State v. Bukoski

• Decision Date: 04 April 2018
• Docket Number: NO. CAAP-17-0000233,CAAP-17-0000233
• Parties: STATE of Hawai'i, Plaintiff–Appellee, v. Robert A. BUKOSKI, Defendant–Appellant.
• Court: Hawaii Court of Appeals

415 P.3d 936 (Table)

STATE of Hawai'i, Plaintiff–Appellee,

v.Robert A. BUKOSKI, Defendant–Appellant.

NO. CAAP-17-0000233

Intermediate Court of Appeals of Hawai'i.

April 4, 2018

On the briefs:

Matthew Mannisto, for Defendant–Appellant.

Tracy Murakami, Deputy Prosecuting Attorney, County of Kauai, for Plaintiff–Appellee.

(By: Fujise, Acting C.J., and Reifurth and Chan, JJ.)

AMENDED MEMORANDUM OPINION

Defendant–Appellant Robert A. Bukoski appeals from two Judgment/Order and Notice of Entry of Judgment/Order documents, entered by the District Court of the Fifth Circuit ("District Court"),¹ on March 24, 2017. The District Court convicted Bukoski of two counts (Counts 2 and 3)² of Inattention to Driving ("ITD"), in violation of Hawaii Revised Statutes ("HRS") section 291–12.³

Bukoski argues that the District Court wrongly convicted him (1) based on (a) insufficient evidence that he possessed the requisite mens rea and (b) numerous clearly erroneous findings of fact; (2) after erroneously denying his motion for judgment of acquittal based on HRS section 701–109(1)(e) ; and (3) where, in its closing argument, Plaintiff–Appellee State of Hawai'i committed prosecutorial misconduct by (a) improperly shifting the burden of proof to him and (b) mis-characterizing the evidence.

I. BACKGROUND

The factual background, according to the District Court's Findings of Fact, Conclusions of Law and Verdict Convicting Defendant of Inattention Offenses, entered on February 2, 2017, is as follows in relevant part:

1. On Wednesday, August 12, 2015, around 10:39 a.m., [Caleb Jimenez], who was part of a street construction crew, working on Hardy Street, a public road, in front of Wilcox Elementary School, ... observed [Bukoski] driving a ... truck exceeding the 15 mph speed limit, during school hours.

2. Jimenez saw [Bukoski] driving with his head down through the vehicle's windows.

3. Jimenez witnessed [Bukoski] striking traffic barricades, victim Lawrence Asai (hereinafter "Asai"), and some construction equipment before coming to a stop. On cross-examination, Jimenez testified that the all [sic] of these collisions took place within a few seconds. Jimenez testified that there was a flagman before the construction zone manned by Artworks Construction.

4. Jimenez testified that he received traffic safety training every Monday via weekly meetings, and that he was trained to make eye-contact with vehicles that passed through construction zones.

5. Jimenez saw Asai on the ground before medical personnel arrived and took Asai away.

6. Jimenez testified that, immediately to the side of the road where the accident occurred, there was a 1 to 2 foot deep trench containing rebar.

7. Jimenez testified that he and [Bukoski] grew up together and that they were like "family."

8. At the close of Jimenez's testimony, the State rested and [Bukoski] moved for a Judgment of Acquittal, which was denied by this Court, for reasons listed below.

9. Lieutenant Tanaka testified that he only brought a copy of General Order 2001–03, Motor Vehicle Traffic Investigation Procedures, which was later given to the State and Defense on November 3, 2016.

10. As a witness called by [Bukoski], Officer Hanson Hsu testified that he did not observe signs of impairment or intoxication in [Bukoski] at the scene. Officer Hsu further testified that, on his Motor Vehicle Accident Report for the incident, he did not mark the human factors of inattention, distraction, aggressive, reckless driving, excessive speed, driving too fast for conditions, or exceeding the speed limit as causes of or factors contributing to the accident, but he did mark "other improper action." During his investigation, he did not inspect the car for mechanical failure because he is not trained in mechanics. On cross, Hsu said that [Bukoski] told Hsu that [Bukoski] was the driver. [Bukoski] also told Hsu that he had a health problem and took medication.

11. As a witness for [Bukoski], Chelsea Carineo, who works near the collision scene and arrived on the scene approximately thirty minutes after it happened, testified that the traffic barriers were not weighed down, that [Bukoski's] vehicle had tinted windows, and that there were no flagmen posted earlier that day when she drove to work, although there were flagmen present at the site the following day. She also testified that the road was approximately 5–6 feet wide on the day of the accident and that there was a 1–2 foot deep trench immediately to the right of the road containing rebar. On cross, Carineo confirmed that the speed limit was 15 [ ] mph and that school was in session during the time of the incident.

