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                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   19-JUN-2020
                                                   11:06 AM
                            NO. CAAP-XX-XXXXXXX


                  IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


                 STATE OF HAWAI#I, Plaintiff-Appellee,
                                   v.
             SOLOMON K.I. DELA CRUZ, Defendant-Appellant


         APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
                      (Case No. 3DTC-17-040836)


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

             Defendant-Appellant Solomon K.I. Dela Cruz (Dela Cruz)
was convicted by the District Court of the Third Circuit, South
Kohala Division, State of Hawai#i, of excessive speeding in
violation of Hawaii Revised Statutes (HRS) § 291C-105. The trial
court entered a "Judgment and Notice of Entry of Judgment"
(Judgment) on September 14, 2018.1 For the reasons explained
below, we affirm the Judgment.

                                  BACKGROUND

          On November 16, 2017, Hawai#i County Police Department
(HCPD) officer Kimo Keliipaakaua, using a Stalker DSR 2X radar
device manufactured by Applied Concepts, Inc., determined that
Dela Cruz was operating his vehicle at a speed of 82 miles per
hour (MPH). Officer Keliipaakaua cited Dela Cruz for excessive
speeding.     Dela Cruz contested the citation.         A bench trial was




     1
             The Honorable Mahilani E.K. Hiatt signed the Judgment.
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conducted on June 21, 2018.2 Officer Keliipaakaua was the only
witness called. The trial court found Dela Cruz guilty. This
appeal followed.

                                 DISCUSSION

          Dela Cruz raises three points of error, contending
that: (1) the charge was defective; (2) the trial court erred by
allowing Officer Keliipaakaua to testify about the contents of
training and device manuals over Dela Cruz's hearsay3 and best
evidence4 objections; and (3) the trial court erred by allowing
Officer Keliipaakaua to testify about the speed displayed on his
Stalker DSR 2X radar device without proper foundation.

            1.    The oral charge was sufficient.

           "Whether a charge sets forth all the essential elements
of a charged offense is a question of law reviewed under the
right/wrong standard." State v. Wheeler, 121 Hawai#i 383, 390,
219 P.3d 1170, 1177 (2009) (cleaned up).
           Dela Cruz did not object to the charge at trial. The
Hawai#i Supreme Court has held:

            [W]e liberally construe charges challenged for the first
            time on appeal. Under this approach, there is a presumption
            of validity[] for charges challenged subsequent to a
            conviction. In those circumstances, this court will not
            reverse a conviction based upon a defective indictment [or
            complaint] unless the defendant can show prejudice or that
            the indictment [or complaint] cannot within reason be
            construed to charge a crime.

Wheeler, 121 Hawai#i at 399-400, 219 P.3d at 1186-87 (cleaned up)
(emphasis added). The supreme court "has also recognized that


      2
            The Honorable Bruce A. Larson presided.
      3
            Rule 802, Hawaii Rules of Evidence, Chapter 626, Hawaii Revised
Statutes (2016) (HRE) provides:

            Hearsay is not admissible except as provided by these rules,
            or by other rules prescribed by the Hawaii supreme court, or
            by statute.
      4
            HRE Rule 1002 (2016) provides, in relevant part:

            To prove the content of a writing, . . . the original
            writing[] . . . is required, except as otherwise provided in
            these rules or by statute.

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one way in which an otherwise deficient count can be reasonably
construed to charge a crime is by examination of the charge as a
whole."   State v. Tominiko, 126 Hawai#i 68, 76, 266 P.3d 1122,
1130 (2011) (emphasis added).
          Dela Cruz was orally arraigned on the day of his trial.
The deputy prosecuting attorney charged:

                 On or about the 16th day of November, 2017, in South
           Kohala, County and State of Hawaii, Solomon Dela Cruz did
           drive a motor vehicle at a speed exceeding 80 miles per hour
           or more irrespective of the applicable State or County speed
           limit, thereby committing the offense of Excessive Speeding,
           in violation of Section 291C-105(a)(2) Hawaii Revised
           Statutes, as amended.

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.

Dela Cruz argues the State failed to allege that his offense took
place on a "highway." Although HRS § 291C-105 does not specify
that the offense must take place on a highway, Dela Cruz points
out that HRS § 291C-21 states: "The provisions of [section
291C-105] relating to the operation of vehicles refer exclusively
to the operation of vehicles upon highways except, [sic] where a
different place is specifically referred to in a given section."
           Dela Cruz does not contend that he was prejudiced by
the failure of the oral charge to state that he was operating a
vehicle on a highway. Accordingly, Dela Cruz must show that the
oral charge "cannot within reason be construed to charge a crime"
even "by examination of the charge as a whole." Tominiko, 126
Hawai#i at 76, 266 P.3d at 1130 (citations omitted). In
addition, "in determining whether a defendant has been adequately
informed of the charges against [them], the appellate court can
consider other information in addition to the charge that may
have been provided to the defendant during the course of the case
up until the time defendant objected to the sufficiency of the
charges against [them]." Wheeler, 121 Hawai#i at 396, 219 P.3d

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at 1183 (citing cases); see also State v. Hitchcock, 123 Hawai#i
369, 379, 235 P.3d 365, 375 (2010) (where defendant argued oral
charge was defective for the first time on appeal, supreme court
examined information provided or supplied by the prosecution to
defendant during trial). During Dela Cruz's trial the State's
witness, Officer Keliipaakaua, testified that Dela Cruz was
traveling on Route 200 when he was cited for excessive speeding,
and that Route 200 is "a public road, street, or highway[.]" We
hold that the oral charge together with the information provided
to Dela Cruz at trial was sufficient to inform Dela Cruz of the
charge against him.

