State v. Kaaikala ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-JUN-2021
07:57 AM
Dkt. 59 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
BRUCE KAAIKALA, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
EWA DIVISION
(CASE NO. 1DTA-17-02251)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Bruce K. Kaaikala, Jr. (Kaaikala)
appeals from the following judgments entered in the District
Court of the First Circuit, Ewa Division (District Court):1 (1)
the May 1, 2018 Second Amended Notice of Entry of Judgment and/or
Order and Plea/Judgment convicting him of Operating a Vehicle
Under the Influence of an Intoxicant (OVUII), as a second offense
within ten years, in violation of Hawai#i Revised Statutes (HRS)
§ 291E-61(a)(1), (b)(2) (Supp. 2018);2 (2) the May 1, 2018 Notice
of Entry of Judgment and/or Order and Plea/Judgment convicting
him of Operating a Vehicle After License and Privilege Have Been
1
The Honorable Sherri-Ann L. Iha presided.
2
HRS § 291E-61(a) provides, 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[.]
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Suspended or Revoked for Operating a Vehicle Under the Influence
of an Intoxicant (OVLSR), in violation of HRS § 291E-62(a)(1)
and/or (a)(2), (c)(1) (Supp 2019);3 and (3) the November 7, 2018
Notice of Entry of Judgment and/or Order and Plea/Judgment
ordering no restitution as to the OVUII conviction.
Kaaikala raises three points of error: (1) the OVUII
conviction should be reversed due to insufficient evidence, (2)
the OVLSR conviction should be vacated because the District Court
erroneously admitted two exhibits, and (3) alternatively, the
OVLSR conviction should be reversed based on insufficiency of the
evidence because Plaintiff-Appellee State of Hawai#i (State)
failed to prove Kaaikala had notice that his license remained
revoked or restricted when he drove.
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.
(1) 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).
We note the District Court's finding that the State's
witnesses, Adam Amick (Amick) and Officer Kaimiike Anthony Aguiar
3
HRS § 291E-62(a)(1),(2) provides, in relevant part:
(a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise
restricted pursuant to this section or to Part III or
section 291E-61 . . . , shall operate or assume actual
physical control of any vehicle:
(1) In violation of any restrictions placed on the
person's license; [or]
(2) While the person's license or privilege to
operate a vehicle remains suspended or
revoked[.]
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(Officer Aguiar), testified credibly. See State v. Gella, 92
Hawai#i 135, 142, 988 P.2d 200, 207 (1999) ("It is well-settled
that an appellate court will not pass upon issues dependent upon
the credibility of witnesses and the weight of the evidence; this
is the province of the trial judge.") (citation omitted).
Amick testified that on the morning of May 27, 2017, he
was driving and about to enter the H-1 on-ramp when he saw a car
coming down an off-ramp going faster than expected. Amick
stopped short of the on-ramp in case the other car did not stop.
He then saw the other car drive "straight through [an]
intersection and up onto [a] median and struck" an electrical
box. Amick stopped his vehicle, got out, and approached the
other vehicle until he was about twenty-five to fifty feet away,
at which point the driver of the other vehicle had exited from
the driver's side of the other vehicle and looked at Amick.
Amick asked the other driver if he was alright, but the other
driver did not respond and got back into his vehicle. Amick
identified Kaaikala as the driver of the other vehicle. Amick
testified that Kaaikala attempted to move his vehicle, but then
hit a different electrical box. After Amick continued to ask if
Kaaikala was okay and got no response, Kaaikala grabbed a bag
from his vehicle and walked away. Kaaikala returned to the
accident scene about twenty to thirty minutes later on foot,
followed by a white truck, and at that time he spoke to Amick
from a few feet away and Amick smelled alcohol coming from
Kaaikala.
Officer Aguiar testified that, when he arrived at the
scene, Kaaikala looked confused and took several minutes to
produce his documents, and during the exchange, Kaaikala had "a
strong odor of an alcoholic beverage emitting from his breath,"
"[h]is eyes were red, bloodshot, and glassy," and he slurred his
speech. When Officer Aguiar administered the field sobriety test
(FST), Kaaikala's eyes had nystagmus and a "lack of smooth
pursuit." While performing the walk-and-turn test: during the
instructional phase, Kaaikala started too soon and lost his
balance; on the first nine steps, he stopped walking at one
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
point, missed heel to toe, and took only eight of nine steps;
during the turn, he lost his balance and stumbled backwards; and
on the last nine steps, he missed heel to toe. Finally, during
the one-leg-stand part of the FST, Kaaikala swayed from side to
side by more than two inches to each side and put his foot down
once.
