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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                08-APR-2019
                                                                10:41 AM



                              SCWC-XX-XXXXXXX

            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
  ________________________________________________________________

                            STATE OF HAWAIʻI,
                     Respondent/Plaintiff-Appellee,

                                      vs.

                          MICHAEL L. ARKIN,
                  Petitioner/Defendant-Appellant.
  ________________________________________________________________

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                   (CAAP-XX-XXXXXXX; 3DTC-13-02654)

                      SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
            Petitioner Michael L. Arkin (Arkin) was convicted

 following a bench trial of Operating a Vehicle Under the

 Influence of an Intoxicant (OVUII) in which the results of a

 field sobriety test known as the horizontal gaze nystagmus (HGN)

 test were admitted into evidence.1         Respondent State of Hawaiʻi

 (State), through the Office of the Prosecuting Attorney for the

 County of Hawaiʻi, confessed as error before the Intermediate


      1
            The Honorable Andrew P. Wilson presided.



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Court of Appeals (ICA) that insufficient foundation was laid for

its admission.    The confession of error also conceded that,

absent the HGN test results, insufficient evidence supported

Arkin’s conviction.

          The State of Hawaiʻi, through Deputy Prosecuting Attorney
          Jason R. Kwiat, hereby concedes that the State did not lay
          sufficient foundation for the admission of the horizontal
          gaze nystagmus test as required by State v. Ito, 90 Hawaiʻi
          225, 978 P.2d 191 (App. 1999). Coupled with the trial
          court’s finding that the State did not lay sufficient
          foundation for the admission of the breath alcohol
          concentration test results, the State concedes that there
          is insufficient evidence to sustain Defendant-Appellant
          Michael L. Arkin’s conviction under Haw. Rev. Stat. § 291E-
          61(a)(1).

          Before accepting a confession of error a court must

ascertain that the confession of error is supported by the

record, well founded in the law, properly preserved, and

prejudicial.   State v. Hoang, 93 Hawaiʻi 333, 336, 3 P.3d 499,

502 (2000).    And, “great weight” must be given by the court to

the prosecutor’s confession of error.

          But [the public prosecutor’s] confession [of error], though
          entitled to great weight, is not binding upon the appellate
          court, nor may a conviction be reversed on the strength of
          his [or her] official action alone. Before a conviction is
          reversed on confessed error, the public interest requires
          and it is incumbent upon the appellate court to ascertain
          first that the confession of error is supported by the
          record and well–founded in law and to determine that such
          error is properly preserved and prejudicial.

Territory v. Kogami, 37 Haw. 174, 175 (Haw. Terr. 1945)

(emphasis added).

          Arkin contends that the decision of the ICA failed to

apply the proper standard to determine whether the State’s



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confession of error should be accepted.          The ICA rejected the

confession of error based solely on its erroneous conclusion

that the failure of Arkin’s trial counsel to object to the

admission of the results of the HGN test automatically

disqualified it from appellate consideration as plain error.2

See Hawaiʻi Rules of Evidence Rule 103(d) (“Nothing in this rule

precludes taking notice of plain errors affecting substantial

rights although they were not brought to the attention of the

court.”).    Nonetheless, in light of the evidentiary record in

this case, the admission of the HGN evidence did not rise to

plain error.    Thus, we concur with the ICA’s affirmance of the

judgment but on different grounds.         We find the other issues

raised by Arkin to be without merit.         Accordingly, the ICA’s May

15, 2017 Judgment on Appeal is affirmed.

            DATED:   Honolulu, Hawaiʻi, April 8, 2019.

John M. Tonaki,                     /s/ Mark E. Recktenwald
Phyllis J. Hironaka,
Reiko A. Bryant                     /s/ Paula A. Nakayama
for Petitioner
                                    /s/ Sabrina S. McKenna
Mitchell D. Roth,
David Blancett-Maddock              /s/ Richard W. Pollack
for Respondent.
                                    /s/ Michael D. Wilson




     2
            The ICA’s summary disposition order can be found in full at State
v. Arkin, No. CAAP-XX-XXXXXXX (App. March 21, 2017 as amended May 15, 2017)
(SDO).



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