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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JUN-2021
08:13 AM
Dkt. 38 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
KEITH T. WATANABE, also known as
Keith Takeo Watanabe, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
KANE#OHE DIVISION
(CASE NO. 1DTA-19-01547)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Keith T. Watanabe, also known as
Keith Takeo Watanabe (Watanabe), appeals from the First Amended
Judgment and Notice of Entry of Amended Judgment, entered on
January 15, 2020, in the District Court of the First Circuit,
Kane#ohe Division (District Court).1/ Following a bench trial,
Watanabe was convicted on two counts: (1) Operating a Vehicle
Under the Influence of an Intoxicant (OVUII), in violation of
Hawaii Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2018);2/ and
(2) Consuming or Possessing Intoxicating Liquor While Operating a
1/
The Honorable William M. Domingo presided.
2/
HRS § 291E-61(a)(1) provides, in relevant part:
(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[.]
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Motor Vehicle or Moped (Open Container), in violation of HRS
§ 291-3.1(b)(2007).3/
On appeal, Watanabe contends that: (1) the District
Court conducted a defective Tachibana4/ colloquy; (2) there was
no substantial evidence to support Watanabe's Open Container
conviction; and 3) there was no substantial evidence to support
Watanabe's OVUII conviction.
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 Watanabe's points of error as follows:
(1) Watanabe argues that "the District Court's
attempted Tachibana colloquy was erroneous and deficient and as a
result it cannot be concluded that Watanabe waived his right to
testify knowingly, intelligently, and voluntarily." We agree.
In State v. Martin, 146 Hawai#i 365, 463 P.3d 1022
(2020), the Hawai#i Supreme Court summarized the relevant case
law as follows:
Our law protects both the right to testify and the
right not to testify. State v. Celestine, 142 Hawai #i 165,
169, 415 P.3d 907, 911 (2018). Tachibana v. State, 79
Hawai#i 226, 900 P.2d 1293 (1995), established the
requirement that when a defendant in a criminal case
indicates an intention not to testify, the trial court must
advise the defendant of the right to testify and must obtain
an on-the-record waiver of the right. 79 Hawai #i at 236,
900 P.2d at 1303. We stated that this advisement should
consist of informing the defendant (1) that they have a
right to testify, (2) that if they want to testify, no one
can prevent them from doing so, and (3) that if they
testify, the prosecution will be allowed to cross-examine
them. 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7. We also
stated that in connection with the privilege against
self-incrimination, the defendant should also be advised (4)
that they have a right not to testify and (5) that if they
do not testify, then the jury can be instructed about that
right. Id. (citations omitted). In a bench trial,
3/
HRS § 291-3.1(b) provides:
No person shall possess, while operating a motor vehicle or
moped upon any public street, road, or highway, any bottle,
can, or other receptacle containing any intoxicating liquor
which has been opened, or a seal broken, or the contents of
which have been partially removed.
4/
Tachibana v. State, 79 Hawai#i 226, 236 n.7, 900 P.2d 1293, 303
n.7 (1995).
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defendants must be advised that if they exercise their right
not to testify, no inference of guilt may be drawn for
exercising this right, i.e., that a decision not to testify
cannot be used against a defendant by the judge in deciding
the case. State v. Monteil, 134 Hawai#i 361, 371-72, 341
P.3d 567, 577-78 (2014).
After Tachibana, we also held that a second component
of the Tachibana colloquy involves the court engaging in a
true "colloquy" with the defendant. Celestine, 142 Hawai #i
at 170, 415 P.3d at 912, citing State v. Han, 130 Hawai #i
83, 90-91, 306 P.3d 128, 135-36 (2013). This requires "a
verbal exchange between the judge and the defendant 'in
which the judge ascertains the defendant's understanding of
the proceedings and of the defendant's rights.'" Celestine,
142 Hawai#i at 170, 415 P.3d at 912 (citing Han, 130 Hawai #i
at 90, 306 P.3d at 135 (emphasis omitted)).
. . . .
A defendant's right to testify is violated when the
colloquy does not establish "an objective basis for finding
that [the defendant] knowingly, intelligently, and
voluntarily gave up" their right to testify. Han, 130
Hawai#i at 91, 306 P.3d at 136. Courts look to the totality
of the facts and circumstances to determine whether a waiver
of the right to testify was voluntarily and intelligently
made. 130 Hawai#i at 89, 306 P.3d at 134.
