NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

NO. CAAP-17-0000383

(Consolidated with No. CAAP-17-0000380)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-17-0000383

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

JOAQUIN AYRES, JR., Defendant-Appellant

and

CAAP-17-0000380

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

JOAQUIN AYRES, JR., Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT

(CASE NO. 5DTC-16-001442)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ.)

In this consolidated appeal,1 Defendant-Appellant,

Joaquin Ayres, Jr. (Ayres), appeals from the April 27, 2017

Judgment and Notice of Entry of Judgment entered by the District

Court of the Fifth Circuit (District Court).2 Following a jurywaived trial, the District Court convicted Ayres of Driving

Without a Valid Driver's License (DWOL) in violation of Hawaii

Revised Statutes (HRS) § 286-102 (2007 & Supp. 2015).3

1 Ayres filed a Notice of Appeal on May 3, 2017 in CAAP-17-0000380

as a self-represented party. Later the same day, Ayres' court-appointed

counsel also filed a Notice of Appeal in CAAP-17-0000383. This court

consolidated the appeals under CAAP-17-0000383.

2 The Honorable Michael K. Soong presided.

3 HRS § 286-102(a) provides that no person "shall operate any

category of motor vehicles listed in this section without first being

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000380

28-APR-2021

07:49 AM

Dkt. 17 SO
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On appeal, Ayres contends that the District Court erred

by (1) failing to hold a voluntariness hearing on Ayres'

"inability to produce a driver's license in response to the

officer's request, as this error was not harmless" as Ayres was

"under arrest;" (2) improperly allowing the officer to testify

about his refreshed recollection of Ayres' social security number

"where the voir dire suggested that he had no recollection but,

instead, was just reading off the document;" and (3) there was

insufficient admissible evidence to convict Ayres of DWOL.

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, as

well as the relevant statutory and case law, we resolve Ayres'

points of error as follows, and affirm. 

The following facts were adduced at the April 27, 2017

trial on Plaintiff-Appellee State of Hawai#i's (State) Amended

Complaint4

 charging Ayres with misdemeanor DWOL as a repeat

offense under HRS §§ 286-102 and 286-136(b) (2007),5 for having

"two or more prior convictions in the preceding five-year

period." Kaua#i Police Department (KPD) Officer Macy Telles

(Officer Telles) testified that on January 29, 2016, he drove

past someone he recognized as Ayres, who was sitting in his motor

vehicle parked on Niumalu Road, County of Kaua#i. Officer Telles

observed Ayres pull out and drive along Niumalu Road in the

opposite direction, whereupon Officer Telles contacted KPD

dispatch for a driver's license check on Ayres. Officer Telles

3(...continued)

appropriately examined and duly licensed as a qualified driver of that

category of motor vehicles."

4 The second charge for having no motor vehicle insurance, in

violation of HRS § 431:10C-104(a), was dismissed with prejudice at trial.

5 HRS § 286-136(b) provides in relevant part:

(b) Any person who is convicted of violating

section 286-102 . . . shall be subject to a minimum

fine of $500 and a maximum fine of $1,000, or

imprisoned not more than one year, or both, if the

person has two or more prior convictions for the same

offense in the preceding five-year period.

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was already familiar that Ayres may not have a driver's license.

Dispatch confirmed that Ayres did not have a license. Officer

Telles followed Ayres, saw Ayres park at a private home and stand

outside the driver's side door of his vehicle. Officer Telles

parked, called Ayres over to him and asked Ayres to produce a

driver's license, motor vehicle registration, and proof of motor

vehicle insurance. When Ayres was unable to produce any of the

documents, Officer Telles issued Ayres citations for DWOL and for

not having insurance. Officer Telles obtained from Ayres his

date of birth, the last four digits of his social security

number, and the officer noted them on the citation.

When questioned about Ayres' date of birth, Officer

Telles needed the citation to refresh his recollection. When

Officer Telles needed to refresh his recollection a second time

to confirm Ayres' last four social security number digits, Ayres

objected to Officer Telles' recollection as not being refreshed

because he was reading from the citation. After Officer Telles'

examination was concluded, Ayres also "object[ed] to anything

that might be deemed a confession by Mr. Ayres because there's

not been a voluntariness hearing." These objections were

overruled.

The District Court received into evidence State's

Exhibit P1 under seal, which contained an affidavit and driver's

license record for "AYRES JOAQUIN COSTA JR" on file with the

County of Kaua#i, Driver License Section; Exhibits P3 and P4

which consisted of a DWOL citation and certified judgment of DWOL

conviction in 5DTC-13-002287; and Exhibits P5 and P6, which

consisted of a DWOL citation and certified judgment of DWOL

conviction in 5DTC-14-002825.

