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                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   24-JUL-2020
                                                   07:50 AM



                            NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


                STATE OF HAWAI#I, Plaintiff-Appellee, v.
                  RYAN KURANISHI, Defendant-Appellant

          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                            HONOLULU DIVISION
                        (CASE NO. 1DTA-17-01900)


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

             Defendant-Appellant Ryan Kuranishi (Kuranishi) appeals
from the Amended Notice of Entry of Judgment and/or Order and
Plea/Judgment, entered on November 21, 2017, and Notice of Entry
of Judgment and/or Order and Plea/Judgment, entered on May 1,
2018, in the District Court of the First Circuit, Honolulu
Division (District Court).1/ Following a bench trial, Kuranishi
was convicted of Operating a Vehicle Under the Influence of an
Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1) (Supp. 2016).2/



     1/
             The Honorable Sherri-Ann L. Iha presided.
     2/
             HRS § 291E-61(a)(1) provides:
                   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[.]
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          On appeal, Kuranishi contends that: (1) the District
Court erred in partially denying his written motion to suppress
his "statements"; (2) the District Court erred in denying his
oral motion to suppress evidence; and (3) there was insufficient
evidence to support Kuranishi's 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 Kuranishi's points of error as follows:
          (1) Prior to Kuranishi's arrest for OVUII, Honolulu
Police Department (HPD) Officer Joshua Wong (Officer Wong)
administered a Standard Field Sobriety Test (SFST) to Kuranishi.
After he was arrested and charged, Kuranishi filed a Motion to
Suppress Statements, by which he sought to suppress, among other
things, statements he made to HPD officers. A consolidated
hearing on the motion to suppress and bench trial began on
November 20, 2017. During trial, the District Court granted the
motion to suppress as to Kuranishi's verbal responses to Officer
Wong's questions, but denied the motion as to Kuranishi's
performance on the SFST.3/
           Kuranishi first contends that: (a) he had a pre-arrest
right to remain silent pursuant to State v. Tsujimura, 140
Hawai#i 299, 400 P.3d 500 (2017); (b) his "'statements,'
including non-verbal communicative responses, were obtained in
violation of [t]his right"; and (c) such responses, "i.e[.,] his
physical performance on the SFST[,]" should therefore have been
suppressed. This argument is without merit.



     3/
          Specifically, the District Court ruled, in relevant part:
                   Okay. The Court is going to deny the motion to
             suppress at this point in time as far as the physical
             field sobriety test goes. The Court is going to
             strike any actual responses to questions that the
             officer asked, however.

                   . . . .
                   . . . . I understand your argument. The Court
             is going to strike any responses to any direct
             questioning, allowing the field sobriety test to
             remain in.

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          In State v. Uchima, 147 Hawai#i 64, ___, ___, 464 P.3d
852, 859, 871 (2020), the supreme court rejected a similar claim
that a defendant's verbal and non-verbal responses were obtained
in violation of the pre-arrest right to remain silent that was
recognized in Tsujimura. This case, like Uchima, does not
involve the use of Kuranishi's silence against him. Thus,
Tsujimura is not applicable to this case.
          Kuranishi also contends that he was subjected to
custodial interrogation and, because he was not given Miranda
warnings, his "non-verbal communicative acts, i.e[,] his
performance on the SFST," should have been suppressed. This
argument is also foreclosed by Uchima. There, the supreme court
ruled:
          [The defendant's] performance on the FST does not constitute
          incriminating statements. "The privilege against self-
          incrimination is a bar against compelling 'communications'
          or 'testimony.'" State v. Wyatt, 67 Haw. 293, 303, 687 P.2d
          544, 551 (1984) (quoting Schmerber v. California, 384 U.S.
          757, 763-64, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). In
          Wyatt, this court held that when conducting an FST the State
          does not seek "communications" or "testimony," but rather,
          "an exhibition of 'physical characteristics of
          coordination.'" Id. (quoting State v. Arsenault, 115 N.H.
          109, 336 A.2d 244, 247 (1975)). Here, [the officer who
          administered the FST] did not seek "communications" or
          "testimony" from [the defendant]. Rather, in conducting the
          FST, the officer sought "an exhibition of 'physical
          characteristics of coordination.'" Id. "Consequently, the
          field sobriety test was not rendered infirm by the
          constitutionally guaranteed privilege against compulsory
          self-incrimination." Id.

Uchima, 147 Hawai#i at ___, 464 P.3d at 872-73 (original brackets
and footnote omitted).
          The same analysis applies here; Kuranishi's performance
on the SFST did not constitute an interrogation requiring Miranda
warnings. The District Court therefore did not err in denying
Kuranishi's motion to suppress his performance on the SFST.
          (2) Kuranishi contends that the District Court erred
in denying his oral motion to suppress evidence, because he did
not make an illegal left turn by crossing over solid yellow
lines, and therefore Officer Wong lacked a reasonable suspicion
to initiate a traffic stop.
          "[A]n investigative stop can be justified based on an
objectively reasonable suspicion of any offense, provided that
the offense for which reasonable suspicion exists is related to

