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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUL-2023
08:04 AM
Dkt. 57 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
WARREN BOSE, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DTC-22-600523)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)
Defendant-Appellant Warren Bose (Bose) appeals from
the May 6, 2022 Judgment and Notice of Entry of Judgment
(Judgment), entered by the District Court of the Second Circuit
(District Court),1 convicting him of Excessive Speeding, in
violation of Hawaii Revised Statutes (HRS) § 291C-105(a)(1).2
Bose contends the District Court abused its discretion
in holding that Plaintiff-Appellee State of Hawai‘i (State) laid
1 The Honorable Blaine J. Kobayashi presided.
2 HRS § 291C-105(a)(1) (2020) provides, in relevant part: "(a) No
person shall drive a motor vehicle at a speed exceeding . . . [t]he
applicable state or county speed limit by thirty miles per hour or more . .
. ."
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a sufficient foundation to introduce the speed reading because
it failed to demonstrate that the citing officer met the
manufacturer's training requirements to test and operate the
speed-measuring device, and without the speed reading, no
substantial evidence supported the 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, we resolve Bose's
arguments as follows, and vacate and remand.
The trial court has discretion to determine whether a
proper foundation is established, and we will not disturb such a
determination absent an abuse of discretion. State v. Assaye,
121 Hawai‘i 204, 210, 216 P.3d 1227, 1233 (2009). To lay the
foundation to introduce a speed reading, the State must
demonstrate that (1) that the accuracy of the device was tested
according to procedures recommended by the manufacturer (Testing
Prong), and that (2) "the nature and extent of an officer's
training in the operation" of the device met "the requirements
indicated by the manufacturer" (Training Prong). Id. at 213,
215,
216 P.3d at 1236, 1238 (footnote and citation omitted). To
satisfy the Testing Prong, the State must establish the
manufacturer's recommended procedures to verify the accuracy of
the device and that the citing officer observed those
procedures. State v. Gonzalez, 128 Hawai‘i 314, 325,
288 P.3d
788, 799 (2012).
Here, Officer Noel Talaroc (Officer Talaroc) testified
that, on January 6, 2022, he used his LTI 20/20 Truspeed Laser
device (Device) to measure Bose's vehicle as traveling at 79
miles-per-hour in a 45 mile-per-hour zone. LTI is the Device's
manufacturer, and LTI recommends five procedures to test the
Device to ensure it is working properly: a visual inspection, a
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self-test, a display test, a scope alignment test (Alignment
Test), and a delta distance test; he further described all five
tests. In describing the Alignment Test, he indicated that the
operator uses the scope to aim the Device at a target, pulls the
trigger, and listens for a tone, which would change depending on
the distance to the target acquired. He was trained to use the
Device by Officer Tim Hodgins, who was certified by LTI. Per
Officer Talaroc's training, he must perform all the tests, every
day, prior to using the Device for enforcement. He would
determine that the Device is not working properly if any of the
tests failed, which complies with LTI's recommendations to
verify the accuracy of the Device. He successfully performed
all the tests on January 6, 2022, the day of the citation.
This testimony is sufficient to establish that LTI's
recommended procedures to verify the accuracy of the Device
consist of performing five tests before using the device, and
ensuring that the Device passes each test. See Gonzalez,
128 Hawai‘i at 325, 288 P.3d at 799. Nonetheless, Bose contends,
among other things, that Officer Talaroc's testimony regarding
his "execution of the [Alignment Test] was suspect"3 because when
Officer Talaroc testified that he believed the Device's manual
contained a recommended testing distance for the Alignment Test,
he could not recall what it was.4 Absent testimony of what the
3 In response to Bose's claim that the officer's "execution of the
tests was suspect," the State asserts that "[w]hat Bose is attacking is the
officer's credibility." Bose's argument does not raise issues of credibility
as the State contends, however, because it does not involve disputed issues
of fact. See State v. Monteil, 134 Hawai‘i 361, 368, 341 P.3d 567, 574 (2014)
("[I]t is for the trial judge as fact-finder to assess the credibility of
witnesses and to resolve all questions of facts . . . .") (citation omitted).