The District Court found Ayres guilty of DWOL but

concluded that the State did not prove two prior DWOL convictions

for purposes of sentencing Ayres for a misdemeanor, as a repeat

DWOL offender. Ayres was sentenced for DWOL as a petty

misdemeanor, to 30 days in jail, a $7 Driver's Education fee and

a $30 Criminal Injury fee. Ayres was ordered to serve his jail

sentence concurrently with another 30-day jail sentence imposed

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for a separate criminal contempt of court offense that is not a

part of this appeal. Ayres timely appealed the DWOL conviction.

A Voluntariness Hearing was Not Required

Ayres contends that the District Court erred by not

holding a voluntariness hearing on Ayres' "inability to produce"

a license and this error "was not harmless" because Ayres was

"under arrest."6 Ayres argues that the inability to produce his

driver's license, motor vehicle registration, and proof of motor

vehicle insurance in response to Officer Telles' request was a

confession pursuant to HRS § 621-26 (2016), which required a

voluntariness hearing at trial. This contention is without

merit.

HRS § 621-26 provides that "[n]o confession shall be

received in evidence unless it is first made to appear to the

judge before whom the case is being tried that the confession was

in fact voluntarily made." Preliminarily, we note that Ayres did

not timely raise an objection to the lack of a voluntariness

determination. At the point Officer Telles gave the testimony

that Ayres now claims as error, Ayres did not object.7 See

Hawai#i Rules of Evidence (HRE) Rule 103(a)(1) (requiring timely

objection and specific ground of objection); State v. Hoglund, 71

Haw. 147, 150, 785 P.2d 1311, 1313 (1990) ("Generally, the

6 Ayres was cited, not arrested. Ayres' contention that Ayres was

"under arrest" is inaccurate. 

7 The trial transcript reflects the following:

Q. [(BY PROSECUTOR)] What documents did you ask him

to produce.

A. [(BY OFFICER TELLES)] His driver's license,

registration and insurance.

Q. Okay. Was he able to produce a driver's license.

A. No.

Q. And did you check on the status of his driver's

license.

A. I had prior, yes.

Ayres did not object.

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failure to properly raise an issue at trial precludes a party

from raising that issue on appeal."). Following this direct

examination testimony, Ayres conducted cross-examination of

Officer Telles, the State conducted redirect examination, and

Ayres waived re-cross examination. When Officer Telles was

permitted by the District Court to step down, only then did Ayres

raise an objection to the "voluntariness of certain statements"

which Ayres' counsel even acknowledged he "may have waived[.]"8

Thus, the voluntariness objection was waived.

Assuming arguendo that Ayres preserved a voluntariness

objection, Ayres' conduct in not being able to produce the

requested documents is not a statement or confession that 

triggers the application of HRS § 621-26. Officer Telles

testified that he asked Ayres to produce a license, registration,

and insurance documents, and that Ayres was unable to produce

any. He did not testify as to what Ayres said in response to the

request to produce documents. The District Court overruled the

objections, saying: "[t]hat's not a statement." The District

Court did not err in concluding that on this record, there was no

8 The trial transcript reflects the following:

[DEFENSE COUNSEL]: No recross.

THE COURT: Officer Telles, you can step down and wait

outside.

[DEFENSE COUNSEL]: Briefly, you Honor, before he

leaves, I'm not sure that –- I'm not sure that certain

statements

–- I wonder if I should have objected, and I waived that at

this point, to the voluntariness of certain statements that

Mr. Ayers [sic] made at the time as it was described by the

officer. I would just object –- perhaps, it's too late, but

I would object to anything that might be deemed a confession

by Mr. Ayers [sic] because there's not been a voluntariness

hearing.

THE COURT: Can you be specific?

[DEFENSE COUNSEL]: I believe that there was –- that

Officer Telles testified that Mr. Ayers [sic] was unable to

provide his registration or license or insurance.

THE COURT: That's not a statement. I don't remember

testimony as to any statement.

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statement by Ayres. See State v. Ortiz, 91 Hawai#i 181, 189, 981

P.2d 1127, 1135 (1999) (right/wrong standard of review applies

for evidentiary ruling where there can only be one correct

result). Because there was no statement or confession, a

voluntariness hearing under HRS § 621-26 was not required.

The Record Reflects that the Officer's 

Recollection was Refreshed

Ayres contends that the District Court erroneously

allowed Officer Telles "to testify about his refreshed

recollection" of Ayres' social security number where the "voir

dire suggested that he had no recollection" and was just reading

from the document. This contention is without merit. 

