FOR PUBLICATI()N IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAFI
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STATE OF HAWAfI, Plaintiff~Appellee, v. wm §U
MICHAEL MAKANA HOE, Defendant~Appellant mr §§
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NO. 29496
APPsAL FR0M THE D1sTR1cT c0URT 0F THs sEc0ND c:RcU1T
wA1LUKU DIv:s10N
(cAsE No. 2P103-01809)
FEBRUARY 25, 2010
NAKAMURA, C.J., FOLEY AND LEONARD, JJ.
OPINION OF THE COURT BY NAKAMURA, C.J.
Defendant-Appellant Michael Makana Hoe (Hoe) was
charged with consuming liquor while being under twenty-one years
in violation of Hawaii Revised Statutes (HRS) § 281~lO1.5
Hoe was eighteen years old and a student at Maui High
After a bench trial,
of age,
(2007).H
School at the time of the alleged offense.
the District Court of the Second Circuit (district court) found
Hoe guilty as charged.W The district court sentenced Hoe to a
fine of $200, a criminal injuries compensation fee of $30,
y HRS § 28l~l01.5(b) provides in relevant part that "[n]o minor shall
consume . . . liquor . ." HRS § 281-1 (2007) defines the terms "minor"
and "liquor" for purposes of HRS Chapter 281 and provides in relevant part:
Whenever used in this chapter, unless otherwise apparent
from the context:
'Liqu0r' . includes alcohol
'Minor' means any person below the age of twenty-one years.
HRS § 281-101.5(e) defines the term "consume" as used in HRS § 281~10l.5 to
include "the ingestion of liquor."
” The Honorable Simone C. Polak presided.
FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
seventy-five hours of community service, eight to twelve hours of
alcohol education, and a 180-day suspension of his driver's
license. b
Hoe appeals from the November 5, 2008, Judgment of the
district court. On appeal, Hoe contends that the district court
erred in convicting him because the prosecution failed to adduce
sufficient evidence that he had consumed liquor. we disagree and
affirm Hoe's conviction.
l .
The prosecution introduced the following evidence at
trial.
David Tanuvasa (Tanuvasa), the vice-Principal at Maui
High School, testified that during the Aloha Assembly, a farewell
assembly to honor graduating seniors, he removed Hoe from the
stands based on a teacher's report that Hoe had engaged in unruly
behavior. Tanuvasa escorted Hoe to the Athletic Director's
office. Tanuvasa was responsible for campus discipline, and his
experience regarding alcohol included dealing with many students
who came on campus intoxicated, training on the subject of
alcohol with the Maui Police Department, and numerous social
encounters with people who were consuming alcohol. Tanuvasa was
familiar with how people drinking alcohol smell.
From a distance of about two feet, Tanuvasa smelled the
odor of alcohol coming from Hoe. On a scale from zero to ten,
with zero signifying no smell of alcohol and ten an extremely
strong smell of alcohol, Tanuvasa testified that the smell of
alcohol emanating from Hoe was "[p]robably an eight." Tanuvasa
called Officer James Terry (Officer Terry) of the Maui Police
Department. Tanuvasa felt that Hoe had come to school
intoxicated, which required Tanuvasa to call the police.
Randy Yamanuha (Yamanuha), the Principal of Maui High
School, testified that he had experience dealing with students
under the influence of alcohol and was familiar with how people
smell when they have been drinking alcohol. During the farewell
assembly, it was brought to Yamanuha's attention that Hoe and
other students had their shirts off, were yelling, and were
FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
engaging in boisterous behavior. Yamanuha went to the Athletic
Director's office and smelled "alcohol emitting from [Hoe]."
Office Terry testified that he received on-the-job
training on identifying indicia of alcohol intoxication,
including smell, physical indications, and demeanor. He had
experience with alcohol at social events. Officer Terry
testified that in the past year, he had been involved in about
sixty investigations involving intoxication. Based on his
training and experience with people drinking alcohol, he was
familiar with the odor and physical manifestations of people who
have been consuming alcohol.
Officer Terry knew Hoe, because Hoe lived in Officer
Terry's neighborhood, and was familiar with Hoe's behavior when
Hoe was not intoxicated. Officer Terry went to the Athletic
Director's office where he approached Hoe. Officer Terry smelled
alcohol on Hoe's breath and believed the smell of alcohol could
also have been coming from Hoe's pores. Officer Terry rated the
strength of the alcohol smell coming from Hoe as six or seven
based on a ten point scale, with zero being no smell and ten1
being the strongest smell of alcohol a person could have if
extremely intoxicated. The smell of alcohol indicated to Officer
Terry that Hoe had ingested alcohol. Officer Terry noticed that
Hoe was not steady on his feet and leaned against a desk to
steady himself, behavior that indicated alcohol impairment to
Officer Terry.
