State v. Sipe

• Court: Hawaii Intermediate Court of Appeals
• Decided: June 14, 2021
• Docket: CAAP-20-0000307
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 14-JUN-2021 07:53 AM Dkt. 47 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v. JENSEN DONALD SIPE, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (HONOLULU DIVISION) (CASE NO. 1DTA-19-03690)

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

Defendant-Appellant Jensen Donald Sipe (Sipe) appeals

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

Plea/Judgment filed on February 10, 2020 (Judgment), in the

District Court of the First Circuit, Honolulu Division (District

Court).1/

Sipe 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. 2018).2/

1/ The Honorable Alvin K. Nishimura presided. 2/ HRS § 291E-61(a)(1) states:

§ 291E-61 Operating a vehicle under the influence of an intoxicant. (a) A person commits the offense of (continued...) NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Sipe raises a single point of error on appeal,

contending that there was insufficient evidence to convict him of

OVUII, specifically, that there was insufficient evidence that he

operated a vehicle while under the influence of alcohol in an

amount sufficient to impair his normal mental faculties or

ability to care for himself and guard against casualty.

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 Sipe's point of error as follows:

When the evidence adduced at trial is considered in the

strongest light for the prosecution, which we must do, we

conclude that there was substantial evidence to support Sipe's

conviction for OVUII. See State v. Matavale, 115 Hawai#i 149,

157-58, 166 P.3d 322, 330-31 (2007).

Officer Christopher Chong (Officer Chong) testified

that on November 18, 2019, at about 12:45 a.m., he stopped at the

intersection of Bethel Street and South King Street while driving

on patrol. He saw Sipe stopped in his vehicle on Bethel Street,

which is a public street in the City and County of Honolulu,

2/ (...continued) 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[.]

2 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

State of Hawai#i. Sipe was facing south on Bethel Street which

is a one-way street that only goes north. After a vehicle going

north on Bethel crossed the intersection and passed Sipe, Sipe

turned left on to King Street where Officer Chong pulled him

over. Officer Chong testified that Sipe was a little slow to

pull over. As Officer Chong explained to Sipe why he had been

stopped, Officer Chong noticed Sipe's eyes were red and glassy,

and he could smell a strong odor of alcohol from Sipe's breath.

Officer Ty Ah Nee (Officer Ah Nee) testified that on

November 18, 2019, he administered the field sobriety tests to

Sipe. While he was administering the horizontal gaze nystagmus

(HGN) test to Sipe, he noticed that Sipe's eyes were very red,

glassy, and watery, and there was a strong odor of an alcoholic-

type beverage coming from him. During the HGN test, Sipe

appeared to sway side to side one or two inches. During the

instructional portion of the walk-and-turn test, Officer Ah Nee

noted that Sipe stepped out three times, but Sipe claimed that

his right knee was sore, which caused the second and third step

out. Sipe only took eight out of nine steps forward, missed two

heel-to-toe steps, turned by shuffling his feet, and missed two

out of nine heel-to-toe steps back, all contrary to the

instructions. During the one-leg stand test, Sipe raised his

left foot and stood only on his right leg for 30 seconds, after

Sipe previously stated that his right knee was sore and caused

him to step out twice during the instructional stance of the

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

walk-and-turn test. Sipe's left foot swayed in a circular motion

during the one-leg stand test, but he otherwise maintained his

balance without raising his arms or putting his foot down.

We conclude that there was substantial evidence that

Sipe operated a vehicle while under the influence of alcohol in

an amount sufficient to impair his normal mental faculties or

ability to care for himself and guard against casualty when: (1)

he was observed to have red, glassy, and watery eyes and a strong

odor of alcohol on his breath; (2) he was observed driving the

wrong way on a one-way street; (3) he swayed from side to side

during the HGN test; (4) he incorrectly performed the walk-and-

turn test; and (5) his left foot swayed during the one-leg stand

test.

Accordingly the District Court's February 10, 2020

Judgment is affirmed.

DATED: Honolulu, Hawai#i, June 14, 2021.

On the briefs: /s/ Katherine G. Leonard Jon N. Ikenaga, Presiding Judge Deputy Public Defender, for Defendant-Appellant. /s/ Clyde J. Wadsworth Associate Judge Donn Fudo, Deputy Prosecuting Attorney, /s/ Karen T. Nakasone City and County of Honolulu, Associate Judge for Plaintiff-Appellee.