In light of the above testimony, and viewed in the
light most favorable to the prosecution, there is substantial
evidence in the record that Kaaikala drove while under the
influence of alcohol in an amount sufficient to impair his normal
mental faculties or ability to care for himself and guard against
casualty.
(2) Kaaikala argues that his conviction for OVLSR
should be vacated because the District Court improperly admitted
State's exhibit 4, a "traffic abstract" (Abstract), showing he
was convicted of a prior OVUII offense and referencing license
revocation information, and State's exhibit 6, a "Notice of
Administrative Hearing Decision" from the Administrative Driver's
License Revocation Office (ADLRO Notice), dated February 15,
2017, indicating his driver's license was revoked from September
28, 2016, to March 27, 2018 (which includes the date of the
incident in this case).
With regard to the Abstract, Kaaikala argues that the
certification of the Abstract fails to meet the requirements of
Hawaii Rules of Evidence (HRE) Rule 902 as it "does not include
an attestation that the district court clerk was acting as the
custodian authorized to certify the document and that the
document was a full, true, and correct copy of the traffic
abstract." Kaaikala further argues the Abstract was improperly
admitted because it violated his confrontation rights. We need
not address Kaaikala's arguments related to the Abstract for two
reasons. First, Kaaikala did not object at trial to admission of
the Abstract based on the certification contained on that
document, and thus this argument is deemed waived. See State v.
Miyazaki, 64 Haw. 611, 616, 645 P.2d 1340, 1344 (1982). Second,
the Abstract is cumulative with regard to the OVLSR charge, as
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the ALDRO Notice by itself sufficiently shows that Kaaikala's
license was administratively revoked when he drove. See HRS
§ 291E-62(a) (prohibiting from driving any "person whose license
and privilege to operate a vehicle have been revoked, suspended,
or otherwise restricted" pursuant to, inter alia, an ADLRO
administrative proceeding).
With regard to the ADLRO Notice, Kaaikala asserts this
document was improperly admitted over his objection based on his
confrontation rights. It appears the State introduced the ADLRO
Notice as a self-authenticating, certified public record under
HRE Rule 902. Kaaikala argues the District Court violated his
right to confront witnesses under the Sixth Amendment to the U.S.
Constitution and article 1, section 14 of the Hawai#i
Constitution by not requiring the custodian who certified the
ADLRO Notice to personally appear at trial and testify.4
To determine whether the source of a document
introduced at trial is subject to confrontation under the Sixth
Amendment, the court must determine whether the document is
"testimonial" in nature. State v. Fitzwater, 122 Hawai#i 354,
371, 227 P.3d 520, 537 (2010). A clerk's certificate of
authentication for a business record is not testimonial in nature
and therefore does not implicate the right of confrontation.
State v. Cruz, 135 Hawai#i 294, 297, 349 P.3d 401, 404 (App.
2015) (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321-
22 (2009)). Similarly, the certification of an ADLRO decision by
its custodian of records does not implicate the Confrontation
Clause. State v. Philling, No. CAAP-XX-XXXXXXX, 2019 WL 6790773,
at *5 (Haw. App. Dec. 12, 2019) (SDO) (holding that a defendant's
right of confrontation was not implicated by admission of
certified copies of ADLRO decisions offered to show the outcome
of prior ADLRO proceedings); see also Fitzwater, 122 Hawai#i at
374, 227 P.3d at 540 (holding that a speed check card created in
4
The State argues that Kaaikala waived his second point of error by
failing to raise a confrontation objection at trial. "Normally, an issue not
preserved at trial is deemed to be waived." State v. Miyazaki, 64 Haw. 611,
616, 645 P.2d 1340, 1344 (1982). However, it appears Kaaikala objected to
both the Abstract and ADLRO Notice on confrontation grounds. Thus, we address
his argument.
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
a non-adversarial setting in the regular course of maintaining a
police vehicle, five months before the subject speeding incident,
was not testimonial in nature and its admission did not violate
the defendant's right to confrontation under the Sixth
Amendment). Here, the certification of the ADLRO Notice only
authenticates that document, and the ADLRO Notice was created in
the regular course of an unrelated prior ADLRO proceeding more
than three months before the incident in this case. Thus, the
ADLRO Notice and the certification on that document are not
testimonial in nature and do not implicate the Confrontation
Clause under the Sixth Amendment.
With regard to his confrontation rights under the
Hawai#i Constitution, Kaaikala cites State v. Fields, 115 Hawai#i
503, 528, 168 P.3d 955, 980 (2007), and urges this court to apply
the test articulated in Ohio v. Roberts, 448 U.S. 56 (1980)
(abrogated by Crawford v. Washington, 541 U.S. 36 (2004)), which
he contends requires a showing that (1) the declarant is
unavailable, and (2) the statement bears some indicia of
reliability, and that the State failed to satisfy either element
at trial. However, this court rejected the same argument in
State v. Choi, No. CAAP-XX-XXXXXXX, 2020 WL 419629, at *2 (App.
