NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-MAY-2022
08:01 AM
Dkt. 81 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
RAY ALIWIS, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DTC-19-039513)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Ray Aliwis (Aliwis) appeals from
the Notice of Entry of Judgment and/or Order and Plea/Judgment,
filed August 22, 2019 (Judgment), in the District Court of the
First Circuit (District Court),1 convicting Aliwis of Operating a
Vehicle After License and Privilege Have Been Suspended or
Revoked for Operating a Vehicle Under the Influence of an
Intoxicant (OVLSR-OVUII), in violation of Hawaii Revised Statutes
(HRS) § 291E-62(a)(1)(2)(c) and/or (a)(2), (c)(1).2
1
The Honorable Michelle Comeau presided.
2
HRS § 291E-62 (Supp. 2018) provides in part:
(a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise
restricted . . . shall operate or assume actual physical
control of any vehicle:
(continued...)
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On appeal, Aliwis raises five points of error: (1)
sufficiency of the charge, (2) admission of the Plaintiff-
Appellee State of Hawai#i's (State) Exhibits 1-3,3 (3) denial of
Aliwis' Motion for Judgment of Acquittal (MJOA), (4) sufficiency
of the evidence, and (5) failure to enter a finding that Aliwis'
waiver of his right to testify was knowing and voluntary.
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 Aliwis' points of error as follows, and affirm.
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(...continued)
(1) In violation of any restrictions placed on the
person's license;
(2) While the person's license or privilege to
operate a vehicle remains suspended or revoked;
. . . .
(c) Any person convicted of violating this section shall be
sentenced as follows without possibility of probation or
suspension of sentence:
(1) For a first offense or any offense not preceded
within a five-year period by conviction for an
offense under this section . . .:
(A) A term of imprisonment of not less than
three consecutive days but not more than
thirty days;
(B) A fine of not less than $250 but not more
than $1,000;
(C) Revocation of license and privilege to
operate a vehicle for an additional year;
and
(D) Loss of the privilege to operate a vehicle
equipped with an ignition interlock
device, if applicable[.]
3
Aliwis challenged State's Exhibits 1 and 2 in his Points of Error
section of his Opening Brief, but the header in the argument section
challenges the admission of State's Exhibits 2 and 3. We address all three
exhibits.
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(1) "[C]harges which are tardily challenged after
conviction are liberally construed in favor of validity." State
v. Elliott, 77 Hawai#i 309, 311, 884 P.2d 372, 374 (1994)
(brackets, quotations, and block quote formatting omitted). "Our
adoption of this liberal construction standard for
post-conviction challenges to indictments means we will not
reverse a conviction based upon a defective indictment unless the
defendant can show prejudice or that the indictment cannot within
reason be construed to charge a crime." State v. Motta, 66 Haw.
89, 91, 657 P.2d 1019, 1020 (1983). Aliwis did not challenge the
sufficiency of the charge below. Aliwis does not assert or show
any prejudice caused by the State's allegedly defective charge.
Aliwis' first contention is without merit.
(2) Aliwis challenges the admission of State's
Exhibits 1, 2, and 3 as being irrelevant because there is no
evidence linking the exhibits to him; his statement of the points
of error also mentions, but his brief makes no discernible
argument about, hearsay. "A trial court's determination that
evidence is 'relevant' within the meaning of [Hawaii Rules of
Evidence (HRE)] Rule 401 is reviewed under the right/wrong
standard of review." State v. Wagner, 139 Hawai#i 475, 480, 394
P.3d 705, 710 (2017) (citation and block quote formatting
omitted). "Relevant evidence" is "evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." HRE Rule 401 (2016). Here,
the three exhibits admitted -- (1) a certified traffic abstract
(Traffic Abstract); (2) a certified ADLRO Notice of
Administrative Review Decision (ADLRO Decision); and (3) a ADLRO
Notice of Administrative Revocation (NOAR)4 -- all relate to
4
As to Exhibit 3, the NOAR, the District Court limited its
admission into evidence, stating: "I'm not going to consider this document .
. . for the truth of any matters asserted."
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Aliwis' prior OVUII charge and, thus, make the fact that Aliwis
committed OVLPSR-OVUII more probable than without them.