Rather, Bose's argument challenges whether proper foundation has been
established in light of Officer Talaroc's testimony, which this court reviews
for an abuse of discretion. Assaye, 121 Hawai‘i at 210, 216 P.3d at 1233.
4 The relevant testimony provides as follows:
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purported recommended testing distance was for the Alignment
Test, the State could not establish that Officer Talaroc
satisfactorily tested the Device "according to procedures
recommended by the manufacturer," as required by Assaye,
121 Hawai‘i at 213, 216 P.3d at 1236, 1238. Thus, the District
Court abused its discretion in determining that the State
satisfied the Testing Prong. See
id.
Because the State must satisfy both the Testing Prong
and Training Prong to lay a proper foundation for the speed
reading, the District Court erred in admitting Officer Talaroc's
testimony of the speed reading. Without that testimony, there
was no evidence that Bose violated HRS § 291C-105(a)(1), and we
need not reach Bose's remaining arguments.
Nonetheless, "if an appellate court determines that
the evidence presented at trial was insufficient to support a
conviction of a greater offense but sufficient to support a
conviction of a lesser included offense, the court may remand
for entry of judgment of conviction on the lesser included
offense." State v. Line, 121 Hawai‘i 74, 90, 214 P.3d 613, 629
(2009) (internal quotation marks, brackets, and citation
omitted). To justify remand for entry of a judgment on a lesser
[DEFENSE COUNSEL]. Okay. Okay. Do you remember
what the manual's distance, um, should be for this scope
alignment test?
[OFFICER TALAROC]. Not off the top of my head, no.
. . . .
Q. Okay. And as far as you know, is it your
testimony that the scope alignment test, there's no
recommendation on there in your manual or you just don't
remember it?
A. I just don't remember it.
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included offense, it is not enough that the evidence is merely
sufficient to support the lesser conviction; the erroneously
admitted evidence must be harmless beyond a reasonable doubt
with regard to the lesser conviction. State v. Bullard,
124 Hawai‘i 270, 276, 241 P.3d 562, 568 (App. 2010).
At trial, Officer Talaroc testified that the posted
speed limit was 45 miles per hour, and he observed Bose's
vehicle traveling "a lot faster than 45 miles per hour[,]" and
Bose testified on his own behalf that he "might have been"
driving at 65 miles per hour and that the applicable speed limit
was 45 miles per hour. When cross-examined as to whether he
"stated earlier that [he] went 65 miles per hour[,]" Bose
responded, "That's correct," and confirmed that he had looked at
his speedometer. Such testimony constitutes sufficient evidence
to support a judgment of the traffic infraction of Noncompliance
with Speed Limit Prohibited, which is defined as follows:
(a) A person violates this section if the person
drives: (1) A motor vehicle at a speed greater than
the maximum speed limit other than provided in
section 291C-105 . . . where the maximum or minimum
speed limit is established by county ordinance or by
official signs placed by the director of
transportation on highways under the director's
jurisdiction.
HRS § 291C-102(a)(1) (2020) (emphasis added). Moreover, Bose's
own admission that he drove or "might have" driven 65 miles per
hour in a 45 mile per hour zone demonstrates no reasonable
possibility that the erroneous admission of the speed reading
could have affected a finding that Bose drove his vehicle in
excess of the maximum 45 mile per hour speed limit.
We therefore vacate the Judgment and remand the case
for entry of a judgment convicting Bose of exceeding the maximum
speed limit, in violation of HRS § 291C-102(a)(1), and
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sentencing. See State v. Fitzwater, 122 Hawai‘i 354, 378,
227 P.3d 520, 544 (2010); Bullard, 124 Hawai‘i at 278,
241 P.3d
at 570.
For the foregoing reasons, the May 6, 2022 Judgment
and Notice of Entry of Judgment, entered by the District Court
of the Second Circuit is vacated, and we remand for further
proceedings consistent with this Summary Disposition Order.
DATED: Honolulu, Hawai‘i, July 28, 2023.
On the briefs:
/s/ Keith K. Hiraoka
John F.H. Chow,
Presiding Judge
Deputy Public Defender
for Defendant-Appellant.
/s/ Karen T. Nakasone
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney
/s/ Sonja M.P. McCullen
County of Maui
Associate Judge
for Plaintiff-Appellee.
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