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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-MAR-2022
07:57 AM
Dkt. 49 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
COREY L. ULGARAN, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTC-18-018477)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Corey L. Ulgaran (Ulgaran) appeals
from the June 20, 2019 Notice of Entry of Judgment and/or Order
and Plea/Judgment (Judgment) and the September 9, 2019 Amended
Notice of Entry of Judgment and/or Order and Plea/Judgment
(Amended Judgment), entered in the District Court of the First
Circuit, Honolulu Division (District Court).1/ Following a bench
trial, Ulgaran was convicted of Accidents Involving Bodily
Injury, in violation of Hawaii Revised Statutes (HRS)
§ 291C-12.6(a)2/ (Count 1), and Operating a Vehicle Under the
1/
The Honorable Philip M. Doi presided.
2/
At the time of the alleged offense, HRS § 291C-12.6(a) (2007 &
Supp. 2017) provided:
Accidents involving bodily injury. (a) The driver of
any vehicle involved in an accident resulting in bodily
injury to any person shall immediately stop the vehicle at
the scene of the accident or as close thereto as possible
but shall then forthwith return to and in every event shall
remain at the scene of the accident until the driver has
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Influence of an Intoxicant (OVUII), in violation of HRS
§§ 291E-61(a)(1), (b)(1)3/ (Count 2).
On appeal, Ulgaran contends that: (1) there was no
substantial evidence to support the convictions on Counts 1 and
2; and (2) the charge in Count 1 was fatally defective.
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
Ulgaran's contentions as follows and vacate the Judgment and the
Amended Judgment as to Count 1:
(1) We first address Ulgaran's second contention.
Ulgaran argues that the charge in Count 1 was fatally defective
because it failed to include the attendant circumstance that
"[e]very such stop shall be made without obstructing traffic more
than is necessary." HRS § 291C-12.6(a).
The Hawai#i Supreme Court's decision in State v. Baker,
146 Hawai#i 299, 463 P.3d 956 (2020), is dispositive of this
contention. In Baker, the supreme court considered the
sufficiency of a charge brought against a driver for failure to
stop at the scene of an accident involving vehicle damage, in
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fulfilled the requirements of section 291C-14. Every such
stop shall be made without obstructing traffic more than is
necessary.
The relevant parts of HRS § 291C-14 are quoted infra.
3/
At the time of the alleged offense, HRS § 291E-61 (2007 & Supp.
2017) provided, in relevant part:
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[.]
. . . .
(b) A person committing the offense of operating a
vehicle under the influence of an intoxicant shall be
sentenced without possibility of probation or suspension of
sentence as follows:
. . . .
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violation of HRS § 291C-13. At that time, HRS § 291C-13 (Supp.
2008) stated, in relevant part:
Accidents involving damage to vehicle or property.
The driver of any vehicle involved in an accident resulting
only in damage to a vehicle or other property that is driven
or attended by any person shall immediately stop such
vehicle at the scene of the accident or as close thereto as
possible, but shall forthwith return to, and in every event
shall remain at, the scene of the accident until the driver
has fulfilled the requirements of section 291C-14. Every
such stop shall be made without obstructing traffic more
than is necessary.
See Baker, 146 Hawai#i at 302 n.1, 463 P.3d 959 n.1. The supreme
court construed this language to mean that "[a] driver . . . does
not violate the statute by not stopping at the scene, by not
stopping as close as possible to the scene, or not returning to
the scene of the accident, if doing so would prevent a traffic
hazard that would otherwise result." Id. at 307, 463 P.3d at
964.
In Baker, as here, the defendant challenged the
sufficiency of the failure-to-stop charge for the first time on
appeal. Id. at 308, 463 P.3d at 965. The supreme court thus
applied the liberal construction standard in reviewing the
charge. Id. (citing State v. Motta, 66 Haw. 89, 90, 657 P.2d
1019, 1019-20 (1983); State v. Wells, 78 Hawai#i 373, 381, 894
P.2d 70, 78 (1995)). The court nevertheless ruled:
The State in this case did not specify in the
complaint that [the defendant] did not stop either at the
accident scene or stop at the location closest to the
accident scene and forthwith return thereto without
obstructing traffic more than is necessary. The State's
omission of this statutory qualification did not provide
[the defendant] with fair notice of the elements of the
offense charged. In fact, the charge did not include any
reference to the language "without obstructing traffic more
than is necessary" or include language similar to it. The
failure to include the statutory language resulted in this
element of the charge having a common meaning that differed
from the express statutory requirements, and thus neither
the complaint nor the oral charge can be reasonably
construed to charge an offense. Accordingly, the deficient
charge deprived [the defendant] of the right to due process.