146 Hawai#i at 378-79, 463 P.3d at 1035-36 (footnotes omitted).
The supreme court also has recognized that "[i]n
conducting the colloquy, the trial court must be careful not to
influence the defendant's decision whether or not to testify."
Tachibana, 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7.
Likewise, "the court's advisory to the defendant must maintain an
'even balance' between a defendant's right to testify and the
right not to testify." Monteil, 134 Hawai#i at 370, 341 P.3d at
576 (citing State v. Lewis, 94 Hawai#i 292, 295, 12 P.3d 1233,
1236 (2000)).
Here, after the State presented its witnesses, the
District Court engaged in the following colloquy with Watanabe:
THE COURT: Okay.
All right. Mr. Watanabe, can you stand please?
How old are you, sir?
[WATANABE]: Thirty-seven.
THE COURT: And how many years of schooling have you
had?
[WATANABE]: Um -- all the way up to a few years of
college.
THE COURT: Okay. And in the last 48 hours, have you
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had any alcohol, drugs, or medication?
[WATANABE]: I've had alcohol in the last 48 hours.
THE COURT: Okay. But your mind is clear today though?
[WATANABE]: Yes.
THE COURT: All right. You understand when I'm talking
to you at this stage?
[WATANABE]: Yes.
THE COURT: All right. Have you ever testified before
in any court proceeding?
[WATANABE]: I don't think so.
THE COURT: Okay. And do you understand that you have
the constitutional right not to make any incriminating
statements?
[WATANABE]: Ye -- I believe so.
THE COURT: You understand that you have the
constitutional right to remain silent and not testify at
this trial?
[WATANABE]: Yes.
THE COURT: You understand that if you do not testify,
the court cannot hold it against you that you're not
testifying?
Do you understand that?
[WATANABE]: Yes.
THE COURT: Do you understand that if you elect to
testify, anything you say can and may be used against you?
[WATANABE]: Yes.
THE COURT: Do you understand that if you elect to
testify, you'll be subject to cross examination where the
prosecutor will be permitted to ask you questions and you
will be required to answer those questions?
[WATANABE]: Yes.
THE COURT: Although you should confer with your
attorney whether to testify or not, you understand that the
final decision is entirely up to you?
[WATANABE]: Yes.
THE COURT: No one can prevent you from testifying if
that is what you wish to do. Do you understand that?
[WATANABE]: Yes.
THE COURT: Do you have any questions about what I've
explained to you?
[WATANABE]: No.
THE COURT: Understanding all that I've explained to
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you, do you wish to testify today?
[WATANABE]: No.
THE COURT: Okay. The court finds that Mr. Watanabe has
intelligently, knowingly, and voluntarily waived his right
to testify.
As the State acknowledges on appeal, the District Court
did not properly colloquy Watanabe regarding his right to
testify. Without more, the court's questions – "And do you
understand that you have the constitutional right not to make any
incriminating statements?" and "Do you understand that if you
elect to testify, anything you say can and may be used against
you? – did not maintain an "'even balance' between [Watanabe's]
right to testify and the right not to testify." Monteil, 134
Hawai#i at 370, 341 P.3d at 576 (citing Lewis, 94 Hawai#i at 295,
12 P.3d at 1236). Rather, the District Court advised Watanabe of
his right not to testify in a manner that implied he would be
incriminating himself by testifying. Further, as the State
points out, "it is not clear that [Watanabe] knew he had the
right to testify." At most, he was advised that "if [he]
elect[ed] to testify," anything he said "can and may be used"
against him, and that he would be subjected to cross-examination.
The court did not directly inform Watanabe that he had a right to
testify. See State v. Philling, No. CAAP-XX-XXXXXXX, 2019 WL
6790773, at *3 (Haw. App. Dec. 12, 2019) (SDO) (noting that
"although the District Court used the phrase 'if you elect to
testify' in various queries, the court did not inform [the
defendant] that he had a right to testify, as is required").
Therefore, the record does not demonstrate that Watanabe's waiver
of his right to testify was knowingly, intelligently and
voluntarily made.
"Once a violation of the constitutional right to
testify is established, the conviction must be vacated unless the
State can prove that the violation was harmless beyond a
reasonable doubt." Tachibana, 79 Hawai#i at 240, 900 P.2d at
1307 (citing State v. Silva, 78 Hawai#i 115, 125, 890 P.2d 702,
712 (App. 1995)). Here, the record does not contain any
indication of what Watanabe would have said if he had testified,
and the State concedes that the defective colloquy was not
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harmless. See State v. Hoang, 94 Hawai#i 271, 279, 12 P.3d 371,
379 (App. 2000) ("In general, it is inherently difficult, if not
impossible, to divine what effect a violation of the defendant's
constitutional right to testify had on the outcome of any
particular case."). Based on our review of the record, we cannot
conclude that the District Court's deficient colloquy was
harmless beyond a reasonable doubt.