Officer Terry attempted to administer a preliminary
breath test (PBT) to Hoe. The PBT requires the subject to blow
into a tube connected to a device that is designed to detect
alcohol in a person. Hoe agreed to take the PBT. However, Hoe
did not perform the PBT as instructed, but instead stuck his
tongue into the tube, which caused the device to signal that Hoe
was not blowing properly. Officer Terry instructed Hoe not to
obstruct the tube with his tongue while blowing. Officer Terry
asked Hoe to perform the PBT two more times, but each time Hoe
attempted to "block the results." After the third time, Officer
Terry told Hoe that Officer Terry knew Hoe was attempting to
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block the test, and Officer Terry placed Hoe under arrest. Hoe
provided his date of birth to Officer Terry, which showed that
Hoe was eighteen years old.
Officer Terry placed Hoe in the back of Officer Terry’s
patrol car. As Officer Terry was driving from the school, Hoe
became belligerent. Hoe yelled and screamed, kicked the car's
window with both feet, and punched the window with his fists.
Officer Terry stopped the car and opened the door to calm Hoe
down. When Officer Terry opened the door, Hoe tried to kick
Officer Terry. Office Terry testified that Hoe's behavior was
consistent with someone who was intoxicated and was out of
character for Hoe, who was normally a mellow, easygoing person.
Officer Terry testified that on the day Hoe was arrested, Hoe was
argumentative and defiant and "[y]ou could tell [Hoe] had been
ingesting alcohol." Officer Terry noticed an odor of alcohol in
the car after he completed transporting Hoe to the police
station.
Officer Terry indicated that he believed that Hoe had
ingested alcohol based on the odor of alcohol from Hoe, Hoe'sA
demeanor, Hoe's unsteadiness on his feet, and Hoe's attempts to
prevent Officer Terry from obtaining a reading on Hoe's blood
alcohol content through the PBT.
II.
Hoe asserts that there is no Hawafi precedent on what
constitutes sufficient evidence in a prosecution for under-age
consumption of liquor, in violation of HRS § 281-l01.5(b). Hoe
argues that the prosecution provided no evidence that there was
alcohol in Hoe's system. Hoe contends that "[w]ithout direct
testimony that a witness saw Mr. Hoe consume liquor or a blood
alcohol content reading, the evidence was insufficient to prove
that he actually consumed liquor." We disagree.
In reviewing the sufficiency of the evidence on appeal,
we view the evidence in the light most favorable to the
prosecution. State v. Ildefonso, 72 Haw. 573, 576, 827 P.2d 648,
651 (l992).
[T]he same standard applies whether the case was before a
judge or a jury. The test on appeal is not whether guilt is
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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. Batson, 73 Haw. 236, 248-49, 831 P.2d 924, 931 (l992)
(citations omitted).
"Circumstantial evidence is competent evidence and can
be used to prove facts necessary to establish the commission of a
crime." State v. Torres, No. 28583, slip op. at 16, 222 P.3d
409, 420, 2009 wL 4810445, at *ioi(uawai‘i App. Dec. 15, 2009).
Here, there was ample circumstantial evidence to show that Hoe
had consumed liquor on or about the date of his arrest. Both
Principal Yamanuha and vice-Principal Tanuvasa testified that
they smelled alcohol emanating from Hoe. Tanuvasa stated that he
smelled the alcohol from a distance of about two feet from Hoe
and ranked the smell as probably an eight on a ten-point scale.
Officer Terry smelled alcohol on Hoe's breath and possibly from
Hoe's pores, which indicated to Officer Terry that Hoe had
ingested alcohol. Officer Terry also observed Hoe engage in
behavior demonstrating that Hoe had recently consumed alcohol,
including Hoe's unsteadiness on his feet; Hoe's belligerent and
defiant behavior, which was out-of-character for Hoe; and Hoe's
attempts to prevent Officer Terry from obtaining a reading on
Hoe's blood-alcohol content.
Contrary to Hoe's contention, it was not necessary for
the prosecution to introduce testimony from a witness who saw Hoe
consume liquor or evidence of Hoe's blood alcohol level to prove
that Hoe consumed liquor. Based on the circumstantial evidence
presented by the prosecution, it was reasonable for the district
court to infer that Hoe had consumed liquor. §ee State v.
Murphy, 59 Haw. 1, 19, 575 P.2d 448, 460 (1978> ("[I]t is
elementary that a criminal case may be proven beyond a reasonable
5
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doubt on the basis of reasonable inferences drawn from
circumstantial evidence."). we conclude that there was
substantial evidence to show that Hoe had consumed liquor and to
support Hoe's conviction. See State v. Lawson, 681 P.2d 867, 870
(Wash. Ct. App. 1984) (holding that evidence that a police
officer "could smell alcohol on [the defendant's] breath from a
distance of two feet; that [the defendant's] words were somewhat
unclear and lacked sense; and that [the defendant's] physical
actions were not steady or sure" was sufficient to prove that the
defendant had consumed alcohol).
III .
The November 5, 2008, Judgment of the district court is
affirmed.
On the briefs:
Setsuko Regina Gormley,
Deputy Public Defender,
for Defendant-Appellant.
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney,
County of Maui,
for Plaintiff-Appellee.