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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              28-JUN-2019
                                                              11:06 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


                          STATE OF HAWAII,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                             NINO ABRIGO,
                   Petitioner/Defendant-Appellant.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-XX-XXXXXXX; CASE NO. 1DTA-16-01924)

                              JUNE 28, 2019

   McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
           DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

                OPINION OF THE COURT BY POLLACK, J.

          An exception to the evidentiary rule against hearsay

typically allows public records to be admitted into evidence to

prove the truth of their contents, as such documents are

generally presumed to be accurate and reliable.          The rule

contains two exclusions, however, that collectively prohibit

using the public record exception to admit observational and
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investigative police reports against defendants in criminal

cases.    These exclusions ensure that law enforcement personnel

testify in person when the contents of their police reports are

sought to be admitted as evidence in a trial, thereby allowing

the defendant an opportunity to confront and cross-examine

police officers regarding statements in their reports.

           However, another hearsay exception in our evidentiary

rules permits the previously recorded recollections of a witness

to be read into evidence when the witness is unable to

sufficiently recall the subject matter of the statements to

testify fully and accurately at trial.         Applied literally, this

second exception would appear to provide a path to circumvent

the prohibition on the use of observational and investigative

police reports against defendants in criminal cases.           This path

of circumvention oddly would only occur when the law enforcement

official who prepared or signed-off on the report testifies to

insufficient recollection of the events underlying the report to

be subject to meaningful cross-examination.          Such a situation

occurred in this case, resulting in the defendant being

convicted on the sole basis of a police report authored by a law

enforcement officer who testified at trial that he could no

longer remember the material facts underlying the defendant’s

arrest.




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          We now hold that records excluded by the public

records exception cannot be read into evidence based on an

alternative evidentiary ground.          This is to say that litigants

may not utilize another hearsay exception as a back door to

bypass the restrictions contained in the public records hearsay

exception.   Accordingly, we vacate the defendant’s conviction

and remand the case for further proceedings.

                 I. FACTS AND PROCEDURAL BACKGROUND

                                 A. Trial

          On May 26, 2016, the State filed a criminal complaint

against Nino Abrigo in the Hawai‘i District Court of the First

Circuit (district court), charging him with operating a vehicle

under the influence of an intoxicant (OVUII) in violation of

Hawaii Revised Statutes (HRS) § 291E-61(a)(1).1          Abrigo pleaded

not guilty, and a bench trial commenced on August 1, 2016.2

          The only witness called by the State was Officer Aaron

Ostachuk of the Honolulu Police Department.          Due to a series of




     1
          HRS § 291E-61(a)(1) (2007) provides as follows:

          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[.]
     2
          The Honorable James H. Ashford presided.




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continuances, Officer Ostachuk’s testimony was delivered on

three separate days over the course of five months.

                           1. August 1, 2016

          On the first day that he testified, Officer Ostachuk

related that he first encountered Abrigo at approximately 3:00

a.m. on May 15, 2016, while on traffic patrol in the Dillingham-

Kalihi area of the island of Oahu.        The officer stated that he

saw the vehicle driven by Abrigo commit two traffic violations;

first, the vehicle drifted across the broken white lines that

separated its lane from other lanes going the same direction,

then the vehicle swerved back to straddle the solid yellow lines

separating the lane from oncoming traffic.         Officer Ostachuk

testified that he initiated a traffic stop of the vehicle based

on these infractions.

          When he approached the driver-side window, Officer

Ostachuk stated, he noticed that Abrigo’s eyes were “red,

watery, and glassy” and the smell of alcohol was emanating from

inside the vehicle.     Abrigo complied with his request to exit

the vehicle, the officer explained, and agreed to take the

standard field sobriety test (SFST).3


     3
          The parties stipulated that

          Officer Ostachuk was trained and qualified pursuant to the
          standards of National Highway Traffic Safety
          Administration, also known as NHTSA, as well as Honolulu
          Police Department, also known as HPD, to administer and
                                                           (continued . . .)


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            Officer Ostachuk testified that Abrigo followed his

instructions during the first part of the SFST, the horizontal

gaze nystagmus test (HGN).       Officer Ostachuk explained that

after he administered the HGN, he placed Abrigo in the starting

position for the “walk-and-turn” test--the second part of the

SFST--and explained the instructions, telling Abrigo not to

start walking until he was told to begin.4          While the officer was

relating the instructions, he testified, Abrigo began to sway

from side to side.      Abrigo also started to walk before being

told to do so, the officer stated.         Although Abrigo complied

when he was told to begin walking, the officer said, he

exhibited several clues of intoxication: he stopped three times,

he missed seven heel-to-toe steps, he raised his arms four

times, and he did not take the correct number of steps.

Additionally, Officer Ostachuk stated that Abrigo stepped to the

side seven times, then clarified that because “there [was] no


(. . . continued)

            evaluate the standardized field sobriety test, which is
            comprised of three different exercises, being the
            horizontal gaze nystagmus, also called HGN, the walk-and-
            turn, and the one-leg stand, but that the officer would not
            testify as to whether any nystagmus was observed when the
            HGN test was administered, and that the officer would not
            give an expert opinion as to whether the defendant passed
            or failed any portion or the entirety of the standardized
            field sobriety test.
      4
            Officer Ostachuk testified that he instructed Abrigo to walk nine
“heel to toe” steps in a straight line with his arms at his side, then turn
around and walk nine steps back--all without stopping.




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straight line . . . long enough to use” at the location where he

administered the SFST, he based this assessment on Abrigo’s

failure to “step[] one foot in front of another in a straight

line.”

            When Abrigo reached the “turn” part of the test, he

was able to execute it, Officer Ostachuk testified.           But when

asked to describe Abrigo’s turn, the officer said, “I do not

recall.    It was[] nothing out of the ordinary or I would note it

down.”    Shortly thereafter, the trial was continued because it

was late in the day.     Although the transcript indicates trial

was initially scheduled to continue on October 19, 2016,

proceedings did not recommence until December 15, 2016, for

reasons undisclosed in the record.