We therefore vacate Watanabe's OVUII and Open Container
convictions.
(2) Watanabe contends there was no substantial evidence
to support his Open Container conviction for two reasons. First,
he argues that the District Court abused its discretion in
admitting State's Exhibit "1," a beer can recovered from
Watanabe's vehicle, into evidence, "where the State failed to
establish the requisite chain of custody." Second, Watanabe
asserts that, "assuming arguendo[] that the can was properly
introduced into evidence, there was still no substantial evidence
that the liquid in the can was 'intoxicating liquor.'"
Regarding the chain of custody of evidence, the supreme
court has held:
In showing chain of custody, all possibilities of
tampering with an exhibit need not be negated. Chain of
custody is sufficiently established where it is reasonably
certain that no tampering took place, with any doubt going
to the weight of the evidence. An accounting of hand-to-
hand custody of the evidence between the time it is obtained
and the time admitted to trial is not required in
establishing chain of custody. And despite the mere
possibility that others may have had access to the exhibits,
there exists a reasonable certainty that no tampering took
place.
State v. DeSilva, 64 Haw. 40, 41-42, 636 P.2d 728, 730 (1981)
(citations omitted).
The supreme court has further stated:
[The] judge determines the sufficiency of physical
evidence identification in light of the article's nature,
circumstances surrounding its custody and the likelihood of
intermeddlers tampering with it. A more elaborate foundation
is required to identify evidence that is easily substituted,
such as marijuana, than is necessary to identify physical
evidence with unusual characteristics, such as money, a gun,
clothing and a body, or matches and glasses. Unless [the]
decision to admit evidence over a chain-of-custody objection
constitutes a clear abuse of discretion, it will not be
overturned. [Citations omitted.]
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Id. at 42, 636 P.2d at 730 (brackets in original) (quoting State
v. Mayes, 286 N.W.2d 387, 391 (Iowa 1979)). See State v.
Garrison, 10 Haw. App. 1, 9, 860 P.2d 610, 614–15 (1993)
("[U]nlike the situation where the evidence in question consists
of easily adulterated materials such as drugs or chemicals, where
an object has been positively identified and the testimony
establishes that its condition is unchanged, proof of chain of
custody is not required." (citing State v. Olivera, 57 Haw. 339,
344, 555 P.2d 1199, 1202 (1976))).
Here, Honolulu Police Department (HPD) Officer Alema
Everett (Officer Everett) testified that on the night of the
incident, he recovered a "Fruitlands . . . Modern Times beer can"
from the center console of Watanabe's vehicle. According to
Officer Everett, the can "was cool to the touch[,]" and he
observed a liquid in the can that "smelled like beer." Officer
Everett testified that, after collecting the can, he poured the
liquid into an amber vial for testing by the HPD. He described
the process of sealing and taping the empty can and the amber
vial with "red evidence tape" and submitting them into evidence.
Officer Everett confirmed that the can in the evidence bag at
trial was the can he retrieved the night of the incident.
Specifically, Everett testified that he recognized his initials
on the evidence tape label that he had put on the bag.5/ When
asked to open the bag and confirm "whether that can is the can
that you retrieved that night[,]" Officer Everett responded,
"Yes, that's the can." When asked how he recognized the can,
Officer Everett responded, "[I]t's the same can that I
photographed in the report." Additionally, Officer Everett
answered "[y]es" when asked, "[I]t's essentially the same
condition as when you retrieved it that night?"
Because the evidence at issue was physical evidence
with specific markings, i.e., a "Fruitland Modern Times" beer
can, and not "easily adulterated materials such as drugs or
5/
During voir dire examination by defense counsel, Officer Everett
also testified regarding green tape on the bag, stating that "[u]sually the
green tape is from the SIS specialist," and that it was not Officer Everett's
signature on the green tape.
