State v. Barshinger, 012221 HIICA, CAAP-19-0000029

Docket NºCAAP-19-0000029
Party NameSTATE OF HAWAI'I, Plaintiff-Appellee, v. ERIC ALAN BARSHINGER, Defendant-Appellant
AttorneyMin Tsui, Deputy Public Defender, for Defendant-Appellant. Loren J. Thomas, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
Judge PanelLeonard, Presiding Judge, Hiraoka and Nakasone, JJ.
Case DateJanuary 22, 2021

STATE OF HAWAI'I, Plaintiff-Appellee,

v.

ERIC ALAN BARSHINGER, Defendant-Appellant

No. CAAP-19-0000029

Intermediate Court of Appeals of Hawaii

January 22, 2021

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (HONOLULU DIVISION) (CASE NO. 1DTA-17-03047)

On the briefs:

Min Tsui, Deputy Public Defender, for Defendant-Appellant.

Loren J. Thomas, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.

SUMMARY DISPOSITION ORDER

Defendant-Appellant Eric Alan Barshinger (Barshinger) appeals from the Notice of Entry of Judgment and/or Order and Plea/Judgment, filed on November 9, 2018 (Judgment), 1 and Notice of Entry of Judgment and/or Order and Plea/Judgment (Final

Judgment), filed on May 2, 2019, 2 in the District Court of the First Circuit, Honolulu Division (District Court).

Barshinger 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).3

Barshinger raises two points of error on appeal, contending that: (1) the District Court erred by refusing to continue trial so that Barshinger could obtain a transcript of a motion to suppress hearing held immediately prior to the start of trial; and (2) there was insufficient evidence to convict Barshinger of OVUII.

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 Barshinger's points of error as follows:

(1) The District Court commenced trial immediately after the pretrial hearing on motions, over Barshinger's objection. Barshinger requested a continuance to obtain a transcript for cross-examination of the same witnesses and offered to waive Hawai'i Rules of Penal Procedure Rule 48 and Barshinger's right to a speedy trial. The District Court stated: "This hearing was less than an hour long, and your memories are fresh right now. So we're gonna deny the request for continuance and start the trial."

In State v. Mundon, 121 Hawai'i 339, 357, 219 P.3d 1126, 1144 (2009), the supreme court stated: "[I]t is well-settled that a criminal defendant has a right to transcripts of prior proceedings." However, when a defendant is entitled to a written transcript of a prior proceeding, but does not show a specific need for the transcript for an effective defense, the court must evaluate "(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought[;] and (2) the availability of alternative devices that would fulfill the same functions as transcripts." Id. (citation omitted). There is an innate value of transcripts for trial preparation and impeachment purposes, and a defendant need not show a need for the transcripts tailored to the facts of a particular case or identify specific examples of prejudice. Id.

Here, the State suggests freshness of the testimony in the mind of counsel was an adequate alternative to providing a written transcript, as ruled by the District Court. In Mundon,...

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