                         2. December 15, 2016

            When the State resumed its direct examination of

Officer Ostachuk on December 15, 2016, the officer stated that

Abrigo was off-balance when completing the turn portion of the

walk-and-turn test because “[h]e had his knees slightly bent.”

He explained that he interprets a person bending their knees as

indicating “that they can’t keep themselves upright in an up--in

the standing position, and they use that bending in order to

regain themselves.”     Officer Ostachuk then testified that he

explained the instructions for the “one-legged stand” test, the




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third part of the SFST, and administered it.5           He described

several clues of intoxication that he said Abrigo exhibited

during this test, including swaying, raising his arms, hopping

after losing his balance, and putting his foot down.

            On cross-examination, defense counsel questioned

Officer Ostachuk about his memory of Abrigo’s traffic

violations, and the officer testified that he could not remember

the specific details.      Specifically, he stated that he could not

remember how far or for how long Abrigo crossed over the broken

white line or straddled the solid yellow line.           Officer Ostachuk

also testified that he could not remember his exact reason for

pulling Abrigo over without looking at the report that he

created that documented his interaction with Abrigo.6

            When asked whether he “independently remember[ed]

giving [Abrigo] the instructions” to the SFST, Officer Ostachuk

answered, “[I]t’s not something off the top of my head I

remember specifically, . . . I just remember these--this is what

I instruct people to do.”       The defense then asked Officer

Ostachuk if he remembered “why [he] checked off the box


     5
            Officer Ostachuk testified that he instructed Abrigo to keep his
arms at his side, keep his feet together, raise one leg six inches above the
ground, and count to thirty.
      6
            The record does not contain the document referenced in Officer
Ostachuk’s testimony. Defense counsel referred to the document as a
“report,” while the prosecutor referred to it as an “SFST form.” For the
sake of clarity, this opinion uses the more general “report” term.




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‘starting too soon’” in his report, and he responded that he

could not remember.

          Nor could Officer Ostachuk independently recall why he

marked the box in his report indicating that Abrigo could not

keep his balance during the walk-and-turn test.          When asked

directly if he could remember his reasoning, the officer

responded, “No.    It’s just something that I observed at the

time, and I checked off the box.”        When asked whether his

testimony was “just based on that box being checked off” on his

report, he answered, “That’s correct.”

          Defense counsel then asked, “Do you actually remember

[that] h[e] stop[ped] walking?       Or was that testimony based on

what is contained in the report?”        The court, sua sponte, did

not allow the witness to answer because it said that the

question was misleading.      Outside of Officer Ostachuk’s

presence, the court clarified that it viewed the question as

“blur[ing the] distinctions” between Officer Ostachuk’s “memory

four months ago when he testified and today.”          The “crux of the

case,” the court stated, was “not what he remembers today,” but

rather whether Officer Ostachuk was “testifying based on a

present memory” or “just parroting what was in a report” on

August 1 when he testified on direct examination.

          After Officer Ostachuk reentered the courtroom,

defense counsel inquired at length as to whether his testimony


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on August 1 regarding the SFST had been based on his memory at

the time or simply reviewing his report.          Officer Ostachuk

repeatedly replied that he did not recall what had been asked

and what he had testified to during the August 1 examination,

nor what he had remembered at that time.          When defense counsel

inquired into his present recollection, Officer Ostachuk stated

that he did not have independent memory regarding any aspect of

the SFST and could testify only based on what was written in his

report.   The trial was then continued again for reasons that are

not reflected in the record.

                           3. December 30, 2016

           On December 30, 2016, the defense resumed its cross-

examination of Officer Ostachuk.          The officer once more

testified that he could not independently recall any details

about Abrigo’s performance on the SFST.          He acknowledged that

his testimony was solely based on looking at his report and the

annotations it contained.7       As to Abrigo’s performance during the

one-legged stand test, Officer Ostachuk again said that he did

not recall whether he had had an independent recollection of

Abrigo’s performance when he had testified on August 1.




     7
            Officer Ostachuk stated, “I don’t remember exactly the things I
annotated in my report him doing. I just remember giving the SFST and then
annotating the stuff in my report that he did.”




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            Defense counsel moved to strike Officer Ostachuk’s

testimony about the SFST, arguing that the officer lacked

independent recollection about the tests and therefore could not

be effectively cross-examined.       The court denied the motion and

said that it would “not put on the record now, in the officer’s

presence, the reasons for that because he would still be

testifying.”

            During re-direct examination, the State asked Officer

Ostachuk whether “the clues that [he] marked off on the SFST

sheet reflect what [he] observed at the time that [he] actually

administered the SFST,” but the court sustained an objection by

the defense.    The State then elicited testimony indicating that

Officer Ostachuk had a recollection of “other things that

happened that day” that were not in his report.          Specifically,

Officer Ostachuk recalled having a conversation with Abrigo,

that Abrigo was cordial and cooperative, and the type of car

that Abrigo was driving.      After Officer Ostachuk’s testimony

concluded, the State rested.      The defense did not present any

evidence.

            The court proceeded to find Abrigo guilty as charged.

Although the court found that the officer had “very limited

recollection” when he testified on December 15, 2016, and

“almost no recollection” when he testified on December 30, 2016,

it concluded that his testimony on August 1, 2016, “was a


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product of then-present recollection.”         The court also concluded

that the defense had had an opportunity to effectively cross-

examine the officer.     Abrigo was sentenced to 72 hours of

community service and was required to complete a substance abuse

assessment class and pay court fees.        Abrigo filed a timely

appeal.

