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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-JAN-2026
07:48 AM
Dkt. 58 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee,
v.
MAGNO FRANCO, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DTA-22-00838)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Wadsworth and Guidry, JJ.)

Defendant-Appellant Magno D. Franco (Franco) appeals

from the District Court of the First Circuit's (district court)

August 31, 2022 "Notice of Entry of Judgment and/or Order and

Plea/Judgment" (2022 Judgment), 1 and January 24, 2023 "Notice of

Entry of Judgment and/or Order and Plea/Judgment" (2023

Judgment). 2

1 The Honorable James S. Kawashima presided.

2 The Honorable Alvin K. Nishimura presided.
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On June 14, 2022, the State of Hawaiʻi (State) charged

Franco by Complaint with one count of Operating a Vehicle Under

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

Revised Statutes (HRS) § 291E-61(a)(1) (2020). 3 Following a

bench trial, the district court found Franco guilty of the

charged offense, and entered the 2022 Judgment, which fined

Franco $250 along with accompanying fees. Franco appealed the

2022 Judgment in case no. CAAP-XX-XXXXXXX, but stipulated to the

dismissal of the appeal so that jurisdiction could revert to the

district court for a ruling on Franco's license revocation. The

district court entered the 2023 Judgment, which revoked Franco's

license for one year, but stayed judgment pending appeal. This

appeal followed.

On appeal, Franco raises two points of error,

contending that: (1) the State failed to adduce substantial

evidence to support Franco's conviction for OVUII; and (2) the

district court's failure to strike "testimony that impermissibly

stated a legal conclusion" constituted plain error. (Formatting

altered.)

3 HRS § 291E-61(a)(1) states, in relevant part,

(a) A person commits the offense of [OVUII] 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[.]

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Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we resolve Franco's points of error as follows:

(1) Franco contends that "the State failed to adduce

substantial evidence that [Franco] had intentionally, knowingly

or recklessly operated his vehicle while 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."

We consider the evidence adduced at trial "in the

strongest light for the prosecution when . . . pass[ing] on the

legal sufficiency of such evidence to support a conviction."

State v. Kalaola, 124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010)

(citation omitted). The test on appeal is whether there was

substantial evidence to support the conviction. Id.

"Substantial evidence . . . is credible evidence which

is of sufficient quality and probative value to enable a person

of reasonable caution to support a conclusion." Id. (cleaned

up). The trial judge in a bench trial, as the trier of fact,

"is free to make all reasonable and rational inferences under

the facts in evidence, including circumstantial evidence."

State v. Batson, 73 Haw. 236, 249, 831 P.2d 924, 931 (1992)

(citation omitted).

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The State called two witnesses at trial: Honolulu

Police Department (HPD) Officer Nelson Ky (Officer Ky), and

Officer Ty Ah Nee (Officer Ah Nee). Officer Ky testified that

on May 27, 2022, he observed a vehicle driving in the wrong

direction on a one-way street. Officer Ky followed the vehicle

into a McDonald's parking lot, where he pulled over the vehicle

and observed that the driver, Franco, had "glassy, red eyes."

Officer Ky "could smell a strong odor of alcohol" while standing

about two feet away from Franco.

Officer Ah Nee, who administered Franco's three-part

standardized field sobriety test (SFST), testified as to

Franco's conduct and actions while performing the SFST.

"[E]vidence of a driver's conduct and physical actions while

performing a SFST is not only relevant to probable cause for an

arrest, but is also admissible as indicia of whether a driver

was OVUII beyond a reasonable doubt." State v. Jones, 148

Hawaiʻi 152, 172, 468 P.3d 166, 186 (2020).

While administering the horizontal gaze nystagmus

test, Officer Ah Nee observed that Franco's "eyes were red,

watery, glassy," and that "[t]here was a strong odor of a

consumed alcoholic type beverage coming from his person."