Officer Telles testified about issuing a citation to

Ayres and that he took down Ayres' last four digits of his social

security number, but that he did not memorize it and the citation

would refresh his memory.9 Following Ayres' voir dire

examination when Officer Telles stated that he did not generally

remember the social security number of the person he cited, Ayres

objected to the use of the citation to refresh the officer's

recollection, which was overruled. Ayres objected again,

stating: "I don't believe that there's a credible showing that

this is refreshing his recollection. I believe he'll just be

reading off the document." The Court again overruled the

objection, and the officer testified as follows:

Q. [(BY PROSECUTOR)] All right. Officer Telles,

9 The trial transcript reflects the following:

Q. [(BY PROSECUTOR)] Okay. And did you also take 

down the last four of his Social.

A. [(BY OFFICER TELLES)] Yes.

Q. And what was the last four digits of his Social.

A. I would have to look at that document again. I 

didn't memorize it.

Q. And would you [sic] would the citation refresh 

your recollection.

A. Yes. 

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is your memory refreshed.

A. Yes.

Q. What were the last four digits of the

defendant's Social Security number. 

A. [XXXX].

(emphasis added). 

To support his contention, Ayres relies on State v.

Dibenedetto, 80 Hawai#i 138, 144, 906 P.2d 624, 630 (App. 1995),

which held that a police officer's testimony relating to a field

sobriety test should have been stricken because he did not have a

"present recollection" of the test at the time he testified, and

had testified "based on what he had recently read in his report." 

In Dibenedetto, the defense established through its questioning

that the police officer was "[w]ithout memory of what actually

happened" and that the officer only had a memory of his recent

review of his report. Id. at 141, 906 P.2d at 627. No similar

showing was made in this case, and Dibenedetto is inapposite. 

HRE Rule 61210 permits a witness to use a writing to 

refresh his or her recollection. "[W]hen a writing is used to

refresh a witness's recollection, the witness should testify from

'a memory thus revived,' resulting in testimony from present

recollection, not a memory of the writing itself." State v.

Ferrer, 95 Hawai#i 409, 432-33, 23 P.3d 744, 767-78 (App. 2001)

(quoting Dibenedetto, 80 Hawai#i at 144, 906 P.2d at 630)

(internal citation omitted)). In Ferrer, the record showed that

10 HRE Rule 612 provides:

If a witness uses a writing to refresh the witness' memory

for the purpose of testifying, either:

(1) While testifying, or

(2) Before testifying, if the court in its discretion

determines it is necessary in the interests of

justice,

an adverse party is entitled to have the writing produced at

the hearing, to inspect it, to cross-examine the witness

thereon, and to introduce in evidence those portions which

relate to the testimony of the witness.

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the officer who administered the intoxilyzer test did have a

memory that the result "was over .08" but could not recall the

"exact number" of the test result, and needed his report to

refresh his memory. Id. at 433, 23 P.3d at 778. The Ferrer

court found that: 

when Officer Chock could not remember the exact reading of

Defendant's Intoxilyzer test result, which, given the

passage of time, was understandable, it was proper under 

HRE Rule 612 for the State to allow Officer Chock to review

the report of Defendant's Intoxilyzer test and refresh his 

present recollection as to Defendant's exact score on the test.

Id. In this case, as in Ferrer, the record shows that Officer

Telles testified from "a memory thus revived," resulting in

testimony from his present recollection and not a memory of the

citation itself. Id. at 432, 23 P.3d at 767. 

"[A]fter reviewing a writing while testifying,

testimony of the witness laying a foundation that the witness's

memory has actually been refreshed after reviewing the writing is

required before the witness's testimony can be admitted under HRE

Rule 612." State v. Wakamoto, 143 Hawai#i 443, 452, 431 P.3d

816, 825 (2018). In Wakamoto, the supreme court found that

proper foundation was not laid for a police officer's continued

testimony regarding a field sobriety test on grounds that the

officer's recollection had been refreshed, because the trial

court did not require that the officer be asked whether his

recollection had been refreshed after the defense raised an HRE

Rule 612 objection. Id. at 453, 431 P.3d at 826. In this case,

the record reflects that the State laid proper foundation that

Officer Telles' memory was actually refreshed before the officer

testified to the last four digits of the social security number. 

See id.

Ayres' argument that the refreshing of Officer Telles'

recollection would not be a "credible showing" because the

officer would "just be reading off the document" is a credibility

challenge that the officer should not be believed despite the

officer's testimony that his memory was refreshed. "[I]t is

well-settled that an appellate court will not pass upon issues

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dependent upon the credibility of witnesses and the weight of the

evidence; this is the province of the trier of fact," and "the

trier of fact may accept or reject any witness's testimony in

whole or in part." State v. Paris, 138 Hawai#i 254, 267, 378

P.3d 970, 983 (2016) (brackets and citations omitted). Whether

the District Court credited Officer Telles' testimony as

establishing the necessary foundation for a refreshed

recollection, or not, was within the province of the District

Court as the factfinder. On this record, we conclude that the

District Court did not err in admitting the testimony of Officer

Telles' refreshed recollection of Ayres' social security number. 