                           B. ICA Proceedings

          On appeal, Abrigo argued that the court had erred in

denying his motion to strike Officer Ostachuk’s testimony, which

was inadmissible because the officer did not have a present

recollection throughout the trial regarding the events to which

he testified.   Abrigo contended that even assuming Officer

Ostachuk had present recollection of administering the SFST when

he testified on August 1, 2016, he indisputably lacked such

recollection when he was cross-examined at the continued trial.

This did not afford him a meaningful opportunity to cross-

examine Officer Ostachuk regarding his testimony, Abrigo argued,

and it thus violated his rights to confrontation and cross-

examination under the Hawaii Constitution.         Without this

erroneously admitted testimony, Abrigo concluded, there was no

evidence to support his conviction of OVUII.

          In response, the State argued that even if Officer

Ostachuk lacked the present recollection required to testify

regarding the SFST, the officer’s statements in his report were


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themselves admissible under Hawaii Rules of Evidence (HRE) Rule

802.1(4), the past recollection recorded exception to hearsay.

Abrigo countered in reply that Officer Ostachuk’s testimony was

inadmissible under the past recollection hearsay exception

because (1) the State did not establish an adequate foundation

to satisfy this exception, (2) admitting contents of a police

report would contradict and nullify the public records and

business records exceptions to hearsay, (3) the contents of

Officer Ostachuk’s report did not have adequate indicia of

reliability, and (4) Officer Ostachuk’s testimony violated

Abrigo’s rights to confrontation and cross-examination under the

state and federal constitutions.

          The Intermediate Court of Appeals (ICA) held that it

was clear that Officer Ostachuk’s testimony regarding Abrigo’s

performance on the SFST was not from his present recollection.

However, the ICA concluded that Officer Ostachuk’s testimony was

nonetheless admissible under the past recollection recorded

exception.   Relying on State v. Bloss, 3 Haw. App. 274, 649 P.2d

1176 (1982), the ICA determined that Officer Ostachuk’s report

satisfied the past recollection recorded exception because it

was “a record concerning Abrigo’s OVUII charge of which Officer

Ostachuk once had personal knowledge but at trial had

insufficient recollection to enable him to testify fully and

accurately.”   And the SFST form accurately reflected Officer


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Ostachuk’s knowledge of the tests, the ICA held, because the

officer testified that he filled out the form at the same time

that he administered the tests and regularly made accurate

records of the same kind.

            The ICA also held that Officer Ostachuk’s testimony

did not violate Abrigo’s right to confrontation or cross-

examination because “a witness who appears at trial and

testifies satisfies the confrontation clause, even though the

witness claims a lack of memory that precludes them from

testifying about the subject matter of their out-of-court

statement.”    (Quoting State v. Delos Santos, 124 Hawaii 130,

145, 238 P.3d 162, 177 (2010).)       Thus, the ICA affirmed the

judgment of conviction.     Abrigo filed a timely application for a

writ of certiorari, which we granted.

                        II. STANDARD OF REVIEW

            The admissibility of evidence requires different

standards of review depending on the particular rule of evidence

at issue.    State v. Cordeiro, 99 Hawaii 390, 403-04, 56 P.3d

692, 705-06 (2002); State v. Pulse, 83 Hawaii 229, 246, 925 P.2d

797, 814 (1996).    “[W]here the admissibility of evidence is

determined by application of the hearsay rule, there can be only

one correct result, and ‘the appropriate standard for appellate

review is the right/wrong standard.’”        State v. Moore, 82 Hawai‘i




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202, 217, 921 P.2d 122, 137 (1996) (quoting Kealoha v. Cty. of

Hawaii, 74 Haw. 308, 319, 844 P.2d 670, 675 (1993)).

                              III. DISCUSSION

           Abrigo argues that the ICA erred in holding that

Officer Ostachuk’s testimony regarding the contents of his

report was admissible under the HRE Rule 802.1(4) past

recollection recorded hearsay exception.8          He contends that the

past recollection recorded hearsay exception must be interpreted

to exclude statements contained in police reports to avoid

effectively nullifying the law enforcement records exclusion in

the separate HRE Rule 803(b)(8) public records hearsay

exception.9

  A. The Public Records and Past Recollection Recorded Hearsay
                           Exceptions

           The HRE Rule 803(b)(8) public records hearsay

exception allows for the admission of certain “[r]ecords,

reports, statements, or data compilations, in any form, of


      8
            Although the district court did not admit Officer Ostachuk’s
testimony under the past recollection recorded exception, the ICA did not err
in considering the State’s alternate grounds for admissibility. Our caselaw
states that “where the decision below is correct it must be affirmed by the
appellate court even though the lower tribunal gave the wrong reason for its
action.” State v. Pacquing, 139 Hawaii 302, 313 n.19, 389 P.3d 897, 908 n.19
(2016) (quoting State v. Taniguchi, 72 Haw. 235, 239, 815 P.2d 24, 26
(1991)). Accordingly, we review the district court’s admission of the
officer’s testimony under the past recollection recorded exception.
      9
            Given our disposition of this issue, we need not reach Abrigo’s
alternative contention that the foundational requirements for the admission
of Officer Ostachuk’s report under the HRE Rule 802.1(4) past recollection
recorded hearsay exception were not met in this case.




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public offices or agencies.”10      The provision has three distinct

subsections, the latter two of which are relevant in this case.

The second subsection, HRE Rule 803(b)(8)(B), permits the

admission of public records setting forth “matters observed

pursuant to duty imposed by law as to which matters there was a

duty to report, excluding, however, in criminal cases matters

observed by police officers and other law enforcement

personnel.”   The third, HRE Rule 803(b)(8)(C), allows for the

admission of public records containing “factual findings

resulting from an investigation made pursuant to authority

granted by law,” but only “in civil proceedings and against the

government in criminal cases.”
     10
          HRE Rule 803(b)(8) provides as follows:

          The following are not excluded by the hearsay rule, even
          though the declarant is available as a witness:

                . . . .

                (b) Other exceptions.