During the walk-and-turn test, Officer Ah Nee observed that

Franco exhibited six of eight clues indicating impairment: the

inability to stand with his right foot in front of his left foot

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on the line; taking fourteen and sixteen heel-to-toe steps when

he was instructed to take nine; missing multiple heel-to-toe

steps; stepping off the line twice; "shuffl[ing] both feet"

during his turn; and appearing to lose his balance on steps 9

and 10. During the one-leg stand test, Officer Ah Nee observed

that Franco's "raised foot was swaying," that Franco raised his

arms once, and that he "count[ed] a couple of numbers twice."

On this record, we conclude that there is substantial

evidence that Franco's operation of a vehicle while under the

influence of alcohol was in an amount sufficient to impair his

normal mental faculties or ability to care for himself and guard

against casualty.

(2) Franco contends that "[t]he district court plainly

erred in failing to strike Officer Ah Nee's testimony that

impermissibly stated a legal conclusion." (Formatting altered.)

Franco specifically challenges, for the first time on appeal,

Officer Ah Nee's statements that "there was a lot of impairment"

as to Franco's walk-and-turn test, and "[a]s a whole, that there

was an -- some kind of intoxicant that was impairing [Franco's]

ability to divide his attention."

Hawaiʻi Rules of Penal Procedure (HRPP) Rule 52(b) states
that "[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court." Therefore, an appellate court may
recognize plain error when the error committed affects
substantial rights of the defendant.

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State v. Metcalfe, 129 Hawaiʻi 206, 222, 297 P.3d 1062, 1078

(2013) (cleaned up). "Erroneous admission of evidence may

constitute plain error if a fair trial of the accused was

thereby impaired, or if it substantially prejudiced the

accused." State v. Cummings, 49 Haw. 522, 528, 423 P.2d 438,

442 (1967) (cleaned up).

"[I]t is well-settled that opinion testimony should

not merely tell the fact-finder what result to reach, and

witnesses are not permitted to give legal conclusions." Jones,

148 Hawaiʻi at 173, 468 P.3d at 187 (citations omitted). Franco

contends that the district court improperly admitted Officer Ah

Nee's testimony of Franco's "impairment" in performing the SFST,

and in his "ability to divide his attention." We agree that

Officer Ah Nee was not allowed to render his expert opinion as

to Franco's "impairment." See id. at 174, 468 P.3d at 188

(holding "that police officers may no longer testify, whether in

a lay or expert capacity, that a driver appeared 'intoxicated'")

(footnote omitted).

We conclude, however, that the admission of Officer Ah

Nee's testimony on Franco's "impairment" did not constitute

plain error. The record reflects that the district court

reached its conclusion regarding Franco's impairment based on

the properly admitted testimony of Franco's "smell of alcohol"

and performance on the SFST. In a bench trial, "it is presumed

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that the presiding judge will have disregarded the incompetent

evidence and relied upon that which was competent." State v.

Kiese, 126 Hawaiʻi 494, 507, 273 P.3d 1180, 1193 (2012) (cleaned

up). The district court explained that,

I think the smell of alcohol is sufficient to satisfy the
influence of alcohol portion. And so what I'm really
looking at is a sufficiency to impair normal mental
faculties.

And in that regard, I find the State has met its
burden primarily through the SFST testimony. As [defense
counsel] points out, it's sort of a calisthenics thing.
But all I'm looking at is how able were you to follow
simple instructions at the time. And inability to do so on
all three tests along with some swaying and along with, you
know, stepping off line and raising arm -- all of that
suggests to me and frankly proves beyond a reasonable doubt
that there is an impairment of normal mental faculties.

(Emphasis added.) On this record, Franco's right to a fair

trial was not impaired, and Franco was not otherwise

"substantially prejudiced."

For the foregoing reasons, we affirm the 2022 Judgment

and the 2023 Judgment.

DATED: Honolulu, Hawaiʻi, January 16, 2026.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Taryn R. Tomasa,
Deputy Public Defender, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge

Loren J. Thomas, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.