As a result, the State failed to state an offense, and the
conviction based upon it cannot be sustained.
Baker, 146 Hawai#i at 308, 463 P.3d at 965 (citations omitted).
Here, Ulgaran was charged in Count 1 with failing to
stop at the scene of an accident involving bodily injury, in
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violation of HRS § 291C-12.6(a).4/ Other than the type of damage
involved, the operative provisions of HRS § 291C-13 substantially
mirror those of HRS § 291C-12.6. Both statutes require a driver
who is involved in an accident that causes a specified harm to
immediately stop at the scene of the accident or stop "as close
thereto as possible" and "forthwith return" to the scene. HRS
§ 291C-12.6(a); HRS § 291C-13(a); see Baker, 146 Hawai#i at 307,
463 P.3d at 964. Both statutes also require that "[e]very such
stop shall be made without obstructing traffic more than is
necessary." HRS § 291C-12.6(a); HRS § 291C-13. However, the
charge against Ulgaran, like its counterpart in Baker, failed to
specify that Ulgaran did not stop at the accident scene or stop
at the location closest to the accident scene and forthwith
return thereto without obstructing traffic more than is
necessary. Under Baker, the failure to include the statutory
language "without obstructing traffic more than is necessary," or
similar language, rendered Count 1 deficient and deprived Ulgaran
of the right to due process. See Baker, 146 Hawai#i at 308, 463
P.3d at 965. Accordingly, the Judgment and the Amended Judgment
as to Count 1 must be vacated, and on remand, the District Court
must dismiss Count 1 without prejudice. See State v. Apollonio,
130 Hawai#i 353, 358-59, 363, 311 P.3d 676, 681-82, 686 (2013).
(2) Ulgaran contends there was no substantial evidence
to support her convictions on Counts 1 and 2.
4/
The charge in Count 1 of the Amended Complaint stated, in relevant
part:
COUNT 1: On or about November 25, 2018, in the City
and County of Honolulu, State of Hawai#i, COREY L. ULGARAN,
as the driver of a vehicle involved in an accident resulting
in bodily injury to Sara [Hatfield], did intentionally,
knowingly or recklessly fail to immediately stop the vehicle
at the scene of the accident or as close thereto as
possible, and did intentionally, knowingly or recklessly
fail to forthwith return to and in every event remain at the
scene of the accident and fulfill the requirements of
Section 291C-14 of the Hawai#i Revised Statutes, thereby
committing the offense of Accidents Involving Bodily Injury,
in violation of Section 291C-12.6(a) of the Hawai #i Revised
Statutes.
The oral charge contained substantially the same language.
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We review the sufficiency of the evidence to support a
conviction as follows:
[E]vidence adduced in the trial court must be considered in
the strongest light for the prosecution . . .; the same
standard applies whether the case was before a judge or
jury. The test on appeal is not whether guilt is
established beyond a reasonable doubt, but whether there was
substantial evidence to support the conclusion of the trier
of fact. Indeed, even if it could be said in a bench trial
that the conviction is against the weight of the evidence,
as long as there is substantial evidence to support the
requisite findings for conviction, the trial court will be
affirmed.
"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.
And as trier of fact, the trial judge is free to make
all reasonable and rational inferences under the facts
in evidence, including circumstantial evidence.
State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31
(2007) (quoting State v. Batson, 73 Haw. 236, 248-49, 831 P.2d
924, 931 (1992)).
Count 1:5/
In order to convict Ulgaran for a violation of HRS
§ 291C-12.6(a), the State was required to prove beyond a
reasonable doubt that: (1) Ulgaran was driving a vehicle that
was involved in an accident resulting in bodily injury to another
person; and (2) Ulgaran did not (a) immediately stop at the scene
or stop as close thereto as possible and forthwith return to the
scene without obstructing traffic more than is necessary; or (b)
give the information required by HRS § 291C-146/ to any person
5/
Although we have determined the charge for Count 1 is defective,
we review the sufficiency of the evidence as to Count 1 because Ulgaran also
expressly contends on appeal that there was insufficient evidence to support
her conviction on Count 1. See State v. Davis, 133 Hawai #i 102, 120, 324 P.3d
912, 930 (2014)(holding that "a reviewing court is required under article I,
section 10 of the Hawai#i Constitution to address a defendant's express claim
of insufficiency of the evidence prior to remanding for a new trial based on a
defective charge").