                      . . . .

                      (8) Public records and reports. Records,
                      reports, statements, or data compilations, in
                      any form, of public offices or agencies,
                      setting forth (A) the activities of the office
                      or agency, or (B) matters observed pursuant to
                      duty imposed by law as to which matters there
                      was a duty to report, excluding, however, in
                      criminal cases matters observed by police
                      officers and other law enforcement personnel,
                      or (C) in civil proceedings and against the
                      government in criminal cases, factual findings
                      resulting from an investigation made pursuant
                      to authority granted by law, unless the sources
                      of information or other circumstances indicate
                      lack of trustworthiness.




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          This court outlined the contours of these two

subsections in State v. Davis, a criminal case in which we

considered the admissibility of a technician’s sworn statements

indicating that, based on the technician’s expert interpretation

of data produced by an accuracy test, an Intoxilyzer was working

properly when it measured a defendant’s breath sample.            140

Hawai‘i 252, 254, 400 P.3d 453, 455 (2017).         In analyzing whether

the out-of-court statements should have been admitted pursuant

to HRE Rule 803(b)(8)(B), we noted that the phrase “matters

observed” could be interpreted as “encompassing all ‘records

describing an almost endless variety of acts, events, and

conditions in the world observed and depicted by public

officials.’”   Id. at 257-58, 400 P.3d at 458-59 (quoting

Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 8.50,

at 910 (5th ed. 2012)).     This court determined, however, that

the phrase was intended to have a “narrower meaning” than its

literal application: it was meant to apply only to “information

that is concrete and simple in nature” such as “routine

recordations not resulting from analysis or judgment.”            Id. at

258, 400 P.3d at 459 (quoting Addison M. Bowman, Hawaii Rules of

Evidence Manual § 803-3[8][D], at 8-44 (2016-2017 ed.)).            Thus,

under Davis, HRE Rule 803(b)(8)(B) allows the admission of

public records containing simple, non-evaluative information

about matters observed by public officials.          However, the


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provision expressly excludes from its reach any such data

contained in a law enforcement report when it is offered in a

criminal case.

             By contrast, this court stated that public records

containing “conclusions or opinions that flow from a factual

investigation” are properly evaluated under HRE Rule 803(b)(8)’s

third subsection, which governs public records setting forth

“factual findings resulting from an investigation made pursuant

to authority granted by law.”          Id. (quoting Beech Aircraft Corp.

v. Rainey, 488 U.S. 153, 164 (1988)).           Under this separate

provision, such records are admissible in a criminal case only

when offered against the government--and not against the

defendant.      Id. at 260 n.18, 400 P.3d at 461 n.18.          This is true

irrespective of whether the document is authored by law

enforcement.      See id.    Because the statement in Davis that the

Intoxilyzer was correctly calibrated was an “interpretive

conclusion” based on the technician’s evaluation of data

collected through the accuracy test, this court held that it was

not a “matter observed” governed by HRE Rule 803(b)(8)(B), but

rather a “factual finding” that was inadmissible against the

defendant under HRE Rule 803(b)(8)(C).11           Id. at 260, 400 P.3d at

461.


       11
            Because Davis held that the statements were not “matters
observed,” we did not address whether the technician qualified as a “police
                                                             (continued . . .)


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            In sum, HRE Rule 803(b)(8)(B) excludes observations by

law enforcement personnel in public record reports when offered

in a criminal case.      And HRE Rule 803(b)(8)(C) excludes

evaluative public record reports regardless of the author when

offered against the defendant in a criminal case.            The two

provisions operate together to prohibit the use of the public

records exception to admit law enforcement reports against the

defendant in a criminal case, be they purely observational,

evaluative, or some combination of the two.12          Yet the HRE Rule

802.1(4) past recollection recorded hearsay exception would on

its face offer a loophole capable of circumventing this

exclusion in certain circumstances.

            HRE Rule 802.1(4) makes admissible a statement

“previously made by [a testifying] witness[]” in a “memorandum

or record” if the evidence demonstrates that the witness (1)

once had knowledge of the events underlying the record, (2) has

insufficient recollection of the events at trial, (3) made the


(. . . continued)

officer [or] other law enforcement personnel” for purposes of the exception.
Davis, 140 Hawai‘i at 257 n.13, 400 P.3d at 458 n.13.
      12
            Officer Ostachuk’s report is a “report made by a law enforcement
official in an on-the-scene investigation”--the precise type of document that
is covered by the law enforcement exclusion within the HRE Rule 803(b)(8)
public records hearsay exception. United States v. Hernandez-Rojas, 617 F.2d
533, 535 (9th Cir. 1980). We thus need not classify the individual
statements it contains as observational or evaluative, as they are
inadmissible against Abrigo under the public records hearsay exception in any
event.




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record when the event was fresh in the witness’s mind, and (4)

accurately recorded the events in the memorandum or record.13

Addison M. Bowman, Hawaii Rules of Evidence Manual § 802.1-5[2],

at 8-18 (2018-2019 ed.).      The text of the past recollection

recorded exception would therefore appear to allow the use of

law enforcement reports against the defendant in a criminal

case--which is specifically prohibited under the public records

exception--but only when the official who prepared or signed the

document testifies to a lack of sufficient memory to be fully

and accurately cross-examined on the matters in the report.

    B. Hawai‘i Caselaw Indicates that the Contents of Records
  Excluded by the Public Records Exception Cannot Be Read into
           Evidence Through Another Hearsay Exception

          Hawai‘i caselaw offers guidance as to how this apparent

conflict should be resolved.      This court addressed a similar

attempt to circumvent the public record exception’s restrictions

     13
          HRE Rule 802.1(4) provides as follows:

          The following statements previously made by witnesses who
          testify at the trial or hearing are not excluded by the
          hearsay rule:

                . . . .

