State v. Fat, No. 23597 (Haw. App. 3/19/2002), 23597

• Court: Court of Appeals of Hawai'i
• Writing for the Court: Burns
• Parties: STATE OF HAWAI`I, Plaintiff-Appellee, v. RANDAL P. CHUN FAT, Defendant-Appellant.
• Docket Number: No. 23597,23597
• Decision Date: 19 March 2002

Page 1

STATE OF HAWAI`I, Plaintiff-Appellee,
v.
RANDAL P. CHUN FAT, Defendant-Appellant. No. 23597 Intermediate Court of Appeals of Hawaii. March 19, 2002.

APPEAL FROM THE FIRST CIRCUIT COURT (CR. NO. 99-1043)

On the briefs:

Cindy A. L. Goodness, Deputy Public Defender, for defendant-appellant.

James M. Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, for plaintiff-appellee.

MEMORANDUM OPINION

BURNS, C.J., WATANABE and FOLEY, JJ.

On June 9, 1999, Defendant-Appellant Randal P. Chun Fat (Chun Fat) was charged by complaint in the Circuit Court of the First Circuit (circuit court) with the following:

Count I, Driving Under the Influence of Intoxicating Liquor, in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(1) (Supp. 2000)¹; and

Count II, Criminal Property Damage in the Third Degree, in violation of HRS § 708-822(1)(b) (Supp. 2001)².

Following a jury trial before Judge Russell Blair, on April 24, 2000, Chun Fat was acquitted as to Count I, found guilty as to Count II, sentenced to one year of probation, fined $100.00, and ordered to pay a Crime Victim Compensation Commission fee of $50.00. Judgment was entered on June 19, 2000.

On appeal, Chun Fat contends the circuit court committed plain error because prosecutorial misconduct prejudiced his right to a fair trial and the evidence adduced at trial was legally insufficient to support the jury's finding of criminal intent under HRS § 708-822(1)(b). We disagree with Chun Fat's contentions and affirm the June 19, 2000, Judgment of the circuit court.

I. BACKGROUND

Honolulu Police Department Officer Robert Daclison (Officer Daclison) testified that on April 14, 1999, he and his partner, Officer Brad Heatherly (Officer Heatherly), assisted other police officers in an argument case on Kuhio Avenue. Officer Daclison saw an ambulance in front of a nightclub on Kuhio Avenue (Nightclub) down the street from the argument and went to see if he could help. When he reached the Nightclub, Officer Daclison observed Chun Fat sitting on some steps with another male, identified as Herbert Julian (Julian), standing next to Chun Fat. Chun Fat was arguing with ambulance personnel (paramedics) regarding his request that the paramedics transport him to the hospital.

Officer Daclison testified he heard Chun Fat state that he was having "a lupus attack," his "equilibrium was off," he could not stand or walk, and he wanted to go to the hospital. Paramedics questioned Chun Fat to gain information from him regarding whether he could go to the hospital by himself or have Julian take him, thereby saving himself four or five hundred dollars. This angered and upset Chun Fat, who shouted and swore at the paramedics, using "F___ words" and calling the female paramedic a "bitch." When the argument grew heated, Officer Daclison stepped in and tried to calm Chun Fat, telling the paramedics to take him to the hospital. Chun Fat then stood up and said, "That's all right; they don't like take me, I just going take myself," adding that if he got into an accident and either hurt or killed himself, he would "sue the ambulance company." Chun Fat and Julian walked away. Chun Fat did not require assistance getting up or walking away and walked away in a relatively straight line. Officers Daclison and Heatherly left to go eat.

Officer Heatherly testified that Chun Fat was "very argumentative" and "combative," calling the female paramedic a "f___ing bitch" and a "haole bitch." Chun Fat grabbed the keys from Julian and said, "Come on, that's it. Let's go. I'm going to St. Francis where I belong." Chun Fat added something like "I'm going to get into my car and get into an accident right here."

Marc Litchfield (Litchfield) testified that on April 14, 1999, he was working as "a doorman security guy" at a nightclub (the club) on the corner of Kuhio and Seaside Avenues. Between 1:00 and 2:00 a.m., his attention was drawn to a number of people standing outside at the Nightclub (next door to the club), where there "was a guy on the sidewalk." Litchfield walked over to see if the guy "was okay." A number of people tried to help the guy off the sidewalk, but he was not "really responding one way or the other." Litchfield saw and heard the paramedics interacting with Chun Fat, "[a]nd for whatever reason [Chun Fat] became verbally abusive." Litchfield heard Chun Fat say, "[w]hat if I get in my car and come back here and crash into the building?" Chun Fat and Julian then walked away.

Litchfield testified that within fifteen minutes of the incident, he was back on the corner of Seaside and Kuhio Avenues in front of the club when he saw Chun Fat driving a car, which was heading straight for him. Chun Fat's vehicle "veered up over the sidewalk and kind of came up on the sidewalk and slid down the restaurant part of the building." Litchfield testified:

I mean, it was obvious to me that he literally was coming at the building. You could tell by the way he was driving that he wasn't going to make the turn, you know. He did not have his turn signal on or anything. It was a beeline for the building.

Officer Daclison testified that while he and Officer Heatherly were going to eat, they received a call from police dispatch directing them to an accident at the intersection of Seaside and Kuhio Avenues. Officer Daclison testified he was thinking, "don't tell me that is the same guy who just said he might get into an accident." When he got to the intersection, there was a dark colored Honda Prelude facing in the "Diamond Head" direction (east) up on the sidewalk next to the building which housed the Seafood Bar & Grill (Grill).

Officer Daclison testified that when he approached the Honda, he saw Chun Fat sitting in the driver's seat and Julian in the passenger seat. Chun Fat sat with the driver's seat reclined, his hand over his face, "kind of moaning." Chun Fat said, "Oh, I called the ambulance earlier because I wanted them to take me to the hospital. And they did not want to. And now look what happened. I got into this accident." Chun Fat spoke with a calm voice and kept repeating that he had called the paramedics and they did not want to take him to the hospital, so he had to drive himself and got into this accident. Officer Daclison smelled a slight odor of alcoholic beverage from Chun Fat's breath and noticed that Chun Fat's eyes were a bit red and glassy.

Officer Daclison testified that he also observed Julian with red, glassy eyes and a slight odor of alcoholic beverage coming from his breath. When Officer Daclison asked Julian what happened, Julian responded that he was scared and he did not know how they got into that position. Julian did not want to say anything else to Officer Daclison.

Officer Daclison testified that Officer Heatherly arrested Chun Fat. Chun Fat complained that he was not feeling well, was having an equilibrium attack, and wanted to be taken to the hospital. Officer Daclison called an ambulance pursuant to Chun Fat's request, although Officer Daclison was unable to determine...