 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER




                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   18-JUN-2020
                                                   07:48 AM



                             NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                           OF THE STATE OF HAWAI#I


                STATE OF HAWAI#I, Plaintiff-Appellee, v.
                 ISAAC K. TANGONAN, Defendant-Appellant

          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                            HONOLULU DIVISION
                        (CASE NO. 1DTA-18-00818)


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

             Defendant-Appellant Isaac K. Tangonan (Tangonan)
appeals from the Notice of Entry of Judgment and/or Order and
Plea/Judgment, entered by the District Court of the First
Circuit, Honolulu Division (District Court), on September 13,
2018.1/ Following a bench trial, Tangonan was convicted of one
count of Operating a Vehicle Under the Influence of an Intoxicant
(OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-
61(a)(1) (Supp. 2017).2/



     1/
          The Honorable Michelle N. Comeau presided.
     2/
          HRS § 291E-61(a)(1) provides, in relevant part:

                   Operating a vehicle under the influence of an
             intoxicant. (a) A person commits the offense of operating
             a vehicle under the influence of an intoxicant if the person
             operates or assumes actual physical control of a vehicle:
                   (1)   While under the influence of alcohol in an
                         amount sufficient to impair the person's normal
                         mental faculties or ability to care for the
                         person and guard against casualty[.]
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

          On appeal, Tangonan contends that the District Court
erred in denying his motion for a judgment of acquittal because
the evidence adduced at trial established his entrapment defense
as a matter of law.
          Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Tangonan's point of error as follows:
          We apply the following standard in reviewing a trial
court's denial of a motion for a judgment of acquittal:
"whether, upon the evidence viewed in the light most favorable to
the prosecution and in full recognition of the province of the
[trier of fact], a reasonable mind might fairly conclude guilt
beyond a reasonable doubt." State v. Alston, 75 Haw. 517, 528,
865 P.2d 157, 164 (1994) (citing State v. Nakoa, 72 Haw. 360,
363, 817 P.2d 1060, 1062 (1991)).
          In this case, Tangonan sought a judgment of acquittal
based on his defense of entrapment. As relevant here, HRS § 702-
237(1)(b) (2014) states:
                (1) In any prosecution, it is an affirmative defense
          that the defendant engaged in the prohibited conduct or
          caused the prohibited result because the defendant was
          induced or encouraged to do so by a law enforcement officer,
          . . . who, for the purpose of obtaining evidence of the
          commission of an offense, . . . :

                . . . .

                (b)   Employed methods of persuasion or inducement
                      which created a substantial risk that the
                      offense would be committed by persons other than
                      those who are ready to commit it.

In addition, HRS § 701–115(2)(b) (2014) provides:
                (2) No defense may be considered by the trier of fact
          unless evidence of the specified fact or facts has been
          presented. If such evidence is presented, then:
                . . . .

                (b)   If the defense is an affirmative defense, the
                      defendant is entitled to an acquittal if the
                      trier of fact finds that the evidence, when
                      considered in light of any contrary prosecution
                      evidence, proves by a preponderance of the
                      evidence the specified fact or facts which
                      negative penal liability.




                                    2
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

See State v. Anderson, 58 Haw. 479, 484, 572 P.2d 159, 163 (1977)
("entrapment is an affirmative defense for which the defendant
bears the burden of proof by a preponderance of the evidence"
(citing People v. Tewksbury, 544 P.2d 1335 (Cal. 1976))).
           Here, Tangonan argues that the evidence established as
a matter of law that he was entrapped into committing the
prohibited conduct by a police officer. "In other words, [he]
contend[s] that no reasonable mind might fairly conclude that the
evidence failed to prove more probably than not that [he was]
entrapped." State v. Timas, 82 Hawai#i 499, 510, 923 P.2d 916,
927 (App. 1996). Based on our review of the record, as further
explained below, we conclude the evidence permitted a reasonable
mind to fairly conclude that Tangonan did not sustain his burden
of proving entrapment.
           The Hawai#i Supreme Court applies an objective test for
determining whether a defendant was entrapped. As the court has
explained:
          In enacting HRS § 702–237, the legislature adopted the
          approach of the Model Penal Code which endorsed the
          objective test of the entrapment defense. Under the
          objective test . . . , "the focus of inquiry is not on the
          predisposition of the defendant to commit the crime charged,
          but rather is on the conduct of the law enforcement
          officials."