6/
At the time of the alleged offense, HRS § 291C-14 (Supp. 2017)
provided, in relevant part:
Duty to give information and render aid. (a) The
driver of any vehicle involved in an accident resulting in
injury to . . . any person . . . shall give the driver's
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injured in the accident and any police officer at the scene, and
render to any person injured in the accident reasonable
assistance. See HRS § 291C-12.6(a); HRS § 291C-14; see also
Baker, 146 Hawai#i at 309, 463 P.3d at 966 (stating the elements
to prove a violation of HRS § 291C-13). The State was also
required to prove that Ulgaran committed each element of the
offense intentionally, knowingly, or recklessly. See HRS §§
291C-12.6, 701-114, 702-204.
Ulgaran contends there was insufficient evidence to
convict her on Count 1, because there was substantial evidence
that she stopped at the scene of the accident and gave Hatfield
the information required by HRS § 291C-14(a). Ulgaran argues
that under the statute, she was required to provide only "her
name, address, registration number of the vehicle she was driving
and, if available, her driver's license[,]" and that the papers
Ulgaran gave Hatfield included the certificate of title for the
truck Ulgaran was driving, which the police were then able to use
to locate Ulgaran.
At trial, complaining witness Sara Hatfield (Hatfield)
testified that while driving on November 25, 2018, at about 7:00
in the evening, she arrived at a four-way stop. Hatfield was
stopped and waiting for another car to turn, when her car was hit
from behind by a truck. Hatfield identified Ulgaran as the
driver and only occupant of the truck. Hatfield got out of her
car, approached the truck, and asked Ulgaran for "her paperwork,
insurance, registration and driver's license." Hatfield "was
handed a whole stack of random papers[,]" which "didn't have any
sort of identification, didn't have registration, [and] didn't
6/
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name, address, and the registration number of the vehicle
the driver is driving, and shall upon request and if
available exhibit the driver's license or permit to drive to
any person injured in the accident . . . and shall give such
information and upon request exhibit such license or permit
to any police officer at the scene of the accident or who is
investigating the accident and shall render to any person
injured in the accident reasonable assistance, including the
carrying, or the making of arrangements for the carrying, of
the person to a physician, surgeon, or hospital for medical
or surgical treatment if it is apparent that such treatment
is necessary, or if such carrying is requested by the
injured person[.]
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have insurance." Hatfield testified that she did not know if the
truck's certificate of title was among the papers. Ulgaran did
not give her address to Hatfield.
After another driver asked Hatfield to move her car,
Hatfield and Ulgaran both turned left and moved their vehicles to
the side of the road, where they "pick[ed] up where [they] had
left off." Hatfield called her mother, and after talking to her,
called the police. Hatfield testified: "And [Ulgaran] said that
she had to go and I told her, I said oh, wait, I have the police
on hold right now. And then next thing I know, she hopped in her
truck and took off." When the police arrived, Hatfield told them
that "[she] saw [Ulgaran] drive straight into an apartment
complex area that [Hatfield] couldn't get into because there's
security." Hatfield gave the police the papers that Ulgaran had
handed her.
Honolulu Police Department (HPD) Corporal Joel Dadoy
(Cpl. Dadoy) testified that on November 25, 2018, at about 7:00
p.m., he responded to a report of a motor vehicle collision at
the intersection of Ala Kapuna Street and Moanalua Road. Cpl.
Dadoy found one driver at the scene who reported that another
vehicle had struck her, the two drivers had begun exchanging
information, and the other driver had then left the scene.
Hatfield gave Cpl. Dadoy a certificate of title for the vehicle
that had struck her. Cpl. Dadoy began running checks on the
registered owner of the vehicle based on the title and found a
"possible address of the vehicle in the Ala Kapuna area[,]" at
1270 Ala Kapuna. Cpl. Dadoy then sent a second HPD officer to
attempt to locate the vehicle. Because Hatfield complained of
pain in her back, Cpl. Dadoy called EMS and stayed with Hatfield.
HPD Officer Deseray Tibon-Rodriguez (Officer Tibon-
Rodriguez) testified that she was involved in investigating the
collision on November 25, 2018. Upon arriving at the scene, Cpl.
