State v. Brown

LAM!UBRARY

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 30l94 §§
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IN THE INTERMEDIATE COURT OF APPEALS §§
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STATE OF HAWAII, Plalnt1ff-Appellee, J 33 _@
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EXAv1ER A. BRowN, Défendant-Appe11ant. wl

APPEAL FRoM THE D1sTR1cT coURT oF THE F1RsT c1RcU1T
1DTc-09-033198)

(CASE NO.
SUMMARY DISPOSITION ORDER
C.J., Reifurth, Ginoza, JJ.)

(By: Nakamura,

Defendant-Appellant Exavier A. Brown (Brown) appeals
2009, in the District

from the Judgment filed on October 26,

Court of the First Circuit (district court).F Brown was

convicted of excessive speeding, in violation of Hawaii Revised
(2007 & Supp. 2009).

StatuteS (HRS) § 29lC~lO5(a)(l)
Brown's conviction was predicated on a police officer‘s

testimony regarding the speed reading from a laser gun used to
measure the speed of Brown's vehicle. Brown objected to the
officer‘s testimony regarding the laser gun's speed reading on
the ground of lack of foundation. The district court overruled

the objection.
On appeal, Brown argues that the district court erred
l) the prosecution failed to lay a

in convicting him because:
sufficient foundation to support the admission of the officer‘s

testimony regarding the speed reading from the laser gun; and 2)
without that testimony, there was insufficient evidence to prove

the charged offense of excessive speeding.
Plaintiff¥Appellee State of HawaiT.(State) concedes
2l6 P.3d l227

that pursuant to State v. Assaye, 121 HawaiT.204,
(2009), it failed to lay an adequate foundation to support the

admission of the officer‘s testimony because it failed to adduce

V The Honorable Leslie Hayashi presided.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

sufficient evidence to show that the officer's training in the
operation of the laser gun met the requirements indicated by the
manufacturer. The State therefore agrees with Brown that Brown's
excessive speeding conviction cannot stand. The State, however,
contends that there was sufficient evidence to prove that Brown

’committed the traffic infraction of "simple" speeding, in

violation of HRS § 29lC-102(a)(l) (2007), and the State requests
that we remand the case for entry of judgment on this traffic
infraction.

we resolve the issues raised on appeal as follows:

l. We conclude that pursuant to Assaye, the State
failed to lay a sufficient foundation to support the admission of
the officer‘s testimony regarding the speed reading from the
laser gun. without that testimony, there was insufficient
evidence to convict Brown of excessive speeding.

2. Contrary to the State's contention, we further
conclude that without the officer‘s testimony regarding the speed
reading from the laser gun, there was insufficient evidence to
prove that Brown committed the traffic infraction of "simple"
speeding, in violation of HRS § 291C-lO2(a)(1).

if Accordingly,

IT IS HEREBY ORDERED that the OCtOber 26, 2009,
Judgment of the district court is reversed. _

DATED: Honolulu, HawaiUq September 9, 2010.

On the briefs:

Jon N. Ikenaga ' q

Deputy Public Defender
for Defendant-Appellant Chief Judge

Brian R . vincent

Deputy Prosecuting Attorney f

\City and County of Honolulu Assoc1ate Judge

for Plaintiff-Appellee §

Associate Judge