State v. Okawa

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-JUL-2023
07:51 AM
Dkt. 61 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
JUSTIN K.L. OKAWA, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
#EWA DIVISION
(CASE NO. 1DTA-19-02885)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Justin K.L. Okawa appeals from the
"Notice of Entry of Judgment and/or Order and Plea/Judgment"
entered by the District Court of the First Circuit, #Ewa
Division, on January 20, 2021.1 Okawa also challenges the
"Order Denying Motion for New Trial" entered by the district
court on March 19, 2021. For the reasons explained below, we
affirm.
Okawa was arrested on August 16, 2019, for allegedly
operating a vehicle under the influence of an intoxicant (OVUII).
On September 12, 2019, Okawa was charged by complaint with OVUII
in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1)
and/or (3). The complaint was signed by a deputy prosecuting

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The Honorable Karin L. Holma presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

attorney (DPA) under penalty of perjury. Okawa pleaded not
guilty.
A bench trial was held on January 20, 2021. The
district court found Okawa guilty as charged. The Judgment was
entered on January 20, 2021. Okawa filed a motion for new trial
on February 1, 2021. The motion was heard on March 9 and 16,
2021. The order denying the motion was entered on March 19,
2021. This appeal followed.
Okawa raises four points of error: (1) the complaint
did not comply with HRS § 805-1; (2) the arraignment violated
Hawai#i Rules of Penal Procedure (HRPP) Rules 5(b) and 10(a);
(3) the district court's ultimate Tachibana2 colloquy was
deficient; and (4) the district court erred by denying Okawa's
motion for new trial.
(1) Okawa contends that the State's criminal complaint
violated HRS § 805-1 because it was signed by the DPA, not by the
complainant.3 Whether a complaint complied with an applicable
statute and/or rule is a question of law we review de novo.
State v. Mortensen-Young, 152 Hawai#i 385, 392, 526 P.3d 362, 369
(2023). HRS § 805-1 applies only to criminal complaints used to
obtain a penal summons or arrest warrant. Id. at 399, 526 P.3d
at 376. Okawa was arrested by a police officer at the scene of
the alleged offense. "[T]he requirements of HRS § 805-1 do not
apply to complaints used to charge a defendant who has already
been arrested." Id. at 397, 526 P.3d at 374. Okawa's first
point of error is without merit.

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Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995).
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HRS § 805-1 (2014) provides, in relevant part:

Complaint; form of warrant. When a complaint is made to any
prosecuting officer of the commission of any offense, the
prosecuting officer shall examine the complainant, shall
reduce the substance of the complaint to writing, and shall
cause the complaint to be subscribed by the complainant
under oath, which the prosecuting officer is hereby
authorized to administer, or the complaint shall be made by
declaration in accordance with the rules of court.

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(2) Okawa contends that the State's case should be
dismissed because he was not arraigned pursuant to HRPP Rule 5(b)
and 10(a). His argument is based solely on the premise that the
criminal complaint was fatally defective. The complaint was not
defective. Okawa's second point of error is without merit.
(3) Okawa contends that the district court's ultimate
Tachibana colloquy was deficient because "[r]ather than simply
advising Okawa of his rights, the court referred to Okawa's
supposed decision not to testify during the colloquy." We review
the sufficiency of the district court's Tachibana colloquy de
novo under the right/wrong standard, see State v. Celestine, 142
Hawai#i 165, 169, 415 P.3d 907, 911 (2018), looking at the
totality of the facts and circumstances of the case, id. at 171,
415 P.3d at 913.
Here, Okawa moved for a judgment of acquittal after the
State rested. The district court denied the motion. Defense
counsel then stated, "And Mr. Okawa is not (inaudible)." The
court immediately began the ultimate Tachibana colloquy:

THE COURT: Okay. Mr. Okawa, I'm going to read you the
Tachibana thing one last time, so make sure I'm doing --
dotting my I's and crossing my T's.

As we talked about earlier, you have a constitutional
right to testify in your own defense. You understand that,
correct?

THE DEFENDANT: Yes.

THE COURT: Okay. And, again, although you should
consult with Mr. Kaneshiro regarding that decision, it is
ultimately your decision, and no one can prevent you from
testifying, if you wish to do so, do you understand that?
THE DEFENDANT: Yes, I do.

THE COURT: Okay. And so you decided now you're not
going to testify, so then Mr. Dodge -- Dodge will not be
allowed to cross-examine you, you're good -- you're all good
with that, right?
THE DEFENDANT: Yes.

THE COURT: Okay. And then -- and you also understand
that you have that constitutional right not to testify and
to remain silent, you understand that?
THE DEFENDANT: Yes.

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THE COURT: Okay. And your decision not to testify,
I'm not going to hold that silence against you in making the
decision, you understand that? Okay.

THE DEFENDANT: Yes.
THE COURT: Okay. So it's your understanding that
you're not intending to testify, so that's your decision,
correct?
THE DEFENDANT: That's correct.