State v. Agrabante, 73 Haw. 179, 192–93, 830 P.2d 492, 499 (1992)
(quoting Anderson, 58 Haw. at 483, 572 P.2d at 162). The court
further stated that under this objective test, the dispositive
question is whether the actions of the police were "so extreme
that it created a substantial risk that persons not ready to
commit the offense alleged would be persuaded or induced to
commit it." Id. at 193, 830 P.2d at 499 (quoting Anderson, 58
Haw. at 483, 572 P.2d at 162) (internal quotation marks omitted);
see also State v. Tookes, 67 Haw. 608, 614, 699 P.2d 983, 987
(1985) ("Allegations of entrapment require more than that the
police provide an opportunity for commission of a crime. A mere
solicitation of criminal activity by the police is not a
sufficient inducement." (citations omitted)).
          At trial, Officer Joshua Wong (Officer Wong) of the
Honolulu Police Department testified to the following:           On

                                    3
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

February 18, 2018, he was on patrol, on Ala Wai Boulevard, in
Waikiki, when he noticed a Toyota pickup truck in the parking
lane, on the far right-hand side of the road. Next to the
parking lane, separated by a solid, white line, was a bicycle
lane. The front and rear tires of the driver's side of the truck
were protruding about one foot into the bicycle lane. Sticking
out of the front, driver's side of the truck were a man's legs
and half of his torso. Officer Wong circled around and drove
back onto Ala Wai Boulevard. His intention was "to go back
around to see if the person inside the vehicle was planning on
parking the vehicle and leaving it like that or if they were
going to exit and move on. So [he] wanted them to at least move
over and straighten out the vehicle so that it's not blocking the
bicycle lane."
          Officer Wong further testified as follows: He pulled
up alongside the truck and saw the same person, now with his
hands on the hood of the vehicle directly behind the truck.
Officer Wong stopped and asked the man (later identified as
Tangonan) if the vehicle he had his hands on was his. Officer
Wong asked the question because he "wanted to make sure that
[Tangonan] wasn't committing any kind of like property damage or
doing something illegal to somebody else's property . . . ."
Tangonan responded that it was not his car. Officer Wong then
asked Tangonan if the truck in front of him was his truck because
he "was going to ask [Tangonan] if he could move his truck a
little further up into the parking stall that he was in and
straighten it out so it wouldn't [be] protruding into the bike
path so it wouldn't push any other bicycles further into the
roadway." After Tangonan responded that the truck was his,
Officer Wong "asked him if he could straighten his truck out so
it wasn't blocking the bicycle path." Tangonan "said he could
straighten it out[,]" and Officer Wong waited in his patrol
vehicle for Tangonan to do so.
          Officer Wong continued his testimony as follows:
Tangonan "got in his truck, started it up, and then proceeded to
make an immediate left turn[,] going across three lanes[,] and
ended up driving the wrong way on Nahua Street[,]" a one-way

                                  4
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

street about fifteen to twenty feet away. There was a clear and
unobstructed one-way sign on Nahua Street, visible from Ala Wai
Boulevard, pointing northbound from Nahua onto Ala Wai Boulevard.
Officer Wong turned on his vehicle's lights and siren to stop
Tangonan's truck from going further down Nahua Street. Tangonan
stopped on the right-hand side of the street. Officer Wong
stopped his vehicle behind Tangonan's truck, then walked up to
the driver's side of the truck and told Tangonan he was stopped
because he was driving the wrong way down the street. The
driver's side window was down, and Officer Wong observed the
following:
          [W]hen I'm talking to [Tangonan], his speech appeared kind
          of heavily slurred. He had a really strong odor of alcohol
          coming from his breath when I was talking to him. And when
          he was speaking to me after I told him why he was being
          stopped, I could detect the odor of alcohol coming from his
          breath. And when I looked at his face, his eyes appeared
          kind of red and bloodshot.
After making these observations, Officer Wong asked Tangonan for
his driver's license, insurance, and registration. Tangonan
produced the registration and insurance, but could not find his
driver's license. "So he opened his door and jumped out of the
vehicle and attempted to look for it again . . . on the driver's
side of the truck." Tangonan looked for his driver's license for
about three to four minutes but was unable to find it.
          Another officer arrived, gave Tangonan a preliminary
alcohol screening, and then placed Tangonan under arrest for
OVUII.
          On cross-examination, defense counsel asked Officer
Wong, "did it pop into your mind this guy might have been
drinking," when he saw Tangonan's truck parked partially into the
bike lane, with Tangonan laying on his side and his legs sticking
out. Officer Wong responded, "[i]t was one possibility." He
further testified, however, that when he first pulled his car up
and talked to Tangonan, he (Officer Wong) "got out and stayed
kind of by the driver's side area of my . . . car." From about
five feet away, Officer Wong "didn't notice [Tangonan's] red,
bloodshot eyes yet" and "didn't smell any alcohol yet," and
Tangonan "wasn't slurring yet."


                                    5
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

          Following the State's case-in-chief, defense counsel
moved for a judgment of acquittal based on Tangonan's entrapment
defense. The District Court took the matter under advisement,
and at a continued hearing ruled as follows:
          So I've had the opportunity to review the relevant law, the
          statute and then the case law, so thank you for that,
          including [State v. Powell, 68 Haw. 635, 726 P.2d 266
          (1986)]. And then I think, you know, looking at the
          commentary for Section 702-237, it says the basis for the
          defense of entrapment is to deter improper conduct on the
          part of law enforcement officials. And I think I see that
          in [State v. Anderson, 58 Haw. 479, 572 P.2d 159 (1977)] as
          well.

