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                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   09-JUN-2020
                                                   07:49 AM




                            NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


                STATE OF HAWAI#I, Plaintiff-Appellee, v.
               TEMUULEN BAYARDELGER, Defendant-Appellant


          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                              #EWA DIVISION
                        (CASE NO. 1DTA-17-02227)


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

             Defendant-Appellant Temuulen Bayardelger (Bayardelger)
appeals from the Notice of Entry of Judgment and/or Order and
Plea/Judgment, filed on February 12, 2019, in the District Court
of the First Circuit, #Ewa Division (District Court).1/
          Following a bench trial, Bayardelger was convicted of
Operating a Vehicle Under the Influence of an Intoxicant (OVUII),
in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1)
(2016).2/    On appeal, Bayardelger contends there was insufficient

     1/
          The Honorable Sherri-Ann L. Iha presided.
     2/
          HRS § 291E-61(a)(1) provides:
                   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:

                                                                 (continued...)
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evidence to support his conviction.
          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 Bayardelger's point of error as follows:
          Sufficient evidence to support a conviction requires
substantial evidence as to every material element of the offense
charged. State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34
(App. 2005) (quoting State v. Ferrer, 95 Hawai#i 409, 422, 23
P.3d 744, 757 (App. 2001)). Substantial evidence is "credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Id. The evidence must be "viewed in the light most favorable to
the prosecution and in full recognition of the province of the
trier of fact," who must "determine credibility, weigh the
evidence, and draw justifiable inferences of fact." Id.
          In order to convict Bayardelger of OVUII, the
prosecution was required to prove beyond a reasonable doubt that
(1) Bayardelger (2) operated or assumed actual physical control
of a vehicle while (3) under the influence of alcohol in an
amount sufficient to impair his normal mental faculties or
ability to care for himself and guard against casualty. HRS
§ 291E-61(a)(1). "'Impair' means to weaken, to lessen in power,
to diminish, to damage, or to make worse by diminishing in some
material respect or otherwise affecting in an injurious manner."
HRS § 291E-1 (2007). We have previously held that there was
substantial evidence to support an OVUII conviction based on
indicia of the defendant's alcohol impairment, even without
considering evidence of the defendant's performance on a field
sobriety test (FST). See State v. Voorhees, No. CAAP-XX-XXXXXXX,
2019 WL 1123385, at *13 (Haw. App. Mar. 12, 2019) (mem.), cert.
granted, No. SCWC-XX-XXXXXXX, 2019 WL 3309083 (Haw. July 23,
2019); see also Ferrer, 95 Hawai#i at 427, 23 P.3d at 762 ("The


     2/
          (...continued)
                     (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[.]

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police officer's observations of the field sobriety exercises,
other than the HGN test, should be placed in the same category as
other commonly understood signs of impairment, such as glassy or
bloodshot eyes, slurred speech, staggering, flushed face, labile
emotions, odor of alcohol or driving patterns." (quoting State v.
Meador, 674 So.2d 826, 832 (Fla. Dist. Ct. App. 1996))).
          At trial, the police officer who stopped and eventually
arrested Bayardelger, Officer Ty Ah Nee (Officer Ah Nee),
testified in relevant part to the following: On May 25, 2017, at
around 12:22 a.m., he was heading westbound on the Moanalua
Freeway over Red Hill on his way to assist another officer. He
observed a silver Honda CRV, driven by Bayardelger, drift out of
its lane of travel five times over the course of about a mile.
After stopping Bayardelger and asking him for his driver's
license, vehicle registration, and proof of insurance, Officer Ah
Nee had to ask Bayardelger again for his driver's license.
While interacting with Bayardelger, Officer Ah Nee "noticed that
there was a very strong odor of an alcoholic-type beverage coming
from inside the CRV, and as [Bayardelger] was talking, it
appeared stronger or coming from his person." In addition,
Officer Ah Nee "noticed that [Bayardelger's] eyes were red and
watery," which he also described as "glassy."
          Following the testimonies of Officer Ah Nee and a
second police officer, who administered the FST to Bayardelger
prior to his arrest, the District Court granted Bayardelger's
motion to suppress evidence of the FST. Nonetheless, the
District Court found Bayardelger guilty of OVUII, stating: "The
driving in this case is egregious, and with the indicia . . .
that was noted by the officer, the Court is gonna find that the
State has proven its case beyond a reasonable doubt."
          Upon review of the record, we conclude there was
substantial evidence, even without considering evidence of the
FST, that Bayardelger operated a vehicle while under the
influence of alcohol in an amount sufficient to impair his normal
mental faculties or ability to care for himself and guard against
casualty. Accordingly, on this record, the evidence was
sufficient to support Bayardelger's OVUII conviction.

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          Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, filed on
February 12, 2019, in the District Court of the First Circuit,
#Ewa Division, is affirmed.

          DATED:   Honolulu, Hawai#i, June 9, 2020.



On the briefs:
                                      /s/ Katherine G. Leonard
Justin R. Tanaka,                     Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
                                      /s/ Derrick H.M. Chan
Donn Fudo,                            Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee.               /s/ Clyde J. Wadsworth
                                      Associate Judge




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