State v. Ho ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-MAY-2022
07:54 AM
Dkt. 41 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
DEMI NOHEA HO, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTC-18-025046)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Demi Nohea Ho (Ho) appeals from the
Notice of Entry of Judgment and/or Order and Plea/Judgment,
entered on January 9, 2020, in the District Court of the First
Circuit, Honolulu Division (District Court).1/ Following a bench
trial, Ho was convicted of Operating a Vehicle After License and
Privilege Have Been Suspended or Revoked for Operating a Vehicle
Under the Influence of an Intoxicant (OVLPSR), in violation of
Hawaii Revised Statutes (HRS) § 291E-62(a)(1) and/or (a)(2)
(Supp. 2017).2/
1/
The Honorable Alvin K. Nishimura presided.
2/
HRS § 291E-62(a) provides, in relevant part:
Operating a vehicle after license and privilege have been
suspended or revoked for operating a vehicle under the
influence of an intoxicant; penalties. (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license and privilege to operate a vehicle have been
revoked, suspended, or otherwise restricted pursuant to this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 or 291E-61.5, or
to part VII or part XIV of chapter 286 or section 200-81,
291-4, 291-4.4, 291-4.5, or 291-7 as those provisions were
in effect on December 31, 2001, shall operate or assume
actual physical control of any vehicle:
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
On appeal, Ho contends that: (1) the District Court
erroneously admitted Exhibit 2, a certified traffic abstract
(Abstract), and Exhibit 3, a Notice of Administrative Review
Decision (ADLRO Notice);3/ (2) the admission of the Abstract and
the ADLRO Notice violated Ho's confrontation rights; and (3)
there was insufficient evidence to support Ho's conviction
because: (a) Exhibits 2 and 3 were erroneously admitted; (b) the
State failed to prove that Ho was the person in the ADLRO Notice;
and (c) the State failed to adduce substantial evidence that Ho
acted with the requisite state of mind.4/
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 resolve Ho's
contentions as follows and affirm.
(1) and (2) Ho contends that the District Court
improperly admitted the Abstract and the ADLRO Notice, which she
asserts "were not competent evidence to prove that [Ho's] license
had been administratively revoked." Ho also contends that
admission of the Abstract and the ADLRO Notice violated her
confrontation rights.
The Abstract
At trial, Ho objected to the admission of the Abstract
as follows:
[DEPUTY PROSECUTING ATTORNEY (DPA)]: . . . I'm
showing defense counsel what has been marked as State's
Exhibit No. 2 for identification. . . . It is the certified
traffic abstract from the District Court of the First
Circuit, State of Hawai#i.
(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[.]
3/
ADLRO refers to the Administrative Driver's License Revocation
Office.
4/
Ho's points of error have been restated and reorganized for
clarity.
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And we would like to note that the defendant's
name is on the certified traffic, as well as the date
of birth that Officer Gazelle just stated, . . . and
[the] last four digits of her Social Security . . . .
. . . .
[DEFENSE COUNSEL]: And I'm going to object, if she's
going to enter into evidence. Lack of foundation.
. . . .
THE COURT: All right. The Court will receive State's
Exhibit 2 into evidence.
[DEFENSE COUNSEL]: I'm just going to ask the Court to
make a finding as to under what exception. Or, I mean, how
the State has laid foundation, I should say. Whether or not
it's going to acknowledge that it's a public record or--
THE COURT: Well, it's a certified document from the
court, right?
[DPA]: Yes. . . .
THE COURT: Okay. I think what counsel is asking, if
you can point to the proper hearsay exception that allows
this document to come in.
[DPA]: Your Honor, we would refer to Hawai #i Rules of
Evidence [(HRE)] 902, subsection (5), self authentication.
It's an official publication by this -- issued. . . .
[DEFENSE COUNSEL]: Well, I am going to object,
because what it is is a printout that is made and generated.
And then subsequently gets certified. So it is not an
actual judgment by the Court in terms of the revocation,
because the revocation was done at ADLRO. All it is is
reflecting something, some information that was conveyed to
the Court.
So the information that the State is trying to use in
order to establish an element or a fact is technically
hearsay that's contained in this particular abstract,
because the revocation was not done by this Court. It's
different from a judgment. . . .
