State v. Wilkins

517 P.3d 801, 151 Haw. 518

• Court: Hawaii Intermediate Court of Appeals
• Decided: September 30, 2022
• Docket: CAAP-20-0000523
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 30-SEP-2022 07:53 AM Dkt. 49 SO NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee, v. BRITTANY D. WILKINS, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT (CASE NO. 3DTA-19-01590)

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

Defendant-Appellant Brittany D. Wilkins (Wilkins)

appeals from the July 24, 2020 Judgment and Notice of Entry of

Judgment (Judgment) entered by the District Court of the Third

Circuit (district court).1 After a bench trial, the district

court convicted Wilkins of one count of Operating a Vehicle Under

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

Revised Statutes (HRS) § 291E-61(a)(1) and/or (3).2

1 The Honorable Margaret K. Masunaga presided. 2 HRS § 291E-61(a)(1) and (3) (2007) provide:

(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; [or] . . . . (continued...) NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

On appeal, Wilkins argues that the district court: (1)

deprived her of a meaningful opportunity to cross-examine County

of Hawaiʻi police officer Ansel Robinson (Officer Robinson),

after erroneously denying her motion to strike Officer Robinson's

testimony about accuracy tests he conducted on the Intoxilyzer

Model 8000 used to test her breath on May 4, 2019 and May 15,

2019; and (2) erroneously admitted the results of her breath

test, without which there was insufficient evidence to support

the conviction under HRS § 291E-61(a)(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, we hold, without

addressing Wilkins's arguments regarding her conviction under HRS

§ 291E-61(a)(3), that insofar as Wilkins does not challenge the

sufficiency of the evidence as to her OVUII conviction under HRS

§ 291E-61(a)(1), her conviction under HRS § 291E-61(a)(1) stands.

See, e.g., State v. Flynn, No. SCWC-XX-XXXXXXX, 2012 WL 1560666,

at *1 (May 1, 2012) (affirming conviction under HRS § 291E-

61(a)(3) where defendant did not challenge sufficiency of the evidence supporting that charge, even though charge under HRS §

2 (...continued) (3) With .08 or more grams of alcohol per two hundred ten liters of breath[.] The Judgment reflects Wilkins was convicted of "DUI BY IMPAIRMT [sic] OR .08 BREATH" pursuant to HRS § "291E-61(a)(1)(3)[.]" Wilkins claims that the district court's "verdict was based on the BAC reading from the Intoxilyzer." Plaintiff-Appellee State of Hawai ʻi (State) asserts, however, that the district court "relied upon the evidence of impairment testified to by both [(Security Officer)] Kukua and Officer Fukumoto, as well as the breath ticket entered into evidence as Exhibit 3." Our review of the district court's ruling reflects that it relied on both evidence of impairment and the intoxilyzer reading in adjudging Wilkins guilty, and the Judgment reflects a conviction referring to both subsections (a)(1) and (a)(3) of the OVUII statute.

2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

291E-61(a)(1) was defective); State v. Shinsato, No. SCWC-30720,

2012 WL 1560663, at *1 (Apr. 30, 2012) (same).

For the foregoing reasons, the July 24, 2020 Judgment

and Notice of Entry of Judgment entered by the District Court of

the Third Circuit, is affirmed.

DATED: Honolulu, Hawaiʻi, September 30, 2022.

On the briefs: /s/ Keith K. Hiraoka Jon N. Ikenaga, Presiding Judge Deputy Public Defender, for Defendant-Appellant. /s/ Clyde J. Wadsworth Associate Judge Kori A. Weinberger, Deputy Prosecuting Attorney, /s/ Karen T. Nakasone County of Hawaiʻi, Associate Judge for Plaintiff-Appellee.