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                                                    Electronically Filed
                                                    Intermediate Court of Appeals
                                                    CAAP-XX-XXXXXXX
                                                    17-JUN-2020
                                                    07:45 AM



                             NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                           OF THE STATE OF HAWAI#I


                              STATE OF HAWAI#I,
                             Plaintiff-Appellee,
                                      v.
                                JOHN HAINRICK,
                             Defendant-Appellant


          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                            HONOLULU DIVISION
                        (CASE NO. 1DTA-19-01347)


                        SUMMARY DISPOSITION ORDER
           (By:   Ginoza, Chief Judge, Leonard and Chan, JJ.)

             Defendant-Appellant John Hainrick (Hainrick) appeals
from the Notice of Entry of Judgment and/or Order and
Plea/Judgment, filed on May 2, 2019, in the District Court of the
First Circuit, Honolulu Division (District Court).1
             After a bench trial, Hainrick was convicted of: (1)
Operating a Vehicle Under the Influence of an Intoxicant (OVUII),
in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1)
(Supp. 2018);2 and (2) Operating a vehicle after license and

      1
             The Honorable Ann S. Isobe presided.
      2
             HRS § 291E-61(a) states, in relevant part:

      §291E-61 Operating a vehicle under the influence of an intoxicant. (a)   A
person commits the offense of operating a vehicle under the influence of an
intoxicant if the person operates or assumes actual physical control of a
vehicle:
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privilege have been suspended or revoked for operating a vehicle
under the influence of an intoxicant, in violation of HRS §
291E-62(a)(1) and/or (a)(2) (Supp. 2018).3
            On appeal, Hainrick contends that there was
insufficient evidence to support his OVUII 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 Hainrick's point of error as follows:
            Considering the evidence adduced at trial in the
strongest light for the prosecution, we conclude that there was
sufficient evidence to support Hainrick's OVUII conviction.                 See
State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31
(2007) ("[E]vidence adduced in the trial court must be considered
in the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to support
a conviction; the same standard applies whether the case was
before a judge or a jury.        The test on appeal is not whether
guilt is established beyond a reasonable doubt, but whether there
was substantial evidence to support the conclusion of the trier
of fact).    Specifically, we conclude that there was substantial
evidence that Hainrick had operated a vehicle while under the



      (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[.]
      3
            HRS § 291E-62(a) states, in relevant part:

      § 291E-62 Operating a vehicle after license and privilege have been
suspended or revoked for operating a vehicle under the influence of an
intoxicant; penalties. (a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise restricted pursuant to this
section or to part III or section 291E-61 or 291E-61.5, or to part VII or part
XIV of chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or 291-7 as those
provisions were in effect on December 31, 2001, shall operate or assume actual
physical control of any vehicle:

      (1)   In violation of any restrictions placed on the person's license;

      (2)   While the person's license or privilege to operate a vehicle remains
            suspended or revoked[.]

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influence of alcohol in an amount sufficient to impair his normal
mental faculties or ability to care for himself and guard against
casualty.    See id. at 158, 166 P.3d at 331 ("'Substantial
evidence' as to every material element of the offense charged is
credible evidence which is of sufficient quality and probative
value to enable [a person] of reasonable caution to support a
conclusion.    And as trier of fact, the trial judge is free to
make all reasonable and rational inferences under the facts in
evidence, including circumstantial evidence." (quoting State v.
Batson, 73 Haw. 236, 248–49, 831 P.2d 924, 931 (1992)).
            At trial, Honolulu Police Department Officer Brennan
Baysa (Officer Baysa) testified that, while driving westbound on
the H-1 near the Kapiolani offramp, Hainrick quickly darted his
vehicle over a solid yellow line and drifted back to the center
of his lane of travel three separate times before being stopped.
Officer Baysa then testified that upon initiating the traffic
stop of Hainrick's vehicle, he asked Hainrick for identification
and Hainrick fumbled through his vehicle opening up compartments
for approximately two minutes and gave Officer Baysa several
blank looks.    After being asked multiple times for
identification, Hainrick stated he did not have a driver's
license.    During this interaction, Officer Baysa stated that he
observed Hainrick's eyes to be glossy and watery, and had
detected an odor of an alcoholic beverage from Hainrick's breath.
Officer Danilo Ting, Jr. (Officer Ting), who assisted Officer
Baysa with the traffic stop, also testified that he noticed
Hainrick's eyes were red, watery, and glassy when speaking with
him.   He could also smell a strong odor of alcohol from
Hainrick's breath.    Officer Ting informed Hainrick that there was
reason to believe he was driving while impaired, then asked
Hainrick to participate in the field sobriety test, to which
Hainrick said "no."    While speaking with Hainrick, Officer Ting
also noted that Hainrick's responses were very short and it
sometimes felt like Hainrick did not understand what Officer Ting

