NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2023
07:57 AM
Dkt. 48 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
JOSHUA S. PERRY, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DTA-21-00907)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant Joshua S. Perry (Perry) appeals
from the July 8, 2022 Judgment and Notice of Entry of Judgment
(Judgment) entered by the District Court of the Second Circuit
(District Court),1 convicting Perry 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 Christopher M. Dunn 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
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
On appeal, Perry raises two points of error: (1)
insufficient evidence supported the District Court's conclusions
that Alprazolam, rather than head trauma or Haldol, caused
Perry's impairment; and (2) erroneous admission of the citing
officer's and a back-up officer's (collectively, Officers)
testimony that: "(1) Alprazolam is the generic name for Xanax;
(2) Xanax is a CNS depressant; (3) Alprazolam is a Schedule IV
controlled substance; (4) people under the effect of CNS
depressants exhibit 'slowed-down' behaviors; (5) drugs are
divided into seven categories; and (6) Alprazolam is in the
Benzodiazepine category" (Drug-Related Testimony) because they
were not qualified as experts regarding drugs.
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, we resolve Perry's
points of error as follows, and affirm.
On July 8, 2022, the District Court held a bench trial
on the OVUII charge against Perry, wherein it heard testimony
from the Officers and accepted their body camera footage into
evidence.
In reaching its guilty verdict, the District Court
referred to Perry's "appearance, demeanor, speech, lack of
balance, . . . occasional incoherence" and relied heavily on the
Officers' body camera footage, describing Perry's attempts to do
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 . . . .
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
the one-leg stand and walk and turn tests3 as coming across
"stereo typically [sic], if not, almost cartoonish, impaired."
The District Court took judicial notice that Alprazolam is a
Schedule IV controlled substance under HRS § 329-20(b)(1). With
respect to whether Perry was under the influence of Alprazolam,
the District Court considered the citing officer's testimony
that Perry admitted "taking Alprazolam";4 the accident itself,
which, based on the body camera footage, showed that Perry's
vehicle had gone off of the road, hit the back of a parked
unattended car, causing heavy front end damage to his car and
rear end damage to the parked car; the Officers' testimony
regarding their training to detect drivers under the influence
of drugs, as well as their additional Advanced Roadside
Impairment Driving Enforcement (ARIDE) certification and
training; the Officers' testimony as to the indicators of
Alprazolam impairment, such as slurred speech, slow and
deliberate movements, diminished coordination, lack of balance;
and Perry's exhibition of those indicators.
(1) Perry argues that the District Court erred in
convicting him of operating a vehicle under the influence of
Alprazolam because there were two other possible causes of his
conduct: "Haldol and accident trauma." Perry asserts that
absent ruling out Haldol or accident trauma as the cause of his
impairment, there was insufficient evidence to prove he was
under the influence of Alprazolam.
3 When the citing officer asked Perry if he wanted to participate
in a standard field sobriety test (SFST), Perry said he had just left the
hospital and "made like he was doing" the SFST, which he ultimately declined
to do.
4 The citing officer testified that Perry uttered that he had taken
Xanax, not Alprazolam. The citing officer also testified that Alprazolam is
the generic term for Xanax.
3
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
When reviewing the sufficiency of evidence on appeal,
the following standard of review applies:
[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)
(citation and emphasis omitted). "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 and internal quotation marks
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).
Perry's argument is without merit. The evidence
included, among other things, the Officers' body camera footage,
their testimony regarding Perry's mental and physical
coordination, their Drug-Related Testimony, and the citing
officer's testimony regarding Perry's admission to taking Xanax.
Considering the evidence in the strongest light for the
prosecution, there was sufficient evidence to support the
District Court's conclusion that Alprazolam caused Perry's
impairment. See Kalaola, 124 Hawai‘i at 49, 237 P.3d at 1115.
(2) Perry argues that the District Court erred by
admitting the Officers' Drug-Related Testimony because they were
not qualified as expert witnesses.
Perry's contention of error is waived. With the
exception of Perry's single objection to the citing officer's
4
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
testimony that "Alprazolam is a Schedule IV controlled
substance," Perry failed to object to the Drug-Related
Testimony. Evidence to which there was no objection may be
properly considered by the trier of fact and its admission will
not constitute grounds for reversal. Hawai‘i Rules of Evidence
(HRE) Rule 103 (a)(1); State v. Naeole, 62 Haw. 563, 570,
617
P.2d 820, 826 (1980). Perry failed to raise these arguments
before the District Court; as such, they are waived. Hawai‘i
Rules of Appellate Procedure Rule 28(b)(4)(iii) (each point of
error shall state "where in the record the alleged error was
objected to or the manner in which the alleged error was brought
to the attention of the court"); State v. Moses, 102 Hawai‘i 449,
456,
77 P.3d 940, 947 (2003) ("As a general rule, if a party
does not raise an argument at trial, that argument will be
deemed to have been waived on appeal; this rule applies in both
criminal and civil cases.") (citations omitted).
Perry's argument against the District Court's
admission of the citing officer's testimony that "Alprazolam is
a Schedule IV controlled substance" is unavailing where the
District Court explicitly declined to rely on this testimony in
reaching its verdict,5 see State v. Nishi, 9 Haw. App. 516, 524,
852 P.2d 476, 480 (1993) (determining an error in the admission
of police officer testimony was harmless where the district
court disclosed that it did not consider or rely upon it); and
5 The District Court stated:
As to whether he was under the influence of
Alprazolam, ah, a controlled substance as defined under --
in Schedule I through IV of HRS 329, the Court for that,
ah, in terms of Alprazolam being Schedule I through IV, is
not relying on the officer's testimony that he believes
Alprazolam is a Schedule IV controlled substance.
I went to the statute myself and looked that up. And
pursuant to HRS 329-20(b)(1) Alprazolam is a Schedule IV
controlled substance.
5
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
the District Court took judicial notice of the pertinent law on
its own. See HRE Rule 202(b) (requiring the court to take
judicial notice of applicable statutes).
For the foregoing reasons, we affirm the July 8, 2022
Judgment and Notice of Entry of Judgment, entered by the
District Court of the Second Circuit.
DATED: Honolulu, Hawai‘i, June 30, 2023.
On the briefs:
/s/ Keith K. Hiraoka
Phyllis J. Hironaka,
Presiding Judge
Office of the Public Defender
for Defendant-Appellant.
/s/ Karen T. Nakasone
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney,
/s/ Sonja M.P. McCullen
for Plaintiff-Appellee.
Associate Judge
6
