State v. Kwong

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JUN-2020
07:52 AM

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
MAGGIE KWONG, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CASE NO. 1DTA-17-02539)

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

Defendant-Appellant Maggie Kwong (Kwong) appeals from

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

entered on March 14, 2019 (Judgment), by the Honolulu Division of

the District Court of the First Circuit (District Court).1 After

a bench trial, the District Court convicted Kwong of Operating a

Vehicle Under the Influence of an Intoxicant (OVUII), in

violation of HRS § 291E-61(a)(1) (2007).2

1
The Honorable William M. Domingo presided over the trial.
2
HRS § 291E-61(a)(1) provides:

(continued...)
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Kwong raises two points of error on appeal, arguing

that the District Court: (1) erred in refusing to take judicial

notice of the fact that 30 miles per hour (mph) is the equivalent

of 44 feet per second; and (2) plainly erred in failing to obtain

her personal consent to the parties' stipulation that the

arresting officer was qualified to administer standardized field

sobriety tests (SFST).

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 Kwong's points of error as follows:

(1) Kwong argues the District Court erred in refusing

to take judicial notice of the fact that 30 mph is the equivalent

of 44 feet per second. As an initial matter, it does not appear

the District Court ultimately rejected Kwong's judicial notice

request. Rather, the record shows that although the District

Court initially declined to take judicial notice, the District

Court appeared agreeable when defense counsel explained why

2
(...continued)
§ 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[.]

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judicial notice would be appropriate, saying, "Right, right . .

continue."

Nevertheless, the District Court was not required to

take judicial notice of Kwong's proffered fact. To be clear, the

fact that 30 mph is the equivalent of 44 feet per second is

proper for judicial notice under Hawai#i Rules of Evidence (HRE)

Rule 201(b) (2016),3 in that it is "capable of accurate and ready

determination by resort to sources whose accuracy cannot

reasonably be questioned," and the mathematical computation

leading to that result is indisputable. Nonetheless, a court is

required to take judicial notice of an adjudicative fact only "if

requested by a party and supplied with the necessary

information." HRE Rule 201(d). To the extent the conversion of

30 mph to feet per second requires mathematical calculations,

Kwong should have supplied the District Court with some means to

verify the figures for which she sought judicial notice. See,

e.g., Drake v. Holstead, 757 S.W.2d 909, 911 (Tex. App. 1988).

As Kwong failed to do so, the District Court was not required to

take judicial notice. See HRE Rule 201(d).

Even assuming, arguendo, that the District Court

erroneously refused to take judicial notice that 30 mph equates

3
HRE Rule 201(b) provides:

(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.

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to 44 feet per second, such error would be harmless beyond a

reasonable doubt. See Hawai#i Rules of Penal Procedure (HRPP)

Rule 52(a).4 Specifically, the District Court did not preclude

Kwong from relying on the fact that 30 mph is 44 feet per second.

Kwong expressly used that fact in cross-examining the arresting

officer, Officer Josh Wong (Officer Wong). Kwong also expressly

referenced that fact in her motion for judgment of acquittal and

relied on that fact in her closing argument.5

Moreover, the crux of Kwong's argument on appeal is to

question the District Court's credibility determinations. At

trial, Officer Wong testified, inter alia, that he was traveling

about 30 mph on Kapiolani Boulevard and was about 30 feet behind

a truck that was turning left onto Isenberg Street, when Kwong's

car moved across two lanes and ultimately cut in between him and

the truck. Officer Wong testified that he started to slow down

when he saw Kwong changing lanes and slammed on his brakes when

her car cut in front of him. Kwong contends that the fact that a

car going 30 mph travels 44 feet per second renders the foregoing

events "impossible," and that, had the District Court judicially

noticed that 30 mph is 44 feet per second, "it would have been

4
HRPP Rule 52(a) provides that "[a]ny error, defect, irregularity
or variance which does not affect substantial rights shall be disregarded."
5
The District Court allowed Kwong to incorporate her arguments for
her motion for judgment of acquittal into her closing argument.

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evident to the court that [Officer Wong's] testimony was not

credible."6

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[.]" State v. Jenkins, 93 Hawai#i 87,

101, 997 P.2d 13, 27 (2000) (citations omitted); State v.

Monteil, 134 Hawai#i 361, 368, 341 P.3d 567, 574 (2014) ("It is

not the role of the appellate court to weigh credibility or

resolve conflicting evidence."). Rather, "[i]t is for the trial

judge as fact-finder to assess the credibility of witnesses and

to resolve all questions of fact[.]" State v. Eastman, 81

Hawai#i 131, 139, 913 P.2d 57, 65 (1996) (citation omitted). It

is also established that the trial judge, as fact-finder, "may

accept or reject any witness's testimony in whole or in part."

Id. (stating it was within the trial court's prerogative to

believe witness's prior inconsistent statements and to disbelieve

that witness's oral testimony in court); State v. Jhun, 83

Hawai#i 472, 483, 927 P.2d 1355, 1366 (1996) ("Witnesses may be

6
Kwong asks the court to take judicial notice of "this photo map"
attached to her opening brief; the map appears to be an aerial shot of the
Kapiolani Boulevard/Isenberg Street intersection, with Kwong's notations as to
where she, Officer Wong, and the truck were when Kwong changed lanes the night
of the incident, as testified to by Officer Wong. Kwong did not supply this
court with the "necessary information" to verify the annotated map's accuracy,
including the source of the map. See HRE Rule 201(d). We thus decline to
take judicial notice of it. Moreover, the photo map was not introduced below
and is not part of the record on appeal. Although the appellate courts may
take judicial notice of exhibits not made a part of the record on appeal,
where the "equity of the situation dictate[s]", there is no grounds offered
for doing so in this case and we find none. See, e.g., In re Thomas H. Gentry
Revocable Trust, 138 Hawai#i 158, 171 n.8, 378 P.3d 874, 887 n.8 (2016).
1.

