NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-21-0000138

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

MADELYN E. AMAR, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

(CASE NO. 1DTA-18-02966)

SUMMARY DISPOSITION ORDER

(By: Wadsworth, Presiding Judge, Nakasone and Guidry, JJ.)

Defendant-Appellant Madelyn Evelyn Amar (Amar) appeals

from the February 5, 2019 Notice of Entry of Judgment and/or

Order and Plea/Judgment and the March 1, 2021 Notice of Entry of

Judgment and/or Order and Plea/Judgment (collectively, Judgment)

entered by the District Court of the First Circuit, #Ewa Division

(District Court),1 convicting Amar of operating a vehicle under

the influence of an intoxicant (OVUII) in violation of Hawai#i

Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(4).2

 Amar

1 The Honorable Sherri-Ann L. Iha presided over the February 5, 2019

trial. The Honorable Tracy S. Fukui presided over the March 1, 2021

restitution hearing, which is not at issue in this appeal.

2 While the trial transcript does not specifically reflect whether

Amar was convicted of violating HRS § 291E-61(a)(1) or (a)(4), it appears from

the evidence presented, which did not include any evidence of subsection

(a)(4) blood alcohol concentration, that Amar was convicted under subsection

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-21-0000138

26-DEC-2023

07:54 AM

Dkt. 77 SO
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raises four points of error: (1) "[p]rosecutorial misconduct,

trial court error, and ineffective assistance by defense counsel

resulted in improper consideration of 'the [unadmitted] video,'

which formed the basis for all [Plaintiff-Appellee State of

Hawai#i's (State)] witness testimony, in violation of Amar's

rights to due process and fair trial";3 (2) "[t]he State

presented insufficient evidence that Amar drove on a 'public way,

street, road, or highway'"; (3) "[t]he trial court committed

misconduct in assisting the prosecutor by laying foundation for

the six photos contained in S-Exh. 1, 2, and 3, then admitting

them into evidence"; and (4) "Amar's rights to due process and

[a] fair trial" were violated when the District Court considered

a motor vehicle collision (MVC) diagram that was not admitted

into evidence. 

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 Amar's

points one and two as follows, and reverse for insufficient

evidence.4

The evidence presented at the February 5, 2019 bench

trial came from the State's four witnesses, and Amar did not

testify or present witnesses. The State's four witnesses were

eyewitness Sabrina Saunoa (Saunoa), Honolulu Police Department

(HPD) Corporal Cary Izuka (Corporal Izuka), HPD Officer Charles

Rezentes (Officer Rezentes), and HPD Officer Kristi DeGuzman

2(...continued)

(a)(1). HRS § 291E-61(a)(1)(2018) provides, in relevant part: 

§ 291E-61 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[.]

3 The brackets for the word "unadmitted" are in the original.

4 In light of our disposition, we do not reach points three and

four.

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(Officer DeGuzman). In their testimonies, the witnesses

described two events pertinent to this case: (1) a police

investigation of a MVC involving a vehicle striking a wall then

leaving the scene, which occurred on August 19, 2018, around

11:40 p.m. near 98-731 Moanalua Loop (Accident Scene), and (2) a

police response to an argument call about "ten minutes" later,

involving two people observed walking away from a damaged vehicle

at 611 Kilinoe Street (Argument Scene), which was near the

Accident Scene.

Accident Scene testimony

Saunoa testified that at around 11:40 p.m. she heard a

"really loud" sound while in her apartment at 98-731 Moanalua

Loop. She went outside and saw a car by a wall in the "Verizon

building parking lot" across the street. She testified that "a

person jump[ed] out of the car[,]" "was yelling on the phone,"

then "went back in the car and started to . . . drive away but

couldn't." Saunoa started recording a video because the driver

was "revving the engine"; and that their "cars [we]re right

across the street" from "the parking structure–where that car

was," and that she was "scared somebody was gonna [sic] bang

[their] cars." Saunoa testified that the vehicle did not enter

the street because "it stayed on the gravel[,]" "was stuck" and

"couldn't move."5 She saw only one person in the car, and

testified she might "sort of" be able to recognize the person if

she saw them again, and stated she thought the person was female,

even though the police and "a lot of people were saying it was a

5 Saunoa testified as follows:

Q. [(By Deputy Prosecuting Attorney (DPA)] Okay. 

While you're recording this incident does the vehicle ever

drive onto the street?

