State v. Taylor

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-AUG-2023
07:50 AM
Dkt. 68 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
MARK KEVIN TAYLOR, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
#EWA DIVISION
(CASE NO. 1DTA-20-01467)

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

Defendant-Appellant Mark Kevin Taylor 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 October 27, 2021.1 For the reasons explained below,
we affirm.
Taylor was arrested on June 29, 2020. He was charged
with Operating a Vehicle Under the Influence of an Intoxicant
(OVUII) in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1) and (b)(1). He pleaded not guilty. His bench
trial was held on August 25, 2021.2 The State presented
testimony from two Honolulu Police Department (HPD) officers.

1
The Honorable Michael A. Marr presided over sentencing and entered
the Judgment.
2
The Honorable Clarissa Y. Malinao presided over the trial.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Taylor didn't testify. The district court found Taylor guilty of
OVUII for violating HRS § 291E-61(a)(1). He was sentenced, and
the Judgment was entered, on October 27, 2021. This appeal
followed.
Taylor raises four points of error, two of which we
consolidate for discussion purposes: (1) the district court's
pretrial and ultimate Tachibana3 colloquies were deficient;
(2) the district court erred by denying Taylor's motion to strike
HPD officer Thomas Billins's testimony; and (3) the evidence was
insufficient to establish Taylor's guilt beyond a reasonable
doubt.
(1) Taylor challenges the sufficiency of the district
court's initial Tachibana advisement and ultimate Tachibana
colloquy. We review using the right/wrong standard, 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 (citation omitted).
Taylor didn't testify, and thus waived his right to
testify. Accordingly, we review the adequacy of the district
court's advisement and colloquy concerning the right to testify.
See State v. Adcock, 148 Hawai#i 308, 316, 473 P.3d 769, 777
(App. 2020) (noting that "when the deficiency in a Tachibana
colloquy is not related to the right waived, the error appears
harmless").4

When a defendant in a criminal case indicates an intention
not to testify, the trial court must advise the defendant of
the right to testify and must obtain an on-the-record waiver
of the right. . . . This advisement should consist of
informing the defendant (1) that they have a right to
testify, (2) that if they want to testify, no one can

3
Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293 (1995).
4
Taylor argues that the district court failed to ask "whether [he]
intends to not testify, whether anyone is forcing [him] not to testify, and
whether the decision to not testify is [his]." Celestine, 142 Hawai#i at 170-
71, 415 P.3d at 912-13. He didn't waive his right to not testify. Even if
erroneous (which we do not decide), the district court's omissions were
harmless.

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

prevent them from doing so, and (3) that if they testify,
the prosecution will be allowed to cross-examine them.

State v. Martin, 146 Hawai#i 365, 378, 463 P.3d 1022, 1035 (2020)
(cleaned up).
The district court's pretrial advisement was:

Q. (By the Court) You understand, sir, you have a
constitutional right to testify in your own behalf -- in
your own defense, do you understand that, sir?

A. I do, Judge.
Q. And then although you should consult with your
learned counsel . . . regarding this decision to testify, it
is your decision, and no one can prevent you from testifying
should you choose to do so, sir, do you understand?

A. I understand.

Q. Okay. If you decide to testify, the prosecutor in
this matter will be allowed to cross-examine you if you take
the witness stand to testify, do you understand, sir?

A. I do understand.

The ultimate colloquy was:

Q. (By the Court) All right. Sir, as I discussed with
you before the start of the trial, you have a constitutional
right to testify in your own defense. Do you understand,
sir?

A. I do.

Q. Okay. Although you should consult with your
attorney . . . regarding that decision to testify, it is
your decision, and no one can prevent you from testifying,
should you choose to do so, do you understand that, sir?
A. I do understand.
Q. Okay. If you decide to testify, as previously
indicated, the State . . . would be able to cross-examine
you here if you take the witness stand, do you understand
that, sir?
A. I do.

The Tachibana advisement and colloquy on Taylor's right to
testify in his own defense were not deficient.
Taylor points out that the district court did not
advise him he should consult with his attorney when informing him

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

of his right to not testify. He argues this implied it would be
"risky or problematic" for him to testify, and that it would be
safer to not testify — that is, to waive his right to testify.
We disregard this argument because the following dialogue took
place between the district court and Taylor:

Q. Okay. Have you made a decision as to whether or
not you will testify in this case?
A. I have.
Q. And what is that decision, sir?