Okawa argues, "rather than simply advising Okawa of his
rights to testify and not to testify, the court referred to
Okawa's decision not to testify during the colloquy." The
district court did not err by so doing. See Celestine, 142
Hawai#i at 170, 415 P.3d at 912 ("The second time we suggested a
verbal exchange should occur is after the court indicates to the
defendant its understanding that the defendant does not intend to
testify.") (emphasis added) (footnote and citation omitted); cf.
State v. Martin, 146 Hawai#i 365, 380, 463 P.3d 1022, 1037 (2020)
(holding although the trial court did not use the precise
terminology, "Is anyone forcing you not to testify?" the court's
questioning was tantamount to eliciting that information).
The totality of the facts and circumstances surrounding
the ultimate colloquy shows that the district court informed
Okawa of his rights to testify and to not testify; Okawa
confirmed his understanding of each right; and Okawa confirmed
that it was his decision to not testify. The ultimate colloquy
was not deficient.
(4) Okawa argues that "the district court abused its
discretion in failing to exercise its inherent power to
administer justice and granting a new trial." HRS § 635-56
(2016) provides: "[T]he court may in any . . . criminal case
grant a new trial for any legal cause." HRPP Rule 33 states, in
relevant part: "The court on motion of a defendant may grant a
new trial to the defendant if required in the interest of
justice." "Despite this broad authority, . . . motions for new
trials are not favored and new trials are to be granted with

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caution." State v. Matyas, 10 Haw. App. 31, 37, 859 P.2d 1380,
1383 (1993) (cleaned up). We review a trial court's ruling on a
motion for new trial for abuse of discretion. State v. Pitts,
146 Hawai#i 120, 129, 456 P.3d 484, 493 (2019).
(a) Okawa first argues that "[t]he district court
abused its discretion in denying [his] motion for a new trial
where the [police] officers violated the stipulation and
testified to their OVUII training and experience when they were
only permitted to give lay testimony." Okawa's opening brief
does not cite to the record where he objected to the officers'
testimony at trial, as required by Hawai#i Rules of Appellate
Procedure Rule 28(b)(4)(A). His argument is waived. State v.
Schnabel, 127 Hawai#i 432, 459 n.59, 279 P.3d 1237, 1264 n.59
(2012) ("[I]f a party fails to raise any argument, evidentiary or
otherwise, that argument is generally deemed waived.") (emphasis
and citation omitted).
(b) Okawa next argues that "[t]he district court
abused its discretion in denying [his] motion for a new trial
where there was no substantial evidence to support his
conviction." Okawa failed to renew his motion for judgment of
acquittal after he rested. When a defendant fails to renew a
motion for judgment of acquittal, we review a challenge to the
sufficiency of the evidence for plain error. State v. Chun, 93
Hawai#i 389, 396 n.4, 4 P.3d 523, 530 n.4 (App. 2000).
We decline to recognize plain error. The district
court found police officers Aberilla and Borges to be credible.
They testified that: Okawa was stopped for driving at an
excessive rate of speed; Okawa fumbled with his driver's license,
registration and insurance card when providing them to Officer
Aberilla; Officer Aberilla could smell a strong odor of alcohol
emitting from the vehicle; Okawa had a "blank stare[] and red and
watery eyes"; during the Horizontal Gaze Nystagmus portion of the
standardized field sobriety test, Officer Borges observed that
Okawa had "difficulty entering into the initial position to do
the test[,]" "stood in a different direction on two different

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occasions," and "his body was swaying in a circular manner
throughout the entire test"; during the Walk-and-Turn test, Okawa
"started the test too soon," "on his first attempt lost his
balance, leaned heavily, and then immediately abandoned the
test[,]" "on the second attempt[,] . . . [h]e missed his first
step, he lost his balance, he put his foot down halfway"; and
during the One-Leg-Stand test, Okawa "swayed throughout the whole
test." The evidence, when viewed in the light most favorable to
the State, State v. Jones, 148 Hawai#i 152, 166, 468 P.3d 166,
180 (2020), was sufficient to support Okawa's conviction of
OVUII.
(c) Finally, Okawa argues that "[t]he district court
abused its discretion in denying [his] motion for a new trial
where [he] was unfairly deprived of the opportunity to take
advantage of the 'DUI DEAL.'" He explains that on January 25,
2021 (after his January 20, 2021 trial), the Honolulu
prosecutor's office approved the terms of a plea offer developed
to address the backlog of OVUII cases that arose during the
COVID-19 pandemic. The specific terms of the "DUI deal" are not
in the record. Okawa's supplement to his motion for new trial
claims that it "would have resulted in an amendment of the OVUII
charge to Reckless Driving and an opportunity to keep the charge
off his record." At the hearing on his motion, Okawa's counsel
stated that "the plea agreement . . . would reduce first time
OVUII offenses to reckless driving offenses."
The State never confirmed the terms of the DUI deal.
In opposition to Okawa's motion, the State confirmed that the
"details of the deal were sent out on January 25, 2021[,]" but
stated that "the Prosecutor has discretion on a case by case
basis as to whether the deal is extended[.]" During the hearing,
the State explained "that [albeit] defendant would have been
eligible, that doesn't necessarily mean that we would have
extended the plea offer. It was within our discretion, it wasn't
an automatic offer to plea."

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"HRPP Rule 33 is applied when the prior trial resulted
in a miscarriage of justice. It is typically used to correct
errors that have occurred in the conduct of the trial or
proceedings." Matyas, 10 Haw. App. at 40, 859 P.2d at 1385
(citation omitted). The district court did not err by denying
Okawa's motion for new trial, where there was no trial error, so
that Okawa might speculatively receive an offer to reduce the
charge from OVUII — for which he had already been convicted — to
reckless driving.
For the reasons explained above, the "Notice of Entry
of Judgment and/or Order and Plea/Judgment" entered on
January 20, 2021, and the "Order Denying Motion for New Trial"
entered on March 19, 2021, are affirmed.
DATED: Honolulu, Hawai#i, July 24, 2023.

On the briefs:
/s/ Katherine G. Leonard
Donn Fudo, Presiding Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge

Alen M. Kaneshiro, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge

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