                (4) Past recollection recorded. A memorandum or
                record concerning a matter about which the witness
                once had knowledge but now has insufficient
                recollection to enable the witness to testify fully
                and accurately, shown to have been made or adopted by
                the witness when the matter was fresh in the witness’
                memory and to reflect that knowledge correctly. If
                admitted, the memorandum or record may be read into
                evidence but may not itself be received as an exhibit
                unless offered by an adverse party.




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in Davis.   As explained, the State sought in Davis to enter a

technician’s statements regarding the accuracy of an

Intoxilyzer.   140 Hawaii at 254, 400 P.3d at 455.         The State

argued that even if the technician’s statements were not

admissible under the public records hearsay exception, the HRE

Rule 803(b)(6) business records hearsay exception was an

alternative ground through which the document could be admitted.

Id. at 265, 400 P.3d at 466.      On review, this court held that

“[a]lthough ordinarily the proponent of hearsay is entitled to

‘shop around’ among the exceptions, the public records exception

preempts” the business record exception as it applies to public

records and “forecloses access to business records

admissibility.”    Id. (quoting Addison M. Bowman, Hawaii Rules of

Evidence Manual § 803-3[6][F], at 8-41 (2016-2017 ed.) (some

alterations omitted).     We therefore held that “records excluded

by [the public records exception] cannot be admitted through the

‘back door’ as a business record.”        Id. (citing United States v.

Weiland, 420 F.3d 1062, 1074 (9th Cir. 2005); United States v.

Orellana-Blanco, 294 F.3d 1143, 1149 (9th Cir. 2002); United

States v. Cain, 615 F.2d 380, 382 (5th Cir. 1980)); see also

State v. Hammell, 917 A.2d 1267, 1271 (N.H. 2007) (holding the

identically worded New Hampshire public records exception cannot

be circumvented using the business record exception because

doing so would enable “an end run around one of the very


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purposes for which [the public records exception] was

promulgated”--namely, the exclusion of police records when

offered against the defendant in a criminal case).

           Thus, this court’s precedent strongly suggests that

public records that are inadmissible under the hearsay exception

specifically governing such records may not be read into

evidence at trial under an alternative hearsay rule.            The past

recollection recorded exception would serve as no less a “back

door” to the admission of documents that the public records

exception specifically prohibits than the business record

exception, and it would stand to reason that it would likewise

be “preempt[ed]” and “foreclose[d]” when applied to public

records.   Davis, 140 Hawaii at 265, 400 P.3d at 466 (quoting

Bowman, Hawaii Rules of Evidence Manual § 803-3[6][F], at 8-41

(2016-2017 ed.).

  C. Other Jurisdictions Have Declined to Admit Police Reports
    Through Hearsay Exceptions Other than the Public Records
       Exception, Including as Recorded Past Recollections

           When faced with the precise question at issue in this

case, the United States Court of Appeals for the Ninth Circuit

applied much the same reasoning employed in Davis to the federal

equivalents of the public records and past recollection recorded

hearsay exceptions.14     In United States v. Pena-Gutierrez, the

     14
            Federal cases interpreting the Federal Rules of Evidence (FRE)
serve as “persuasive authority in interpreting similar provisions of the
                                                             (continued . . .)


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court considered the admission of an Immigration and

Naturalization Service report containing statements made by an

undocumented person about his attempt to cross the border while

hidden in the defendant’s car.        222 F.3d 1080, 1084-85 (9th Cir.

2000).   Relying on an earlier case that had analyzed the

admission of public records under the federal equivalent of the

business records hearsay exception, the Ninth Circuit held that

the trial court had erred by admitting the report under the past

recollection recorded hearsay exception, explaining that law

enforcement reports are admissible “if at all, only under the

public-records exception.”       Id. at 1087 (citing United States v.

Orozco, 590 F.2d 789, 793 (9th Cir. 1979)).           The court went on

to find the report inadmissible under the public records hearsay

exception because, much like Officer Ostachuk’s report in the

present case, it was an “on-the-scene investigative report of a

crime” falling squarely within the law enforcement exclusion.


(. . . continued)

[HRE].” State v. Fitzwater, 122 Hawaii 354, 383 n.5, 227 P.3d 520, 549 n.5
(2010) (citing State v. Jhun, 83 Hawaii 472, 478, 927 P.2d 1355, 1361
(1996)). At least one scholar has also noted the tension between the federal
equivalents of these provisions, stating that there is a “serious question”
about the admissibility of police reports under the past recollection
recorded exception. Professor Michael H. Graham, one of the nation’s leading
scholars on evidence, cautions that courts should be “extremely reluctant” to
admit police reports under the past recollection recorded exception because
Congress has had the opportunity to amend the exclusion for police
observations and has consistently declined “to credit the accuracy of
documents prepared by law enforcement personnel purporting to recount
criminal investigations.” 7 Michael H. Graham, Handbook of Federal Evidence
§ 803:5 (8th ed. 2017).




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Id. (quoting United States v. Wilmer, 799 F.2d 495, 501 (9th

Cir. 1986); see also United States v. Hernandez-Rojas, 617 F.2d

533, 535 (9th Cir. 1980) (“[T]he subjective report made by a law

enforcement official in an on-the-scene investigation . . .

lack[s] sufficient guarantees of trustworthiness because [it is]

made in an adversary setting [and is] likely to be used in

litigation.”).

           Courts of a number of other jurisdictions have

similarly stated that hearsay in public records may not be

admitted through the back door of another hearsay exception,

suggesting that the document must comply with the restrictions

built into the public records exception to be admissible.              See

Air Land Forwarders, Inc. v. United States, 172 F.3d 1338, 1345

(Fed. Cir. 1999); United States v. Brown, 9 F.3d 907, 911 (11th

Cir. 1993); Fischer v. State, 207 S.W.3d 846, 860 (Tex. Ct. App.

