State v. Downs

479 P.3d 924, 149 Haw. 2

• Court: Hawaii Intermediate Court of Appeals
• Decided: January 28, 2021
• Docket: CAAP-18-0000617
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 28-JAN-2021 07:48 AM Dkt. 101 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v. TIMOTHY J. DOWNS, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT (WAILUKU DIVISION) (CASE NO. 2DTA-17-01337)

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

Defendant-Appellant Timothy J. Downs (Downs) appeals

from the Judgment and Notice of Entry of Judgment, filed on July

13, 2018 (Judgment), in the District Court of the Second Circuit

(District Court).1/ Downs was convicted of Operating a Vehicle

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

Hawaii Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2019).2/

1/ The Honorable Kirstin M. Hamman presided. 2/ HRS § 291E-61(a) states 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[.] NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Downs raises a single point of error on appeal,

contending that there was insufficient evidence to convict him.3/

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 Downs's point of error as follows:

We conclude that, when the evidence adduced at trial is

considered in the strongest light for the prosecution, there was

sufficient evidence to convict Downs of OVUII. See State v.

Matavale, 115 Hawai‘i 149, 157-58, 166 P.3d 322, 330-31 (2007).

On October 4, 2017, Officer Aaron Williams (Officer Williams) was

traveling on High Street toward Kuhikahi, which is a public

roadway in the County of Maui, State of Hawai‘i, when he first

observed Downs driving his vehicle. Officer Williams observed

Downs drive his vehicle on the double solid yellow lines in the

center of the road and make a correction back into his lane of

travel, but still weave back and forth within his lane. Downs

then drove his vehicle over the white line on the right side of

the road, made a correction, and then crossed the double yellow

line in the center of the road. After stopping Downs, Officer

Williams noticed Downs had flushed features, slurred speech, and

an odor of an alcoholic beverage about him. Downs admitted he

drank three vodka Red Bull beverages. Downs dropped some

3/ In a footnote, Downs also submits that the lack of a clear definition for normal mental faculties and ability to care for the person and guard against casualty violates his due process rights, acknowledging that the issue was not raised below. Downs makes no further argument and submits no authority in support of this proposition, and we decline to engage in a plain error review here.

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paperwork into his lap as he attempted to retrieve it, which

Officer Williams described as fumbling due to diminished

dexterity. Officer Williams stated that Downs showed six clues

on the horizontal gaze nystagmus test and four clues indicates

impairment. During the instructions of the walk and turn test,

Downs could not keep his balance. During the walk and turn test,

Downs showed five indicia of impairment. He missed heel-to-toe

contact during the first nine steps, and he raised his arms,

contrary to instructions. Downs stopped after a turn, stepped off the line, missed heel-to-toe contact on the second nine steps

and raised his arms, which indicated he was impaired. During a

one-leg-stand test, Downs swayed, raised his arms, and put his

foot down; thus, there were three out of four clues indicating he

was impaired. Based on his training and experience, Officer

Williams opined that Downs was not able to drive a vehicle safely

due to alcohol. Based on our review of all of the evidence

presented at trial, we conclude that there was substantial

evidence to support Downs's conviction for OVUII.

For these reasons, the District Court's July 13, 2018

Judgment is affirmed.

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

On the briefs: /s/ Lisa M. Ginoza Kevin O'Grady, Chief Judge for Defendant-Appellant. /s/ Katherine G. Leonard Gerald K. Enriques, Associate Judge Deputy Prosecuting Attorney, County of Maui, /s/ Clyde J. Wadsworth for Plaintiff-Appellee. Associate Judge

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