See Wakamoto, 143 Hawai#i at 450, 431 P.3d at 823 (applying

"right/wrong" standard in determining admissibility of evidence

under HRE Rule 612). 

There was Sufficient Evidence to Convict Ayres

of DWOL

Ayres contends that there was insufficient admissible

evidence to convict Ayres of DWOL because Ayres' "confession and

evidence of [his] social security number and date of birth were

not properly in evidence."11 As we have rejected these points of

11 Ayres' argument regarding his date of birth being erroneously

admitted in evidence was not preserved. This contention was not raised in any

point of error, as required under Hawai#i Rules of Appellate Procedure (HRAP) 

Rule 28(b)(4). Nor has Ayres identified where in the record the alleged error

occurred or was objected to, under the rule. See HRAP Rule 28(b)(4)(ii) and

(iii). The record actually reflects that no objection was raised as to the

date of birth evidence, as follows:

Q. [(BY PROSECUTOR)] And did you note Joaquin Ayers' 

date of birth on the citation.

A. [(OFFICER TELLES)] Yeah, I wrote it. I don't know 

offhand what --

Q. Is there anything that would refresh your 

recollection as to whether or not you did.

A. Yeah, if I seen the citation.

Q. Okay.

[PROSECUTOR]: Your Honor, I'm going to show

Officer Telles, just to refresh his recollection, what 

is marked for identification as Exhibit P-7.

(continued...)

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error supra, this contention is also without merit.

On appeal, "[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[.]" State v. Kalaola, 124 Hawai#i 43,

49, 237 P.3d 1109, 1115 (2010) (quoting State v. Richie, 88

Hawai#i 19, 33, 960 P.2d 1227, 1241 (1998) (internal quotations

and citation omitted)). "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." Id. "'Substantial evidence' as to every material element

11(...continued)

THE COURT: Show to [defense counsel] first.

Any objection, [defense counsel]?

[DEFENSE COUNSEL]: Let me just check. I'm sure

it's fine but -- looks like it's accurate. Yes, your 

Honor. No objection.

[PROSECUTOR]: Your Honor, may I approach the

witness?

THE COURT: Yes.

BY [PROSECUTOR]:

Q. Officer Telles, just take a look at this. Look 

over the document and after you had a chance to take a 

look at the document, look up at me. 

Officer Telles, is your memory refreshed as to 

whether or not you took down the defendant's date of birth.

A. Yes.

Q. What was the defendant's date of birth.

A. [X/XX]/56.

Q. Okay. And did you also take down the last four of

his Social.

A. Yes.

Q. And what was the last four digits of his Social.

There was no objection to the date of birth testimony. Defense counsel

subsequently conducted voir dire on the officer's recollection as to the

social security number testimony, but not the date of birth testimony.

Therefore, the objection to the date of birth testimony was not preserved, and

we will not address it. See HRE Rule 103(a)(1); Hoglund, 71 Haw. at 150, 785

P.2d at 1313.

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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." Richie, 88 Hawai#i

at 33, 960 P.2d at 1241 (citation omitted).

In State v. Nishi, 9 Haw. App. 516, 528, 852 P.2d 476,

482, reconsideration granted, 9 Haw. App. 660, 853 P.2d 543

(1993), this court held that the prosecution must present

evidence linking the defendant with a person by the same name in

the traffic abstract in evidence. The Nishi court concluded that 

the State "presented no evidence of Defendant's driver's license

number or social security number or birth date that could be

compared with information on the traffic abstract." Id. at 528,

852 P.2d at 482. In this case, the prosecution against Ayres did

not simply rest on the matching of Ayres' name to the name of the

individual in Exhibit P1, the driver's license record; there was

also evidence of the last four digits of Ayres' social security

number and date of birth before the District Court. These

additional identifiers corresponded to the information in Exhibit

P1. Exhibit P1 established that Ayres did not have a valid

driver's license, and his license was expired. Viewing the

evidence before the District Court in the light most favorable to

the prosecution, there was substantial evidence to support the

DWOL conviction against Ayres. See Kalaola, 124 Hawai#i at 49,

237 P.3d at 1115.

Therefore, IT IS HEREBY ORDERED that the Judgment and

Notice of Entry of Judgment filed on April 27, 2017 in the

District Court of the Fifth Circuit, is affirmed. 

DATED: Honolulu, Hawai#i, April 28, 2021.

On the briefs:

Matthew Mannisto

(Law Office of Matthew

Mannisto)

for Defendant-Appellant

Tracy Murakami

Deputy Prosecuting Attorney

County of Kauai

for Plaintiff-Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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