Dadoy instructed her "to attempt to locate [the] suspect vehicle
and the suspect as well if [possible]." HPD "put out an APB for
. . . a dark-in-color Chevy Silverado bearing . . . handicap
plates." Officer Tibon-Rodriguez "entered the Ala Kapuna,
[where] there's a secured area," which was "the last known
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direction where the vehicle went." Officer Tibon-Rodriguez "was
flagged down by a security guard who stated I seen the truck, it
went this way." The security guard escorted Officer
Tibon-Rodriguez "to the back side of one of the apartment
buildings and then pointed out the truck." The truck and its
license plate matched the description the officer had, and there
was damage to the truck's front end. Based on the truck's
parking plaque, the security guard was able to identify Ulgaran's
apartment building. With that information, Officer
Tibon-Rodriguez and other officers went to the building and
located Ulgaran. After Ulgaran proved to be uncooperative,
Officer Tibon-Rodriguez informed Cpl. Dadoy, who then "informed
[Officer Tibon-Rodriguez] that the registered owner of the
vehicle was actually en[ ]route and [Cpl. Dadoy] instructed
[Officer Tibon-Rodriguez] that [she] would be reading him his
rights and try[ing] to get a statement to establish the
disposition of the vehicle."
Ulgaran argues that the certificate of title that Cpl.
Dadoy used to locate Ulgaran "presumably had the information
required by HRS § 291C-14 . . . on it." However, the certificate
of title is not part of the record, and Ulgaran concedes that it
was not entered into evidence at trial.7/ Morever, the record
includes testimony by Officer Tibon-Rodriguez (see supra)
suggesting that Ulgaran was not the registered owner of the
vehicle involved in the collision. See Matavale, 115 Hawai#i at
158, 166 P.3d 322 at 331 (the trial judge is free to make all
reasonable and rational inferences under the facts in evidence).
In addition, Hatfield testified that the papers Ulgaran gave her
following the collision did not include Ulgaran's identification
or address. The District Court found the State's witnesses to be
credible, a determination that we will not disturb on appeal.
See State v. Eastman, 81 Hawai#i 131, 139, 913 P.2d 57, 65
(1996).
7/
Ulgaran asserts that this court may take judicial notice of "the
contents of the [certificate of title] form." We decline to do so. The
contents of the certificate of title for the truck at issue are unknown and
subject to reasonable dispute, and judicial notice is thus improper. See
Hawai#i Rules of Evidence Rule 201(b).
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Upon review of the record, we conclude there was
substantial evidence that Ulgaran drove a vehicle that was
involved in an accident resulting in bodily injury to Hatfield,
and Ulgaran did not give all of the information required by HRS §
291C-14 to Hatfield at the accident scene. Accordingly, on this
record, the evidence was sufficient to support Ulgaran's
conviction on Count 1.
Count 2:
In order to convict Ulgaran of OVUII, the State was
required to prove beyond a reasonable doubt that Ulgaran operated
a vehicle "[w]hile 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). "'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 (2007).
At trial, Officer Tibon-Rodriguez testified that when
she arrived at Ulgaran's apartment, she knocked on the door
several times and received no response. Then, a young child
answered the door. The officer asked the child if their mother
or father was home, and said that the police needed to speak to
them. The child "said my mom's home, she's sleeping." The child
then left the doorway, and Officer Tibon-Rodriguez waited five to
ten minutes at the open front door. On multiple occasions, the
officer "yelled out Police, ma'am, we need to speak to you
involving [a] motor vehicle incident, can you please come out,
can you please talk to us." Eventually, Ulgaran approached the
door wearing a towel.
When asked at trial what she observed about Ulgaran,
Officer Tibon-Rodriguez testified:
[Ulgaran] showed signs of intoxication. When I first
saw, even though she was several feet away[,] in the
doorway, I could smell a strong odor of alcohol emitting
from her.
. . . .
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. . . I could observe what appeared to be the odor of
alcohol type beverage emitting from her breath and her body
as she spoke to me. Her eyes appeared to be red and glassy
and her speech was slightly slurred and she also appeared to
be emotional.
