NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUN-2023
07:55 AM
Dkt. 39 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
JOEY ALLEN PUZYNSKI, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-18-01632)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendant-Appellant Joey A. Puzynski (Puzynski) appeals
from the "Notice of Entry of Judgment and/or Order and
Plea/Judgment" entered on December 11, 2018, by the District
Court of the First Circuit (District Court), Honolulu Division.1
Puzynski 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. 2017).2
1
The Honorable William M. Domingo presided.
2
HRS § 291E-61 provides, in pertinent part:
(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:
(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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Puzynski raises a single point of error on appeal,
contending that there was insufficient evidence to convict him of
OVUII, specifically, that there was insufficient evidence that he
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.
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 Puzynski's point of error as follows and affirm.
"In reviewing the sufficiency of the evidence, a court
must view the evidence in the light most favorable to the
prosecution." State v. Wagner, 139 Hawai#i 475, 485, 394 P.3d
705, 715 (2017) (citation omitted). Further, "[t]he 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. Matavale, 115 Hawai#i
149, 157-58,
166 P.3d 322, 330-31 (2007).
"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.
Id. at 158, 166 P.3d at 331 (quoting State v. Batson,
73 Haw.
236, 248-49,
831 P.2d 924, 931 (1992)).
Here, viewing the evidence in the light most favorable
for the prosecution, which we must do, we conclude there is
substantial evidence to support Puzynski's conviction for OVUII.
At trial, Honolulu Police Department (HPD) Officer Jozlyn
Harrington (Officer Harrington) testified that on May 10, 2018,
at approximately 9:15 p.m., she was operating an HPD blue and
white vehicle, she was in the left lane on Ke#eaumoku Street
headed makai (toward the ocean), and she was about to make a left
turn onto Makaloa Street. The traffic light facing Officer
Harrington was green, her vehicle was behind another car and she
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was waiting for that car to complete its left turn, when Puzynski
drove his scooter between her vehicle and the car in front of her
going in a west-bound direction. In rendering its verdict, the
District Court found, and Puzynski does not dispute,3 that when
Officer Harrington "was waiting to make a left turn, having a
green light in front of her, [Puzynski] came from her left
against the red light, crossed between [Officer Harrington] and
the car before [her] . . . and proceeded across the intersection
against the red light[.]" (Emphasis added).
Officer Harrington testified that she did not see
Puzynski's scooter until it was right in front of her, and
estimated that Puzynski's scooter was less than twelve feet away
from her vehicle. As soon as Puzynski's scooter passed through
the intersection, Officer Harrington saw that her light was still
green, checked her mirror and crossed the two lanes on her right
to make a right turn onto Makaloa Street to follow Puzynski's
scooter.
While on Makaloa Street, Officer Harrington observed
Puzynski's scooter weaving back and forth in his lane as he
approached Sheridan Street. Puzynski's scooter approached a stop
sign on Makaloa Street, did not make a complete stop, and then
made a left turn onto Sheridan Street. Officer Harrington made
the left turn onto Sheridan Street and initiated a traffic stop.
Officer Harrington testified that during the initial
stop, Puzynski was seated on his scooter with his two feet on the
ground. Officer Harrington testified that because the scooter's
kickstand was not down, Puzynski was "slightly moving side to
side[,]" and he was "a little unsteady while on the scooter."
Officer Harrington also testified that she could not make any
observations of Puzynski because he had his head down until she
tried to issue Puzynski a citation for driving without a license.
At that point, Puzynski turned towards Officer Harrington, got
upset at her, and said "I'm not going to fucking court." When
3
Unchallenged findings of fact are binding on appeal. State v.
Rodrigues, 145 Hawai#i 487, 497, 454 P.3d 428, 438 (2019).
3
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Puzynski raised his voice, Officer Harrington could smell alcohol
coming from his breath from about two feet away and also
testified that Puzynski's eyes were glassy.
Officer Harrington testified that Puzynski denied
drinking alcohol and she asked if Puzynski wanted to participate
in the standard field sobriety test (SFST). Puzynski then "got
really angry" at Officer Harrington, "put his kickstand down, he
stood up, he threw his keys on the floor, and he was like, yeah,
let's fucking -- like, let's fucking do this" with a raised
voice. Officer Harrington asked for more units for assistance
and several officers arrived.
Officer Harrington testified that when she and Puzynski
were on the sidewalk for the SFST, Puzynski was uncooperative and
very argumentative, yelling, swearing, and causing a scene.
Officer Harrington attempted to give Puzynski instructions for
the SFST but was unable to do so because Puzynski was arguing
with her, and "[t]owards the end he just was like, yeah, just
fucking arrest me."
Officer Harrington testified that she then made the
decision to arrest Puzynski given his driving, being unsteady on
his feet while on the scooter, his agitation and demeanor as soon
as she tried to issue the citation, the smell of alcohol, and his
demeanor while Officer Harrington attempted to administer the
SFST.
