State v. Ho
| Decision Date | 26 May 2022 |
| Docket Number | CAAP-20-0000059 |
| Citation | 151 Hawai‘i 227,510 P.3d 1129 (Table) |
| Parties | STATE of Hawai‘i, Plaintiff-Appellee, v. Demi Nohea HO, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
On the briefs:
Brian S. Kim for Defendant-Appellant.
Sonja P. McCullen, Deputy Prosecuting Attorney, City & County of Honolulu, for Plaintiff-Appellee.
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Defendant-Appellant Demi Nohea Ho (Ho ) appeals from the Notice of Entry of Judgment and/or Order and Plea/Judgment, entered on January 9, 2020, in the District Court of the First Circuit, Honolulu Division (District Court ).1 Following a bench trial, Ho was convicted of Operating a Vehicle After License and Privilege Have Been Suspended or Revoked for Operating a Vehicle Under the Influence of an Intoxicant (OVLPSR ), in violation of Hawaii Revised Statutes (HRS ) § 291E-62(a)(1) and/or (a)(2) (Supp. 2017).2
On appeal, Ho contends that: (1) the District Court erroneously admitted Exhibit 2, a certified traffic abstract (Abstract ), and Exhibit 3, a Notice of Administrative Review Decision (ADLRO Notice );3 (2) the admission of the Abstract and the ADLRO Notice violated Ho's confrontation rights; and (3) there was insufficient evidence to support Ho's conviction because: (a) Exhibits 2 and 3 were erroneously admitted; (b) the State failed to prove that Ho was the person in the ADLRO Notice; and (c) the State failed to adduce substantial evidence that Ho acted with the requisite state of mind.4
After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Ho's contentions as follows and affirm.
(1) and (2) Ho contends that the District Court improperly admitted the Abstract and the ADLRO Notice, which she asserts "were not competent evidence to prove that [Ho's] license had been administratively revoked." Ho also contends that admission of the Abstract and the ADLRO Notice violated her confrontation rights.
At trial, Ho objected to the admission of the Abstract as follows:
(Emphases added.)
As reflected in this transcript, Ho first objected to the admission of the Abstract due to "lack of foundation." "[A] ‘lack of foundation’ objection generally is insufficient to preserve foundational issues for appeal because such an objection does not advise the trial court of the problems with the foundation." State v. Long, 98 Hawai‘i 348, 353, 48 P.3d 595, 600 (2002). "[A]n exception is recognized when the objection is overruled and, based on the context, it is evident what the general objection was meant to convey." Id. Here, based on Ho's reference to an "exception" and "a public record," the District Court appears to have reasonably construed Ho's objection to the admission of the Abstract as a hearsay objection.
On appeal, Ho contends that the Abstract was "inadmissible as it was not the ‘best evidence’ to confirm that [Ho's] license had been administratively revoked[.]" Relatedly, Ho argues that "the only ‘foundation’ adduced by the State for admission of the certified traffic abstract was the certification of the ‘Clerk, District Court of the First Circuit, State of Hawaii’ that ‘I hereby certify that the information provided herein is extracted from the official records of the District Courts of the State of Hawaii.’ " Ho also contends that admission of the Abstract violated her confrontation rights.
We need not address Ho's arguments regarding the Abstract for two reasons. First, Ho did not object at trial to admission of the Abstract based on the "best evidence" rule (see HRE Rules 1001 - 1008 ) or the certification contained in the Abstract. Nor did Ho assert her confrontation rights with regard to the Abstract. These arguments are thus deemed waived. See State v. Engelby, 147 Hawai‘i 222, 232-33, 465 P.3d 669, 679-80 (2020) (citing Kobashigawa v. Silver, 129 Hawai‘i 313, 322, 300 P.3d 579, 588 (2013) ; State v. Kony, 138 Hawai‘i 1, 10-11, 375 P.3d 1239, 1248-49 (2016) ); HRE Rule 103(a)(1). Second, the Abstract is cumulative with regard to the OVLPSR charge, as the ALDRO Notice (discussed infra ) by itself sufficiently shows that Ho's license was administratively revoked when she drove. See State v. Kaaikala, No. CAAP-18-0000931, 2021 WL 2416739, at *3 (Haw. App. June 14, 2021) (SDO) ().
At trial, Ho objected to the admission of the ADLRO Notice as follows:
(Emphasis and footnote added.)
On appeal, Ho argues that the ADLRO Notice was not competent evidence that her license had been revoked because it was not a final decision. Ho did not object at trial to admission of the ADLRO Notice on this basis, and her argument is thus deemed waived. See Engelby, 147 Hawai‘i at 232-33, 465 P.3d at 679-80.
Relying on Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Fields, 115 Hawai‘i 503, 168 P.3d 955, Ho further argues that the ADLRO Notice was admitted "in violation of [her] constitutional rights to confrontation and due process."6 We recently considered a similar argument in Kaaikala, 2021 WL 2416739, at *3-4. We analyzed the issue and ruled as follows:
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