State v. Ah Mow

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-SEP-2024
07:55 AM
Dkt. 80 SO

CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
WAILANI K. AH MOW, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(WAHIAWA DIVISION)
(CASE NO. 1DTA-20-01426)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Guidry, JJ.)

Defendant-Appellant Wailani K. Ah Mow (Ah Mow) appeals

from the March 11, 2021 Notice of Entry of Judgment and/or Order

and Plea/Judgment (Judgment) entered against him by the District

Court of the First Circuit, Wahiawa Division (District Court).1

Ah Mow was convicted of the offenses of Operating a Vehicle Under

the Influence of an Intoxicant (OVUII) in violation of Hawaii

1
The Honorable Michelle N. Comeau presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Revised Statutes (HRS) § 291E-61(a)(1) and (b)(2) (2020),2 and

the offense of Excessive Speeding in violation of HRS § 291C-

105(a)(2) and (c)(1) (2020).3

Ah Mow raises two points of error, contending that the

District Court abused its discretion: (1) in accepting into

evidence the results of the Stalker XLR LIDAR speed gun (the

2
HRS § 291E-61(a)(1) and (b)(2) provides, in relevant part:

§ 291E-61 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:

. . . .

(2) For an offense that occurs within ten years of a
prior conviction for an offense under this section
or section 291E-4(a)[.]
3
HRS § 291C-105(a)(2) and (c)(1) provides, in relevant part:
§ 291C-105 Excessive speeding. (a) No person shall
drive a motor vehicle at a speed exceeding:

. . . .
(2) Eighty miles per hour or more irrespective of the
applicable state or county speed limit.
. . . .

(c) Any person who violates this section shall be
guilty of a petty misdemeanor and shall be sentenced as
follows without the possibility of probation or suspension
of sentence:
(1) For a first offense not preceded by a prior
conviction for an offense under this section
in the preceding five years[.]

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

LIDAR) because there was insufficient foundation showing that

Honolulu Police Department (HPD) Sergeant Jesse Takushi (Sergeant

Takushi) received training that met the LIDAR manufacturer's

requirements; and (2) in finding there was sufficient foundation

for HPD Officer Art Gazelle's (Officer Gazelle's) testimony

regarding Ah Mow's performance on the standardized field sobriety

test (SFST).

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 Ah Mow's points of error as follows:

(1) Ah Mow argues that the District Court abused its

discretion in admitting the results of the LIDAR reading because

there was insufficient foundation to show that Sergeant Takushi's

training met the manufacturer's requirements, as required by

State v. Assaye, 121 Hawai#i 204, 210, 216 P.3d 1227, 1233

(2009).

The Hawai#i Supreme Court has held:
In order to establish a sufficient foundation for the
admission of a speed reading from a laser gun, the
prosecution is required to produce evidence that the "nature
and extent of an officer's training in the operation of the
laser gun meets the requirements indicated by the
manufacturer." [Assaye, 121 Hawai#i at 215, 216 P.3d at
1238]. "[T]o meet this burden the prosecution must
establish both (1) the requirements indicated by the
manufacturer, and (2) the training actually received by the
operator of the laser gun." [State v.] Gonzalez, 128
Hawai#i [314,] 327, 288 P.3d [788,] 801 [(2012)].

State v. Amiral, 132 Hawai#i 170, 178, 319 P.3d 1178, 1186

(2014).

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Here, Sergeant Takushi testified that in conjunction

with his training he received and reviewed an operator's manual

issued by Applied Concepts/Stalker, the manufacturer of the LIDAR

device, which had the LIDAR on the front cover, and the

manufacturer's copyright on the back. He testified as to the

specifics of his training and the manufacturer's recommendations.

Sergeant Takushi testified to taking two training courses, in

March of 2018 and January of 2019, one conducted by HPD Officer

Ryan Espiritu, who had received instructor training and
certification by Stalker, and one conducted by Steven Hocker, a

representative from Stalker. The training included in-class and

practical training, going over the manual, hands-on training and

practice with the LIDAR, and written and practical tests.

Sergeant Takushi testifed that he was trained to conduct the four

accuracy tests at both training sessions, and he testified as to

the details of each of the four tests for inspecting and testing

the accuracy of the LIDAR device. He testified as to how he was

trained to obtain a speed measurement and how to read the

accuracy results, as well as the results of the speed

measurement. Thus, we conclude that the District Court did not

abuse its discretion in determining that there was sufficient

foundation to establish Sergeant Takushi's training as foundation

for the admission of the LIDAR speed reading.

(2) The District Court determined and informed the

parties that it would treat Officer Gazelle as a lay witness, not

an expert witness, and that the court would allow Officer Gazelle

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to testify as to his observations of Ah Mow, not as "clues of

intoxication."

It is well-established that an arresting officer is

permitted to testify as to his or her observations of a

defendant's physical performance on an SFST. See State v.

Ferrer, 95 Hawai#i 409, 427, 23 P.3d 744, 762 (App. 2001).

However, effective prior to Ah Mow's arrest, the supreme court

held that police officers can no longer testify, in either a lay

or an expert capacity, that a driver appeared to be intoxicated.
State v. Jones, 148 Hawai#i 152, 174, 468 P.3d 166, 188 (2020).4

Contrary to Ah Mow's assertions, as made clear in the

District Court's oral findings and conclusions, the District

Court properly considered Officer Gazelle's testimony recounting

his observations of Ah Mow's physical actions and conduct as he

performed the SFST. Officer Gazelle did not state an opinion as

to Ah Mow's intoxication in his testimony; nor did the court

improperly rely on any such opinion testimony. Rather, the court

credited the officer's testimony based on the detail and

description that was given concerning the officer's observations.

Finally, Ah Mow submits that because the SFST "results"

should not have been considered, there was insufficient evidence

to support his conviction of OVUII. As we have rejected his

challenge to Officer Gazelle's testimony, we conclude this

argument is without merit.

4
Nor can an officer testify that a defendant passed or failed an
SFST. Jones, 148 Hawai#i at 170, 468 P.3d at 184.

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For these reasons, the District Court's March 11, 2021

Judgment is affirmed.

DATED: Honolulu, Hawai#i, September 26, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
William Bagasol,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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