NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JUN-2020
07:52 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MAGGIE KWONG, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CASE NO. 1DTA-17-02539)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Maggie Kwong (Kwong) appeals from
the Notice of Entry of Judgment and/or Order and Plea/Judgment
entered on March 14, 2019 (Judgment), by the Honolulu Division of
the District Court of the First Circuit (District Court).1 After
a bench trial, the District Court convicted Kwong of Operating a
Vehicle Under the Influence of an Intoxicant (OVUII), in
violation of HRS § 291E-61(a)(1) (2007).2
1
The Honorable William M. Domingo presided over the trial.
2
HRS § 291E-61(a)(1) provides:
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Kwong raises two points of error on appeal, arguing
that the District Court: (1) erred in refusing to take judicial
notice of the fact that 30 miles per hour (mph) is the equivalent
of 44 feet per second; and (2) plainly erred in failing to obtain
her personal consent to the parties' stipulation that the
arresting officer was qualified to administer standardized field
sobriety tests (SFST).
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 Kwong's points of error as follows:
(1) Kwong argues the District Court erred in refusing
to take judicial notice of the fact that 30 mph is the equivalent
of 44 feet per second. As an initial matter, it does not appear
the District Court ultimately rejected Kwong's judicial notice
request. Rather, the record shows that although the District
Court initially declined to take judicial notice, the District
Court appeared agreeable when defense counsel explained why
2
(...continued)
§ 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
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
judicial notice would be appropriate, saying, "Right, right . .
continue."
Nevertheless, the District Court was not required to
take judicial notice of Kwong's proffered fact. To be clear, the
fact that 30 mph is the equivalent of 44 feet per second is
proper for judicial notice under Hawai#i Rules of Evidence (HRE)
Rule 201(b) (2016),3 in that it is "capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned," and the mathematical computation
leading to that result is indisputable. Nonetheless, a court is
required to take judicial notice of an adjudicative fact only "if
requested by a party and supplied with the necessary
information." HRE Rule 201(d). To the extent the conversion of
30 mph to feet per second requires mathematical calculations,
Kwong should have supplied the District Court with some means to
verify the figures for which she sought judicial notice. See,
e.g., Drake v. Holstead, 757 S.W.2d 909, 911 (Tex. App. 1988).
As Kwong failed to do so, the District Court was not required to
take judicial notice. See HRE Rule 201(d).
Even assuming, arguendo, that the District Court
erroneously refused to take judicial notice that 30 mph equates
3
HRE Rule 201(b) provides:
(b) Kinds of facts. A judicially noticed fact must be
one not subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction of
the trial court, or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
to 44 feet per second, such error would be harmless beyond a
reasonable doubt. See Hawai#i Rules of Penal Procedure (HRPP)
Rule 52(a).4 Specifically, the District Court did not preclude
Kwong from relying on the fact that 30 mph is 44 feet per second.
Kwong expressly used that fact in cross-examining the arresting
officer, Officer Josh Wong (Officer Wong). Kwong also expressly
referenced that fact in her motion for judgment of acquittal and
relied on that fact in her closing argument.5
Moreover, the crux of Kwong's argument on appeal is to
question the District Court's credibility determinations. At
trial, Officer Wong testified, inter alia, that he was traveling
about 30 mph on Kapiolani Boulevard and was about 30 feet behind
a truck that was turning left onto Isenberg Street, when Kwong's
car moved across two lanes and ultimately cut in between him and
the truck. Officer Wong testified that he started to slow down
when he saw Kwong changing lanes and slammed on his brakes when
her car cut in front of him. Kwong contends that the fact that a
car going 30 mph travels 44 feet per second renders the foregoing
events "impossible," and that, had the District Court judicially
noticed that 30 mph is 44 feet per second, "it would have been
4
HRPP Rule 52(a) provides that "[a]ny error, defect, irregularity
or variance which does not affect substantial rights shall be disregarded."
5
The District Court allowed Kwong to incorporate her arguments for
her motion for judgment of acquittal into her closing argument.
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
evident to the court that [Officer Wong's] testimony was not
credible."6
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[.]" State v. Jenkins, 93 Hawai#i 87,
101, 997 P.2d 13, 27 (2000) (citations omitted); State v.
Monteil, 134 Hawai#i 361, 368, 341 P.3d 567, 574 (2014) ("It is
not the role of the appellate court to weigh credibility or
resolve conflicting evidence."). Rather, "[i]t is for the trial
judge as fact-finder to assess the credibility of witnesses and
to resolve all questions of fact[.]" State v. Eastman, 81
Hawai#i 131, 139, 913 P.2d 57, 65 (1996) (citation omitted). It
is also established that the trial judge, as fact-finder, "may
accept or reject any witness's testimony in whole or in part."
Id. (stating it was within the trial court's prerogative to
believe witness's prior inconsistent statements and to disbelieve
that witness's oral testimony in court); State v. Jhun, 83
Hawai#i 472, 483, 927 P.2d 1355, 1366 (1996) ("Witnesses may be
6
Kwong asks the court to take judicial notice of "this photo map"
attached to her opening brief; the map appears to be an aerial shot of the
Kapiolani Boulevard/Isenberg Street intersection, with Kwong's notations as to
where she, Officer Wong, and the truck were when Kwong changed lanes the night
of the incident, as testified to by Officer Wong. Kwong did not supply this
court with the "necessary information" to verify the annotated map's accuracy,
including the source of the map. See HRE Rule 201(d). We thus decline to
take judicial notice of it. Moreover, the photo map was not introduced below
and is not part of the record on appeal. Although the appellate courts may
take judicial notice of exhibits not made a part of the record on appeal,
where the "equity of the situation dictate[s]", there is no grounds offered
for doing so in this case and we find none. See, e.g., In re Thomas H. Gentry
Revocable Trust, 138 Hawai#i 158, 171 n.8, 378 P.3d 874, 887 n.8 (2016).