Moreover, contrary to Aliwis' assertions, the exhibits
were linked to Aliwis by more than his name alone. Exhibit 3
contains the same birth year and last four digits of Aliwis'
social security number (SSN) as reflected in Exhibit 1.
Additionally, Exhibits 1, 2, and 3 contain the same police report
number and date of arrest. The matching information in Exhibit 3
was sufficient to link all of the exhibits to Aliwis. See State
v. Kam, 134 Hawai#i 280, 288-89, 339 P.3d 1081, 1089-90 (App.
2014) (holding that "matches" in various exhibits containing
defendant's name, address, date of birth, and last four digits of
SSN constituted sufficient evidence of a prior OVUII conviction).
(3) and (4) The standard applied when assessing a
ruling on an MJOA is: "whether, upon the evidence viewed in the
light most favorable to the prosecution and in full recognition
of the province of the jury, a reasonable mind might fairly
conclude guilt beyond a reasonable doubt." State v. Alston, 75
Haw. 517, 528, 865 P.2d 157, 164 (1994) (citations omitted).
Sufficiency of evidence to support a conviction is measured by
viewing the evidence in the light most favorable to the
prosecution, to determine "whether there was substantial evidence
to support the conclusion of the trier of fact." State v. Young,
93 Hawai#i 224, 230, 999 P.2d 230, 236 (2000).
Aliwis premised his MJOA on two grounds: (a) without a
license, the State could not prove the prior revocation of a
"non-existent license" element of OVLSR-OVUII, and (b) without
proof that Aliwis received the ADLRO Decision, the State could
not establish the requisite "intentional, knowing, or reckless"
intent. Aliwis' challenge to the sufficiency of evidence to
support his conviction incorporates the same arguments.
Aliwis' arguments are without merit. First, Aliwis'
failure to have a driver's license during his arrests for OVUII
and OVLSR-OVUII does not insulate him from prosecution. See HRS
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§ 291E-61 (Supp. 2018) (applying to any person operating or
assuming physical control of a vehicle); HRS § 291E-62 (applying
to any person whose "license and privilege to operate a vehicle
have been revoked, suspended, or otherwise restricted"); HRS §
291E-1 (2020) (defining "license" to include "[t]he eligibility,
including future eligibility, of any person to apply for a
license or privilege to operate a motor vehicle"); see also State
v. Alesana, NO. CAAP-XX-XXXXXXX, 2021 WL 1694869, at *4 (App.
Apr. 29, 2021) (SDO), cert. denied, SCWC-XX-XXXXXXX, 2021 WL
3834174 (Haw. Aug. 23, 2021) (affirming conviction where the
defendant "consciously disregarded a substantial and
unjustifiable risk that his license was revoked when he operated
a moped and was stopped by [the officer], even if there was no
proof that [the defendant] actually received a copy of the Notice
of Administrative Review Decision"); State v. Rios, No.
CAAP-XX-XXXXXXX, 2021 WL 964862, at *2 (App. Mar. 15, 2021)
(SDO), cert denied, SCWC-XX-XXXXXXX, 2021 WL 1996465 (Haw. May
18, 2021) (affirming trial court's finding that the defendant
consciously disregarded a substantial and unjustifiable risk that
his license was revoked when he drove his car months later, and
that there was sufficient evidence to support the conviction for
OVUII).
Second, the absence of proof that Aliwis received the
ADLRO Decision did not preclude conviction because a reasonable
mind might still fairly conclude guilt beyond a reasonable doubt
based on recklessness. See Alesana, 2021 WL 1694869, at *4;
Rios, 2021 WL 964862, at *2. "When the state of mind required to
establish an element of an offense is not specified by the law,
that element is established if, with respect thereto, a person
acts intentionally, knowingly, or recklessly." HRS § 702-204
(2014). HRS § 291E-62 does not specify a state of mind,
therefore, the State must prove Aliwis acted intentionally,
knowingly, or recklessly, with respect to operating or assuming
actual physical control of a vehicle while his license was
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suspended or revoked. State v. Nesmith, 127 Hawai#i 48, 53-54,
276 P.3d 617, 622-23 (2012) (holding that HRS § 702-204 applies
to HRS § 291E-61). "A person acts recklessly with respect to his
conduct when he consciously disregards a substantial and
unjustifiable risk that the person's conduct is of the specified
nature." HRS § 702-206(3)(a) (2014).
