77 Hawai'i 241, State v. Chow

• Decision Date: 20 October 1994
• Docket Number: No. 16547,16547
• Citation: 883 P.2d 663,77 Hawaii 241
• Parties: 77 Hawai'i 241 STATE of Hawai'i, Plaintiff-Appellee, v. Clarence Chung Hin CHOW, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 663

883 P.2d 663

77 Hawai'i 241

STATE of Hawai'i, Plaintiff-Appellee, v. Clarence Chung Hin CHOW, Defendant-Appellant.

No. 16547.

Intermediate Court of Appeals of Hawai'i.

Oct. 20, 1994.

Amie L. Thompson, Deputy Public Defender, Honolulu, for defendant-appellant.

Charlotte J. Duarte (Edwin Nacino, on the brief), Deputy Pros. Attys., City & County of Honolulu, Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and WATANABE and ACOBA, JJ.

ACOBA, Judge.

Defendant-Appellant Clarence Chung Hin Chow (Defendant) was convicted of two traffic offenses. We affirm the convictions, but remand for resentencing because Defendant's right of allocution was denied.

Defendant was charged with driving under the influence of intoxicating liquor (DUI) (Hawai'i Revised Statutes (HRS) § 291-4(a)(1) (Supp.1992)), making a prohibited turn against a red light (illegal turn) (HRS § 291C-32(a)(3) (1985)), and driving after his license was suspended or revoked for driving under the influence of intoxicating liquor (driving with a revoked license) (HRS § 291-4.5 (Supp.1992)).

On September 8, 1992, a bench trial was held. At the close of the State's case, the defense moved for a judgment of acquittal. The court granted the motion as to the DUI charge, but denied the motion as to the other charges. In his case, the defense presented two witnesses, one of whom was Defendant. Following argument by counsel, the court found Defendant guilty of the driving with a revoked license and illegal turn charges. Defendant then requested findings.

The court thereafter noted that this was Defendant's "first conviction of [driving with a revoked license]" and sentenced him to "the minimum term of three (3) days in jail, plus a minimum fine of $250.00 (two hundred and fifty dollars)" and "a one year license suspension[.]" The court also fined Defendant $35 for the illegal turn. Thereupon, Defendant's request to stay his sentence pending appeal was granted. Having received permission to address the court, Defendant stated that he was not the driver of the subject vehicle, but apparently did not complete his statement. Indicating that it was "not the time to go into the merits," the court declared that it "didn't know what [Defendant] wanted addressed to the court, but [it would] not entertain any matters about the facts of the case." ¹

Defendant appeals from the judgment and sentence entered September 8, 1992.

On appeal, Defendant makes three arguments: (1) He was not the driver of the automobile; (2) His convictions for driving with a revoked license and illegal turn were not supported by sufficient evidence; and (3) He was denied his right of allocution.

I.

We review the evidence adduced at trial. On December 8, 1991, on the island of O'ahu, Defendant and Jerry Larsen (Larsen) were traveling in a Mazda RX-7 vehicle which belonged to Defendant's mother.

At approximately 2:38 a.m., Officer Victor Tolentino was traveling Ewa (west) on Ala Moana Boulevard in the lane nearest the median strip. He observed a silver two-door sedan make a right turn from South Street on to Ala Moana Boulevard. Because the officer had the green traffic light and was familiar with the area, he believed that the driver had made a prohibited turn against a red traffic light. Later, the officer verified that the traffic lights were operating properly. There were two signs, each prohibiting a right turn against a red traffic light at the intersection. The signs faced the vehicle's direction of travel and were clearly visible.

Activating his blue lights, the officer stopped the vehicle at Ala Moana Boulevard and Punchbowl Street.

The officer did not see any movement in the vehicle and kept his attention on its occupants at all times for "officer safety." Approaching the driver's side of the vehicle, he observed Defendant seated behind the wheel and "an oriental male" in the front passenger seat.

Although the officer requested Defendant's driver's license, registration, and insurance, Defendant did not respond. After the officer repeated his request, Defendant handed the officer his college identification card. When the officer again asked for his driver's license, Defendant disclosed that he did not have a driver's license and handed the officer court papers from a prior DUI charge. Defendant's driver's license had been suspended for ninety days and he had a "[p]ermit to drive under License Suspension" from September 30, 1991 to December 28, 1991. Defendant acknowledged that the permit allowed him to drive to and from work.

According to the officer, Defendant's speech was slurred, his breath had an odor of alcohol, and his eyes were glassy, red, and bloodshot. Based on these observations, the officer had Defendant exit the vehicle and perform a field sobriety test. Concluding that Defendant performed "poor[ly]," he arrested Defendant for DUI.