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was saying.   This was exemplified when, after refusing to
participate in the field sobriety tests, Hainrick's blank stare
caused Officer Ting to ask him if he understood what was just
asked.   Hainrick continued to stare and Officer Ting asked
Hainrick to explain to him what he had asked Hainrick.      Hainrick
was still non-responsive to Officer Ting, so Officer Ting asked
Hainrick if he understood what Officer Ting asked or to
re-explain what Officer Ting had asked him.     Hainrick did not
respond, so Officer Ting asked him again to confirm if he wanted
to participate in the field sobriety test, to which Hainrick
again said "no."
           Consciousness of guilt may be inferred from a
defendant's refusal to participate in the field sobriety tests.
State v. Ferm, 94 Hawai#i 17, 29-30, 7 P.3d 193, 205-06 (App.
2000).   However, the trial court is also free to not construe
such refusal as consciousness of guilt.     State v.
Kuahiwinui-Beck, No. CAAP-XX-XXXXXXX, 2017 WL 213156, at *3 (Haw.
App. Jan. 18, 2017) (SDO).    Here, the District Court expressly
noted Hainrick's refusal to participate in the field sobriety
tests in finding him guilty of OVUII, and therefore considered
the refusal as consciousness of guilt.
           Considering the evidence adduced from the officers'
testimonies and the inference from Hainrick's refusal to
participate in field sobriety tests in the light most favorable
for the prosecution, there was credible evidence adduced at trial
which was of sufficient quality and probative value to enable a
person of reasonable caution to conclude that Hainrick committed
OVUII in violation of HRS § 291E-61(a)(1).     See e.g., State v.
Nakamitsu, 140 Hawai#i 157, 165, 398 P.3d 746, 754 (2017)
(determining that even absent evidence of the defendant's
performance on the field sobriety tests, the testimony of the two
officers regarding the defendant's appearance, demeanor, and the
defendant's vehicle and surrounding scene, was substantial
evidence that he operated his vehicle under the influence of

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alcohol in violation of HRS § 291E-61(a)(1)); State v. Gaston,
108 Hawai#i 308, 310–11, 119 P.3d 616, 618–19 (App. 2005)
(upholding defendant's OVUII conviction because evidence
demonstrated that his face was flushed, his eyes were red and
glassy, his breath had smelled of alcohol, he was unsteady on his
feet, and he had lost control of his vehicle and hit a guardrail,
which constituted substantial evidence).
          Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, filed on May 2,
2019, in the District Court of the First Circuit, Honolulu
Division, is affirmed.
          DATED:   Honolulu, Hawai#i, June 17, 2020.


On the briefs:
                                      /s/ Lisa M. Ginoza
Sonja P. McCullen,                    Chief Judge
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.               /s/ Katherine G. Leonard
                                      Associate Judge
Andrew I. Kim,
Deputy Public Defender,
for Defendant-Appellant.              /s/ Derrick H. M. Chan
                                      Associate Judge




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