LMNi£BHAHY
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 2989O
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAFI
, §§
,J " 'M§`,,¢ §
§ ¥"‘?
STATE oF HAWAI‘I, Plaintiff-Appellee, v. y ~G
KAANOI N.L.K.K.K. POOUAHI, Defendant-Appella k §§
9 ~
- :§3 §§
APPEAL FRoM THE DISTRICT coURT oF THE F:RST cIRcU‘?E
WAI‘ANAE DIvIsIoN
(Case No.
lDTC-08-O33044)
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge,
Fujise and Leonard, JJ.)
Defendant-Appellant Kaanoi N.L.K.K.K. Poouahi (Poouahi)
appeals the judgment entered on May 1l,
2009 in the District
Court of the First Circuit, Wafanae Division (district court).l
Poouahi was convicted of Operating a Vehicle After
License and Privilege Have Been Suspended or Revoked for
Operating a Vehicle Under the Influence of an Intoxicant
in violation of Hawaii Revised Statutes (HRS)
(2) (2007) and Excessive Speeding,
lO5(a)(l)
(OVLSR),
(2007 & Supp.
§ 29lE-62(a)(l)
in violation of HRS § 291C-
2009).
OI`
On appeal,2 Poouahi contends (1) the district court
erred by admitting a speed check card under a business record
exception (2)
the State failed to lay the requisite foundation
for admission of the speed check card,
(3)
the officer's
testimony failed to establish the accuracy of his speedometer,
and (4) the State failed to disprove his defense of choice-of-
evils pursuant to HRS § 703-302 (1993).
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
l
2
The H0norable Lon0 Lee presided.
evidence.
At trial, Poouahi objected to the admission of the speed check
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
the arguments advanced and the issues raised by the parties, we
resolve Poouahi's points of error as follows:
It does not appear that the speed check card was
admitted into evidence. Therefore, Poouahi's claim that the
district court erred by admitting the speed check card under a
business record exception to hearsay and failed to lay the proper
foundation for its admission is without merit.
However, the State failed to lay sufficient foundation
to admit testimony regarding the results of the speed check card.
The results of the speed check were inadmissible because there
was no testimony by Officer Byron Marfield? (Officer Marfield)
regarding (l) whether the speed check was performed in the manner
specified by the manufacturer of the equipment used to perform
the check or the identify and (2) the qualifications of the
person performing the check, including whether that person had
whatever training the manufacturer recommends in order to
competently perform the speed check. State v. Fitzwater, 122
Hawai‘i 354, 376-77, 227 P.3d 520, 542-43 (20lO). WithOut the
results of the speed check card, there was insufficient evidence
to convict Poouahi of Excessive Speeding as the only evidence of
Poouahi's speed at the time of the offense was based on Officer
Marfield's speedometer.
Turning to Poouahi's choice of evils defense, we note
that there was conflicting testimony regarding the extent of his
injuries when he was stopped for speeding.
The district court did not believe Poouahi's testimony
that his eye was swollen shut and bleeding when he was stopped by
Officer Marfield. The district court believed Officer Marfield's
testimony that Poouahi merely had some redness on his face and
did not tell the officer that Poouahi had an emergency. "It is
, well-settled that an appellate court will not pass upon issues
dependent upon the credibility of witnesses and the weight of the
3 Officer Byron Marfield's name was taken from the text of the May 1l,
2009 transcript.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
evidence; this is the province of the trier of fact." State v.
Mattiello, 90 HawaiT.255, 259, 978 P.2d 693, 697 (l999)
(internal quotation marks, brackets, and citation omitted).
Considering the evidence found credible by the district court in
the light most favorable to the prosecution, Poouahi had only
redness on his face, was not seriously injured, and was not
experiencing an emergency when he was operating a vehicle without
a license on the date in question. Thus, Poouahi failed to
establish his choice of evils defense.
Therefore,
IT 18 HEREBY ORDERED that the May ll, 2009 judgment of
the District Court of the First Circuit, WaFanae Division is
reversed in part and affirmed in part. The conviction for
Excessive Speeding is reversed and the conviction for OVLSR is
affirmed.
DATED= Honolulu, Hawai‘i, June 23, 2010.
On the briefs:
_,»
Jon N. Ikenaga, *
Deputy Public Defender -
for Defendant-Appellant. Presiding Judge
Brian R. Vincent,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.