THE COURT: I understand. So you're saying this --
the more direct evidence of the revocation would be the
notification from the ADLRO?
[DEFENSE COUNSEL]: Well, the fact that the revocation
was done by a different body, in and of itself.
. . . .
THE COURT: And does the State have that document?
[DPA]: Yes, Your Honor. . . .
. . . .
THE COURT: The Court will receive State's Exhibit 2
in at this point, over defense objection.
(Emphases added.)
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As reflected in this transcript, Ho first objected to
the admission of the Abstract due to "lack of foundation." "[A]
'lack of foundation' objection generally is insufficient to
preserve foundational issues for appeal because such an objection
does not advise the trial court of the problems with the
foundation." State v. Long, 98 Hawai#i 348, 353, 48 P.3d 595,
600 (2002). "[A]n exception is recognized when the objection is
overruled and, based on the context, it is evident what the
general objection was meant to convey." Id. Here, based on Ho's
reference to an "exception" and "a public record," the District
Court appears to have reasonably construed Ho's objection to the
admission of the Abstract as a hearsay objection.
On appeal, Ho contends that the Abstract was
"inadmissible as it was not the 'best evidence' to confirm that
[Ho's] license had been administratively revoked[.]" Relatedly,
Ho argues that "the only 'foundation' adduced by the State for
admission of the certified traffic abstract was the certification
of the 'Clerk, District Court of the First Circuit, State of
Hawaii' that 'I hereby certify that the information provided
herein is extracted from the official records of the District
Courts of the State of Hawaii.'" Ho also contends that admission
of the Abstract violated her confrontation rights.
We need not address Ho's arguments regarding the
Abstract for two reasons. First, Ho did not object at trial to
admission of the Abstract based on the "best evidence" rule (see
HRE Rules 1001-1008) or the certification contained in the
Abstract. Nor did Ho assert her confrontation rights with regard
to the Abstract. These arguments are thus deemed waived. See
State v. Engelby, 147 Hawai#i 222, 232-33, 465 P.3d 669, 679-80
(2020) (citing Kobashigawa v. Silver, 129 Hawai#i 313, 322, 300
P.3d 579, 588 (2013); State v. Kony, 138 Hawai#i 1, 10-11, 375
P.3d 1239, 1248-49 (2016)); HRE Rule 103(a)(1). Second, the
Abstract is cumulative with regard to the OVLPSR charge, as the
ALDRO Notice (discussed infra) by itself sufficiently shows that
Ho's license was administratively revoked when she drove. See
State v. Kaaikala, No. CAAP-XX-XXXXXXX, 2021 WL 2416739, at *3
(Haw. App. June 14, 2021) (SDO) (citing HRS § 291E-62(a) and
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noting that it "prohibit[s] 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").
The ADLRO Notice
At trial, Ho objected to the admission of the ADLRO
Notice as follows:
[DPA]: . . . .
. . . Your Honor, if the record could also indicate
that I'm showing defense counsel what has been marked for
identification as State's Exhibit 3, a Notice of
Administrative Review Decision, dated from the District
Court of the First Circuit, State of Hawai #i, saying that
defendant's Hawai#i license and privilege to operate a
vehicle was revoked from October 14, 2017 to October 13,
2018.
THE COURT: And this is marked as Exhibit?
[DPA]: No. 3, Your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: And I'm going to object to lack of
foundation. State v. Fields. 5/
THE COURT: Okay. Any response to the defense
objection?
[DPA]: Your Honor, the State would argue that this is
a certified document that is produced by the administrative
driver's license revocation. It's the notice of the
decision that was made. And it's also certified by that
body.
THE COURT: Okay. The Court, over objection, will
receive State's Exhibit 3.
[DEFENSE COUNSEL]: And just let me -- in terms of
elaborate on my objection, because based on State v. Fields,
there still needs to be some sort of custodian of records
that has to come in order to lay the foundation for that.
And we have a right to confront in terms of admission of
that particular document. But I'm just -- this is for the
record.
[DPA]: And, Your Honor, at this time the State would
argue that the records are kept because the law requires it,
under HRS 286-118 and HRS 286-101. So it's not being
created in anticipation of litigation.
THE COURT: Okay. Anything else?
