NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUN-2023
07:59 AM
Dkt. 51 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
SAIDO H. SHEIKH, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DTA-22-00033)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)
Defendant-Appellant Saido H. Sheikh (Sheikh) appeals
from the Judgment and Notice of Entry of Judgment (Judgment)
filed on August 17, 2022, in the District Court of the Second
Circuit, Wailuku Division (District Court),1 convicting Sheikh of
operating a vehicle under the influence of an intoxicant (OVUII)
in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(2)
(2020).2
1
The Honorable Blaine J. Kobayashi presided.
2
HRS § 291E-61(a)(2) provides, 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:
. . . .
(2) While under the influence of any drug that impairs
the person's ability to operate the vehicle in a
careful and prudent manner[.]
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, Sheikh raises a single point of error,
asserting there was insufficient evidence to support her
conviction. Plaintiff-Appellee State of Hawai#i (State) argues
to the contrary that there was substantial evidence to support
the Judgment.
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 Sheikh's point of error as follows and affirm.
When reviewing the sufficiency of evidence on appeal,
the court applies the following standard of review:
[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 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.
State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)
(citations omitted) (brackets in original). "Substantial
evidence" is "credible evidence which is of sufficient quality
and probative value to enable a person of reasonable caution to
support a conclusion."
Id. (citation omitted). In a bench
trial, the trial judge, as the trier of fact, "is free to make
all reasonable and rational inferences under the facts in
evidence, including circumstantial evidence." State v. Batson,
73 Haw. 236, 249,
831 P.2d 924, 931 (1992) (citation omitted).
The District Court held a bench trial and heard
testimony from Officer Raul Mehra (Officer Mehra) of the Maui
Police Department and from Sheikh. The District Court also
admitted the State's exhibits into evidence, which Sheikh does
not contest on appeal.
When issuing its guilty verdict, the District Court
found Officer Mehra to be credible and cited the following
evidence: Officer Mehra's body camera footage (State's Exhibit
1); his observation of Sheikh operating her vehicle and "drifting
over the fog line[;]" his detection of a strong odor of burnt
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marijuana upon pulling her over; her red and glossy eyes; her
slurred speech; his observations regarding her response to his
request for her license, insurance, and registration; her
performance on field sobriety tests; and Sheikh's admission to
Officer Mehra that she had smoked marijuana earlier in the day.
The court stated that "based upon all of the testimony that was
elicited in this case, including [the] summary of the facts that
the Court has just stated . . . the Court finds for the record
that the State has proven beyond a reasonable doubt all of the
elements of the charge."
Sheikh contends there was insufficient evidence to
support the Judgment because: (1) the record reflects that she
used her turn signal, was not cited for any traffic violations,
pulled over safely, and did not brake abruptly or attempt to
flee; (2) the smell of marijuana could have emanated from the
passenger in her vehicle or from the marijuana she smoked five
hours earlier; (3) the State did not present any evidence that
Sheikh's soft, slurred speech was not her normal speech pattern
and the red, glassy, watery appearance of Sheikh's eyes were not
their normal appearance; (4) Officer Mehra failed to comply with
an online twelve-step process to examine whether a suspect was
driving under the influence of drugs, citing a website setting
forth twelve steps; and (5) the State did not present any
evidence as to how long marijuana stayed in a person's system or
how smoking marijuana five hours earlier would affect a person's
ability to operate a vehicle.
Sheikh does not dispute the evidence relied upon by the
District Court. Rather, her arguments appear to challenge the
District Court's assignment of weight to the evidence in the
record, the inferences drawn therefrom, and whether the citing
officer erred by failing to follow a twelve-step process found
online.
We conclude there was substantial evidence to support
the District Court's conviction of Sheikh. The evidence showed
that Officer Mehra was directly behind a vehicle operated by
Sheikh when it "got into the right lane from the left lane and
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she drifted and crossed the white solid fog line on the right
hand shoulder." The passenger-side front and rear wheels of
Sheikh's vehicle drifted over the fog line for two seconds.
After initiating a stop and approaching the vehicle, Officer
Mehra saw Sheikh in the driver's seat, observed a "strong odor of
marijuana," and noticed that Sheikh had "glossy, watery eyes and
she was slurring her speech." Officer Mehra also testified that
Sheikh seemed dazed and confused. When Officer Mehra asked for
her driver's license, vehicle registration and insurance, Sheikh
produced her license and gave him a blank stare; he reminded her
he still needed the registration and insurance; with the help of
a passenger in the front seat Sheikh provided her registration,
but was unable to find her insurance information, which she tried
to find on her phone.
When asked to participate in a field sobriety test,
Sheikh stepped out of her vehicle and Officer Mehra testified,
among other things, that: he did not observe nystagmus when
administering the horizontal gaze nystagmus test; when he
administered the walk and turn test, during the first nine steps
he observed Sheikh step off the line twice, fail to walk heel to
toe three times, stop walking twice, and take two more steps than
instructed; Sheikh did not correctly turn during the test; after
the turn, he observed Sheikh step off the line twice and only
take eight steps instead of nine and without counting out loud as
instructed; he then administered the one leg stand test,
observing Sheikh put her arms up during the first ten seconds and
the second ten seconds of the test against instructions; he then
administered the modified Romberg test, instructing Sheikh to
imagine the passage of thirty seconds with her eyes closed and
Sheikh's estimated passage of thirty seconds was fifteen seconds.
While administering the field sobriety test, Officer Mehra "still
smelled the odor of marijuana coming from her."
Officer Mehra's body camera video shows his
interactions with Sheikh, including that she told him she had
used marijuana earlier that day. Moreover, in her testimony,
Sheikh acknowledged telling Officer Mehra that she had smoked
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marijuana five hours before, although she seemed to claim it did
not contain THC.
Given the record in this case, there was substantial
evidence that Sheikh operated a vehicle "[w]hile under the
influence of any drug that impairs the person's ability to
operate the vehicle in a careful and prudent manner." HRS
§ 291E-61(a)(2); see State v. Spinelli, CAAP-XX-XXXXXXX, 2016 WL
937625, at *2-3 (Haw. App. Mar. 11, 2016) (SDO) (considering
defendant's red, watery, and glassy eyes, the odor of burnt
marijuana, the defendant's admission to smoking marijuana prior
to being stopped, and the defendant's performance on a field
sobriety test in determining there was substantial evidence to
support the defendant's OVUII conviction). Thus, there was
sufficient evidence to support the District Court's conviction of
Sheikh.
Therefore, IT IS HEREBY ORDERED that the Judgment and
Notice of Entry of Judgment, entered on August 17, 2022, by the
District Court of the Second Circuit, Wailuku Division, is
affirmed.
DATED: Honolulu, Hawai#i, June 29, 2023.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
John F.H. Chow,
Deputy Public Defender /s/ Katherine G. Leonard
for Defendant-Appellant Associate Judge
Richard B. Rost, /s/ Karen T. Nakasone
Deputy Prosecuting Attorney Associate Judge
for Plaintiff-Appellee
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