2006).15   The caselaw of a number of courts across the country



     15
            While some courts have reached a different conclusion as to the
admissibility of police reports under the past recollection recorded
exception, these cases either ignore the legislative history of the exclusion
for police observations or surmise that an officer’s presence at trial
resolves any cross-examination concerns. See United States v. Hayes, 861
F.2d 1225, 1230 (10th Cir. 1988) (tax payment records compiled by an Internal
Revenue Service agent admitted as a business record because there was no
evidence that the records were untrustworthy); United States v. Picciandra,
788 F.2d 39, 44 (1st Cir. 1986) (undercover drug enforcement agent report
admitted under the past recollection recorded exception because it had
“indicia of trustworthiness”); United States v. Sawyer, 607 F.2d 1190, 1193
(7th Cir. 1979) (revenue agent’s report admitted under the past recollection
recorded exception because the agent was available for cross-examination).
As discussed infra, both the legislative history of the public records
hearsay exception and Hawai‘i law regarding the availability of a witness for
                                                             (continued . . .)


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thus suggests a similar conclusion to our own--that is, that the

public record hearsay exception offers the sole hearsay

framework under which the admissibility of law enforcement

reports may be admitted at trial.

 D. The History of the Public Records Hearsay Exception Supports
    Prohibiting the Admission of Police Reports Through Other
                            Exceptions

            The conclusions of the Davis and Pena-Gutierrez courts

are unsurprising in light of the history of the public records

hearsay exception.      When considering the identical federal rule

after which our exception was modeled, the United States Court

of Appeals for the Second Circuit in United States v. Oates

recounted that “an overriding concern of the Advisory Committee

was that the rules be formulated so as to avoid impinging upon a

criminal defendant’s right to confront the witnesses against

him.”16    560 F.2d 45, 68 (2d Cir. 1977).       The court explained

that the language of the public records exception was amended

during the drafting process to add the exclusion for “matters

observed by police officers” to protect a defendant’s

(. . . continued)

cross-examination strongly weigh in favor of prohibiting the admission of
police reports as recorded past recollections.

      16
            When enacting the Hawai‘i Rules of Evidence, the legislature
adopted the public records hearsay exception contained in the FRE verbatim,
though the federal rule has since been amended nonsubstantively. See Oates,
560 F.2d at 66-67 (setting forth FRE Rule 803(8) as it was worded in 1977).
The legislative history of the federal rule is thus especially persuasive in
interpreting our own public records hearsay exception. See Fitzwater, 122
Hawai‘i at 383 n.5, 227 P.3d at 549 n.5.




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confrontation rights.      Id. at 69.     Significantly, the Second

Circuit noted, the Senate attempted to limit the application of

the exclusion by adding a proposed provision that “would have

rendered the exclusion . . . ineffective in the event the author

of the report was ‘unavailable’ to testify.”           Id. (citing S.

Rep. No. 1277 (1974)).      However, as detailed by the Oates court,

the “attempt to emasculate” the exclusion was unsuccessful, and

the unavailability provision was removed by the Committee of

Conference.17    Id. (citing H.R. Rep. No. 1597 (1974) (Joint

Explanatory Statement of the Committee of Conference)).

             Expanding on the legislative history of the proposed

provision, the Second Circuit stated that after the Committee of

Conference submitted its final version of the rules to the

Senate and the House of Representatives, Representative William

Hungate presented the Committee’s official report to the House.18

Id. at 70.    During his presentation, Representative Hungate


     17
            Both the Federal and Hawai‘i Rules of Evidence consider a witness
who does not have sufficient recollection to testify about the substance of a
prior statement unavailable for purposes of hearsay analysis. See FRE Rule
804(a)(3); HRE Rule 804(a)(3). Thus, the reading into evidence of a police
report authored by an officer who is unable to remember the substance of the
events it details would fall squarely within the proposed unavailability
limitation that was specifically rejected by the original drafters of the
public records exception.
     18
            Representative Hungate was the Chairman of the House Judiciary
Subcommittee on Criminal Justice, presided over hearings regarding the
proposed Federal Rules of Evidence, was a floor manager for the legislation,
and was a member of the Committee of Conference appointed to resolve the
differences between the versions of the rules approved by the House and
Senate. Oates, 560 F.2d at 69-70.




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explained that the Committee “rejected the Senate’s attempt to

create a new hearsay exception which would have permitted

admission of police reports authored by officers unavailable to

testify.”    Id.    Representative Hungate told the House that “[a]s

the rules of evidence now stand, police and law enforcement

reports are not admissible against defendants in criminal

cases.”    Id. (quoting 120 Cong. Rec. H12254 (daily ed. Dec. 18,

1974)) (emphasis added).      Thus, the Oates court concluded that

“it was the clear intention of Congress to make evaluative and

law enforcement reports absolutely inadmissible against

defendants in criminal cases,” and “it must have been the

unquestionable belief of Congress that the language of [Federal

Rule of Evidence] 803(8)(B) and (C) accomplished that very

result.”    Id. at 73.

            The Second Circuit further noted that the legislative

history specifically addressed the admission of police reports

through exceptions other than the public records hearsay

exception.    Id.    As the court related, Representative Elizabeth

Holtzman expressed concern that a catchall hearsay exception

would open “a ‘back door’ to [admission of] police reports and

negate[] the conference committee’s prior prohibition against

admission of such evidence.”      Id. at 71 (quoting 120 Cong. Rec.

H12255-56 (daily ed. Dec. 18, 1974)).        The Oates court thus

determined that the exclusion of police reports “applies with


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equal force to the treatment of such reports under any of the

other exceptions to the hearsay rule” because the admission of

such reports under another exception “would serve to deprive the

accused of the opportunity to confront his accusers as

effectively” as the drafters intended.19         Id. at 78 (emphasis

added).

             The history of the public record exception clearly

demonstrates that it was intended to render all police reports

“absolutely inadmissible against defendants in criminal cases.”