II. STANDARDS OF REVIEW

Findings of Fact and Conclusions of Law

A trial court's findings of fact are reviewed under the "clearly erroneous" standard of review. Dan v. State , 76 Hawai'i 423, 428, 879 P.2d 528, 533 (1994) (citing Hawai'i Thousand Friends v. City and Cty. of Honolulu, 75 Haw 237, 248, 858 P.2d 726, 732 (1993) ). "A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made." State v. Locquiao , 100 Hawai'i 195, 203, 58 P.3d 1242, 1250 (2002) (quoting State v. Harada , 98 Hawai'i 18, 22, 41 P.3d 174, 178 (2002) ).

"An appellate court may freely review conclusions of law and the applicable standard of review is the right/wrong test. A conclusion of law that is supported by the trial court's findings of fact and that reflects an application of the correct rule of law will not be overturned." Dan , 76 Hawai'i at 428, 879 P.2d at 533 (citing and quoting Maria v. Freitas , 73 Haw. 266, 270, 271, 832 P.2d 259, 262, 263 (1992) ) (internal quotation marks omitted).

Sufficiency of the Evidence

[E]vidence adduced in the trial court must be considered in the strongest light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a conviction; the same standard applies whether the case was before a judge or jury. The test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact.

State v. Richie , 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998) (quoting State v. Quitog , 85 Hawai'i 128, 145, 938 P.2d 559, 576 (1997) ). " 'Substantial evidence' as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Richie , 88 Hawai'i at 33, 960 P.2d at 1241 (internal quotation marks and citation omitted).

The standard to be applied by the trial court in ruling upon a motion for a judgment of acquittal is whether, upon the evidence viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. An appellate court employs the same standard of review.

State v. Keawe , 107 Hawai'i 1, 4, 108 P.3d 304, 307 (2005) (brackets omitted) (quoting State v. Pone , 78 Hawai'i 262, 265, 892 P.2d 455, 458 (1995) ).

State v. Bayly , 118 Hawai'i 1, 6, 185 P.3d 186, 191 (2008).

Furthermore, "[m]atters related to the credibility of witnesses and the weight to be given to the evidence are generally left to the factfinder. The appellate court will neither reconcile conflicting evidence nor interfere with the decision of the trier of fact based on the witnesses' credibility or the weight of the evidence." State v. Mitchell , 94 Hawai'i 388, 15 P.3d 314 (App. 2000) (citing State v. Gabrillo , 10 Haw. App. 448, 457, 877 P.2d 891, 895 (1994) ).

Judgment of Acquittal

"When reviewing a motion for judgment of acquittal, [this court] employ[s] the same standard that a trial court applies to such a motion, namely, whether, upon the evidence viewed in the light most favorable to the prosecution and in full recognition of the province of the trier of fact, the evidence is sufficient to support a prima facie case so that a reasonable mind might fairly conclude guilt beyond a reasonable doubt." State v. Jenkins , 93 Hawai'i 87, 99, 997 P.2d 13, 25 (2000) (quoting State v. Timoteo , 87 Hawai'i 108, 112–13, 952 P.2d 865, 869–70 (1997) ).

Prosecutorial Misconduct

"Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. Rogan , 91 Hawai'i 405, 412, 984 P.2d 1231, 1238 (1999) (quoting State v. Balisbisana , 83 Hawai'i 109, 114, 924 P.2d 1215, 1220 (1996) ) (internal quotation marks omitted).

III. DISCUSSION

A. Findings of Fact ("FOFs")

We need not decide whether the FOFs that Bukoski challenges are clearly erroneous because the other evidence, taken in the light most favorable to the prosecution is sufficient. State v. Tsujimura, 140 Hawai'i 299, 307, 400 P.3d 500, 508 (2017) ; see , infra , Part III.B.

B. Sufficiency of the Evidence

Bukoski argues that there was insufficient evidence that he possessed the requisite mens rea to commit ITD. To support this point, Bukoski cites to State v. Moleta , 112 Hawai'i 233, 145 P.3d 776 (App. 2006), which concerns a conviction for Reckless Driving, in violation of HRS section 291–2,⁴ but where the evidence was insufficient to support a conviction because the prosecution adduced no evidence of behavior or omissions by defendant that would manifest his own awareness of any risk. Moleta is distinguishable, however, on the basis that Bukoski's looking down and exceeding the speed limit are both behaviors which the State adduced evidence concerning.

Viewing the evidence in the light most favorable to the State, as we must, the evidence was sufficient...