5/
In State v. Fields, 115 Hawai#i 503, 168 P.3d 955 (2007), the
supreme court addressed the admissibility of hearsay statements under the
Confrontation Clause of the Hawai#i Constitution.
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[DPA]: No.
THE COURT: The Court will receive it into
evidence.
(Emphasis and footnote added.)
On appeal, Ho argues that the ADLRO Notice was not
competent evidence that her license had been revoked because it
was not a final decision. Ho did not object at trial to
admission of the ADLRO Notice on this basis, and her argument is
thus deemed waived. See Engelby, 147 Hawai#i at 232-33, 465 P.3d
at 679-80.
Relying on Melendez-Diaz v. Massachusetts, 557 U.S. 305(2009), and Fields, 115 Hawai#i 503, 168 P.3d 955, Ho further
argues that the ADLRO Notice was admitted "in violation of [her]
constitutional rights to confrontation and due process."6/ We
recently considered a similar argument in Kaaikala, 2021 WL
2416739, at *3-4. We analyzed the issue and ruled as follows:
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 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.
6/
Because Ho did not invoke due process at trial, her argument based
on due process is deemed waived.
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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).
. . . Thus, we conclude the Roberts test does not apply with
regard to the certification and the ADLRO Notice. [Ofa, 9
Haw. App. at 138, 828 P.2d at 818.]
Id.The same reasoning applies here. The certification of
the ADLRO Notice only authenticates that document, which was
created in the regular course of an unrelated prior ADLRO
proceeding more than seven months before the incident in this
case. See id.; see also Philling, 2019 WL 6790773, at *5 ("Here,
the ADLRO Decisions are official records of the outcome of prior
ADLRO proceedings and were not prepared specifically for use at
Philling's trial in this case. Although the underlying
proceedings were confrontational in nature, the certified copies
of the ADLRO Decisions were offered to prove the fact of the
prior revocations, but were not offered to prove the facts
supporting the ADLRO Decisions." (citing State v. Samonte, 83
Hawai#i 507, 534-38, 928 P.2d 1, 28-32 (1996))).7/ Accordingly,
admission of the ADLRO Notice did not violate Ho's confrontation
rights.
7/
It also appears that the State introduced the ADLRO Notice as a
self-authenticating, certified public record under HRE Rule 902. As such, the
ADLRO Notice was admissible under the HRE Rule 803(b)(8) public records
hearsay exception, which is a "firmly rooted hearsay exception." Kaaikala,
2021 WL 2416739, at *4.
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(3) Ho contends there was insufficient evidence to
support her conviction, in part because "[t]he State failed to
adduce substantial evidence that [Ho] was the person identified
in the [A]bstract and [ADLRO Notice]."
The Hawai#i Supreme Court has made clear:
[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 a 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. . . .
"Substantial evidence" as to every material element of
the offense charged is credible evidence which is of
sufficient quality and probative value to enable [a
person] of reasonable caution to support a conclusion.
And as trier of fact, the trial judge is free to make
all reasonable and rational inferences under the facts
in evidence, including circumstantial evidence.
State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322,
330-31 (2007) (quoting State v. Batson, 73 Haw. 236, 248-49, 831
P.2d 924, 931 (1992)).
Here, at trial, Officer Darren K. Sunada (Officer
Sunada) identified Ho as the person whose vehicle he stopped on
April 21, 2018. Officer Sunada testified that Ho was unable to
produce a driver's license or any up-to-date insurance documents
and instead provided her Hawai#i identification card and verbally
provided her entire Social Security number. Based on this
information, Officer Sunada "ran checks in [his] department-
issued mobile data computer," which brought to his attention
"that [Ho's] Hawai#i license status was actively revoked, under
our AR, Administrative Revocation." Additionally, HPD Officer
Arthur Gazelle (Officer Gazelle) testified that he was involved
in Ho's prior arrest on September 13, 2017 for Operating a
Vehicle Under the Influence of an Intoxicant (OVUII) and
identified Ho in court. Officer Gazelle testified that at the
time of that arrest, he completed and signed a Notice of
Administrative Revocation (Revocation Notice),8/ and "then had
[Ho] sign the last page" in his presence. The Revocation Notice,
8/
Ho did not object to the admission of the Revocation Notice into
evidence.
