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NO. CAAP-18-0000749

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

ISAAC K. TANGONAN, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

HONOLULU DIVISION

(CASE NO. 1DTA-18-00818)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, and Chan and Wadsworth, JJ.)

Defendant-Appellant Isaac K. Tangonan (Tangonan)

appeals from the Notice of Entry of Judgment and/or Order and

Plea/Judgment, entered by the District Court of the First

Circuit, Honolulu Division (District Court), on September 13,

2018.1/ Following a bench trial, Tangonan was convicted of one

count of Operating a Vehicle Under the Influence of an Intoxicant

(OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E61(a)(1) (Supp. 2017).2/

1/ The Honorable Michelle N. Comeau presided.

2/ HRS § 291E-61(a)(1) provides, in relevant part:

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:

(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[.]

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000749

18-JUN-2020

07:48 AM
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On appeal, Tangonan contends that the District Court

erred in denying his motion for a judgment of acquittal because

the evidence adduced at trial established his entrapment defense

as a matter of law. 

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 Tangonan's point of error as follows:

We apply the following standard in reviewing a trial

court's denial of a motion for a judgment of acquittal: 

"whether, upon the evidence viewed in the light most favorable to

the prosecution and in full recognition of the province of the

[trier of fact], a reasonable mind might fairly conclude guilt

beyond a reasonable doubt." State v. Alston, 75 Haw. 517, 528,

865 P.2d 157, 164 (1994) (citing State v. Nakoa, 72 Haw. 360,

363, 817 P.2d 1060, 1062 (1991)).

In this case, Tangonan sought a judgment of acquittal

based on his defense of entrapment. As relevant here, HRS § 702-

237(1)(b) (2014) states:

(1) In any prosecution, it is an affirmative defense

that the defendant engaged in the prohibited conduct or

caused the prohibited result because the defendant was

induced or encouraged to do so by a law enforcement officer,

. . . who, for the purpose of obtaining evidence of the

commission of an offense, . . . :

. . . . 

(b) Employed methods of persuasion or inducement

which created a substantial risk that the

offense would be committed by persons other than

those who are ready to commit it.

In addition, HRS § 701–115(2)(b) (2014) provides:

(2) No defense may be considered by the trier of fact

unless evidence of the specified fact or facts has been

presented. If such evidence is presented, then:

. . . . 

(b) If the defense is an affirmative defense, the

defendant is entitled to an acquittal if the

trier of fact finds that the evidence, when

considered in light of any contrary prosecution

evidence, proves by a preponderance of the

evidence the specified fact or facts which

negative penal liability.

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See State v. Anderson, 58 Haw. 479, 484, 572 P.2d 159, 163 (1977)

("entrapment is an affirmative defense for which the defendant

bears the burden of proof by a preponderance of the evidence"

(citing People v. Tewksbury, 544 P.2d 1335 (Cal. 1976))).

Here, Tangonan argues that the evidence established as

a matter of law that he was entrapped into committing the

prohibited conduct by a police officer. "In other words, [he]

contend[s] that no reasonable mind might fairly conclude that the

evidence failed to prove more probably than not that [he was]

entrapped." State v. Timas, 82 Hawai#i 499, 510, 923 P.2d 916,

927 (App. 1996). Based on our review of the record, as further

explained below, we conclude the evidence permitted a reasonable

mind to fairly conclude that Tangonan did not sustain his burden

of proving entrapment.

The Hawai#i Supreme Court applies an objective test for

determining whether a defendant was entrapped. As the court has

explained:

In enacting HRS § 702–237, the legislature adopted the

approach of the Model Penal Code which endorsed the

objective test of the entrapment defense. Under the

objective test . . . , "the focus of inquiry is not on the

predisposition of the defendant to commit the crime charged,

but rather is on the conduct of the law enforcement

officials."

State v. Agrabante, 73 Haw. 179, 192–93, 830 P.2d 492, 499 (1992)

(quoting Anderson, 58 Haw. at 483, 572 P.2d at 162). The court

further stated that under this objective test, the dispositive

question is whether the actions of the police were "so extreme

that it created a substantial risk that persons not ready to

commit the offense alleged would be persuaded or induced to

commit it." Id. at 193, 830 P.2d at 499 (quoting Anderson, 58

Haw. at 483, 572 P.2d at 162) (internal quotation marks omitted);

see also State v. Tookes, 67 Haw. 608, 614, 699 P.2d 983, 987

(1985) ("Allegations of entrapment require more than that the

police provide an opportunity for commission of a crime. A mere

solicitation of criminal activity by the police is not a

sufficient inducement." (citations omitted)).

