NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-NOV-2020
07:48 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.
MARCELINO ALDAYA, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CASE NO. 3DCC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Marcelino Aldaya (Aldaya) appeals
from the Judgment and Notice of Entry of Judgment (Judgment),
entered on November 29, 2018, in the District Court of the Third
Circuit, Kona Division (District Court).1/ Following a bench
trial, Aldaya was convicted of violating Hawai#i County Code
(HCC) § 15-8 (2016), entitled "Visiting hours; closing areas,"
for remaining in Hale Halawai Park after it was closed.2/
On appeal, Aldaya contends that the District Court
erred in denying Aldaya's motion for judgment of acquittal and in
1/
The Honorable Margaret Masunaga presided.
2/
HCC § 15-8 states:
Visiting hours; closing areas.
The director may establish a reasonable schedule of
visiting hours for all or portions of a park area and close
or restrict the public use of all or any portion of a park
area, when necessary for the protection of the area or the
safety and welfare of persons or property[,] by the posting
of appropriate signs indicating the extent and scope of
closure. All persons shall observe and abide by the
officially posted signs and [sic] designating closed areas
and visiting hours.
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finding him guilty as charged, where there was no substantial
evidence that he acted with the requisite state of mind.
Relatedly, Aldaya argues that the State failed to adduce
sufficient evidence to prove: (1) when Aldaya was cited, the
park was closed, as stated on an officially posted sign
indicating the extent and scope of closure; (2) the park, or the
area of the park where Aldaya was found, was designated as a
closed area; and (3) Aldaya had observed the sign and knew of the
park's closing hours.
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
Aldaya's contentions as follows and reverse the Judgment.
The dispositive issue is whether the State adduced
sufficient evidence to prove that when Aldaya was cited, there
was an official sign posted stating the park's visiting hours or
otherwise indicating that the park was closed.3/
Sufficient evidence to support a conviction requires
substantial evidence as to every material element of the offense
charged. State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34
(App. 2005) (quoting State v. Ferrer, 95 Hawai#i 409, 422, 23
P.3d 744, 757 (App. 2001)). Substantial evidence is "credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Id. The evidence must be "viewed in the light most favorable to
the prosecution and in full recognition of the province of the
trier of fact," who must "determine credibility, weigh the
evidence, and draw justifiable inferences of fact." Id.
To establish that Aldaya violated HCC § 15-8, the State
was required to prove beyond a reasonable doubt that: (1) there
3/
It does not appear that Aldaya directly argued in the District
Court that there was insufficient evidence of an official sign. Nevertheless,
Aldaya did argue below that the State had failed to prove that he acted with
the requisite state of mind to commit the charged offense. Further, the State
was required to prove that Aldaya acted with the requisite state of mind as to
each element of the offense, including its attendant circumstances. See HRS
§ 702-204 (2014); State v. Baker, 146 Hawai #i 299, 309, 463 P.3d 956, 966
(2020); State v. Lioen, 106 Hawai#i 123, 130, 102 P.3d 367, 374 (App. 2004).
Accordingly, we view the identified dispositive issue as encompassed by the
argument raised below.
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was an "officially posted sign[]"; (2) that "designat[ed]" the
area in which Aldaya was cited as a "closed area" (or designated
"visiting hours" that had ended); (3) the "sign[] indicat[ed] the
extent and scope of closure"; and (4) Aldaya did not "abide by"
the directives of the sign. HCC § 15-8; see State v. Pratt, 127
Hawai#i 206, 222, 277 P.3d 300, 316 (2012) (Acoba, J., concurring
and dissenting) (stating the elements for a conviction under
Hawai#i Administrative Rules (HAR) § 13-146-4(a) (1999)4/).
In State v. Vallejo, 9 Haw. App. 73, 78, 80, 823 P.2d
154, 157, 158 (1992), this court affirmed the defendant's
conviction for operating his automobile in excess of the
officially posted speed limit, in violation of HRS § 291C-102(a)
(1985). At that time, HRS § 291C-102 stated:
a) No person shall drive a vehicle at a speed greater
than a maximum speed limit and no person shall drive a motor
vehicle at a speed less than a minimum speed limit
established by county ordinance.
(b) The director of transportation with respect to
highways under the director's jurisdiction may place signs
establishing maximum speed limits or minimum speed limits.