A. Will not (inaudible).
Q. Okay. Understood. And Mr. -- and you've had an
opportunity to speak with your attorney, giving [sic] advice
to [sic] counsel, although the decision remains ultimately
with you, but did you have enough time to talk to your
attorney . . . ?
A. Yes.

Looking at the totality of the facts and circumstances
in the record, we conclude that the district court's Tachibana
pretrial advisement and ultimate colloquy were not deficient.
(2) Taylor contends that the district court erred by
denying his motion to strike Officer Billins's testimony under
Hawaii Rules of Evidence (HRE) Rule 602.5 We apply the
right/wrong standard of review. State v. Apollonio, 130 Hawai#i
353, 361 n.13, 311 P.3d 676, 684 n.13 (2013) (stating that "where
the court's ruling regarding the witness' personal knowledge is
concerned, the appropriate standard for appellate review is the
right/wrong standard") (quotation marks omitted).
Officer Billins pulled Taylor over and gave Taylor the
standardized field sobriety test (SFST). When defense counsel
challenged Officer Billins's memory on cross-examination, his

5
HRE Rule 602 provides, in relevant part:
A witness may not testify to a matter unless evidence
is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to
prove personal knowledge may, but need not, consist of the
witness' own testimony.

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testimony established that he remembered Taylor was driving at
night without headlights, swerving within his traffic lane,
making a lane change without signaling, having difficulty saying
the word "insurance" after he was stopped, doing an improper turn
during the walk-and-turn and, during the one-leg-stand test,
"just lifting the front part of his foot off the ground and not
the entire foot itself." The district court was not wrong to
deny Taylor's motion to strike Officer Billins's testimony.
(3) Taylor challenges the sufficiency of the evidence
to support his conviction.

In reviewing a challenge to the sufficiency of the evidence,
evidence adduced in the trial court must be considered in
the strongest light for the prosecution. The test on appeal
is not whether guilt is established beyond a reasonable
doubt, but whether there was substantial evidence to support
the conclusion of the trier of fact.

State v. Williams, 149 Hawai#i 381, 392, 491 P.3d 592, 603 (2021)
(cleaned up).
The State was required to prove that Taylor operated a
vehicle "[w]hile under the influence of alcohol in an amount
sufficient to impair [his] normal mental faculties or ability to
care for [himself] and guard against casualty[.]" HRS § 291E-
61(a)(1) (2020). The evidence was that Taylor was driving on the
H-1 freeway at night with no headlights or tail lights. His
vehicle was swerving between two lanes. He did not stop
immediately after Officer Billins activated his blue light and
siren. "His speech was very slurred." "He had red, watery
eyes." Officer Billins detected "an odor of an alcoholic-type
beverage coming from him[.]" He "had to lean very heavily" on
his vehicle after getting out. During the walk-and-turn portion
of the SFST he was not able "to keep his heel to toe, and he had
to stop walking on steps 3, 4, and 5." He was unable to complete
the turn as instructed. He "performed very poorly" on the one-
leg-stand test. "He was unable to keep his leg raised for more
than a few seconds and put his foot down on multiple
occasions[.]" HPD Officer Kenneth Fontes saw Taylor exhibit "a

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

noticeable circular sway" as he stood for the preliminary alcohol
screening. Officer Fontes also "detected a strong odor of an
alcoholic-type beverage" on Taylor's breath, and saw Taylor
"thrusting his hips back and forth, front and back, moving his
body up and down." This evidence was sufficient to support the
conviction. See, e.g., State v. Gaston, 108 Hawai#i 308, 311-12,
119 P.3d 616, 619-20 (App. 2005) (evidence that defendant had
flushed face, red and glassy eyes, smell of alcohol on his
breath, and unsteady balance was sufficient to support conviction
under HRS § 291E-61(a)(1) (Supp. 2004)); State v. Ferm, 94
Hawai#i 17, 27, 7 P.3d 193, 203 (App. 2000) (evidence that
defendant's breath smelled like alcoholic beverage, he was
unsteady, his eyes were glassy and bloodshot, and his speech was
slurred was sufficient to support driving under the influence of
intoxicating liquor conviction under HRS § 291-4(a)(1) (Supp.
1998)).
For the reasons explained above, the "Notice of Entry
of Judgment and/or Order and Plea/Judgment" entered on
October 27, 2021, is affirmed.
DATED: Honolulu, Hawai#i, August 8, 2023.

On the briefs:
/s/ Keith K. Hiraoka
Marcus B. Sierra, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Loren J. Thomas, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge

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