Id. at 73.    Indeed, Representative David Dennis, who first

introduced the exclusion for police observations, explained that

the purpose of the exclusion was to “give the defendant the

chance to cross examine [the police officer], rather than just

reading [the officer’s] report into evidence.”           Jack B.

Weinstein & Margaret A. Berger, 4 Weinstein’s Evidence § 803(8),

at 803-22 (1996).     This precise result of reading the contents

of a police report into evidence occurs when the police report

is admitted through the past recollection recorded hearsay

exception.    See HRE Rule 802.1(4) (“If admitted, the memorandum

or record may be read into evidence but may not itself be

     19
            The dissent characterizes our position as “rel[ying] heavily on
the Second Circuit’s analysis in Oates.” Dissent at 5. But it is the
legislative history of the federal public records hearsay exception that
provides guidance for our holding, and this court has long recognized that
“the history of the federal rule is highly persuasive as to the purpose of
the Hawai‘i rule.” Cvitanovich-Dubie v. Dubie, 125 Hawai‘i 128, 147, 254 P.3d
439, 458 (2011).



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received as an exhibit unless offered by an adverse party.”).

Thus, the legislative purpose of the public records hearsay

exception would be vitiated if the State could use the past

recollection recorded exception as a “back door” to admitting

police reports.    See United States v. Blackburn, 992 F.2d 666,

671 (7th Cir. 1993) (“[I]f a document prohibited under [the

public records exception] can come into evidence under [the

business records exception], then the [public records

exception’s] restrictions are rendered nugatory.”).

   E. Admitting Police Reports as Recorded Past Recollections
                   Produces Illogical Results

          In addition to being unsupported by precedent and

contrary to the intent of our evidentiary rules, admitting

police reports through the past recollection recorded hearsay

exception leads to irrational results.         The HRE Rule 803(b)(8)

hearsay exception for public records and its exclusions apply

regardless of whether the declarant is available to testify.

Thus, admitting police reports under the HRE Rule 802.1(4) past

recollection recorded hearsay exception, which applies only when

a testifying declarant has “insufficient recollection to enable

the witness to testify fully and accurately,” creates an

illogical dichotomy.     Documents that are wholly inadmissible

both when the authoring official is absent, and thus subject to

no cross-examination, and when the author testifies from




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personal knowledge and is subject to full cross-examination,

would be deemed admissible only when the author has insufficient

recollection to testify fully and accurately about the events

underlying the reports, making the official subject to only

cross-examination that is ineffective at ascertaining the truth.

Such a distinction is not rationally justified, and it is

contrary to statements by multiple courts that the public

records exception was “intended to bar the use of law

enforcement reports as a substitute for the testimony of the

officer.”   United States v. Sawyer, 607 F.2d 1190, 1193 (7th

Cir. 1979).

            The dissent argues that this extremely limited cross-

examination is sufficient to satisfy any concerns the drafters

may have had about the introduction of police reports.            Dissent

at 8-9, 13 n.4.    This contention is plainly refuted in this case

and decidedly incorrect as a general principle.          A police

officer’s pro forma taking of the stand, as occurred here, does

not eliminate the danger that the law enforcement exclusion in

the public records exception was intended to address: a

defendant being denied the right to cross-examine a police

officer about the substance of the officer’s report.           Such

reports are inherently less reliable than other witness

recollections that are recorded soon after the events they

recount, for police reports are created in an adversarial


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setting for the primary purpose of substantiating a criminal

charge against the defendant.       Only through meaningful cross-

examination can a defendant test the accuracy of a police

officer’s account of events that took place in this context, and

this cannot occur when an officer testifies to a lack of memory

and simply recites the contents of the report to the factfinder.

          The State in this case was essentially able to use

Officer Ostachuk’s report as a substitute for his testimony.

When the defense counsel attempted to cross-examine the officer

about the SFST he conducted, the officer could not testify to

any information about Abrigo’s performance that was not

contained in his report--a document that was prepared for the

specific purpose of building a case against Abrigo.           Because of

the officer’s lack of memory, Abrigo did not have a meaningful

opportunity to challenge any of the officer’s observations and

conclusions regarding the clues of intoxication that Abrigo

allegedly displayed.     That is, the State convicted Abrigo on

nothing more than a police report without affording him an

adequate opportunity to challenge the officer’s observations.

Abrigo’s ostensible ability to question the officer’s general

credibility and methodology was a hollow substitute for cross-

examination on the officer’s actual basis for arresting Abrigo

and charging him with a crime, and the process plainly did not

offer any assurances of the report’s reliability.


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          The dissent argues that our interpretation could

adversely affect an OVUII prosecution by precluding the

introduction of a police officer’s report when the officer is

unable to recall the details of the driver’s SFST performance

months after a stop.     Dissent at 3.     But the administrative

difficulty of providing a prompt trial does not justify

dispensing with the assurances of reliability inherent in

meaningful cross-examination.       Moreover, the same result could

occur in any trial in which a police report is admitted under

the past recollection recorded hearsay exception, irrespective

of the seriousness of the charges or the strength of the

evidence against the defendant.       A defendant could be convicted

of a major felony offense on the sole basis of a report authored

by a police officer who is the only witness to the alleged

crime, all without any opportunity to challenge the substance of

the report through in-court cross-examination.          The injustice of

an interpretation of our evidentiary rules that would allow a

defendant to be convicted solely on the basis of a police report

being read into evidence is manifest, and we are thus obliged to

reject it.   See HRE Rule 102 (providing that the “rules shall be

construed to,” inter alia, “secure fairness in administration”

and to promote the “growth and development of the law of




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evidence to the end that the truth may be ascertained and

