No. SCWC-14-0001302, Thursday, August 4, 2016, 8:45 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. LESTER S. TSUJIMURA, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Alen M. Kaneshiro

Attorney for Respondent:

Sonja P. McCullen, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 06/24/16.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/Defendant-Appellant Lester S. Tsujimura (Tsujimura) was charged by complaint with Operating a Vehicle Under the Influence of an Intoxicant under Hawai`i Revised Statutes § 291E-61(a)(1). Tsujimura moved to dismiss the charge, arguing that the statutory definition of alcohol “excludes most type of alcohol,” and, as such, the definition must be included in the complaint. The District Court of the First Circuit (district court) dismissed the motion to dismiss as untimely and, alternatively, determined on the merits that the statutory definition of alcohol is not restricted to alcohol derived from distillation and that a person of common understanding would understand what alcohol means even if the complaint does not set forth its statutory meaning.

At trial, the arresting officer testified regarding his observations of Tsujimura before and after he stopped Tsujimura. The arresting officer also recounted his observations while Tsujimura was performing the standardized field sobriety tests (FSTs). Defense counsel objected to the arresting officer’s testimony regarding the FSTs and contended that the State, which the district court found to have been unable to lay proper foundation for testimony on whether Tsujimura passed or failed the FSTs, was in effect eliciting such testimony. The district court overruled defense counsel’s objection, reasoning that the arresting officer was only describing his observations of Tsujimura’s physical actions while performing the FSTs.

On redirect examination, the State asked, “Do you recall if the defendant indicated to you he would have difficulty exiting the car because of his previous leg injury?,” to which the arresting officer answered, “No statements were made.” Tsujimura’s counsel objected, explaining “that the prosecutor cannot comment or elicit testimony that comments on the defendant’s right to remain silent” and that Tsujimura was “under no obligation to speak or say anything” to the arresting officer. The district court overruled the objection.

After the State rested, Tsujimura moved for a judgment of acquittal, arguing that the State failed to present evidence as to the kind of alcohol that allegedly impaired his faculties. The district court concluded that the State satisfied the prima facie elements of the crime and denied Tsujimura’s acquittal motion. Thereafter, Tsujimura rested, and in ruling on the case, the district court held that the State proved beyond a reasonable doubt all the elements of the charge and that Tsujimura was guilty of the charged offense. On appeal, the Intermediate Court of Appeals (ICA) affirmed Tsujimura’s conviction.

On certiorari, Tsujimura challenges the ICA’s affirmance of the district court’s (1) denial of his motion to dismiss the OVUII charge for failure to define the term “alcohol”; (2) admission of the arresting officer’s testimony on his performance on the FSTs; (3) admission of the arresting officer’s testimony that Tsujimura contends to have inappropriately commented on his right to remain silent; (4) denial of his motion for judgment of acquittal on the grounds that there was insufficient evidence that he had consumed “alcohol”; and (5) finding of guilt as there was insufficient evidence to establish that he was 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.