State v. Barshinger ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-JAN-2021
08:25 AM
Dkt. 64 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
ERIC ALAN BARSHINGER, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CASE NO. 1DTA-17-03047)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Eric Alan Barshinger (Barshinger)
appeals from the Notice of Entry of Judgment and/or Order and
Plea/Judgment, filed on November 9, 2018 (Judgment),1 and Notice
of Entry of Judgment and/or Order and Plea/Judgment (Final
Judgment), filed on May 2, 2019,2 in the District Court of the
First Circuit, Honolulu Division (District Court).
1
The Honorable Sherri-Ann L. Iha presided.
2
The Honorable Ann S. Isobe presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Barshinger was convicted of Operating a Vehicle Under
the Influence of an Intoxicant (OVUII), in violation of Hawaii
Revised Statutes (HRS) § 291E-61(a)(1) (Supp 2019).3
Barshinger raises two points of error on appeal,
contending that: (1) the District Court erred by refusing to
continue trial so that Barshinger could obtain a transcript of a
motion to suppress hearing held immediately prior to the start of
trial; and (2) there was insufficient evidence to convict
Barshinger of OVUII.
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 Barshinger's points of error as follows:
(1) The District Court commenced trial immediately
after the pretrial hearing on motions, over Barshinger's
objection. Barshinger requested a continuance to obtain a
transcript for cross-examination of the same witnesses and
offered to waive Hawai#i Rules of Penal Procedure Rule 48 and
Barshinger's right to a speedy trial. The District Court stated:
3
HRS § 291E-61(a)(1) provides:
§ 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[.]
2
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"This hearing was less than an hour long, and your memories are
fresh right now. So we're gonna deny the request for continuance
and start the trial."
In State v. Mundon, 121 Hawai#i 339, 357, 219 P.3d
1126, 1144 (2009), the supreme court stated: "[I]t is well-
settled that a criminal defendant has a right to transcripts of
prior proceedings." However, when a defendant is entitled to a
written transcript of a prior proceeding, but does not show a
specific need for the transcript for an effective defense, the
court must evaluate "(1) the value of the transcript to the
defendant in connection with the appeal or trial for which it is
sought[;] and (2) the availability of alternative devices that
would fulfill the same functions as transcripts." Id. (citation
omitted). There is an innate value of transcripts for trial
preparation and impeachment purposes, and a defendant need not
show a need for the transcripts tailored to the facts of a
particular case or identify specific examples of prejudice. Id.Here, the State suggests freshness of the testimony in
the mind of counsel was an adequate alternative to providing a
written transcript, as ruled by the District Court. In Mundon,
the defendant was provided with a CD of transcripts which he
could only view on the first day at trial and only during breaks
in the trial. Id. at 358, 219 P.3d at 1145. The Mundon court
held: "Because [the defendant] was essentially 'provided the
transcript for the first time at trial,' the electronic
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transcripts were not an adequate alternative to the written
transcripts[.]" Id. Therefore, the failure to provide the
defendant with written transcripts was not harmless error. Id.Requiring a defendant to rely solely upon memory is
contrary to the right to a written transcript of prior
proceedings in order to prepare for trial or to impeach a witness
and it is not an adequate alternative to providing a written
transcript, it is a refusal to provide any type of transcript.
Here, Barshinger was denied his right to obtain a written
transcript of a prior proceeding to aid in his cross-examination
at trial and we cannot conclude that it was harmless error.
Thus, the District Court abused its discretion by denying
Barshinger's request for a continuance to obtain a transcript.
(2) Barshinger contends that the evidence at trial was
insufficient to show that he was intoxicated to the point where
his normal mental faculties or ability to care for himself and
guard against casualty were impaired.
It is well-established that the evidence adduced at
trial must be considered in the strongest light for the
prosecution. State v. Matavale, 115 Hawai#i 149, 157-58, 166
P.3d 322, 330-31 (2007). "[E]ven if it could be said [] that the
conviction is against the weight of the evidence, as long as
there is substantial evidence to support the requisite findings
for conviction, the trial court will be affirmed." State v.
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Xiao, 123 Hawai#i 251, 257, 231 P.3d 968, 974 (2010) (citation
omitted).
Here, Honolulu Police Department (HPD) Corporal Ernest
Chang (Corporal Chang) testified that he noticed a vehicle
turning right from Kamakee Street onto Kapiolani Boulevard, which
are public ways, roads, streets or highways, and "burned out" or
audibly screeched its tires. While traveling at a high rate of
speed on this surface street, the vehicle swerved to the left
lane to go around another vehicle, without using any turn
signals, then swerved to the right, and almost hit a curb, and
then continued in the far right lane. The vehicle accelerated
and pulled away from Corporal Chang who had begun to pace the
vehicle. After the vehicle was stopped, Corporal Chang noticed a
strong odor of an alcoholic beverage on Barshinger's breath while
speaking with him and further noticed that Barshinger had red,
glassy eyes.
HPD Officer Guy Yoshimoto (Officer Yoshimoto) testified
that during a horizontal gaze nystagmus test, Barshinger swayed
back and forth two to three inches and he could smell alcohol
coming from Barshinger's breath. Barshinger came out of the
starting position prior to the start of a walk-and-turn test.
He also took eight steps instead of nine steps, took one turn
instead of short steps during the turning portion of the test,
missed all heel-to-toe steps by at least two inches during the
nine steps back, and stepped off the line twice, all contrary to
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the directions given to him. During a one-leg-stand test,
Barshinger lifted his foot, swayed a little, and put his foot
down four times, contrary to the directions given to him.
We conclude that, when the evidence adduced at trial is
considered in the light strongest for the prosecution, there was
substantial evidence to convict Barshinger of OVUII.
For these reasons, the District Court's November 9,
2018 Judgment and May 2, 2019 Final Judgment are vacated, and
this case is remanded to the District Court for a new trial.
DATED: Honolulu, Hawai#i, January 22, 2021.
On the briefs:
/s/ Katherine G. Leonard
Min Tsui, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Loren J. Thomas,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.
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