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chemicals," Garrison, 10 Haw. App. at 9, 860 P.2d at 614–15, a
"more elaborate foundation" was not required to identify the beer
can. DeSilva, 64 Haw. at 42, 636 P.2d at 730 (quoting Mayes, 286
N.W.2d at 391). As the State notes, Watanabe's arguments "relate
to the fact that the beer can had been in police custody for a
period of time, and do not dispute that Officer Everett
identified the beer can as the same one he recovered in the same
condition he recovered it." Thus, Watanabe's arguments relate to
the weight of the evidence, not its admissibility. See DeSilva,
64 Haw. at 41, 636 P.2d at 730. We conclude that the foundation
laid by the State, based on Officer Everett's testimony,
including his positive identification of the can, was sufficient
to establish with reasonable certainty that no tampering with the
can took place. Accordingly, the District Court did not abuse
its discretion in admitting the can into evidence.
Watanabe next contends there was no substantial
evidence that the liquid in the can was "intoxicating liquor."
More specifically, he argues that "[t]he evidence cited by the
court in its verdict that purportedly established the liquid in
the can was beer was Officer Everett's lay opinion that it
smelled like beer, the name of the product on the label,
'Fruitland Modern Times Beer' and the warning on the label
regarding the consumption of alcoholic beverages."
The standard of review for sufficiency of the evidence
is well established; namely, whether, upon the evidence
viewed in the light most favorable to the prosecution and in
full recognition of the province of the trier of fact, the
evidence is sufficient to support a prima facie case so that
a reasonable mind might fairly conclude guilt beyond a
reasonable doubt. Sufficient evidence to support a prima
facie case requires substantial evidence as to every
material element of the offense charged. Substantial
evidence as to every material element of the offense charged
is credible evidence which is of sufficient quality and
probative value to enable a person of reasonable caution to
support a conclusion. Under such a review, we give full play
to the right of the fact finder to determine credibility,
weigh the evidence, and draw justifiable inferences of fact.
State v. Bowman, 137 Hawai#i 398, 405, 375 P.3d 177, 184 (2016)
(quoting State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34
(App. 2005)).
In order to convict Watanabe for violating HRS § 291-
3.1(b), the State was required to prove beyond a reasonable doubt
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that (1) Watanabe, (2) while operating a motor vehicle or moped
upon any public street, road, or highway, (3) possessed "any
bottle, can, or other receptacle containing any intoxicating
liquor which ha[d] been opened, or a seal broken, or the contents
of which ha[d] been partially removed." HRS § 291-1 (2007)
provides that "[i]ntoxicating liquor means the same as the term
is defined in section 281-1." (Internal quotation marks
omitted.) Under HRS § 281-1,6/ "intoxicating liquor" includes
beer.
At trial, Officer Everett testified that he observed
"the can in open view" in Watanabe's vehicle, which was parked
with the engine running, just off Kamehameha Highway, less than a
foot from the solid white line.7/ Officer Everett determined
that the can was "an open container," and identified the can he
recovered as a "Fruitlands . . . Modern Times beer can" that "was
cool to the touch." Officer Everett further testified that he
had "experience with alcoholic beverages[,] . . . [p]articularly
. . . in aluminum cans[.]" When asked, "From your
observations[,] [w]hat was in the can?" Officer Everett
responded, "[A] liquid . . . that smelled like beer."
Upon review of the record, and viewing the evidence in
the strongest light for the prosecution, we conclude there was
substantial evidence that Watanabe, while operating a motor
vehicle upon a public highway, possessed an open container
containing an intoxicating liquor. Accordingly, on this record,
the evidence was sufficient to support Watanabe's Open Container
conviction.
6/
HRS § 281-1 (2007) states:
"Liquor" or "intoxicating liquor" includes alcohol,
brandy, whiskey, rum, gin, okolehao, sake, beer, ale,
porter, and wine; and also includes, in addition to the
foregoing, any spirituous, vinous, malt or fermented liquor,
liquids, and compounds, whether medicated, proprietary,
patented, or not, in whatever form and of whatever
constituency and by whatever name called, containing one-
half of one per cent or more of alcohol by volume, which are
fit for use or may be used or readily converted for use for
beverage purposes.
7/
Officer Everett further testified that Kamehameha Highway is a
public street, road or highway in the State of Hawai #i, City and County of
Honolulu.
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(3) Watanabe also contends there was no substantial
evidence to support his OVUII conviction.
In order to convict Watanabe of OVUII, the State was
required to prove beyond a reasonable doubt that (1) Watanabe (2)
operated or assumed actual physical control of a vehicle upon a
public street, road, or highway,8/ while (3) under the influence
of alcohol in an amount sufficient to impair his normal mental
faculties or ability to care for himself and guard against
casualty. HRS § 291E-61(1)(a). "'Impair' means to weaken, to
lessen in power, to diminish, to damage, or to make worse by
diminishing in some material respect or otherwise affecting in an
injurious manner." HRS § 291E-1.