proceedings justly determined” (emphasis added)).20

            The dissent also responds by quoting a passage from a

treatise on evidence that argues that it is impractical to

expect law enforcement officials to recall specific, detailed

information such as “serial or license numbers, makes of cars,

detailed descriptions of objects at crime scenes, or precise

details about physical layout.”        Dissent at 11 (quoting

Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 8.51

(5th ed. 2012)).21     As an initial matter, this court has not yet


      20
            “In any event, such a reading would contravene the doctrine of
‘constitutional doubt,’ which dictates that, ‘where a statute is susceptible
of two constructions, by one of which grave and doubtful constitutional
questions arise and by the other of which such questions are avoided, our
duty is [to] adopt the latter.’” State v. Jess, 117 Hawai‘i 381, 399–400, 184
P.3d 133, 151–52 (2008) (quoting In the Interest of Doe, 96 Hawai‘i 73, 81, 26
P.3d 562, 570 (2001)). Under our current caselaw, the admission of a
witness’s prior out-of-court statements does not violate a defendant’s
confrontation and cross-examination rights even when the witness is
completely unable to remember the subject matter of the prior statement. See
State v. Fields, 115 Hawai‘i 503, 517, 168 P.3d 955, 969 (2007). However, the
continuing viability of this precedent has been called into doubt by our more
recent holding that the confrontation clause of the Hawai‘i Constitution is
“satisfied” only by “sufficient and meaningful” cross-examination. State v.
Nofoa, 135 Hawai‘i 220, 230-31, 349 P.3d 327, 337-38 (2015). It is thus
noteworthy that, in addition to all of the stated reasons underlying our
analysis, our holding is consistent with our duty to adopt an evidentiary
interpretation that avoids addressing a grave constitutional question. That
is, by concluding that Officer Ostachuk’s report was inadmissible on the
basis of our evidentiary rules, we render it unnecessary to address Abrigo’s
contention that the officer’s near-total lack of recollection violated his
constitutional right to confront and cross-examine the witnesses against him.
      21
            The treatise on which the dissent relies also counsels that the
exclusion of law enforcement reports in the public records hearsay exception
should not be used to exclude various public records for which another
“narrow and specific” hearsay exception applies in the rare instance in which
they are authored by police. Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence § 8:90 (4th ed. 2018). These include the “vital statistics”
of birth, death, or marriage that are typically admissible under the federal
                                                             (continued . . .)


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addressed the extent to which the law enforcement exclusion in

the public record exception bars the admission of purely routine

observational data.      See Davis, 140 Hawai‘i at 259 n.15, 400 P.3d

at 460 n.15 (declining to reach the issue).           Assuming such

informational data cannot be admitted through this route or by

properly authenticated documentary evidence, see HRE Rule 901, a

police report or any other document, photograph, or object may

be used to refresh an officer’s memory both before testifying

and while on the stand.       See HRE Rule 612.     Only when the

officer’s recollection of the events underlying the report is so

inadequate that reviewing the report or other refreshing item is

unable to bring these details to mind and other means are not

available would the admissibility of routine observational data

under HRE Rule 803 require consideration.          This rare scenario

cannot drive the result of our analysis when the alternative--

depriving the defendant of meaningful cross-examination of a


(. . . continued)

equivalent of HRE Rule 803(b)(9) and a certificate indicating the absence of
a public record that is usually admissible under the federal equivalent of
HRE Rule 803(b)(10). Id. Although we need not now decide the full extent of
law enforcement records excluded by the public records hearsay exception, the
treatise’s position is consistent with the longstanding maxim of statutory
interpretation that, “where there is a ‘plainly irreconcilable’ conflict
between a general and a specific statute concerning the same subject matter,
the specific will be favored.” Richardson v. City & Cty. of Honolulu, 76
Hawai‘i 46, 55, 868 P.2d 1193, 1202 (1994) (quoting Mahiai v. Suwa, 69 Haw.
349, 356–57, 742 P.2d 359, 366 (1987)). Thus, the more specific inclusion of
vital statistics would likely control over the more general exclusion of law
enforcement reports included in the public record exception. Similarly, the
more specific exclusion of law enforcement reports takes precedence over the
more general inclusion of a witness’s recorded past recollections.



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significant State’s witness--is the outcome of the dissent’s

position.    To hold that reading the contents of the police

report is admissible in this case, in which the witness was the

only source of evidence against the defendant, would establish a

precedent for trials to be determined on the basis of police

reports and not testimony, ultimately compromising the

fundamental rights of defendants and the ability of factfinders

to accurately determine the issues before them.

            Thus, we now formally hold that police reports may not

be admitted against a defendant in a criminal case under the HRE

Rule 802.1(4) past recollection recorded hearsay exception.                 We

conclude that Officer Ostachuk’s report could not have been

admitted under the public records exception, and thus the past

recollection recorded exception could not serve as a “back door”

to read the report into evidence.         Accordingly, the ICA erred in

holding that the content of Officer Ostachuk’s report was

admissible.22    Because Officer Ostachuk’s testimony was the only

evidence presented by the State, Abrigo’s conviction cannot

stand.

     22
            In holding that Officer Ostachuk’s testimony was admissible under
the past recollection recorded exception, the ICA relied on State v. Bloss, 3
Haw. App. 274, 649 P.2d 1176 (1982). In Bloss, the ICA held that a police
officer could read a parking citation that he issued into evidence under the
past recollection recorded exception. Id. at 278, 649 P.2d at 1179. Bloss
did not evaluate the legislative intent of the public records exception, nor
did it discuss the public records exception at all. We thus overrule Bloss
to the extent that it may be read to allow such a record to be admitted under
the past recorded recollection exception.




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                             IV. CONCLUSION

          Based on the foregoing, the ICA’s judgment on appeal

is vacated, the judgment of conviction is vacated, and the case

is remanded to the circuit court for further proceedings

consistent with this opinion.


Susan Arnett                             /s/ Sabrina S. McKenna
Taryn R. Tomasa
for petitioner                           /s/ Richard W. Pollack

Brian R. Vincent                         /s/ Michael D. Wilson
For respondent




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