Ulgaran handed her driver's license to Officer Tibon-
Rodriguez and said that she needed to get dressed. The officer
said "go ahead and get dressed and if you can just come back to
the doorway so we can talk." Ulgaran "went back into the back
area out of sight," and Officer Tibon-Rodriguez then waited
another five to ten minutes. The officer "started calling out to
[Ulgaran] again, ma'am, are you okay, ma'am, are you okay, do you
need police assistance?" After waiting about 15 minutes, Officer
Tibon-Rodriguez entered the apartment, where she eventually found
Ulgaran "crouched over the bed on the phone crying[.]" Ulgaran
told Officer Tibon-Rodriguez, "I'm not coming out until my sister
gets here, something along those lines." Officer Tibon-Rodriguez
then left the apartment and spoke to Cpl. Dadoy.
Dennis Kegley (Kegley) testified that he was the
security guard at 1270 Ala Kapuna, and was on duty on
November 25, 2018, when the police arrived. The police gave him
a license plate number and description of the vehicle they were
looking for, and Kegley was the first to find it. At trial,
Kegley described the vehicle as follows:
And the things that I noticed about the vehicle was
there -- it was parked kind of catty-cornered like it had
been hastily backed -- it was backed in, not pulled in.
Looked like it was kind of catty-cornered over the other
parking stall. There was engine heat like it had just been
running. There was damage to the front of the vehicle, I
believe it was the driver's side bumper.
(Emphasis added.) Kegley showed the police where the vehicle
was, "look[ed] up the vehicle information[,] and identified that
the resident lived [in Unit] 105."
Ulgaran contends there was no direct evidence that she
operated a vehicle while under the influence of an intoxicant,
because: (1) Hatfield interacted with Ulgaran at the scene of
the collision and did not testify to any objective indicia of
alcohol consumption by Ulgaran; and (2) after the collision,
Ulgaran was able to exchange information with Hatfield and drive
her truck to another location. Ulgaran also argues that Officer
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Tibon-Rodriguez's observations at Ulgaran's apartment "[a]t best
. . . established that Ulgaran had consumed alcohol after the
accident and not prior to the accident."
Ulgaran's arguments concern the weight of the evidence.
We decline to pass upon such issues, which are within the
province of the trier of fact – here, the District Court. See
State v. Stocker, 90 Hawai#i 85, 90, 976 P.2d 399, 404 (1999).
We review instead whether there is substantial evidence to
support the requisite findings for conviction, considering the
evidence in the strongest light for the prosecution. See
Matavale, 115 Hawai#i at 158, 166 P.3d at 331. Here, the State
presented credible evidence, through the testimony of Officer
Tibon-Rodriguez, that Ulgaran exhibited several indicia of
intoxication shortly after driving a vehicle.8/ Those indicia
included red and glassy eyes, slightly slurred speech, and an
odor of alcohol from Ulgaran's breath and body. The State also
presented credible evidence, through Hatfield's testimony, that
the vehicle driven by Ulgaran had recently struck another vehicle
stopped at an intersection. From the evidence presented at
trial, the District Court could reasonably infer that Ulgaran
drove while intoxicated in an amount sufficient to weaken or
diminish her normal mental faculties or ability to guard against
casualty. See id.
Upon review of the record, we thus conclude there was
substantial evidence that Ulgaran operated a vehicle while under
the influence of alcohol in an amount sufficient to impair her
normal mental faculties or ability to guard against casualty.
Accordingly, on this record, the evidence was sufficient to
support Ulgaran's conviction on Count 2.
For the reasons discussed above, we vacate the June 20,
2019 Notice of Entry of Judgment and/or Order and Plea/Judgment,
and the September 9, 2019 Amended Notice of Entry of Judgment
and/or Order and Plea/Judgment, entered in the District Court of
8/
Kegley's testimony – that when he found the truck, "[t]here was
engine heat like it had just been running" – further supports the reasonable
inference that only a short time elapsed between when Ulgaran was driving the
truck and when HPD located both the truck and Ulgaran. See Matavale, 115
Hawai#i at 158, 166 P.3d at 331.
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the First Circuit, Honolulu Division, as to Count 1. The case is
remanded to the District Court with instructions to dismiss Count
1 without prejudice.
We affirm the June 20, 2019 Notice of Entry of Judgment
and/or Order and Plea/Judgment, and the September 9, 2019 Amended
Notice of Entry of Judgment and/or Order and Plea/Judgment, as to
Count 2.
DATED: Honolulu, Hawai#i, March 14, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Jon N. Ikenaga, Chief Judge
Deputy Public Defender
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Chad M. Kumagai, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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