substantial evidence" is "credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Id. (citation omitted).
The operation of the vehicle on a public way, street,
road or highway is an essential element of the offense of OVUII.
State v. Wheeler, 121 Hawai#i 383, 386, 219 P.2d 1170, 1174
(2009). To "'[o]perate' means to drive or assume actual physical
control of a vehicle upon a public way, street, road, or highway
. . . ." HRS § 291E-1 (2020).
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Here, Saunoa, the only eyewitness from the Accident
Scene who testified at trial, observed the vehicle "stuck" in the
"Verizon" parking lot after the MVC. Saunoa testified that the
vehicle did not drive onto the street and that "it stayed on the
gravel." Corporal Izuka observed damage from the MVC to the
"Shred-X" building wall, and to the trailer parked in the Shred-X
"gravel lot." A parking lot for a business, whether Verizon or
Shred-X, is not a "public way, street, road, or highway" under
HRS § 291E-1. While witnesses testified that Moanalua Loop was a
public street, no witness testified that they saw Amar operating
the vehicle on Moanalua Loop at the Accident Scene. The
officers' testimonies regarding what they observed on the video
are inadmissible and cannot be considered in appellate review for
evidentiary sufficiency. See Wallace, 80 Hawai#i at 413, 910
P.2d at 726. We conclude that even when viewing the evidence in
the strongest light for the prosecution, the record does not
contain substantial evidence that Amar operated the vehicle on a
public way, street, road, or highway at the Accident Scene. See
Kalaola, 124 Hawai#i at 56, 237 P.3d at 1123.
Therefore, IT IS HEREBY ORDERED that the February 5,
2019 Notice of Entry of Judgment and/or Order and Plea/Judgment
and March 1, 2021 Notice of Entry of Judgment and/or Order and
Plea/Judgment by the District Court of the First Circuit, #Ewa
Division are reversed.
DATED: Honolulu, Hawai#i, December 26, 2023.
On the briefs:
/s/ Clyde J. Wadsworth
Phyllis J. Hironaka, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Donn Fudo,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge
13