State v. He

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUN-2021
07:59 AM
Dkt. 46 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
FU XIANG HE, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CASE NO. 1DTA-18-02761)

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

Defendant-Appellant Fu Xiang He (He) appeals from the

Notice of Entry of Judgment and/or Order and Plea/Judgment,

entered June 20, 2019 (Judgment), in the District Court of the

First Circuit, Honolulu Division (District Court).1 He was

convicted of operating a vehicle under the influence of an

1/
The Honorable Randal I. Shintani presided.
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intoxicant (OVUII), as a first offense, in violation of Hawaii

Revised Statutes (HRS) § 291E-61(a)(1), (b)(1) (Supp. 2018).2

He raises a single point of error on appeal, contending

that the District Court erred in taking judicial notice of the

court minutes from a prior District Court case, 1DTA-16-04155.

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 He's

point of error as follows:

2/
HS § 291E-61 stated at the time of the offense, in relevant part:

§ 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[.]

. . . .

(b) A person committing the offense of operating a
vehicle under the influence of an intoxicant shall be
sentenced without possibility of probation or suspension of
sentence as follows:

(1) For the first offense, or any offense not
preceded within a five-year period by a
conviction for an offense under this section or
section 291E-4(a):

. . . .

(C) Any one or more of the following:

. . . .

(ii) Not less than forty-eight hours and
not more than five days of
imprisonment[.]

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In the District Court proceedings in this case, 1DTA-

18-02761, He challenged the timeliness of the commencement of the

prosecution pursuant to HRS §§ 701-108 (2014) and 701-114 (2014).

HRS § 701-114 sets forth what the State must prove beyond a

reasonable doubt to convict a defendant, and provides:

§ 701-114 Proof beyond a reasonable doubt. (1) Except
as otherwise provided in section 701-115, no person may be
convicted of an offense unless the following are proved beyond
a reasonable doubt:

(a) Each element of the offense;

(b) The state of mind required to establish each
element of the offense;

(c) Facts establishing jurisdiction;

(d) Facts establishing venue; and

(e) Facts establishing that the offense was
committed within the time period specified in
section 701-108.

(2) In the absence of the proof required by
subsection (1), the innocence of the defendant is presumed.

(Emphasis added).

HRS § 701-108(2)(f) applies to the first-offense OVUII

charge against He and provides that "[a] prosecution for a petty

misdemeanor or a violation other than a parking violation must be

commenced within one year after it is committed."

Here, the charged offense was alleged to have occurred

on November 18, 2016, and the State filed the Complaint in 1DTA-

18-02761 on August 22, 2018. After the State rested its case and

made closing arguments, He argued that the State failed to prove

beyond a reasonable doubt the requirement set forth in HRS § 701-

114(1)(e), i.e., that the prosecution was timely. The State

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conceded that it had not adduced evidence to meet the timely-

commencement requirement, but argued that the court could take

judicial notice, pursuant to Hawai#i Rules of Evidence (HRE) Rule

201, of the records in 1DTA-16-04155 to establish the timeliness

of the prosecution in this case.3 The District Court took

judicial notice of the records in 1DTA-16-04155 and found that

the State filed the complaint against He within the statute of

limitations.

He argues that the District Court erred when it took

judicial notice, because: (1) there was no evidence that 1DTA-

3/
HRE Rule 201 provides:

Rule 201 Judicial notice of adjudicative facts. (a)
Scope of rule. This rule governs only judicial notice of
adjudicative facts.

(b) Kinds of facts. A judicially noticed fact must
be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial
jurisdiction of the trial court, or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.

(c) When discretionary. A court may take judicial
notice, whether requested or not.

(d) When mandatory. A court shall take judicial
notice if requested by a party and supplied with the
necessary information.

(e) Opportunity to be heard. A party is entitled
upon timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the
matter noticed. In the absence of prior notification, the
request may be made after judicial notice has been taken.

(f) Time of taking notice. Judicial notice may be
taken at any stage of the proceeding.

(g) Instructing jury. In a civil proceeding, the
court shall instruct the jury to accept as conclusive any
fact judicially noticed. In a criminal case, the court
shall instruct the jury that it may, but is not required to,
accept as conclusive any fact judicially noticed.

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16-04155 involved He or was based on the same incident as charged

in 1DTA-18-02761; (2) the records in 1DTA-16-04155 were not

"capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned" as required by

HRE Rule 201; and (3) the State had already rested its case and

made closing argument. We address each of these arguments in

turn.

As to He's first argument, the Complaint in 1DTA-16-

04155 and the Complaint in 1DTA-18-02761 were both filed against

"Fu Xiang He;" both complaints allege the same offense, OVUII,

and the same incident date of November 18, 2016; and both

complaints reference the same Report/Citation No. 16454071-001.

In addition, the Complaint in 1DTA-18-02761 specifically alleges

that: "A prosecution against FU XIANG HE for the same conduct as

alleged in this charge was pending in the State of Hawaii under

Case number 1DTA-16-04155 from November 28, 2016[,] to and

including July 13, 2018." The Complaint in 1DTA-16-04155 bears a

filed-stamp date of November 28, 2016, and the Notice of Entry of

Judgment and/or Order and Plea/Judgment in 1DTA-16-04155

dismissing the charge without prejudice bears a filed-stamp date

of July 13, 2018. We conclude that the District Court did not

err in its determination that 1DTA-16-04155 involved He and was

based on the same incident as charged in 1DTA-18-02761 based upon

its taking judicial notice of the records in those cases.

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He's second argument is also without merit. The

District Court's records of the filing dates of the Complaint and

Judgment in 1DTA-16-04155, as well as the contents (not the

merits) of the Complaint in 1DTA-16-04155 are capable of accurate

and ready determination by resort to sources whose accuracy

cannot reasonably be questioned, i.e., the court's own records

and files in 1DTA-16-04155. See State v. Abdon, 137 Hawai#i 19,

26, 364 P.3d 917, 924 (2016) ("The most frequent use of judicial

notice of ascertainable facts is in noticing the content of court

records.").

Third, He argues that the District Court erred in

taking judicial notice of the records in 1DTA-16-04155 after the

prosecution closed its case. However, HRE Rule 201(f)

specifically provides that "judicial notice may be taken at any

stage of the proceeding." See also Abdon, 137 Hawai#i at 21-22,

26-27, 364 P.3d at 919-20, 924-25 (concerning a trial court's

post-verdict ruling on a motion for judgment for acquittal based

on alleged failure to prove that the statute of limitations was

not exceeded, holding that the Intermediate Court of Appeals

erred in failing to take judicial notice of the date of the

subject indictment); State v. Botelho, CAAP-XX-XXXXXXX, 2019 WL

2119655, at *1 (Haw. App. May 15, 2019) (SDO). Accordingly, we

conclude that this argument is without merit.

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For these reasons, the District Court's June 20, 2019

Judgment is affirmed.

DATED: Honolulu, Hawai#i, June 28, 2021.

On the briefs:
/s/ Katherine G. Leonard
Alen M. Kaneshiro, Presiding Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Clyde J. Wadsworth
for Plaintiff-Appellee. Associate Judge

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