State v. Balsimo

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-FEB-2025
07:55 AM
Dkt. 64 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
RICHARD BALSIMO, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH AND SOUTH KONA DIVISION
(CASE NO. 3DTA-22-00154)

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

Defendant-Appellant Richard J. Balsimo appeals from

the Amended Judgment and Notice of Entry of Amended Judgment

(Amended Judgment), filed on August 24, 2022, by the District

Court of the Third Circuit, North and South Kona Division

(district court).1 Following a bench trial, the district court

found Balsimo guilty of Operating a Vehicle Under the Influence

of an Intoxicant (OVUII), in violation of Hawaii Revised

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

1 The Honorable Kimberly Taniyama presided over the case.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

On appeal, Balsimo raises a single point of error,

contending that the district court erred in convicting him of

OVUII because there was insufficient evidence that Balsimo's

operation of a vehicle "[w]hile 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." HRS § 291E-61(a)(1).2

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 Balsimo's point of error as follows.

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)

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

2 HRS § 291E-61(a)(1) provides that,

(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 . . . .

Balsimo does not contend that there was insufficient evidence to
establish he was under the influence of an intoxicant, or that he operated or
assumed actual physical control of a vehicle.

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substantial evidence to support the conviction. Id. (citations

omitted).

"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).

Considering the evidence adduced at trial in the

strongest light for the prosecution, we conclude that Balsimo's

conviction for OVUII is supported by substantial evidence.

Hawaiʻi County Police Department (HPD) Officer Thomas

Koyanagi (Officer Koyanagi) testified that on January 8, 2022,

after pulling Balsimo's vehicle over during a traffic stop for a

defective brake light and expired registration and safety, he

observed, inter alia, that Balsimo had "red, watery, glassy

eyes," and that he "could smell the odor of [an] alcoholic

beverage coming from the vehicle."

HPD Officer Len Hamakado (Officer Hamakado), who was

called to assist Officer Koyanagi with the traffic stop, also

observed that Balsimo had "red, watery, glassy eyes," and the

smell of "an intoxicating beverage" coming from the vehicle.

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

Officer Hamakado also testified that Balsimo agreed to

participate in a standardized field sobriety test (SFST).

Officer Hamakado administered the three-part SFST, and testified

at trial as to Balsimo'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).

Officer Hamakado observed all three clues indicating

impairment during Balsimo's performance of the horizontal gaze

nystagmus test: a lack of smooth pursuit in both eyes; distinct

and sustained nystagmus at the maximum deviation of both eyes;

and an onset of nystagmus prior to 45 degrees in both eyes.

Officer Hamakado observed the following clues indicating

impairment during Balsimo's performance of the walk-and-turn

test: missing a heel-to-toe step on both the first and second

set of nine; stepping off the line; raising his arms; conducting

an improper turn; and having stopped walking on his ninth step.

And Officer Hamakado observed two clues of impairment – swaying,

and "raising his arms" - during Balsimo's performance of the

one-leg stand test. In sum, Officer Hamakado observed that

Balsimo had exhibited a total of 14 out of 18 possible clues of

impairment.

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HPD Officer Jason Foxworthy (Officer Foxworthy), who

observed portions of the SFST, further testified that "it looked

like [Balsimo] was unable to keep his balance," "was unsteady,"

and "stopped more than . . . once to catch his balance" during

the walk-and-turn test. Officer Foxworthy testified that,

during the one-leg stand test, "it looked like [Balsimo] was

swaying while the test was being performed."

Based on the testimony of Officers Koyanagi, Hamakado,

and Foxworthy, we conclude that there was substantial evidence

that Balsimo'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.

For the foregoing reasons, we affirm the Amended

Judgment.

DATED: Honolulu, Hawaiʻi, February 6, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
William H. Jameson, Jr.,
Deputy Public Defender, /s/ Karen T. Nakasone
for Defendant-Appellant. Associate Judge

Stephen L. Frye, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney Associate Judge
County of Hawaiʻi,
for Plaintiff-Appellee.

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