HPD Officer Dayne Moya (Officer Moya) testified that on
May 10, 2018, at approximately 9:55 p.m., he responded to Officer
Harrington's call for assistance near Sheridan Street and
Kapi#olani Boulevard. When Officer Moya arrived, the other
officers had Puzynski detained in handcuffs standing outside of a
patrol vehicle. Officer Moya testified that when he was one to
two feet away, he could see that Puzynski's cheeks were flush
red, and there was a strong odor of alcohol emitting from his
breath as he yelled at the officers. Officer Moya also testified
that Puzynski continuously swore at all the officers, was very
irate, agitated, and was yelling. When officers would try to
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control Puzynski and walk him towards the vehicle, he would make
"quick motions of just trying to turn away to turn around and
face the officers." Officer Moya testified that he was on scene
for about ten minutes, heard Puzynski yelling the whole time, and
that a crowd of people were drawn outside from the apartment
buildings. Puzynski was placed in a patrol vehicle about five
minutes after Officer Moya arrived and Puzynski continued to yell
while in the patrol vehicle.
Puzynski testified that less than a week before he was
pulled over on May 10, 2018, his scooter had been in an accident
and when it slows down, the scooter wobbles and Puzynski would
weave in his lane to slow his scooter down. Puzynski testified
that when Officer Harrington asked for his driver's license, he
told her his wallet had been stolen, so he provided her with his
passport. Puzynski testified that he got agitated when Officer
Harrington decided to issue him a citation because he had worked
a twelve hour day, was very tired, was on his way home from work,
had a bad history with police officers and was distrustful of
them. Puzynski testified that he felt very aggravated and
harassed but he was not swearing or yelling at the officers.
Puzynski argues there are explanations other than
intoxication to account for weaving his scooter within the lane,
his behavior, and the scent of alcohol.4 However, the District
Court pointed to several aspects of Puzynski's driving in
rendering its verdict, finding that when Officer Harrington was
waiting to make a left turn at a green light, Puzynski came from
her left, crossed between her and the car in front of her, and
proceeded across the intersection against the red light.5 The
4
Puzynski argues that his scooter weaved a bit within his own lane
likely because of "a less than pristine scooter and a slight bend of the
road", that being loud, yelling, or speaking with an agitated or raised voice
is not proper evidence of illegal intoxication, and that an odor of alcohol
does not mean Puzynski was statutorily impaired.
5
Puzynski argues that the District Court found him not guilty of
reckless driving and thus his driving should be discounted in considering his
conviction for OVUII. However, the District Court determined that it needed
"further information regarding the evidence" related to the reckless driving
(continued...)
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District Court also noted "some weaving" by Puzynski and the
failed stop at a stop sign. Moreover, the credibility of the
officers was also significant and the District Court credited the
officers' testimony. "It is well-settled that an appellate court
will not pass upon issues dependent upon the credibility of
witnesses and the weight of the evidence; this is the province of
the trier of fact." State v. Mattiello, 90 Hawai#i 255, 259, 978
P.2d 693, 697 (1999) (internal quotation marks, citations, and
brackets omitted). Therefore, although Puzynski testified he did
not drink any alcohol and did not yell or swear at the officers,
the District Court credited the officers' testimony that they
smelled an odor of alcohol coming from Puzynski's breath, and
that Puzynski was yelling and swearing.
On this record, there was substantial evidence to
support the District Court's conviction of Puzynski for OVUII, in
other words, that Puzynski 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. HRS § 291E-61(a)(1); see State v. Gaston, 108 Hawai#i
308, 310-11, 119 P.3d 616, 618-19 (App. 2005) (holding there was
substantial evidence to convict the defendant of OVUII based on
testimony by officers that defendant's face was flushed, his eyes
were red and glassy, his breath smelled of alcohol, he was
unsteady on his feet, and he admitted losing control of his
vehicle and hit a guardrail); State v. Bayardelger, No.
CAAP-XX-XXXXXXX,
2020 WL 3056088, at *2 (Haw. App. June 9, 2020)
(SDO) (holding there was substantial evidence to convict
defendant of OVUII based on officer's testimony that he observed
defendant's vehicle drift out of its lane of travel five times
over the course of about a mile, and after stopping defendant,
5
(...continued)
charge under HRS § 291-2 (2020), which provides in relevant part: "Whoever
operates any vehicle or rides any animal recklessly in disregard of the safety
of persons or property is guilty of reckless driving of vehicle[.]" Even
though Puzynski was not convicted under HRS § 291-2, the District Court was
not precluded from considering Puzynski's operation of his scooter related to
the OVUII charge.
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noticed a very strong odor of alcohol coming from inside the
vehicle, the odor appeared stronger or coming from defendant, and
defendant had red, watery, and glassy eyes); State v. Lay, No.
CAAP–14–0001193, 2015 WL 9484361, at *1-2 (Haw. App. Dec. 23,
2015) (SDO) (holding there was substantial evidence to convict
defendant of OVUII based on officer's testimony that defendant
swerved her moped on the road while her passenger had his hands
up and shouted, defendant had red and glassy eyes, her face was
flushed, she was unsteady on her feet, her breath smelled of
alcohol, and defendant was belligerent and uncooperative with the
officer who attempted to administer three field sobriety tests).
Therefore, IT IS HEREBY ORDERED that the Notice of
Entry of Judgment and/or Order and Plea/Judgment, filed on
December 11, 2018, in the District Court of the First Circuit,
Honolulu Division, is affirmed.
DATED: Honolulu, Hawai#i, June 28, 2023.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Alan K. Akao
Deputy Public Defender /s/ Katherine G. Leonard
for Defendant-Appellant Associate Judge
Loren J. Thomas, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney Associate Judge
for Plaintiff-Appellee
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