A. [(By Saunoa)] Um, it stayed on the gravel.

Q. Okay

A. It was stuck. It couldn't move. 

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male."6 Saunoa did not observe anyone drive away from the scene

because she went inside her apartment after recording the video,

and when she returned the car was gone.7 

6 Saunoa's testimony about whether she could identify the person 

with the vehicle was equivocal, as follows:

Q. [(By DPA)] If you were to see that person again, 

would you be able to recognize her?

A. [(By Saunoa)] Not –- not clearly but, like, sort

of. Yeah, I can ––

Q. Okay.

A. –– but not –– I didn't –– wasn't close enough to

see that person. I was far where I could see how tall –– 

kinda see how tall that person was. 

Regarding the gender of the person she observed with the vehicle, 

Saunoa explained she initially agreed with others who said the person was a

"he," but changed her position to the person being a "she" because of the

"female voice" she heard, as follows:

A. [(By Saunoa)] Um, the pers –– uh, just the person

was on the phone, was yelling on the phone. I'm cer –– I ––

I heard a female voice.

Q. [(By DPA)] Okay.

A. So a lot of people were saying it was a male. They

(inaudible) it was a guy. But I was like, no, I heard a

female voice.

. . . .

A. The cops were kept –– they kept saying it was a he,

so I just said okay, it's a he. But I said, no, it's a she. 

I was a hundred percent sure it was a she.

Q. [(By defense counsel)] So you're changing your

testimony now? Because just a moment ago you said he jumped

out.

A. No, it was a she.

Q. So it's a she?

A. It was a she, yeah. I heard a she voice. And I

told the cops it was a she, but they said it must have been

–– well, all the witnesses said it was a he.

7 Saunoa testified as follows:

Q. [(By defense counsel)] Did you observe anyone drive 

away from the scene?

(continued...)

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Saunoa provided her cell phone video to the police

officers at the Accident Scene. She also brought her cell phone

containing the video to the trial. The record reflects that at

that point during the trial, the State asked the video to be

entered into evidence; the defense objected under Hawai#i Rules

of Evidence (HRE) Rule 901; the District Court's response to the

defense's objection was inaudible; the State asked Saunoa to

"describe for the court what happens in that video"; and Saunoa

did so, as follows: 

 Q. [(By DPA)] Did you bring the original video –

A. [(By Saunoa)] Yeah.

Q. –– with you today?

A. (No audible response.)

[DPA]: Honor [sic], I have a copy, but, um, it's 

actually clearer on her phone. Uh, State would ask to enter

the video into evidence. Um, but perhaps we should view it,

the original, on her phone.

THE COURT: Mr. [defense counsel]?

[DEFENSE COUNSEL]: Uh, yes, Your Honor? Uh, defense

objection under Hawaii Rule of Evidence I believe it's

90–901.

THE COURT: Okay. (Inaudible.)

[DEFENSE COUNSEL]: And --

Q. [(By DPA)] So, um, describe for the court what

happens in that video.

A. [(By Saunoa)] Um, I see the –– this person was in

the car and then jumped out. Oh, hold on. That was –– in

the video it was trying to get away I guess. I don't know. 

Moving the car forward. That's all I saw ––

Q. Okay.

A. –– on the video itself.

Q. Okay.

A. Yeah.

7(...continued)

A. [(By Saunoa)] No. I was trying –- that person was

trying to –– I went inside the house and when I came back

out, the car was gone so I didn't see who drove away.