On the other hand, Defendant asserted that Larsen was the driver of the vehicle. Larsen drove the vehicle because Defendant's license was suspended, Defendant's camera equipment to be used that night was already in the vehicle, and Larsen had driven a long way in his own car to get to Defendant's house. Neither Defendant nor Larsen, who also testified, contested the fact that the right turn was made. ²

Defendant maintained that when the officer pulled them over, he was sitting in the back seat loading a camera with film. Larsen related that camera equipment was in the hatchback and the back seat area of the vehicle.

After they were stopped, Defendant said, "[Larsen], move" and Larsen moved over to the passenger seat but was "fumbling or something." Defendant pulled a latch, the driver's seat "slid[ ] forward" and he exited the vehicle. He walked towards the officer, but the officer told him to get back into the vehicle. Defendant did so, and sat in the driver's seat. It was difficult to see out the back window of the vehicle because it was tinted and covered by louvers.

Larsen indicated that he was in the driver's seat and Defendant was in the back seat when they were stopped. Defendant said, "Let me take care of it[,]" and got out of the vehicle through the driver's door. When Defendant exited, Larsen was still in the front seat but Defendant could get out because the front seat tilted forward.

II.

Defendant contends the court's finding that Defendant was the driver of the vehicle was clearly erroneous. A finding of fact is clearly erroneous if " 'despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed.' " State v. Furutani, 76 Hawai'i 172, 179, 873 P.2d 51, 58 (Sup.1994) (quoting State v. Hutch, 75 Haw. 307, 328, 861 P.2d 11, 22 (1993)).

Defendant asserts that the officer did not actually see him driving the vehicle when the illegal turn was made and both Defendant and Larsen testified that Larsen was driving the vehicle. However, the court found the officer's testimony credible and "Defendant to be unbelievable." In its oral ruling, the court stated that it found "[D]efendant's version of what happened highly improbable inasmuch as [Defendant] stepping [sic] out of the car to approach the officer when he was not the driver of the car" ³ and "Larsen driving [Defendant's] car, driving his car to [Defendant's] house and driving [Defendant's] car from there."

It is well established that " 'an appellate court will not pass upon issues dependent upon [the] credibility of witnesses and the weight of the evidence; this is the province of the trial judge.' " Id. 76 Hawai'i at 180, 873 P.2d at 59 (quoting Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 116-17, 839 P.2d 10, 28, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992)). In the argument section of his Opening Brief, Defendant does concede that it was for the district court to decide the extent to which a witness' testimony would be believed.

But, Defendant argues that the court relied on speculation and made unreasonable inferences. Of course, "guilt in a criminal case may be prove[n] beyond a reasonable doubt on the basis of reasonable inferences drawn from circumstantial evidence." State v. Bright, 64 Haw. 226, 228, 638 P.2d 330, 332 (1981). Accord State v. Batson, 73 Haw. 236, 245-46, 831 P.2d 924, 930 (1992) ("the trial court, as trier of fact, 'may draw all reasonable and legitimate inferences and deductions from the evidence adduced....' " (quoting State v. Nelson, 69 Haw. 461, 469, 748 P.2d 365, 370 (1987))); State v. O'Daniel, 62 Haw. 518, 528-29, 616 P.2d 1383, 1391 (1980) ("[r]easonable inferences drawn from circumstantial evidence may be used to prove a criminal case beyond a reasonable doubt").

The officer testified that he pulled the vehicle over after seeing the illegal turn. After the vehicle was stopped, the officer recounted that he saw no movement within the vehicle. While Defendant contends that the officer could not see into the vehicle, the officer stated that he could see into the vehicle and Defendant and Larsen testified that they could see out the back window. When the officer approached the driver, Defendant was seated in the driver's seat. Because the officer had the vehicle under observation from the time he saw the violation until the vehicle was stopped, the court might reasonably infer from the officer's testimony that Defendant was driving the vehicle when it made the illegal turn.

Accordingly, we are not left with a " 'firm and definite conviction that a mistake has been committed,' " and therefore cannot hold the finding clearly erroneous. Furutani, 76 Hawai'i at 179, 873 P.2d at 58 (quoting Hutch, 75 Haw. at 328-29, 861 P.2d at 22 (1993).

III.

The standard on appeal of a trial judge's finding of guilt is whether the convictions are supported by substantial evidence, considering the evidence in the strongest light for the prosecution. In re Doe, 76 Hawai'i 85, 92-93, 869 P.2d 1304, 1311-12 (1994). Accord State v. Sujohn,...