State v. Worden ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JAN-2021
08:05 AM
Dkt. 48 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
DONNA C. WORDEN, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CASE NO. 3DTC-18-050341)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Donna C. Worden (Worden) appeals
from the Judgment and Notice of Entry of Judgment, filed on
October 4, 2018, in the District Court of the Third Circuit, Kona
Division (District Court).1/ After a bench trial, Worden was
convicted of Reckless Driving, in violation of Hawaii Revised
Statutes (HRS) § 291-2 (2007).2/
On appeal, Worden contends that: (1) the District
Court erred in admitting a speed reading from a radar device due
to lack of foundation; and (2) there was insufficient evidence to
support her conviction.
1/
The Honorable Margaret K. Masunaga presided.
2/
HRS § 291-2 states:
Reckless driving of vehicle or riding of animals;
penalty. Whoever operates any vehicle or rides any animal
recklessly in disregard of the safety of persons or property
is guilty of reckless driving of vehicle or reckless riding
of an animal, as appropriate, and shall be fined not more
than $1,000 or imprisoned not more than thirty days, or
both.
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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 Worden's points of error as follows:
(1) We conclude that the District Court erred in
admitting Officer Dayson Taniguchi's (Officer Taniguchi)
testimony regarding the speed reading from his radar device.
To lay a foundation for the introduction of a speed
measurement by a radar device, the State must
demonstrate that: (1) the police officer who used the
device was trained as required by the device
manufacturer; and (2) the device's accuracy was tested
according to manufacturer-recommended procedures and
was operating properly prior to use.
State v. Weber, 148 Hawai#i 225, ___ , 468 P.3d 768, 770 (App.
2020). At trial, there was no evidence presented that Officer
Taniguchi was trained to use his radar device as required by the
manufacturer and that the device was tested according to the
manufacturer-recommended procedures. Accordingly, Officer
Taniguchi's testimony regarding the speed reading from his radar
device lacked foundation and was improperly admitted.
Nevertheless, we conclude that on the entire record,
the District Court's error was harmless beyond a reasonable
doubt. See State v. Jones, 148 Hawai#i 152, 170, 468 P.3d 166,
184 (2020) ("Erroneously admitted evidence is evaluated under the
harmless beyond a reasonable doubt standard." (quoting State v.
Matsumoto, 145 Hawai#i 313, 327, 452 P.3d 310, 324 (2019))). In
evaluating whether an erroneous admission of evidence is
harmless, the supreme court has explained:
[E]rror is not to be viewed in isolation and considered
purely in the abstract. It must be examined in light of the
entire proceedings and given the effect to which the whole
record shows it is entitled. In that context, the real
question becomes whether there is a reasonable possibility
that error might have contributed to conviction . If there
is such a reasonable possibility in a criminal case, then
the error is not harmless beyond a reasonable doubt, and the
judgment of conviction on which it may have been based must
be set aside.
State v. McCrory, 104 Hawai#i 203, 210, 87 P.3d 275, 282 (2004)
(quoting State v. Gano, 92 Hawai#i 161, 176, 988 P.2d 1153, 1168
(1999)); see State v. Lora, 147 Hawai#i 298, 310, 465 P.3d 745,
757 (2020).
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To establish that Worden committed reckless driving,
the State was required to prove beyond a reasonable doubt that
Worden operated a vehicle recklessly in disregard of the safety
of persons or property. See HRS § 291-2. It was not required to
prove the specific speed at which Worden was traveling.
At trial, Officer Taniguchi testified that on
January 18, 2018 at about 7:30 a.m., he was patrolling Queen
Kaahumanu Highway (Highway), just south of Kua Bay. While
traveling northbound on the Highway, he observed a white Mazda
pick-up truck in the southbound lane overtake three to four other
southbound vehicles. He testified that "it was very, very
obvious that [the truck] was going at a higher rate of speed than
the normal flow of traffic . . . ." Officer Taniguchi estimated
that when the truck passed these other vehicles, they were
traveling at approximately 60 miles per hour in a 55 mile per
hour zone. To overtake the other vehicles, the truck "pulled out
on the right side of traffic into a merge lane." When the merge
lane ended, the truck crossed the solid white line on the right
side of the Highway and continued straight onto the shoulder.
After passing the other vehicles, the truck then made an "abrupt"
and "quick" turn back into the southbound lane of traffic.
Officer Taniguchi made a u-turn, conducted a traffic stop of the
truck, and identified Worden as the driver. When Officer
Taniguchi approached the driver's side of the vehicle, he
observed that "the gauge cluster -- where you read your speed --
where all the functions of the vehicle are, was completely
covered with papers[,]" such that the driver "would not be able
to tell how fast they were going[.]" During the traffic stop,
Worden admitted driving on the shoulder of the Highway.