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the Abstract, and the ADLRO Notice all contained consistent
identifying information, including the same name, driver's
license permit number, last four digits of social security
number, and police report number. This evidence, along with the
two officers' testimony, was sufficient to identify Ho as the
same person whose license had been revoked. See State v. Rios,
No. CAAP-XX-XXXXXXX, 2021 WL 964862, at *2 (Haw. App. March 15,
2021) (SDO (concluding that similar evidence was sufficient to
identify the defendant as the same person whose license was
revoked).
Ho further contends that "[t]he State failed to adduce
substantial evidence that [Ho] was aware that her license was
revoked at the time of the incident."
Because the state of mind required to establish an
offense under HRS § 291E-62(a) is not specified in the statute,
the State was required to prove that Ho acted intentionally,
knowingly, or recklessly with respect to each element of the
offense. See Rios, 2021 WL 964862, at *2 (applying HRS § 702-204
(2014)).9/ "[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) (original brackets, ellipsis,
and internal quotation marks omitted) (quoting State v. Mitsuda,
86 Hawai#i 37, 44, 947 P.2d 349, 356 (1997)).
Here, Officer Gazelle testified that on September 13,
2017, when Ho was arrested for OVUII, she did not have a driver's
license and had only an expired Hawai#i permit. Officer Gazelle
explained to Ho that under normal circumstances, if she were
licensed, the Revocation Notice would have served as a temporary
9/
"A person acts recklessly with respect to attendant circumstances
when he consciously disregards a substantial and unjustifiable risk that such
circumstances exist." HRS § 702-206(3)(b) (2014). "A risk is substantial and
unjustifiable within the meaning of this section if, considering the nature
and purpose of the person's conduct and the circumstances known to him, the
disregard of the risk involves a gross deviation from the standard of conduct
that a law-abiding person would observe in the same situation." HRS
§ 702-206(3)(d).
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permit; however, in this case, it would not serve as a permit
because Ho was unlicensed. Officer Gazelle also noted that he
selected the option on the form reflecting Ho's current license
status which stated: "This IS NOT a Temporary Permit" and
explained to Ho "this is not a permit. You cannot drive, because
you were -- you're not licensed to drive." Officer Gazelle
notified Ho that she would receive a copy of the administrative
review decision and asked her if she had any questions. The
Revocation Notice also stated: "The administrative review
decision shall be mailed to you: (a) No later than eight days
after the date of the issuance of this Notice in the case of an
alcohol related offense[.]" The subsequently issued ADLRO Notice
stated: "Your license and privilege to operate a vehicle are
revoked from 10/14/17 to 10/13/18." (Emphasis in original.)
We conclude there was substantial evidence that Ho
consciously disregarded a substantial and unjustifiable risk that
her license was revoked when she operated a motor vehicle and was
stopped by Officer Sunada, even if, as Ho asserts, there was no
direct evidence that she actually received a copy of the ADLRO
Notice. See State v. Lioen, 106 Hawai#i 123, 132, 102 P.3d 367,
376 (App. 2004) (concluding that a person "who knows his license
has been revoked or suspended for DUI-alcohol or DUI-drugs in the
past and knows he does not have a valid driver's license, acts
recklessly if he drives without determining whether his license
remains suspended or revoked for DUI-alcohol or DUI-drugs"); see
also State v. Alesana, No. CAAP-XX-XXXXXXX, 2021 WL 1694869, at
*4 (Haw. App. April 29, 2021) (SDO) ("Alesana consciously
disregarded a substantial and unjustifiable risk that his license
was revoked when he operated a moped and was stopped by Officer
Carlbom, even if there was no proof that Alesana actually
received a copy of the Notice of Administrative Review
Decision."); Rios, 2021 WL 964862, *2 (determining that the
defendant "consciously disregarded a substantial and
unjustifiable risk that his license was revoked when he drove his
car five months later when he was stopped and arrested by Officer
Borowski . . . even though there was no direct evidence that Rios
was aware that his license had been revoked[.]").
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For these reasons, the Notice of Entry of Judgment
and/or Order and Plea/Judgment, entered on January 9, 2020, in
the District Court of the First Circuit, Honolulu Division, is
affirmed.
DATED: Honolulu, Hawai#i, May 26, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Brian S. Kim Chief Judge
for Defendant-Appellant.
Sonja P. McCullen, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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