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The above record does not indicate how the District Court ruled

on the objection to the video, whether the District Court

received the video into evidence, and whether the District Court

viewed the video.8

Corporal Izuka testified that he responded to the

Accident Scene for an MVC call and spoke to two witnesses9 who

came from nearby residences after hearing the crash. Corporal

Izuka observed a hole in a "cinder block wall" of a building that

belonged to "Shred-X." He saw damage to a "large flatbed

trailer" parked in a "gravel lot" "13 feet away" from the "ShredX building[,]" which was located "approximately 40 feet" from

"the edge of the roadway[.]" He recovered a silver hubcap with a

"Chevy logo" from the Accident Scene. He used his phone to

record the video taken by Saunoa. Corporal Izuka did not testify

as to the contents of the Saunoa video, but related that he

created a diagram showing the vehicle's path of travel based on

the video.

Officer Rezentes testified that he responded to the

Accident Scene for an MVC call and observed "broken tile on the

building," which he identified as "a Shred-X building or a

business over there" on Moanalua Loop, by a "dirt lot" where the

"workers park." A male10 standing near the damage told him "a

car just got stuck, wedged in there, and then a dark-colored

person got out, jumped in the driver's seat, reversed out, and

drove off." Officer Rezentes also watched the video recovered at

the Accident Scene. 

8 There is no indication in the remainder of the trial transcript

that the video was received into evidence and viewed by the District Court. 

The court minutes, however, indicate that "[t]he court reviewed video on

witness #1 [(Saunoa)] [sic] cell phone."

9 Corporal Izuka identified the two witnesses by their last name

only, as "Saunoa" and "Snook."

10 Officer Rezentes did not identify this witness by name. 

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Officer DeGuzman testified that she responded to the

Accident Scene for the MVC call and she "view[ed] the video that

was provided by a witness" at the scene. 

Argument Scene testimony

Approximately ten minutes after the police officers

responded to the MVC call, they responded to a call about "a

couple arguing fronting . . . 611 Kilinoe Street[,]" which was

"less than two minutes away[.]" At the Argument Scene, Officer

Rezentes saw "two people," later identified as Amar and her wife,

Angelique, on the sidewalk "walking away from" a parked "silver"

car with "severe front end damage."11 The damaged vehicle

appeared "similar" to the "silver four-door sedan" in the video

that Officer Rezentes had previously watched at the Accident

Scene. Officer Rezentes testified that Amar was wearing the same

clothes as the person in the video; he was able to identify Amar

as the person in the video; and Amar was "driving away from the

scene of the accident on the video[,]" as follows:

Q. [(By DPA)] Okay. Um, on the first scene there was

a video recovered. Did you watch that video?

A. [(By Officer Rezentes)] Yes.

Q. Okay. And from that video were you able to

positively identify Evelyn Madelyn [sic] [(Amar)]?

A. Yes.

. . . . 

Q. [(By DPA)] Okay. And do you interact with Evelyn 

Madelyn [sic] [(Amar)] at that time?

A. [(By Officer Rezentes)] Yes.

11 Officer Rezentes testified as follows:

Q. [(By DPA)] And could you describe, um, the scene 

when you arrived there.

A. [(By Officer Rezentes)] Uh, we got sent to a couple

arguing fronting the I think it was 611 Kilinoe Street. 

When I pulled up, I seen [sic] a silver car parked on the

right. It looked like had [sic], um, severe front end

damage. And I observed two people on the sidewalk, like,

walking away from the car, and that was Mrs. Amar and I

believe it's her wife Angelique in the seat over there. 

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Q. And did you make any observations at that time?

A. She was wearing the exact same clothes as the

person I saw in the video.

. . . .

Q. [(By defense counsel)] Can you describe for the

court today the driving behavior or conduct by Madelyn Amar

that suggested to you that she might be impaired?

A. [(By Officer Rezentes)] Her driving and conduct?

Q. That you personally observed.

A. I just seen [sic] her driving away from the scene

of the accident on the video.

Officer Rezentes also testified that at the Argument Scene, he

observed Amar had an "odor of alcoholic type beverage coming from

her breath," and "red, watery eyes." 

Corporal Izuka went to the Argument Scene with the

hubcap he had recovered from the Accident Scene, to compare it to

the damaged vehicle at the Argument Scene that was missing a

hubcap. He photographed the hubcap alongside the damaged vehicle

at the Argument Scene, and the photograph was admitted into

evidence. Corporal Izuka stated the hubcap and the vehicle

appeared to match. 