Worden testified that on the morning at issue, there
was heavy southbound traffic on the Highway, and she had to down
shift "[b]ecause everybody's going too slowly." She testified
that she was "[d]esperately trying to pass people going about 40
miles an hour by passing on the right, which [she] should not
have done[.]" She further stated "there are actually signs
posted on that highway that say no passing on that shoulder and
I'm very careful not to do that[,]" but went on to admit that she
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should not have passed on the right. Worden testified that the
vehicles in front of her "were all bunched together and I had to
get past[ ]the front one because there's really no room to get in
and people tend to be mean and not let you in -- also -- so I
just zoomed on the right and pulled in and continued in the
southbound lane." When asked why she was "desperately trying to
pass on that day[,]" Worden responded in part: "I like to be on
time [for work], and when I think it's going to take a certain
amount of time to get there and people are traveling 10, 15 miles
below the speed limit, it very much affects how much . . . time
it takes to get somewhere."
The District Court summarized the above testimony of
Officer Taniguchi and Worden in finding Worden guilty beyond a
reasonable doubt of reckless driving. In reaching this
conclusion, the District Court did not cite the specific speed
reading of Worden's vehicle as measured by Officer Taniguchi's
radar device.
On this record, we conclude that the State produced
"overwhelming and compelling evidence tending to show [Worden]
guilty [of reckless driving] beyond a reasonable doubt." State
v. Texeira, 147 Hawai#i 513, 538, 465 P.3d 960, 985 (2020)
(quoting State v. Rivera, 62 Haw. 120, 127, 612 P.2d 526, 532
(1980)). Based on the largely unrebutted testimony of Officer
Taniguchi, there appears to be no substantial dispute that
Worden, in order to overtake several vehicles on the Highway,
pulled out on the right side of traffic into a merge lane,
crossed a solid white line when the merge lane ended, and
continued straight on the shoulder to complete the passing
maneuver, before turning abruptly and quickly back onto the
southbound lane of traffic. Worden herself admitted that she
knowingly passed several other vehicles on the right, which she
knew she should not have done, and that she "just zoomed on the
right and pulled in and continued in the southbound lane." The
District Court could reasonably have inferred based on the
overwhelming evidence of Worden's actions, including her own
testimony regarding her actions, that Worden acted with a
reckless state of mind, i.e., that she consciously disregarded a
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substantial and unjustifiable risk to the safety of persons or
property, HRS § 702-206(3), and that her disregard of the risk
constituted "a gross deviation from the standard of conduct that
a law-abiding person would observe in the same situation." HRS §
702-206(3)(d); see State v. Agard, 113 Hawai#i 321, 324, 329, 151
P.3d 802, 805, 810 (2007). Considering the entire record in this
case, we conclude there is no reasonable possibility that the
admission of Officer Taniguchi's testimony regarding the speed
reading from his radar device contributed to Worden's conviction.
(2) Considering only the evidence properly admitted at
trial, State v. Wallace, 80 Hawai#i 382, 414 n.30, 910 P.2d 695,
727 n.30 (1996), in the strongest light for the prosecution,
State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31
(2007), we also conclude there was sufficient evidence to support
Worden's conviction for reckless driving.
As set forth above, Officer Taniguchi testified that
Worden pulled out on the right side of traffic into a merge lane,
crossed a solid white line when the merge lane ended, and
continued straight on the shoulder in order to pass several other
vehicles on the Highway, before making an "abrupt" and "quick"
turn back onto the southbound lane of traffic. Officer Taniguchi
estimated that when Worden passed the other vehicles, the other
vehicles were traveling at approximately 60 miles per hour in a
55 mile per hour zone. There was no objection to this testimony
regarding the other vehicles' speed. While Worden disputed her
own speed in passing the other vehicles, it was within the
province of the trier of fact – here, the District Court – to
pass upon issues regarding the credibility of witnesses and the
weight of the evidence. See State v. Stocker, 90 Hawai#i 85, 90,
976 P.2d 399, 404 (1999) (quoting State v. Lee, 90 Hawai#i 130,
134, 976 P.2d 444, 448 (App. 1999)); State v. Mattiello, 90
Hawai#i 255, 259, 978 P.2d 693, 697 (1999). Further, Worden's
own testimony regarding her actions, including that she was
"[d]esperately trying to pass people . . . on the right," which
she knew she should not have done, supports the inference that
she made a conscious decision to drive recklessly.
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Upon review of the properly admitted evidence, we
conclude there was substantial evidence that Worden's conduct put
other persons and property on the Highway at "substantial and
unjustifiable risk," HRS § 702-206(3), that Worden consciously
disregarded this risk, id., and that her disregard of the risk
constituted "a gross deviation from the standard of conduct that
a law-abiding person would observe in the same situation." HRS §
702-206(3)(d); see Agard, 113 Hawai#i at 324, 329, 151 P.3d at
805, 810. Accordingly, on this record, the evidence was
sufficient to support Worden's conviction for reckless driving.
Therefore,
IT IS HEREBY ORDERED that the Judgment and Notice of
Entry of Judgment, filed on October 4, 2018, in the District
Court of the Third Circuit, Kona Division, is affirmed.
DATED: Honolulu, Hawai#i, January 26, 2021.
On the briefs:
Alan K. Akao, /s/ Lisa M. Ginoza
Deputy Public Defender, Chief Judge
for Defendant-Appellant.
Stephen L. Frye, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
County of Hawai#i,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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