Jan. 27, 2020) (SDO), holding that the Roberts test applies "only
when the challenged out-of-court statements were made in the
course of a prior judicial proceeding" and that when hearsay
qualifies for a "firmly rooted exception to the hearsay rule, the
Confrontation Clause is satisfied." (Citing State v. Ofa, 9 Haw.
App. 130, 138, 828 P.2d 813, 818 (1992)) (emphasis added)); see
also State v. Rodrigues, 7 Haw. App. 80, 85, 742 P.2d 986, 990
(1987) (holding that Roberts applies only "when the prosecution
seeks to admit testimony from a prior judicial proceeding in
place of live testimony at trial") (quoting United States v.
Inadi, 475 U.S. 387, 393 (1986)) (emphasis added).
Like Choi, the ADLRO Notice and its certification are
not testimony given in the course of a prior judicial proceeding,
and exhibit 6 is admissible under the HRE Rule 803(b)(8) public
records hearsay exception, which is a firmly rooted hearsay
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
exception. Ofa, 9 Haw. App. at 138, 828 P.2d at 818. Thus, we
conclude the Roberts test does not apply with regard to the
certification and the ADLRO Notice. Id.(3) Substantial evidence in the record supports
Kaaikala's OVLSR conviction. Kaaikala argues there was no
evidence adduced at trial that the ADLRO Notice was sent to
counsel's new address or that it was forwarded to him personally,
and thus, there was insufficient evidence to establish the
requisite state of mind for OVLSR.
"When the state of mind required to establish an
element of an offense is not specified by the law, that element
is established if, with respect thereto, a person acts
intentionally, knowingly, or recklessly." HRS § 702-204 (2014).
HRS § 291E-62 does not specify a state of mind, therefore, the
State must prove Kaaikala acted intentionally, knowingly, or
recklessly, with respect to operating or assuming actual physical
control of a vehicle while his license was suspended, revoked, or
otherwise restricted. See State v. Nesmith, 127 Hawai#i 48, 53-
54, 276 P.3d 617, 622-23 (2012) (holding that HRS § 702-204
applies to HRS § 291E-61). "A person acts recklessly with
respect to his conduct when he consciously disregards a
substantial and unjustifiable risk that the person's conduct is
of the specified nature." HRS § 702-206 (3)(a)(2014).
"[G]iven the difficulty of proving the requisite state
of mind by direct evidence in criminal cases, we have
consistently held that proof by circumstantial evidence and
reasonable inferences arising from circumstances surrounding the
defendant's conduct is sufficient." State v. Stocker, 90 Hawai#i
85, 92, 976 P.2d 399, 406 (1999) (brackets, ellipsis, citation &
internal quotation marks omitted). "Thus, the mind of alleged
offender may be read from his acts, conduct and inferences fairly
drawn from all the circumstances." Id. (citation & internal
quotation marks omitted).
The ADLRO Notice indicates an administrative hearing
was held regarding revocation of Kaaikala's license, which could
be held only if the ADLRO revoked his license, he was notified
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
accordingly, and he requested an administrative hearing to review
the decision. See HRS § 291E-38(a) (Supp. 2018); State v.
Benitez, CAAP-XX-XXXXXXX, 2018 WL 2752359, at *1-2 (App. June 8,
2018) (SDO). Thus, considering the circumstances, we can infer
that Kaaikala must have been aware his license was revoked when
he requested the hearing. Further, Kaaikala does not dispute
that the ADLRO Notice was mailed to his counsel's address, even
though his counsel argued it was a former address. Finally,
Kaaikala failed to produce a driver's license when requested by
Officer Aguiar, and he gave no explanation for not having a
driver's license in his possession. Therefore, there is
sufficient evidence to conclude that Kaaikala recklessly
disregarded the risk that his license remained revoked or
restricted when he drove on May 27, 2017.
For the reasons set forth above, the May 1, 2018
Amended Notice of Entry of Judgment and/or Order and
Plea/Judgment, the May 1, 2018 Notice of Entry of Judgment and/or
Order and Plea/Judgment, and the November 7, 2018 Notice of Entry
of Judgment and/or Order and Plea/Judgment, all entered by the
District Court, are affirmed.
DATED: Honolulu, Hawai#i, June 14, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Alan K. Akao,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge
Donn Fudo, /s/ Karen T. Nakasone
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee.
8