State v. Bauer

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-JUN-2021
07:53 AM
Dkt. 60 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
THEODORE BAUER, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-19-00923)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Defendant-Appellant Theodore Bauer (Bauer) appeals from
the Notice of Entry of Judgment and/or Order and Plea/Judgment,
filed on October 1, 2019, in the District Court of the First
Circuit, Honolulu Division (District Court).1
Bauer was convicted of Operating a Vehicle Under the
Influence of an Intoxicant (OVUII), in violation of Hawaii
Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2018).2
On appeal, Bauer contends there was insufficient
evidence to convict him of OVUII.

1
The Honorable Harlan Y. Kimura presided.
2
HRS § 291E-61(a)(1) states:

§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[.]
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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 Bauer's point of error as follows:
Bauer contends there was insufficient evidence to
convict him of OVUII because his testimony was credible and
conflicting testimony of other witnesses was not credible or was
biased.
When the evidence adduced at trial is considered in the
strongest light for the prosecution, State v. Matavale, 115
Hawai#i 149, 157-58, 166 P.3d 322, 330-31 (2007), there was
substantial evidence to support Bauer's conviction for OVUII.
"The credibility of a witness may be attacked by
evidence of bias, interest, or motive." Rule 609.1 of the Hawaii
Rules of Evidence. "As we have stated, the credibility of
witnesses falls within the province of the trier of fact[.]"
State v. Jenkins, 93 Hawai#i 87, 103, 997 P.2d 13, 29 (2000)
(citation omitted). In this case, the judge is the trier of fact
in a non-jury trial. State v. Sprattling, 99 Hawai#i 312, 322,
55 P.3d 276, 286 (2002) (citation omitted). "It is well-settled
that an appellate court will not pass upon issues dependent upon
the credibility of witnesses and the weight of the evidence; this
is the province of the trier of fact." State v. Mattiello, 90
Hawai#i 255, 259, 978 P.2d 693, 697 (1999) (internal quotation
marks, citations, and brackets omitted; block quote format
changed).
The District Court found the testimony of Calvin Fong
(Fong) and Casey Schneider (Schneider) credible and found Bauer's
testimony was not credible. Fong testified that on March 19,
2019, at approximately 10:48 p.m., he was in the crosswalk at
Hobron Lane and Kaio#o Drive when Bauer almost hit him while
Bauer was driving a vehicle. After Bauer almost hit him, they
exchanged words and Fong followed Bauer to the Discovery Bay
parking lot. Fong testified that he knocked on Bauer's window
and asked him, "What's going on, Brah?" Bauer then exited his
vehicle and lunged at Fong, so Fong called the police. Fong had

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

a continuous view of Bauer from the encounter at the crosswalk to
the parking lot. Fong stated Bauer smelled like hard liquor when
he exited his vehicle. Fong testified the incident happened in
the City and County of Honolulu, State of Hawai#i and Hobron is a
public way, street, road, or highway.
Schneider testified that on March 19, 2019, at about
10:48 p.m., he was employed as an officer with the Honolulu
Police Department and was on duty.3 When he arrived on the
scene, Bauer stated to Schneider that he was driving on Hobron
Lane, making a right turn onto Kaio#o Drive, when he almost hit a
pedestrian wearing all black, and then a verbal altercation
occurred. Bauer stated he then drove into the Discovery Bay
loading dock area and Fong confronted him. Schneider testified
Hobron Lane is a public street in the City and County of
Honolulu, State of Hawai#i. Schneider smelled an odor of an
alcoholic beverage coming from Bauer and noticed Bauer's eyes
were red and glassy. Bauer then agreed to participate in the
standardized field sobriety tests. Schneider testified that
Bauer was not able to follow his instructions during the
horizontal gaze nystagmus test and that Bauer had to be reminded
twice not to move his head. Schneider testified that he
demonstrated the walk-and-turn test to Bauer and instructed Bauer
to take nine steps forward, make a turn, and take nine steps
back. During the walk-and-turn test, Bauer stopped on steps
eight and nine then asked if Schneider wanted him to turn.
Schneider told Bauer to complete the test. Bauer walked to step
seventeen and asked if Schneider wanted him to turn. Schneider
again told Bauer to continue the test until completed. Bauer did
not turn, and Schneider stopped Bauer after he took twenty-nine
steps forward. This was contrary to Schneider's instructions.
Schneider testified that during the one-leg stand test, Bauer
hopped three times, raised his arm to shoulder height twice,

3
At the time of trial, Schneider was no longer an officer with the
Honolulu Police Department.

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

swayed more than an inch, put his foot down, and only lifted his
foot three inches, all contrary to the instructions.
Bauer testified he drank three beers on the night in
question. Bauer's testimony was that he had not been driving
when he first encountered Fong. Bauer testified that he had
parked his vehicle at approximately 7:00 p.m. in the underground
parking lot and attended a billiards league. Bauer stated that
after the billiards league, he called a ride-sharing service
because he did not want to take a chance of driving under the
influence and went to his car to retrieve items when he first
encountered Fong in the parking lot. Bauer stated that he saw
Fong walk down the ramp into the parking lot screaming and
yelling that Bauer had assaulted him and that Fong appeared
insane or high on drugs.
The credibility of witnesses was significant in this
case. The District Court found Fong and Schneider's testimony to
be credible. On this record, there was substantial evidence
Bauer operated a 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.
Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, filed on
October 1, 2019, in the District Court of the First Circuit,
Honolulu Division, is affirmed.
DATED: Honolulu, Hawai#i, June 16, 2021.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Sara K. Haley,
Deputy Public Defender, /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge

Brian R. Vincent /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee.

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