Such signs shall be official signs and no person shall drive
a vehicle at a speed greater than a maximum speed limit and
no person shall drive a motor vehicle at a speed less than a
minimum speed limit stated on such signs.
HRS § 291C-102(a)-(b) (emphasis added). The defendant argued in
part that the State had failed to prove that the speed limit sign
at issue was official, and further contended that the trial court
had erred in permitting the citing police officer to testify that
the speed limit sign was an official sign. See Vallejo, 9 Haw.
App. at 78-80, 823 P.2d at 157-58. This court disagreed,
concluding that the officer's training and observations were
4/
The text of HCC § 15-8 substantially mirrors that of HAR § 13-146-
4(a). The latter rule provides:
The board [of land and natural resources] or its
authorized representative may establish a reasonable
schedule of visiting hours for all or portions of the
premises and close or restrict the public use of all or any
portion thereof, when necessary for the protection of the
area or the safety and welfare of persons or property, by
the posting of appropriate signs indicating the extent and
scope of closure. All persons shall observe and abide by
the officially posted signs designating closed areas and
visiting hours.
HAR § 13-146-4(a).
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sufficient to allow him to state his opinion that the sign was
official. Id. at 80, 823 P.3d at 158. In so doing, this court
implicitly recognized the State's burden to prove that the speed
limit sign was "official," pursuant to the language of HRS
§ 291C-102(b). Id. See also State v. Jenkins, No. 30295, 2011
WL 1620643, at *5 (Haw. App. Apr. 29, 2011) (mem. op.) (affirming
the defendant's conviction under HRS § 291C-105(a)(1) (2007),
where the State adduced sufficient evidence to prove, among other
things, that the maximum applicable speed limit had been
established by "official" signs).
Similarly, here, HCC § 15-8 states in relevant part
that "[a]ll persons shall observe and abide by the officially
posted signs . . . designating closed areas and visiting hours."
Based on the plain language of the code, the State had the burden
to prove, among other things, that Aldaya did not abide by an
officially posted sign in the park.
Viewing the evidence adduced in the strongest light for
the prosecution, we conclude that the evidence was insufficient
to establish that the sign at issue was official. At trial, the
officer who cited Aldaya testified in relevant part as follows
concerning any signs in the park:
Q. [By DEPUTY PROSECUTING ATTORNEY] And was the park
closed at that time?
A. [By OFFICER] Yes.
. . . .
Q. . . . And were there any signs in the park that
indicated the hours of the park?
A. There are.
Q. Do you know where the signs are located?
A. I know there is one sign by the parking lot.
That's the -- to the best of my knowledge, I know that there
is that one.
Q. Okay. And is that sign between the Alii Drive and
the building at Hale Halewai[sic]?
A. Yes.
No other witness testified. In short, there is nothing in the
record that could reasonably support a conclusion that the sign
at issue was official.
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The State argues that the evidence presented in this
case is substantially similar to that adduced in Pratt, where the
court found sufficient evidence to support a conviction under HAR
§ 13-146-4(a). However, unlike Aldaya, the defendant in Pratt
stipulated to the facts sufficient to establish a violation of
the closed-area regulation at issue, in furtherance of a tactical
decision to focus on affirmative defenses. 127 Hawai#i at 212-
13, 277 P.3d at 306-07. Under those circumstances, the supreme
court declined to exercise plain error review to invalidate the
stipulation, even in the absence of any physical evidence of the
signs at issue. Id. The court observed: "[T]he absence of
evidence to prove an element to which the opposing party has
stipulated is to be expected; having executed the stipulation,
the prosecution did not present its case in chief at trial." Id.
at 213, 277 P.3d at 307.
Here, in contrast, Aldaya did not stipulate to the
facts necessary to warrant a conviction, and the State did
present its case in chief at trial for the purpose of
establishing such facts. Absent any stipulation, the State had
the burden to prove every element of the charged offense,
including that the sign at issue was official. On this record,
it failed to do so. Given our conclusion, we do not reach
Aldaya's arguments that the State failed to adduce sufficient
evidence as to other elements of the charged offense.
Therefore, IT IS HEREBY ORDERED that the Judgment and
Notice of Entry of Judgment, entered on November 29, 2018, in the
District Court of the Third Circuit, is reversed.
DATED: Honolulu, Hawai#i, November 19, 2020.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Jon N. Ikenaga,
Deputy Public Defender,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Stephen L. Frye,
Deputy Prosecuting Attorney,
County of Hawai#i, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge
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