            2.    The trial court did not err by overruling
                  Dela Cruz's evidentiary objections.

          At trial the State asked Officer Keliipaakaua to
describe the contents of the National Highway Traffic Safety
Administration radar device manual he received when he was in
recruit school. Dela Cruz objected based on hearsay.5 The trial
court overruled the objection. Officer Keliipaakaua responded.
The State then asked Officer Keliipaakaua to describe the
contents of the manual that he received when he was trained to
use the Stalker DSR 2X radar by Applied Concepts' instructors in
December 2015. Dela Cruz objected based on hearsay.6 The trial
court overruled the objection. Officer Keliipaakaua responded.
          The purpose of the State's questions was to lay the
foundation for admission of Officer Keliipaakaua's testimony
about Dela Cruz's speed as indicated on the Stalker DSR 2X radar
device — to establish that Officer Keliipaakaua was trained in
the use of radar devices and in accordance with the
manufacturer's manual requirements for the Stalker DSR 2X radar,
and that Officer Keliipaakaua tested and operated the device as
instructed by the manufacturer's manual for the device. The
Hawaii Rules of Evidence (HRE) do not apply to preliminary


      5
            Dela Cruz did not object based on the best evidence rule, and
accordingly waived that objection.
      6
            Dela Cruz again did not object based on the best evidence rule,
and accordingly waived that objection.

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questions concerning the foundation for admissibility of a radar
speed measurement. State v. Rezentes, No. CAAP-XX-XXXXXXX, 2016
WL 6330390, at *2 (Haw. App. Oct. 28, 2016) (SDO) (citing HRE
Rule 104(a)7 and HRE Rule 1101(d)(1)8). The trial court did not
err in overruling Dela Cruz's objections.

          3.    The State laid a proper foundation for
                admission of the radar speed
                measurement.

          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 State v. Gonzalez, 128
Hawai#i 314, 324-27, 288 P.3d 788, 798-801 (2012). "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." Id. at 325, 288 P.3d at 799 (cleaned up) (quoting State
v. Assaye, 121 Hawai#i 204, 210, 216 P.3d 1227, 1233 (2009)).

          A.    Dela Cruz waived any objection to the
                training component.

          In closing argument Dela Cruz conceded that Officer
Keliipaakaua was properly trained to operate his Stalker DSR 2X



     7
          HRE Rule 104(a) (2016) provides, in relevant part:
          Questions of admissibility generally. Preliminary questions
          concerning . . . the admissibility of evidence shall be
          determined by the court, subject to the provisions of
          subsection (b) [concerning relevancy conditioned on fact].
          In making its determination the court is not bound by the
          rules of evidence except those with respect to privileges.
     8
          HRE Rule 1101(d)(1) (2016) provides:

                (d)   Rules inapplicable. The rules (other than with
          respect to privileges) do not apply in the following:
                (1)   Preliminary questions of fact. The
                      determination of questions of fact preliminary
                      to admissibility of evidence when the issue is
                      to be determined by the court under rule 104.

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radar.9 He waived any challenge to the training prong. See
Gonzalez, 128 Hawai#i at 317, 288 P.3d at 791 (noting that
failure to properly raise issue at trial level precludes party
from raising that issue on appeal).

            B.    The State laid a proper foundation that
                  the radar device was operating properly.

          Officer Keliipaakaua testified that on the day he
ticketed Dela Cruz, he tested and operated his assigned Stalker
DSR 2X radar according to the contents of the manual he received
in recruit class, the contents of the manual that came with the
device, the contents of the manual he received when he was
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 the device performed automatic self-checks
every 10 minutes whenever the device was powered on, and he
explained how he checked that the patrol speed shown on the
device's display was consistent with his vehicle's odometer
speed. He testified that his Stalker DSR 2X radar tested
properly before and after his shift on the day he ticketed Dela
Cruz. 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.




      9
            In State v. Gleed, No. CAAP-XX-XXXXXXX, 2017 WL 2839547 (Haw. App.
June 30, 2017) (SDO) the majority held that the State failed to lay a
sufficient foundation to establish that Officer Keliipaakaua was qualified to
operate the radar device at issue in that case. Id. at *1. In a concurring
opinion, Chief Judge Nakamura noted: "[W]hile proof that Officer
Keliipaakau[a] had successfully completed training provided or conducted by a
representative of the manufacturer would, in my view, have been sufficient to
satisfy the qualified operator prong, the State did not present such
evidence." Id. at *2 n.1 (Nakamura, C.J., concurring). In this case, the
State presented evidence that Officer Keliipaakaua attended and passed the
training conducted by the manufacturer's representatives.