Watanabe asserts:
Unlike many OVUII cases, there was no evidence in this case
of traffic violations or aberrant driving. Also absent was
evidence of blood or alcohol test results or a [standard
field sobriety] test. As such, the only evidence cited by
the court were Officer Everett's observations.
However, this court has previously ruled that "[s]ufficient
evidence for an OVUII conviction may be found without a field
sobriety test when based on other signs of impairment." State v.
Eaton, No. CAAP-XX-XXXXXXX, 2020 WL 3077931 at *1 (Haw. App.
June 10, 2020) (SDO); see also State v. Bayardelger, No. CAAP-19-
0000344, 2020 WL 3056088, at *1 (Haw. App. June 9, 2020) (SDO)
("We have previously held that there was substantial evidence to
support an OVUII conviction based on indicia of the defendant's
alcohol impairment, even without considering evidence of the
defendant's performance on a field sobriety test . . . .");
State v. Ferrer, 95 Hawai#i 409, 427, 23 P.3d 744, 762 (App.
2001) ("The police officer's observations of the field sobriety
exercises, other than the HGN test, should be placed in the same
category as other commonly understood signs of impairment, such
as glassy or bloodshot eyes, slurred speech, staggering, flushed
face, labile emotions, odor of alcohol or driving patterns."
(quoting State v. Meador, 674 So. 2d 826, 832 (Fla. Dist. Ct.
8/
HRS § 291E–1 (2007), the definitions section for HRS Chapter 291E,
provides, in relevant part, that the term "'[o]perate' means to drive or
assume actual physical control of a vehicle upon a public way, street, road,
or highway . . . ."
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App. May 15, 1996))).
At trial, Officer Everett testified that Watanabe's
vehicle was parked with the engine running "less than a foot from
. . . the solid white line" on Kamehameha Highway, a public
street, road or highway. Due to how close the driver's side was
to the roadway, Officer Everett "went to the passenger's side of
the vehicle" and observed Watanabe "sitting in the driver's seat
-- or slumped over . . . the wheel with both hands on the dash."
Officer Everett stated that he unsuccessfully attempted to wake
Watanabe by yelling at him. Officer Everett then testified:
So I went to the driver's side door and opened the door.
The car was unlocked. And as I called out to him, I -- I
shook him, and that -- that eventually got him out from his
slumber, and he sat back in his -- kinda slowly just
lethargically sat back in his seat and slumped -- slumped
back into . . . his chair.
Officer Everett further testified that after Watanabe awoke, "his
eyes were red, watery, and glassy." Additionally, a strong odor
of alcohol was coming from Watanabe's mouth. Officer Everett
asked Watanabe for "his vehicle paperwork, . . . his license,
registration, insurance." According to Officer Everett:
[Watanabe] wasn't able to provide anything. He just . . .
he pointed with his finger and he just kept touching the
dashboard. And I let that go on probably for like close to
a minute. But . . . when he wasn't able to -- to provide
any -- anything, then kind of moved on from that point.
Officer Everett continued:
I asked him . . . to exit the vehicle to -- to perform
a . . . standard field sobriety test. However, based on --
on as he stepped out of the vehicle on both feet, he was
swaying and . . . he kinda just fell back onto the rear
driver's side door of his vehicle. And at that point, based
on his actions, the strong odor of alcohol, all those
things, the roadway condition that determined it wouldn't be
safe to administer a field sobriety test as he wasn't --
wasn't even able to stand up for more than five seconds on
his own, . . . I figured it'd be more dangerous if anything.
Upon review of the record, and viewing the evidence in
the strongest light for the prosecution, we conclude there was
substantial evidence that Watanabe operated a vehicle while under
the influence of alcohol in an amount sufficient to impair his
normal mental faculties or ability to care for himself and guard
against casualty. Accordingly, on this record, the evidence was
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sufficient to support Watanabe's OVUII conviction.
Therefore, IT IS HEREBY ORDERED that the First Amended
Judgment and Notice of Entry of Amended Judgment, entered on
January 15, 2020, in the District Court of the First Circuit,
Kane#ohe Division, is vacated. The case is remanded to the
District Court for further proceedings consistent with this
Summary Disposition Order.
DATED: Honolulu, Hawai#i, June 25, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Alen M. Kaneshiro Chief Judge
for Defendant-Appellant.
Chad M. Kumagai, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
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