At trial, Officer Joshua Wong (Officer Wong) of the

Honolulu Police Department testified to the following: On

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February 18, 2018, he was on patrol, on Ala Wai Boulevard, in

Waikiki, when he noticed a Toyota pickup truck in the parking

lane, on the far right-hand side of the road. Next to the

parking lane, separated by a solid, white line, was a bicycle

lane. The front and rear tires of the driver's side of the truck

were protruding about one foot into the bicycle lane. Sticking

out of the front, driver's side of the truck were a man's legs

and half of his torso. Officer Wong circled around and drove

back onto Ala Wai Boulevard. His intention was "to go back

around to see if the person inside the vehicle was planning on

parking the vehicle and leaving it like that or if they were

going to exit and move on. So [he] wanted them to at least move

over and straighten out the vehicle so that it's not blocking the

bicycle lane."

Officer Wong further testified as follows: He pulled

up alongside the truck and saw the same person, now with his

hands on the hood of the vehicle directly behind the truck. 

Officer Wong stopped and asked the man (later identified as

Tangonan) if the vehicle he had his hands on was his. Officer

Wong asked the question because he "wanted to make sure that

[Tangonan] wasn't committing any kind of like property damage or

doing something illegal to somebody else's property . . . ." 

Tangonan responded that it was not his car. Officer Wong then

asked Tangonan if the truck in front of him was his truck because

he "was going to ask [Tangonan] if he could move his truck a

little further up into the parking stall that he was in and

straighten it out so it wouldn't [be] protruding into the bike

path so it wouldn't push any other bicycles further into the

roadway." After Tangonan responded that the truck was his,

Officer Wong "asked him if he could straighten his truck out so

it wasn't blocking the bicycle path." Tangonan "said he could

straighten it out[,]" and Officer Wong waited in his patrol

vehicle for Tangonan to do so. 

Officer Wong continued his testimony as follows: 

Tangonan "got in his truck, started it up, and then proceeded to

make an immediate left turn[,] going across three lanes[,] and

ended up driving the wrong way on Nahua Street[,]" a one-way

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street about fifteen to twenty feet away. There was a clear and

unobstructed one-way sign on Nahua Street, visible from Ala Wai

Boulevard, pointing northbound from Nahua onto Ala Wai Boulevard. 

Officer Wong turned on his vehicle's lights and siren to stop

Tangonan's truck from going further down Nahua Street. Tangonan

stopped on the right-hand side of the street. Officer Wong

stopped his vehicle behind Tangonan's truck, then walked up to

the driver's side of the truck and told Tangonan he was stopped

because he was driving the wrong way down the street. The

driver's side window was down, and Officer Wong observed the

following:

[W]hen I'm talking to [Tangonan], his speech appeared kind

of heavily slurred. He had a really strong odor of alcohol

coming from his breath when I was talking to him. And when

he was speaking to me after I told him why he was being

stopped, I could detect the odor of alcohol coming from his

breath. And when I looked at his face, his eyes appeared

kind of red and bloodshot.

After making these observations, Officer Wong asked Tangonan for

his driver's license, insurance, and registration. Tangonan

produced the registration and insurance, but could not find his

driver's license. "So he opened his door and jumped out of the

vehicle and attempted to look for it again . . . on the driver's

side of the truck." Tangonan looked for his driver's license for

about three to four minutes but was unable to find it.

Another officer arrived, gave Tangonan a preliminary

alcohol screening, and then placed Tangonan under arrest for

OVUII.

On cross-examination, defense counsel asked Officer

Wong, "did it pop into your mind this guy might have been

drinking," when he saw Tangonan's truck parked partially into the

bike lane, with Tangonan laying on his side and his legs sticking

out. Officer Wong responded, "[i]t was one possibility." He

further testified, however, that when he first pulled his car up

and talked to Tangonan, he (Officer Wong) "got out and stayed

kind of by the driver's side area of my . . . car." From about

five feet away, Officer Wong "didn't notice [Tangonan's] red,

bloodshot eyes yet" and "didn't smell any alcohol yet," and

Tangonan "wasn't slurring yet."

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Following the State's case-in-chief, defense counsel

moved for a judgment of acquittal based on Tangonan's entrapment

defense. The District Court took the matter under advisement,

and at a continued hearing ruled as follows: 

So I've had the opportunity to review the relevant law, the

statute and then the case law, so thank you for that,

including [State v. Powell, 68 Haw. 635, 726 P.2d 266

(1986)]. And then I think, you know, looking at the

commentary for Section 702-237, it says the basis for the

defense of entrapment is to deter improper conduct on the

part of law enforcement officials. And I think I see that

in [State v. Anderson, 58 Haw. 479, 572 P.2d 159 (1977)] as

well.