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            C.    The "calibration" issue.

          Dela Cruz argues the State failed to establish that the
radar used by Officer Keliipaakaua was properly "calibrated."10
          Officer Keliipaakaua testified that his radar unit was
only about two months old when he used it to cite Dela Cruz, and
that Applied Concepts calibrates new units before sending them to
the user. He testified that Applied Concepts recommends that the
radar unit be recalibrated every three years, but only requires
recalibration if the unit fails in which case it must be sent
back to the manufacturer, and that the unit he used when he cited
Dela Cruz had never failed. Officer Keliipaakaua then explained
the difference between "calibration" and the user-performed
operational tests:

                  A. Okay. So again, nowhere in the manual does it
            teach the user how to calibrate the device. So I don't have
            the knowledge or equipment to calibrate the device. And
            again, it's not -- it's not my duty to do that, as mentioned
            in the operator's manual.
                  And for accuracy, that is mentioned in on [sic] the
            operator's manual. And again, you do it many -- there's
            about -- there's many different ways to do it. Again, with
            the self power on test with the test button, with the tuning
            forks, with checking with the display speed on the radar to
            your odometer speed. Those are all the accuracy tests that
            are mentioned in the operator's manual that the user should
            do.
                  . . . .

                  Okay. So again, nowhere in the manual does it teach
            the user how to make the correct frequency for the unit. It
            comes calibrated by the manufacturer. . . .
                  . . . .

                  Q. Okay. So what is the significance of the device
            being calibrated to a particular frequency?



      10
            The supreme court mentioned the "calibration" issue in State v.
Amiral, 132 Hawai#i 170, 319 P.3d 1178 (2014) 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. Id. at 179, 319 P.3d at 1187. Amiral and
Assaye both involved the use of a Laser Technology Incorporated 20-20 Ultra-
Lyte 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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                A. Well cause they use certain waves when using the
          doppler [sic]. Doppler's based on certain -- using certain
          waves and, again, the manufacturer is the one that sets the
          unit to a certain frequency. And then the user does not
          play any role in setting that frequency for that -- for the
          unit.

                . . . .
                Q. So on November 16th of 2017, as far as the
          requirements of the manufacturer Applied Concepts is
          concerned, was your device in your vehicle properly
          calibrated?

                A.   Yes.
                . . . .
                Q. Okay. The device that was in your vehicle, you
          had previously testified that it came already calibrated;
          correct?
                A.   Yes.

                Q. Okay. Based on the recommendation on page 40 [of
          the device's manual] would you have needed, prior to
          November 16th of 2017, to have that device recalibrated for
          any reason?

                A.   No.

                Q.   And had you had it recalibrated for any reason?
                A.   No.

                Q. And you had also testified that the device was
          only approximately one to two months old?
                A.   Yes.

          The trial court allowed Officer Keliipaakaua to testify
about the radar speed measurement taken of Dela Cruz. When the
court announced its verdict, it stated:

                But again, the question is are we talking about
          accuracy of the device, which seems to be the critical issue
          discussed in the case law, versus calibration of the device.
          And are they really two separate and distinct issues. I
          think that they do mesh to some extent. And for that
          reason, because again with respect to those specific tests
          for accuracy, I've got to find that the device was
          accurately operating on the date and at the time of the
          alleged infraction.

          The trial court's analysis is consistent with State v.
Tailo, 70 Haw. 580, 779 P.2d 11 (1989), also a radar gun case, in
which the supreme court stated:




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          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).
          Dela Cruz cites State v. Manewa, 115 Hawai#i 343, 167
P.3d 336 (2007) and, incidentally, 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. In Manewa and
Wallace there was no evidence that the State's witnesses
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.
          "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 — the tuning forks that came
with the device. Dela Cruz produced no evidence to rebut the
prima facie presumption that the tuning forks were accurately
calibrated. Officer Keliipaakaua's testimony established that he
in fact verified that his Stalker DSR 2X was "calibrated" to
accurately read the speed of Dela Cruz's vehicle.




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                             CONCLUSION

          Based upon the foregoing, we hold that the trial court
did not abuse its discretion by admitting Officer Keliipaakaua's
radar measurement of the speed of Dela Cruz's vehicle into
evidence. Accordingly, the "Judgment and Notice of Entry of
Judgment" filed on September 14, 2018, is affirmed.
          DATED: Honolulu, Hawai#i, June 19, 2020.

On the briefs:

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

Taryn R. Tomasa,                       /s/ Keith K. Hiraoka
for Defendant-Appellant.               Associate Judge

                                       /s/ Clyde J. Wadsworth
                                       Associate Judge




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