1.
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
inaccurate, contradictory, and even untruthful in some portions
of their testimony, and yet be entirely credible in other
portions of their testimony.").
The District Court clearly found Officer Wong credible
at least as to the testimony the court expressly relied upon in
its rulings.7 On this record, we will not disturb the District
Court's implicit finding that Officer Wong was credible.
(2) The District Court did not err in accepting the
stipulation as to Officer Wong's qualifications to administer the
SFST. During its examination of Officer Wong, the prosecution
advised the District Court it was offering Kwong's counsel a
stipulation regarding the officer's training, experience and
qualifications, and Kwong's counsel agreed that he wanted to
enter into the stipulation. The prosecution then placed the
stipulation on the record:
[THE PROSECUTION]: . . . The stipulation would be
Officer Wong has been trained and experienced and qualified
to administer as well as evaluate the SFST in accordance
with the National Highway Traffic Safety Administration
standards as well as the internal HPD protocols. He'll be
testifying only as a lay witness as to the walk-and-turn and
the one-legged stand portions of the test. He won't be
mentioning any clues or draw any legal conclusions as to
whether Defendant passed or failed any portions of the test.
THE COURT: Okay. And as far as the [Horizontal Gaze
Nystagmus (HGN)]?
[THE PROSECUTION]: No HGN, Your Honor.
THE COURT: Okay. Very well.
7
In summarizing the facts relied upon in its ruling, the District
Court did not note how fast Officer Wong was going or how close he was to the
truck or intersection.
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The District Court did not ask Kwong on the record
whether she agreed to or approved the stipulation. Kwong
contends that constitutes plain error, relying on State v.
Murray, 116 Hawai#i 3, 10-13, 169 P.3d 955, 962-65 (2007). In
Murray, the supreme court held that "a knowing and voluntary
waiver of a defendant's fundamental right must come directly from
the defendant, and requires the court to engage in a colloquy
with the defendant." Id. at 11, 169 P.3d at 963 (citation
omitted). The fundamental right at issue in Murray was the
defendant's right to have the State prove every element of an
offense to a jury beyond a reasonable doubt.8 Id. at 10-12, 169
P.3d at 962-64.
In State v. Wilson, 144 Hawai#i 454, 445 P.3d 35
(2019), however, the supreme court held that a colloquy was not
required where the defendant's attorney stipulated to a police
officer's qualifications to conduct SFSTs:
[T]he stipulation in this case did not establish facts
satisfying any elements of the charged offense. To convict
Wilson of OVUII, the State was required to prove that she
operated a vehicle "while under the influence of alcohol in
an amount sufficient to impair [her] normal mental faculties
or ability to care for [herself] and guard against
casualty." HRS § 291E-61(a)(1). Stipulating that the
officer was "qualified and certified to conduct the [SFST]
and that he received specialized training in administering
8
Murray was being prosecuted for Abuse of a Family or Household
Member in violation of HRS §§ 709-906(1) and (7) (Supp. 2006). Murray, 116
Hawai#i at 5, 169 P.3d at 957. In order to establish a class C felony, the
State was required to prove that Murray had a second or subsequent conviction
for abuse of a family or household member within two years before the alleged
offense. Id. at 7, 169 P.3d at 959. During the hearing on pretrial motions,
Murray's attorney stipulated that Murray had prior convictions within two
years; the attorney then argued that evidence of Murray's prior convictions
need not be presented to the jury because of the stipulation. Id. at 5, 169
P.3d at 957.
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
and grading all of the [SFSTs]" is not in itself proof that
Wilson was operating a vehicle or that she was impaired.
Thus, the stipulation in this case did not amount to a
waiver of Wilson's fundamental right to have every element
of a charged offense proven beyond a reasonable doubt.
Neither did the stipulation significantly impinge on
Wilson's confrontation rights. Unlike the evidentiary
stipulation at issue in Casey, the stipulation in this case
did not serve as a substitute for evidence from which a
factfinder could conclude that any element of the charged
offenses was satisfied in whole or in part. Instead, this
stipulation was to an evidentiary foundation involving the
qualifications of a witness. Under the circumstances, we
cannot say that the stipulation so infringed upon Wilson's
right to confront Officer Hattori that a colloquy was
required.
Id. at 464-65, 445 P.3d at 45-46 (footnote omitted).
In this case, as in Wilson, the District Court was not
required to have a colloquy with Kwong before accepting her
stipulation to Officer Wong's qualifications to administer the
SFST.
For these reasons, the District Court's March 14, 2019
Judgment is affirmed.
DATED: Honolulu, Hawai#i, June 25, 2020.
On the briefs:
/s/ Lisa M. Ginoza
Earle A. Partington, Chief Judge
for Defendant-Appellant.
/s/ Katherine G. Leonard
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge
8