                So I think that's the real question here is whether or
          not the officer's purpose in asking the defendant to move
          his car was to get a foundation and the basis to obtain
          evidence for the commission of the offense of OVUII. So I
          think the Powell case, I don't feel that applies here
          because in that case it was clearly a sting, you know, to
          get people to provide evidence of pick-pocketing. And then
          the question is did it amount to entrapment in terms of
          their actual conduct and not in terms of what the officers
          wanted to do.

                So here . . . I don't think that the defense has
          proven entrapment by a preponderance of evidence. I think
          that I'm not persuaded that the officer knew that the
          defendant was intoxicated based on their limited interaction
          prior to the officer asking the defendant to move his car.
          And so I'm going to deny the motion[.]

          The trial continued, and Tangonan testified in relevant
part as follows: After attending a party in Waikiki, he returned
to his truck, drunk, and threw up a couple of times. Officer
Wong pulled up and told Tangonan he had to move his truck, and
Tangonan told the officer he was drunk. Tangonan was sure the
officer had seen him throwing up. The officer repeatedly told
him to move his truck or he would be arrested, and he told the
officer he was drunk and did not want to get behind the wheel.
Tangonan continued: "I was parked right in front and there was a
car right behind me . . . . [I]t was a nice parking. But I went
out and just did what I did. And I was just too drunk to even
drive but I just had to listen to him."
          Following the close of Tangonan's case, the District
Court denied his renewed motion for judgment of acquittal and
found him guilty of OVUII, stating in part:
          I'm going to stand by my prior ruling. I don't think that
          based on the brief interaction that you've proven by a
          preponderance of the evidence that the officer was aware, or

                                    6
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

            a reasonable officer should have been aware, if that's how
            you're phrasing it, that the defendant was intoxicated. If
            he had, that would be a different situation. But that's how
            I see the evidence.
                  . . . I'm not going to credit the testimony of the
            defendant that he told the officer he was drunk. . . . I
            think the officer's testimony on that point regarding the
            nature of the interaction is credible. So I'm going to find
            the defendant guilty based on the totality of the
            circumstances. There doesn't seem to be any dispute as to
            the fact that he was indeed drunk and so . . . I'm not going
            to review the SFST in that regard.

          On appeal, Tangonan argues that the District Court was
wrong to credit Officer Wong's testimony to the effect that, when
he first spoke with Tangonan and asked him to move his truck,
Tangonan did not appear to be intoxicated. We decline, however,
to pass upon issues regarding the credibility of witnesses and
the weight of the evidence, which are within the province of the
trier of fact – here, the District Court. See Alston, 75 Haw.
517, 528, 865 P.2d 157, 164; State v. Scalera, 139 Hawai#i 453,
460, 393 P.3d 1005, 1012 (2017) ("appellate courts are required
to 'give full play to the right of the fact finder to determine
credibility'" (quoting State v. Valdivia, 95 Hawai#i 465, 471, 24
P.3d 661, 667 (2001))). Upon review of the record, we cannot
conclude that the actions of the police were "so extreme that it
created a substantial risk that persons not ready to commit the
offense alleged would be persuaded or induced to commit it."3/
Agrabante, 73 Haw. at 193, 830 P.2d at 499 (quoting Anderson, 58
Haw. at 483, 572 P.2d at 162) (internal quotation marks omitted).
Rather, we conclude that the evidence permitted the District
Court to fairly conclude that Tangonan did not sustain his burden
of proving entrapment and, accordingly, the District Court did
not err in denying Tangonan's motion for judgment of acquittal on
that basis.


      3/
        Tangonan also relies on State v. Powell, 68 Haw. 635, 726 P.2d 266
(1986), in support of his contention that the evidence established his
entrapment defense as a matter of law. However, the facts here are clearly
distinguishable from Powell, where the police essentially manufactured rather
than detected the crime, i.e, by setting up "'drunk decoy' operations [that]
were expressly designed to ensnare anyone who would commit theft when 'bait
money' [was] placed in plain view and within easy reach." Id. at 638, 726
P.2d at 268; see Agrabante, 73 Haw. at 194, 830 P.2d at 500 (describing the
police conduct in Powell). The evidence here established no similar scheme.

                                      7
 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

          Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, entered by the
District Court of the First Circuit, Honolulu Division, on
September 13, 2018, is affirmed.

          DATED:   Honolulu, Hawai#i, June 18, 2020.



On the briefs:
                                      /s/ Katherine G. Leonard
Jonathan Burge                        Presiding Judge
for Defendant-Appellant.

Stephen K. Tsushima,                  /s/ Derrick H.M. Chan
Deputy Prosecuting Attorney,          Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
                                      /s/ Clyde J. Wadsworth
                                      Associate Judge




                                  8