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the offense articulated by the officer involved." State v.
Bolosan, 78 Haw. 86, 94, 890 P.2d 673, 681 (1995).
          At trial, Officer Wong testified that he was in a
marked police vehicle traveling westbound on Kapiolani Boulevard,
approaching the intersection with Ward Avenue; Kuranishi was
driving in the far left lane in the same direction, a few car
lengths ahead of Officer Wong's vehicle. Officer Wong observed
Kuranishi cross over the double solid yellow lines separating
east and westbound traffic on Kapiolani Boulevard about 30 feet
before the intersection. Kuranishi continued over three
eastbound lanes, while still driving in the westbound direction,
before turning left onto Ward Avenue. As Kuranishi entered the
intersection, Officer Wong turned on his lights and siren to
initiate a traffic stop. Kuranishi pulled over almost
immediately into a Jack-in-the-Box parking lot.
          Kuranishi argues that he made a left turn across
broken, not solid, yellow lines; his turn was not illegal; and
there was thus no reasonable suspicion for the traffic stop. He
contends that a video he made subsequent to his arrest, which was
entered into evidence at trial, showed that the yellow lines were
broken. But he also testified that he had crossed the yellow
lines on Kapiolani Boulevard; cut into oncoming traffic for about
ten to fifteen feet; and "when [he] made that left turn cutting
it on Kapiolani, [he] also cut into . . . that left turn only
lane facing north on Ward to make that . . . hard right into Jack
in the Box."
          Based on Officer Wong's observations, and regardless of
whether the double yellow lines that Kuranishi crossed were
broken or solid, Officer Wong plainly had reasonable suspicion to
stop Kuranishi for a traffic violation. See, e.g., HRS § 291C-
41(c).4/ Accordingly, the District Court did not err in denying


     4/
          HRS § 291C-41(c) (2007) provides:
                   Drive on right side of roadway; exceptions. . . .
                   (c) Upon any roadway having four or more lanes for
             moving traffic and providing for two-way movement of
             traffic, no vehicle shall be driven to the left of the
             center line of the roadway, except when authorized by
                                                                  (continued...)

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Kuranishi's oral motion to suppress evidence.
          (3) Kuranishi contends that there was no substantial
evidence to support his OVUII conviction. The evidence adduced
at trial must be considered in the strongest light for the
prosecution. State v. Matavale, 115 Hawai#i 149, 157-58, 166
P.3d 322, 330-31 (2007) (citation omitted).
          At trial, Officer Wong testified to the following: On
May 12, 2017, at approximately 2:50 a.m., he was traveling
westbound on Kapiolani Boulevard, which is a public street, road,
or highway located in the City and County of Honolulu, State of
Hawai#i. He observed Kuranishi cross over the double yellow
lines separating east and westbound traffic on Kapiolani
Boulevard, about 30 feet before the intersection. Kuranishi
continued over three eastbound lanes, while still driving in the
westbound direction, before turning left onto Ward Avenue. After
stopping and interacting with Kuranishi, Officer Wong observed
that Kuranishi's "speech appeared a little slurred, lightly
slurred, when he was talking to [Officer Wong]." Officer Wong
also observed that Kuranishi's "eyes at the time appeared red,
kinda bloodshot. And . . . inside the interior of the cabin of
his truck, as well as him talking to [Officer Wong], [Officer
Wong] smelled a strong odor of alcohol." Officer Wong also
testified to Kuranishi's deviations in performance from Officer
Wong's instructions on the SFST.
          Following Kuranishi's testimony and closing arguments,
the District Court ruled as follows:
                    Okay. Frankly, given the credibility of the witnesses
              in this case, the Court is going to find that the defendant
              was impaired while he was driving. The driving alone in
              this case with the slurred speech and strong odor was enough
              to show impairment.

                    Officer Wong testified that the defendant went all the
              way to the left side of Kapiolani-Ward and turned into the
              left side of Ward -- I'm sorry -- went all the way to the
              left on Kapiolani and turned the left lane on Ward before


     4/
          (...continued)
               official traffic-control devices designating certain lanes
               to the left side of the center of the roadway for use by
               traffic not otherwise permitted to use such lanes, or except
               as permitted under subsection (a)(2). This subsection shall
               not be construed to prohibit the crossing of the center line
               in making a left turn into or from an alley, private road,
               or driveway.

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          cutting across into Jack in the Box parking lot, which is on
          the right. The defendant's testimony semi corroborates
          that, that he cut the turn short to turn into the right side
          -- to the first driveway on the right side of Ward. That
          doesn't make any sense at all. The Court finds that the
          defendant was impaired at the time.

          On appeal, Kuranishi argues that Officer Wong's
testimony regarding Kuranishi's slurred speech was "simply not
credible," and Kuranishi "did not commit any traffic violations
or bad driving, other than the lane-marking crossings allegations
made by Officer Wong." 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 State v. Stocker, 90 Hawai#i 85,
90, 976 P.2d 399, 404 (1999); 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)) (internal quotation mark omitted)).
          Upon review of the record, we conclude there was
substantial evidence that Kuranishi 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 Kuranishi's OVUII conviction.
          Therefore, IT IS HEREBY ORDERED that the Amended Notice
of Entry of Judgment and/or Order and Plea/Judgment, entered on
November 21, 2017, and Notice of Entry of Judgment and/or Order
and Plea/Judgment, entered on May 1, 2018, in the District Court
of the First Circuit, Honolulu Division, are affirmed.

          DATED:   Honolulu, Hawai#i, July 24, 2020.


On the briefs:                          /s/ Derrick H.M. Chan
                                        Presiding Judge
Alen M. Kaneshiro
for Defendant-Appellant.
                                        /s/ Keith K. Hiraoka
Stephen K. Tsushima,                    Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee.                 /s/ Clyde J. Wadsworth
                                        Associate Judge

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