  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                  Electronically Filed
                                                  Intermediate Court of Appeals
                                                  CAAP-XX-XXXXXXX
                                                  18-JUN-2020
                                                  07:45 AM

                             NO. CAAP-XX-XXXXXXX


                 IN THE INTERMEDIATE COURT OF APPEALS

                            OF THE STATE OF HAWAI#I


                 STATE OF HAWAI#I, Plaintiff-Appellee,
                                   v.
                  ROBERT Z. GEIS, Defendant-Appellant


         APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
                        SOUTH KOHALA DIVISION
                      (CASE NO. 3DTC-17-051834)


                      SUMMARY DISPOSITION ORDER
    (By:    Chan, Presiding Judge, Hiraoka and Wadsworth, JJ.)

            Defendant-Appellant Robert Z. Geis (Geis) 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-105.2 The trial court
entered a judgment of conviction on May 17, 2018. Geis appeals
from the "Judgment and Notice of Entry of Judgment" (Judgment)
filed on May 21, 2018.        For the reasons explained below, we
affirm the Judgment.




     1
            The Honorable Bruce A. Larson 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.
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                             BACKGROUND

          On July 3, 2017, Hawai#i County Police Department
(HCPD) officer Kimo Keliipaakaua, using a Stalker DSR 2X radar
device manufactured by Applied Concepts, Inc., determined that
Geis was operating his vehicle on a public road at a speed of 85
miles per hour (MPH). Officer Keliipaakaua cited Geis for
excessive speeding. Geis contested the citation. A bench trial
was conducted on May 17, 2018. The trial court found Geis
guilty. This appeal followed.

                             DISCUSSION

           Geis contends that the trial court erred by allowing
Officer Keliipaakaua to testify about the speed displayed on his
Stalker DSR 2X radar device without proper foundation, and that
without evidence of the radar speed measurement, the evidence was
insufficient to convict Geis.
           "The 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) (cleaned up) (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
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).




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            A.    The State established that Officer
                  Keliipaakaua was qualified to operate
                  his Stalker DSR 2X radar.

          Officer Keliipaakaua testified that he received
training on Doppler-based radar speed detection devices such as
the Stalker DSR 2X during HCPD recruit school in 2008-2009. He
received a National Highway Traffic Safety Administration (NHTSA)
manual for basic training and radar speed measurement, and was
trained according to NHTSA standards. The training included
field exercises. He passed the test to use the radar. He
testified that he also received training in the testing and
operation of the Stalker DSR 2X from Applied Concepts, Inc. in
December 2015. Applied Concepts' training requirement is that
the operator read the manual for the device.3 Officer
Keliipaakaua received and read the manufacturer's manual for his
Stalker DSR 2X. He also received classroom and field training
from the manufacturer's representatives. He passed a test, which
qualified him to be an instructor for using the Stalker DSR 2X.
We hold that the State laid sufficient foundation for the
training prong by establishing what Applied Concepts' training
requirements were, and that Officer Keliipaakaua actually
received training from, and was qualified by, the manufacturer.
See Amiral, 132 Hawai#i at 178, 319 P.3d at 1186; Gonzalez, 128
Hawai#i at 327, 288 P.3d at 801.

            B.    The State laid a proper foundation
                  for accuracy of the radar device.

          Officer Keliipaakaua testified that on the day he
ticketed Geis, he tested and operated his assigned Stalker DSR 2X
radar according to the contents of the manual that came with the
device,4 the contents of the manual he received when he was


      3
            Geis argues that Officer Keliipaakaua's testimony that Applied
Concepts did not require formal training is inadmissible hearsay. Geis did
not object to the testimony at trial and has therefore waived this challenge
on appeal. See State v. Vliet, 91 Hawai#i 288, 298-99, 983 P.2d 189, 199-200
(1999).
      4
            The manual shown to Officer Keliipaakaua at trial was the one he
brought with him to court. It came with the Stalker DSR 2X he was issued
                                                                (continued...)

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trained by the manufacturer's representatives, and the actual
training he received from the manufacturer. He described the
device's two internal self-checks and how he performed the
accuracy test using the tuning forks that come with the device.
He testified that his Stalker DSR 2X radar tested properly before
and after his shift on the day he ticketed Geis. The State
satisfied the foundational requirements for admitting the radar
speed measurement into evidence under Gonzalez, 128 Hawai#i at
324-27, 288 P.3d at 798-801.