"[G]iven the difficulty of proving the requisite state
of mind by direct evidence in criminal cases, we have
consistently held that proof by circumstantial evidence and
reasonable inferences arising from circumstances surrounding the
defendant's conduct is sufficient." State v. Stocker, 90 Hawai#i
85, 92, 976 P.2d 399, 406 (1999) (block quote, brackets,
ellipses, citation & internal quotation marks omitted). "Thus,
the mind of alleged offender may be read from his acts, conduct
and inferences fairly drawn from all the circumstances." Id.
(block quotes, citation & internal quotation marks omitted).
Here, Aliwis was arrested for OVUII, an officer read
Aliwis the NOAR, and Aliwis signed the NOAR. The NOAR informed
Aliwis that a decision as to whether his license and privilege to
operate a vehicle would be revoked would be mailed to him no
later than eight days after the NOAR. Despite this notice, three
months after the OVUII arrest, Aliwis operated a vehicle and was
cited for OVLSR-OVUII. In light of the foregoing, for the MJOA,
"a reasonable mind might fairly conclude guilt beyond a
reasonable doubt." Alston, 75 Haw. at 528, 865 P.2d at 164.
Similarly, viewed in the light most favorable to the State, the
record reflects substantial evidence to support Aliwis'
conviction. See Young, 93 Hawai#i at 230, 999 P.2d at 236.
(5) "The validity of a criminal defendant's waiver of
the right to testify is a question of constitutional law reviewed
by [the appellate courts] under the right/wrong standard." State
v. Eduwensuyi, 141 Hawai#i 328, 332, 409 P.3d 732, 736 (2018)
(citation omitted).
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Tachibana requires that "trial courts must advise
criminal defendants of their right to testify and must obtain an
on-the-record waiver of that right in every case in which the
defendant does not testify." Tachibana v. State, 79 Hawai#i 226,
236, 900 P.2d 1293, 1303 (1995). The purpose of the on-the-
record waiver is to "ensure that [defendant] was aware of [the]
right to testify and that [he or she] knowingly and voluntarily
waived that right." Id. at 237, 900 P.2d at 1304. The
advisement includes the following two components:
The first is informing the defendant of fundamental
principles pertaining to the right to testify and the right
not to testify. We stated that this advisement should
consist of the following information:
that he [or she] has a right to testify, that if he
[or she] wants to testify that no one can prevent him
[or her] from doing so, [and] that if he [or she]
testifies the prosecution will be allowed to
cross-examine him [or her]. In connection with the
privilege against self-incrimination, the defendant
should also be advised that he [or she] has a right
not to testify and that if he [or she] does not
testify then the jury can be instructed about that
right.
The second component of the Tachibana colloquy
involves the court engaging in a true "colloquy" with the
defendant. This portion of the colloquy consists of 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."
State v. Celestine, 142 Hawai#i 165, 170, 415 P.3d 907, 912
(2018) (citations omitted). No precedent requires the District
Court to make a specific finding that a defendant knowingly and
intelligently waived his or her right to testify, as urged by
Aliwis. Instead, courts look to the record to determine whether
a defendant knowingly, intelligently, and voluntarily waived
their right to testify.
Appellate review of the sufficiency of the Tachibana
colloquy is necessarily based on a cold record. We are
tasked with scrutinizing the language used by both the court
and the defendant to assess whether a defendant knowingly,
intelligently, and voluntarily waived his or her right to
testify. That task cannot be accomplished were we to defer
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to the trial court's apparent assessment of the defendant's
understanding whenever the express language on the record
leaves us with any doubt about the validity of the colloquy
and/or the defendant's waiver.
State v. Pomroy, 132 Hawai#i 85, 93 n.7, 319 P.3d 1093, 1101 n.7
(2014). Here, the record reflects that the District Court
engaged in the appropriate colloquy and obtained the on-the-
record waiver.
For the foregoing reasons, the Notice of Entry of
Judgment and/or Order and Plea/Judgment, filed August 22, 2019,
in the District Court of the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, May 17, 2022.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Walter R. Schoettle
for Defendant-Appellant /s/ Keith K. Hiraoka
Associate Judge
Chad M. Kumagai
Deputy Prosecuting Attorney /s/ Karen T. Nakasone
for Plaintiff-Appellee Associate Judge
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