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                                                  Electronically Filed
                                                  Intermediate Court of Appeals
                                                  CAAP-XX-XXXXXXX
                                                  30-JUN-2020
                                                  07:53 AM

                             NO. CAAP-XX-XXXXXXX


                  IN THE INTERMEDIATE COURT OF APPEALS

                            OF THE STATE OF HAWAI#I


                 STATE OF HAWAI#I, Plaintiff-Appellee,
                                   v.
                  TONY F. TORRES, Defendant-Appellant


         APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
                        SOUTH KOHALA DIVISION
                      (Case No. 3DTC-17-012333)


                        SUMMARY DISPOSITION ORDER
         (By:   Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

            Defendant-Appellant Tony F. Torres (Torres) was
convicted by the District Court of the Third Circuit, South
Kohala Division, State of Hawai#i,1 of excessive speeding in
violation of Hawaii Revised Statutes (HRS) § 291C-1052 and
Driving Without a License in violation of HRS § 286-102(b)(3)3.


     1
            The Honorable Mahilani E.K. Hiatt presided.
     2
            HRS § 291C-105 (2007) provides, in relevant part:

            Excessive speeding. (a) No person shall drive a motor
            vehicle at a speed exceeding:
                  . . . .

                  (2)   Eighty miles per hour or more irrespective of
                        the applicable state or county speed limit.
     3
            HRS § 286-102 (Supp. 2016) provides, in relevant part:
                  (b)   A person operating the following category or
            combination of categories of motor vehicles shall be
                                                                 (continued...)
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The trial court entered a "Judgment and Notice of Entry of
Judgment" (Judgment) on October 18, 2018. For the reasons
explained below, we affirm.

                                BACKGROUND

          On November 28, 2017, Hawai#i County Police Department
(HCPD) officer Casey Cabral, using a Stalker DSR 2X radar device,
determined that Torres was operating his vehicle on a public road
at a speed of 94 miles per hour (MPH). Officer Cabral cited
Torres for excessive speeding and for driving without a license.
Torres contested the citation. A bench trial was conducted on
October 18, 2018. The trial court found Torres guilty. This
appeal followed.

                                DISCUSSION

           Torres's only contention on appeal is that the State
failed to lay the proper foundation for admissibility of Officer
Cabral's testimony about Torres's speed displayed on his Stalker
DSR 2X radar device. "[T]he determination of whether proper
foundation has been established lies within the discretion of the
trial court, and its determination will not be overturned absent
a showing of clear abuse." State v. Gonzalez, 128 Hawai#i 314,
325, 288 P.3d 788, 799 (2012) (quoting State v. Assaye, 121
Hawai#i 204, 210, 216 P.3d 1227, 1233 (2009)).
           To lay a foundation for the introduction of a radar
speed measurement, the State must demonstrate that: (1) the
police officer who used the device was trained as required by the
device manufacturer; and (2) the device's accuracy was tested


     3
      (...continued)
           examined as provided in section 286-108 and duly licensed by
           the examiner of drivers:
                 . . . .
                 (3)   Passenger cars of any gross vehicle weight
                       rating, buses designed to transport fifteen or
                       fewer occupants, and trucks and vans having a
                       gross vehicle weight rating of eighteen thousand
                       pounds or less[.]

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according to manufacturer-recommended procedures and was
operating properly prior to use. See Gonzalez, 128 Hawai#i at
324-27, 288 P.3d at 798-801. As to the training prong, the State
must show (a) what the manufacturer's training requirements were,
and (b) what training was actually received by the police officer
operating the device. See State v. Amiral, 132 Hawai#i 170, 178,
319 P.3d 1178, 1186 (2014) (citing Gonzalez, 128 Hawai#i at 327,
288 P.3d at 801).

          1.   Training

          Officer Cabral testified that he received 16 hours of
instruction on Doppler-based radar speed detection devices while
in police recruit training. He received a National Highway
Traffic Safety Administration manual, attended classroom
instruction, and participated in field training. He passed a
test and was certified to use radar speed detection devices.
          Officer Cabral also testified that the Stalker DSR 2X
radar is manufactured by Applied Concepts. Officer Cabral
testified that he read the manual that came with his assigned
Stalker DSR 2X radar. He explained that Applied Concepts does
not require users of the Stalker DSR 2X radar to receive formal
training; however, in 2014 he received four hours of classroom
and field training from an Applied Concepts instructor. The
training included instruction on testing and operating the
device.
          The evidence before the trial court established that
although the manufacturer of the radar device did not have
specific training requirements, Officer Cabral received training
in the use of Doppler-based radar devices while he was in recruit
training, and that he received additional training in the testing
and operation of the radar from the manufacturer. We hold that
the State established foundation for the training prong.




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          2.    Testing

          Officer Cabral testified that on the day he cited
Torres, he tested and operated his assigned Stalker DSR 2X radar
according to the contents of the manual that came with the device
and the training he received from Applied Concepts. He tests the
device before and after each shift. When the device is powered
on it conducts a self-test. If it is working properly it emits a
"happy beep" and the display shows three 8s. If it is not
working properly it will beep 20 times and the display will show
"Fail." He then tests the device using two tuning forks that
come with the device, one for 25 MPH and one for 40 MPH. He taps
the tuning fork on a non-metallic surface and places it two
inches in front of the antenna. He tests the front and rear
antennae. Officer Cabral testified that his radar tested
properly before and after his shift on the day he cited Torres.
          In State v. Tailo, 70 Haw. 580, 779 P.2d 11 (1989), the
supreme court held:

          A special tuning fork can be used to check the calibration
          of the radar gun. The tuning fork is specially tuned to
          vibrate at a frequency equal to the Doppler frequency for
          some set speed stamped into the handle of the fork. To test
          the accuracy of the radar gun with the fork, the officer
          strikes the fork to get it vibrating and then holds the fork
          in front of the radar head. The radar unit will then read
          the fork's vibration and display the read Doppler frequency
          value for comparison by the officer with the imprinted value
          on the fork. . . .

                . . . .

          . . . [W]e hold that once the State puts in evidence that
          the police conducted a tuning fork test indicating the
          [radar] gun was properly calibrated, this evidence creates a
          prima facie presumption that the tuning fork itself was
          accurately calibrated.

Id. at 583, 779 P.2d at 13-14 (emphasis added). In this case
Officer Cabral conducted a tuning fork test indicating that his
radar was operating properly on the date he cited Torres. Torres
produced no evidence to rebut the prima facie presumption that
the tuning forks were accurately calibrated. We hold that the
State established foundation for the testing prong.


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                             CONCLUSION

          Based upon the foregoing, we hold that the trial court
did not abuse its discretion by admitting Officer Cabral's radar
measurement of the speed of Torres's vehicle into evidence.
Accordingly, the "Judgment and Notice of Entry of Judgment" filed
on October 18, 2018, is affirmed.
          DATED: Honolulu, Hawai#i, June 30, 2020.

On the briefs:

E. Britt Bailey,                      /s/ Lisa M. Ginoza
for Plaintiff-Appellee.               Chief Judge

Min Tsui,                             /s/ Katherine G. Leonard
for Defendant-Appellant.              Associate Judge

                                      /s/ Keith K. Hiraoka
                                      Associate Judge




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