State v. Bayanbat

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2025
07:57 AM
Dkt. 67 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
NIKA SARNAI BAYANBAT, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-23-00169)

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

Plaintiff-Appellant Nika Sarnai Bayanbat (Bayanbat)
appeals from the Notice of Entry of Judgment and/or Order and
Plea/Judgment entered on June 26, 2023, in the District Court of
the First Circuit, Honolulu Division.1/ Following a bench trial,
Bayanbat was convicted of Excessive Speeding in violation of
Hawaii Revised Statutes § 291C-105(a)(1) and (a)(2).
On appeal, Bayanbat contends that: (1) "[t]here was no
substantial evidence to support Bayanbat's conviction where the
State failed to lay the requisite foundation for admission of the
laser gun speed reading"; and (2) "[t]he District Court failed to
get a valid waiver of Bayanbat's right to testify where its
colloquy did not meet the requirements of Tachibana v. State[,]"
79 Hawai#i 226, 900 P.2d 1293 (1995).

1/
The Honorable James C. McWhinnie presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Bayanbat's contentions as follows, and vacate.
(1) Bayanbat contends there was insufficient evidence
to prove that (a) Officer Ah Nee's Lidar device was tested for
accuracy according to the manufacturer's recommendations and was
working properly, and (b) Officer Ah Nee was qualified by
training and experience to operate the Lidar device.
To lay a foundation for the introduction of a speed
measurement by a laser device, the State must demonstrate that:
(1) the operator who used the device received training, the
nature and extent of which met the device manufacturer's
requirements (training prong), see State v. Amiral, 132 Hawai#i
170, 178, 319 P.3d 1178, 1186 (2014) (quoting State v. Assaye,
121 Hawai#i 204, 215, 216 P.3d 1227, 1238 (2009)); State v.
Gonzalez, 128 Hawai#i 314, 327, 288 P.3d 788, 801 (2012); and (2)
prior to making the reading at issue, the device's accuracy was
tested and determined to be operating properly according to the
manufacturer's recommended procedures (testing prong), see
Gonzalez, 128 Hawai#i at 325-26, 288 P.3d at 799-800. As to the
training prong, the State must show both (a) the manufacturer's
training requirements, and (b) the training actually received by
the operator of the device. See Amiral, 132 Hawai#i at 178, 319
P.3d at 1186 (citing Gonzalez, 128 Hawai#i at 327, 288 P.3d at
801). "[I]n the absence of such requirements, the State can
attempt to establish the necessary foundation through other
means." Id. at 180, 319 P.3d 1188 (Recktenwald, C.J.,
concurring).
Upon review of the record, and viewing the evidence in
the strongest light for the prosecution, see State v. Bowman, 137
Hawai#i 398, 405, 375 P.3d 177, 184 (2016), we conclude the State
demonstrated, through the testimony of Officer Ah Nee, that both
the testing prong and training prong were satisfied. There was
substantial evidence supporting Bayanbat's conviction for
Excessive Speeding.

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

(2) Bayanbat contends that the District Court's
Tachibana colloquy was deficient and, as a result, it cannot be
concluded that Bayanbat's waiver of his right to testify was
knowing, intelligent, and voluntary.
There are two components of a Tachibana colloquy: (1)
"informing the defendant of fundamental principles pertaining to
the right to testify and the right not to testify"; and (2)
"engaging in a true 'colloquy' with the defendant[,]" which
consists of a "verbal exchange between the judge and the
defendant 'in which the judge ascertains the defendant's
understanding of the proceedings and of the defendant's rights.'"
State v. Celestine, 142 Hawai#i 165, 170, 415 P.3d 907, 912
(2018) (first citing Tachibana, 79 Hawai#i at 236 n.7, 900 P.2d
at 1303 n.7, then quoting State v. Han, 130 Hawai#i 83, 90-91,
306 P.3d 128, 135-36 (2013)). To satisfy the second component of
the Tachibana colloquy, it is "suggested that the trial court
engage in a verbal exchange with the defendant at least twice":
(1) "after the court informs the defendant of the right to
testify and of the right not to testify and the protections
associated with these rights"; and (2) "after the court indicates
to the defendant its understanding that the defendant does not
intend to testify[,]" which includes "responses as to whether the
defendant intends to not testify, whether anyone is forcing the
defendant not to testify, and whether the decision to not testify
is the defendant's." Id. at 170-71, 415 P.3d at 912-13 (citing
Han, 130 Hawai#i at 90-91, 306 P.3d 135-36); see State v. Torres,
144 Hawai#i 282, 294-95, 439 P.3d 234, 246-47 (2019) (applying
the same protections to the right not to testify).
Here, after the State rested, the District Court
engaged in the following colloquy with Bayanbat:

THE COURT: Okay. So, Ms. Bayanbat, as I mentioned at
the beginning of trial, you have a constitutional right to
testify in your own defense, and although you should consult
with [your counsel] regarding your decision to testify, it
is your decision, and no one can prevent you from testifying
should you choose to do so. If you decide to testify,
again, just a reminder, the prosecutor can question or
cross-examine you if you testify.

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

And you also have a constitutional right not to
testify and to remain silent. Again, if you choose not to
testify, the Court cannot and will not hold that against you
in deciding your -- your case.

Based on your attorney's representation, it's the
Court's understanding you do not intend to testify. And is
that your decision and your decision alone not to testify?
[BAYANBAT]: Yes.
THE COURT: Okay. Thank you.

On this record, the District Court failed to engage
Bayanbat in a "true colloquy" before the defense rested.
Celestine, 142 Hawai#i at 170, 415 P.3d at 912. Although the
District Court advised Bayanbat regarding her rights to testify
and not to testify, it failed to engage her in a verbal exchange
to ascertain her understanding of the proceedings and of her
rights. See id.
"Once a violation of the constitutional right to
testify is established, the conviction must be vacated unless the
State can prove that the violation was harmless beyond a
reasonable doubt." Tachibana, 79 Hawai#i at 240, 900 P.2d at
1307 (citing State v. Silva, 78 Hawai#i 115, 125, 890 P.2d 702,
712 (App. 1995)). Here, the record does not contain any
indication of what Bayanbat would have said if she had testified,
and the State does not argue that the defective colloquy was
harmless beyond a reasonable doubt. See State v. Hoang, 94
Hawai#i 271, 279, 12 P.3d 371, 379 (App. 2000) ("In general, it
is inherently difficult, if not impossible, to divine what effect
a violation of the defendant's constitutional right to testify
had on the outcome of any particular case."). Based on our
review of the record, we cannot conclude that the District
Court's deficient colloquy was harmless beyond a reasonable
doubt. We therefore vacate Bayanbat's conviction for Excessive
Speeding.
For the reasons discussed above, the Notice of Entry of
Judgment and/or Order and Plea/Judgment entered on June 26, 2023,
in the District Court of the First Circuit, Honolulu Division, is
vacated. The case is remanded to the District Court for further

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

proceedings consistent with this Summary Disposition Order.

DATED: Honolulu, Hawai#i, June 30, 2025.

On the briefs:

Jason M. Kramberg, /s/ Clyde J. Wadsworth
Deputy Public Defender, Presiding Judge
for Defendant-Appellant.

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

5