So I think that's the real question here is whether or

not the officer's purpose in asking the defendant to move

his car was to get a foundation and the basis to obtain

evidence for the commission of the offense of OVUII. So I

think the Powell case, I don't feel that applies here

because in that case it was clearly a sting, you know, to

get people to provide evidence of pick-pocketing. And then

the question is did it amount to entrapment in terms of

their actual conduct and not in terms of what the officers

wanted to do.

So here . . . I don't think that the defense has

proven entrapment by a preponderance of evidence. I think

that I'm not persuaded that the officer knew that the

defendant was intoxicated based on their limited interaction

prior to the officer asking the defendant to move his car. 

And so I'm going to deny the motion[.]

The trial continued, and Tangonan testified in relevant

part as follows: After attending a party in Waikiki, he returned

to his truck, drunk, and threw up a couple of times. Officer

Wong pulled up and told Tangonan he had to move his truck, and

Tangonan told the officer he was drunk. Tangonan was sure the

officer had seen him throwing up. The officer repeatedly told

him to move his truck or he would be arrested, and he told the

officer he was drunk and did not want to get behind the wheel. 

Tangonan continued: "I was parked right in front and there was a

car right behind me . . . . [I]t was a nice parking. But I went

out and just did what I did. And I was just too drunk to even

drive but I just had to listen to him." 

Following the close of Tangonan's case, the District

Court denied his renewed motion for judgment of acquittal and

found him guilty of OVUII, stating in part:

I'm going to stand by my prior ruling. I don't think that

based on the brief interaction that you've proven by a

preponderance of the evidence that the officer was aware, or

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a reasonable officer should have been aware, if that's how

you're phrasing it, that the defendant was intoxicated. If

he had, that would be a different situation. But that's how

I see the evidence.

. . . I'm not going to credit the testimony of the

defendant that he told the officer he was drunk. . . . I

think the officer's testimony on that point regarding the

nature of the interaction is credible. So I'm going to find

the defendant guilty based on the totality of the

circumstances. There doesn't seem to be any dispute as to

the fact that he was indeed drunk and so . . . I'm not going

to review the SFST in that regard.

On appeal, Tangonan argues that the District Court was

wrong to credit Officer Wong's testimony to the effect that, when

he first spoke with Tangonan and asked him to move his truck,

Tangonan did not appear to be intoxicated. We decline, however,

to pass upon issues regarding the credibility of witnesses and

the weight of the evidence, which are within the province of the

trier of fact – here, the District Court. See Alston, 75 Haw.

517, 528, 865 P.2d 157, 164; State v. Scalera, 139 Hawai#i 453,

460, 393 P.3d 1005, 1012 (2017) ("appellate courts are required

to 'give full play to the right of the fact finder to determine

credibility'" (quoting State v. Valdivia, 95 Hawai#i 465, 471, 24

P.3d 661, 667 (2001))). Upon review of the record, we cannot

conclude that the actions of the police were "so extreme that it

created a substantial risk that persons not ready to commit the

offense alleged would be persuaded or induced to commit it."3/

Agrabante, 73 Haw. at 193, 830 P.2d at 499 (quoting Anderson, 58

Haw. at 483, 572 P.2d at 162) (internal quotation marks omitted). 

Rather, we conclude that the evidence permitted the District

Court to fairly conclude that Tangonan did not sustain his burden

of proving entrapment and, accordingly, the District Court did

not err in denying Tangonan's motion for judgment of acquittal on

that basis.

3/ Tangonan also relies on State v. Powell, 68 Haw. 635, 726 P.2d 266

(1986), in support of his contention that the evidence established his

entrapment defense as a matter of law. However, the facts here are clearly

distinguishable from Powell, where the police essentially manufactured rather

than detected the crime, i.e, by setting up "'drunk decoy' operations [that]

were expressly designed to ensnare anyone who would commit theft when 'bait

money' [was] placed in plain view and within easy reach." Id. at 638, 726

P.2d at 268; see Agrabante, 73 Haw. at 194, 830 P.2d at 500 (describing the

police conduct in Powell). The evidence here established no similar scheme.

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Therefore, IT IS HEREBY ORDERED that the Notice of

Entry of Judgment and/or Order and Plea/Judgment, entered by the

District Court of the First Circuit, Honolulu Division, on

September 13, 2018, is affirmed.

DATED: Honolulu, Hawai#i, June 18, 2020.

On the briefs:

Jonathan Burge

for Defendant-Appellant.

Stephen K. Tsushima,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Derrick H.M. Chan

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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