State v. Wilkins ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-SEP-2022
07:53 AM
Dkt. 49 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI, Plaintiff-Appellee,
v.
BRITTANY D. WILKINS, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(CASE NO. 3DTA-19-01590)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Brittany D. Wilkins (Wilkins)
appeals from the July 24, 2020 Judgment and Notice of Entry of
Judgment (Judgment) entered by the District Court of the Third
Circuit (district court).1 After a bench trial, the district
court convicted Wilkins of one count of Operating a Vehicle Under
the Influence of an Intoxicant (OVUII), in violation of Hawaii
Revised Statutes (HRS) § 291E-61(a)(1) and/or (3).2
1
The Honorable Margaret K. Masunaga presided.
2
HRS § 291E-61(a)(1) and (3) (2007) provide:
(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; [or]
. . . .
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On appeal, Wilkins argues that the district court: (1)
deprived her of a meaningful opportunity to cross-examine County
of Hawaiʻi police officer Ansel Robinson (Officer Robinson),
after erroneously denying her motion to strike Officer Robinson's
testimony about accuracy tests he conducted on the Intoxilyzer
Model 8000 used to test her breath on May 4, 2019 and May 15,
2019; and (2) erroneously admitted the results of her breath
test, without which there was insufficient evidence to support
the conviction under HRS § 291E-61(a)(3).
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 hold, without
addressing Wilkins's arguments regarding her conviction under HRS
§ 291E-61(a)(3), that insofar as Wilkins does not challenge the
sufficiency of the evidence as to her OVUII conviction under HRS
§ 291E-61(a)(1), her conviction under HRS § 291E-61(a)(1) stands.
See, e.g., State v. Flynn, No. SCWC-XX-XXXXXXX, 2012 WL 1560666,
at *1 (May 1, 2012) (affirming conviction under HRS § 291E-
61(a)(3) where defendant did not challenge sufficiency of the
evidence supporting that charge, even though charge under HRS §
2
(...continued)
(3) With .08 or more grams of alcohol per two hundred ten
liters of breath[.]
The Judgment reflects Wilkins was convicted of "DUI BY IMPAIRMT
[sic] OR .08 BREATH" pursuant to HRS § "291E-61(a)(1)(3)[.]" Wilkins claims
that the district court's "verdict was based on the BAC reading from the
Intoxilyzer." Plaintiff-Appellee State of Hawai ʻi (State) asserts, however,
that the district court "relied upon the evidence of impairment testified to
by both [(Security Officer)] Kukua and Officer Fukumoto, as well as the breath
ticket entered into evidence as Exhibit 3." Our review of the district
court's ruling reflects that it relied on both evidence of impairment and the
intoxilyzer reading in adjudging Wilkins guilty, and the Judgment reflects a
conviction referring to both subsections (a)(1) and (a)(3) of the OVUII
statute.
2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
291E-61(a)(1) was defective); State v. Shinsato, No. SCWC-30720,
2012 WL 1560663, at *1 (Apr. 30, 2012) (same).
For the foregoing reasons, the July 24, 2020 Judgment
and Notice of Entry of Judgment entered by the District Court of
the Third Circuit, is affirmed.
DATED: Honolulu, Hawaiʻi, September 30, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Jon N. Ikenaga, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Kori A. Weinberger,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
County of Hawaiʻi, Associate Judge
for Plaintiff-Appellee.
3