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inaccurate, contradictory, and even untruthful in some portions

of their testimony, and yet be entirely credible in other

portions of their testimony.").

The District Court clearly found Officer Wong credible

at least as to the testimony the court expressly relied upon in

its rulings.7 On this record, we will not disturb the District

Court's implicit finding that Officer Wong was credible.

(2) The District Court did not err in accepting the

stipulation as to Officer Wong's qualifications to administer the

SFST. During its examination of Officer Wong, the prosecution

advised the District Court it was offering Kwong's counsel a

stipulation regarding the officer's training, experience and

qualifications, and Kwong's counsel agreed that he wanted to

enter into the stipulation. The prosecution then placed the

stipulation on the record:
[THE PROSECUTION]: . . . The stipulation would be
Officer Wong has been trained and experienced and qualified
to administer as well as evaluate the SFST in accordance
with the National Highway Traffic Safety Administration
standards as well as the internal HPD protocols. He'll be
testifying only as a lay witness as to the walk-and-turn and
the one-legged stand portions of the test. He won't be
mentioning any clues or draw any legal conclusions as to
whether Defendant passed or failed any portions of the test.

THE COURT: Okay. And as far as the [Horizontal Gaze
Nystagmus (HGN)]?

[THE PROSECUTION]: No HGN, Your Honor.

THE COURT: Okay. Very well.

7
In summarizing the facts relied upon in its ruling, the District
Court did not note how fast Officer Wong was going or how close he was to the
truck or intersection.

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The District Court did not ask Kwong on the record

whether she agreed to or approved the stipulation. Kwong

contends that constitutes plain error, relying on State v.

Murray, 116 Hawai#i 3, 10-13, 169 P.3d 955, 962-65 (2007). In

Murray, the supreme court held that "a knowing and voluntary

waiver of a defendant's fundamental right must come directly from

the defendant, and requires the court to engage in a colloquy

with the defendant." Id. at 11, 169 P.3d at 963 (citation

omitted). The fundamental right at issue in Murray was the

defendant's right to have the State prove every element of an

offense to a jury beyond a reasonable doubt.8 Id. at 10-12, 169

P.3d at 962-64.

In State v. Wilson, 144 Hawai#i 454, 445 P.3d 35

(2019), however, the supreme court held that a colloquy was not

required where the defendant's attorney stipulated to a police

officer's qualifications to conduct SFSTs:
[T]he stipulation in this case did not establish facts
satisfying any elements of the charged offense. To convict
Wilson of OVUII, the State was required to prove that she
operated a vehicle "while under the influence of alcohol in
an amount sufficient to impair [her] normal mental faculties
or ability to care for [herself] and guard against
casualty." HRS § 291E-61(a)(1). Stipulating that the
officer was "qualified and certified to conduct the [SFST]
and that he received specialized training in administering

8
Murray was being prosecuted for Abuse of a Family or Household
Member in violation of HRS §§ 709-906(1) and (7) (Supp. 2006). Murray, 116
Hawai#i at 5, 169 P.3d at 957. In order to establish a class C felony, the
State was required to prove that Murray had a second or subsequent conviction
for abuse of a family or household member within two years before the alleged
offense. Id. at 7, 169 P.3d at 959. During the hearing on pretrial motions,
Murray's attorney stipulated that Murray had prior convictions within two
years; the attorney then argued that evidence of Murray's prior convictions
need not be presented to the jury because of the stipulation. Id. at 5, 169
P.3d at 957.

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and grading all of the [SFSTs]" is not in itself proof that
Wilson was operating a vehicle or that she was impaired.
Thus, the stipulation in this case did not amount to a
waiver of Wilson's fundamental right to have every element
of a charged offense proven beyond a reasonable doubt.

Neither did the stipulation significantly impinge on
Wilson's confrontation rights. Unlike the evidentiary
stipulation at issue in Casey, the stipulation in this case
did not serve as a substitute for evidence from which a
factfinder could conclude that any element of the charged
offenses was satisfied in whole or in part. Instead, this
stipulation was to an evidentiary foundation involving the
qualifications of a witness. Under the circumstances, we
cannot say that the stipulation so infringed upon Wilson's
right to confront Officer Hattori that a colloquy was
required.

Id. at 464-65, 445 P.3d at 45-46 (footnote omitted).

In this case, as in Wilson, the District Court was not

required to have a colloquy with Kwong before accepting her

stipulation to Officer Wong's qualifications to administer the

SFST.

For these reasons, the District Court's March 14, 2019

Judgment is affirmed.

DATED: Honolulu, Hawai#i, June 25, 2020.

On the briefs:
/s/ Lisa M. Ginoza
Earle A. Partington, Chief Judge
for Defendant-Appellant.
/s/ Katherine G. Leonard
Brian R. Vincent, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge

8