            C.    The "calibration" issue.

          Geis argues the State failed to establish that the
radar used by Officer Keliipaakaua was properly "calibrated."5
On cross-examination, Officer Keliipaakaua testified that the
last time the radar device that targeted Geis was "calibrated"
was September 2012 (almost five years before he cited Geis).
Officer Keliipaakaua testified that he does not "calibrate" his
radar device. Geis cites State v. Manewa, 115 Hawai#i 343, 167
P.3d 336 (2007) and State v. Wallace, 80 Hawai#i 382, 910 P.2d
695 (1996) in support of his argument that the State failed to
show the radar gun itself was properly "calibrated."
          As we explained in State v. Weber, ___ Hawai#i ___, ___
P.3d ___, No. CAAP-XX-XXXXXXX (Haw. App. June 8, 2020), Manewa
and Wallace are both distinguishable on their facts. In Manewa
and Wallace there was no evidence that the State's witnesses


      4
       (...continued)
after he cited Geis. He explained that the manual contains the same
information as the manual he had when he cited Geis.
      5
            The supreme court mentioned the calibration issue in Amiral, but
that case was decided based on the State's failure to lay foundation for the
officer's training, and the calibration issue was not reached. 132 Hawai#i at
179, 319 P.3d at 1187. Amiral and Assaye both involved the use of a Laser
Technology Incorporated 20-20 UltraLyte laser gun by the Honolulu Police
Department, rather than the Applied Concepts, Inc. Stalker DSR 2X radar used
by the HCPD; it is not at all clear from the cases whether a laser gun (which
uses light waves) is "calibrated" in the same manner as a radar gun (which
uses radio frequency waves).
            We did not reach the calibration issue in State v. Portillo,
No. CAAP-XX-XXXXXXX, 2020 WL 1879621 (Haw. App. Apr. 15, 2020) (SDO)
(involving the Kaua#i Police Department's use of an unidentified radar gun)
because it had been waived. Id. at *2.

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confirmed the accuracy of their respective laboratory scales by,
for example, weighing objects of a known, certified weight before
or after weighing the drug evidence at issue in those cases.
However, in State v. Tailo, 70 Haw. 580, 779 P.2d 11 (1989), a
case involving a radar gun, the supreme court stated:

          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). "Calibrate"
means "to measure against a standard[.]" Calibrate, Merriam-
Webster, https://www.merriam-webster.com/dictionary/calibrate
(last updated June 2, 2020).
          In this case Officer Keliipaakaua testified that he
measured his radar device's accuracy against a standard — two
tuning forks that came with the device. Geis produced no
evidence to rebut the prima facie presumption that the tuning
forks were accurately calibrated. The trial court stated:

                Uh, now, we have this information on the side
          regarding periodic calibration. And one of the things was
          to determine whether it was measuring the correct speed
          within I think a plus or minus one mile per hour. Well
          that's part of the testing that the officer does with the
          tuning forks. He's testing at 20/45 -- or 25 and 40 miles
          an hour, and that test within plus or minus one mile per
          hour. So it would appear that at least one aspect of the
          calibration is actually being performed on a daily basis,
          uh, both at the beginning/at the end of the shift.

          We agree that Officer Keliipaakaua's testimony
established that he in fact verified that his Stalker DSR 2X was
"calibrated" to accurately measure the speed of Geis's vehicle.
We hold that the trial court did not abuse its discretion by

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finding that the State laid a proper foundation for admitting
Officer Keliipaakaua's 85-MPH radar measurement of the speed of
Geis's vehicle into evidence. That evidence was sufficient to
support Geis's conviction for excessive speeding.

                             CONCLUSION

          Based upon the foregoing, we hold that the trial court
did not abuse its discretion by admitting the radar measurement
of the speed of Geis's vehicle into evidence. Accordingly, the
"Judgment and Notice of Entry of Judgment" filed on May 21, 2018,
is affirmed.
          DATED: Honolulu, Hawai#i, June 18, 2020.

On the briefs:

E. Britt Bailey,                           /S/ Derrick H.M. Chan
for Plaintiff-Appellee.                    Presiding Judge

Joanne B. Badua,                           /s/ Keith K. Hiraoka
for Defendant-Appellant.                   Associate Judge

                                           /s/ Clyde J. Wadsworth
                                           Associate Judge




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