Officer DeGuzman went to the Argument Scene after

Officer Rezentes told her the occupants of the vehicle involved

in the MVC were there, and that "one of the occupants was

identified as the driver of the vehicle" from the MVC. At the

Argument Scene, the officer administered a standard field

sobriety test (SFST) on Amar, who had an odor of alcohol, red,

glassy eyes, and slurred speech. The SFST was administered

because Officer DeGuzman had "view[ed] the video that was

provided by a witness" at the Accident Scene, and "[Amar] also

appeared to . . . be the female that was identified as the driver

on that incident prior."

At the conclusion of the trial, Amar's counsel argued

Amar was not guilty because the "testimony of Rezentes and maybe

one other witness" was not sufficient to establish "positive ID"

of Amar as the person who operated the vehicle. In addition to

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"contesting the issue of who's operating the vehicle[,]" Amar's

counsel argued there was insufficient evidence of "impaired

driving or conduct" because:

[i]n order for somebody to be convicted of DUI, the

government has to produce evidence tending to suggest

that Madelyn Amar on the date and time at issue

operated a motor vehicle in a manner tending to

suggest she was impaired, couldn't care for herself

and guard against casualty. That burden hasn't been

met.

Amar's counsel argued that at the Argument Scene, "[n]obody is

driving" and that "[a]t most[,] the facts in this case . . .

support a finding or conclusion that, if anything, Madelyn Amar

on the date and time at issue may be guilty of walking around in

public while intoxicated."

The District Court found Amar guilty of OVUII as

follows: 

THE COURT: Mr. [defense counsel], I disagree

with you. I believe that the court [sic] has proved

the identity of the driver that was involved in the

motor vehicle collision as [Amar],[12] and the court is

gonna [sic] find that given the totality of the

circumstances, the extent of the injury –– uh, damages

as well as the performance on the field sobriety test

and the court is gonna [sic] find that [Amar] was

operating the vehicle in a manner likely to not be

able to guard against casualty or injury.

So sentencing. [sic]

(Footnote added.) 

12 The District Court did not specifically reference what evidence

established identification of Amar as the driver involved in the MVC. In an

earlier ruling on Amar's pre-trial "Motion to Dismiss Complaint for Lack of

Probable Cause" that was consolidated with trial, however, the District Court

expressly pointed to Officer Rezentes's testimony regarding the video as

establishing identification:

THE COURT: Okay. And based on Officer

Rezentes' testimony that he observed the video and

identified her as the same person in the video and

that she was wearing the same clothes, the car had the

same –– the matching damage and the hubcap was

missing, the hubcap recovered at the scene was missing

[sic], the court is going to deny the motion to

suppress [sic].

The District Court erroneously referred to Amar's "Motion to Dismiss Complaint

for Lack of Probable Cause" as a "motion to suppress" during its ruling.

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POE 1 - Inadmissible evidence of identification

Amar argues, among other things, that the District

Court erroneously admitted Saunoa's video due to lack of

foundation, and that the record on appeal does not contain the

video. Amar argues that the police officer witnesses "who

claimed to have identified Amar based on the video should have

been precluded from so testifying." Amar asserts that "Saunoa,

the only eyewitness to any part of the actual incident, was

unable to positively identify the person driving the car[.]" 

The trial court has discretion to determine whether a

proper foundation is established for admission of evidence, 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). HRE Rule 901(a) requires "authentication or

identification as a condition precedent to admissibility" and

this standard is satisfied by a foundation "sufficient to support

a finding that the matter in question is what its proponent

claims."

Here, Saunoa's cell phone video was offered into

evidence, but the record does not reflect whether or not it was

received. The trial transcript does not reflect any ruling on

the request to admit the video or the defense's HRE Rule 901

objection to the video's admission. Although the State asserts

on appeal that a duplicate copy of the video Corporal Izuka made

of Saunoa's cell phone video was received in evidence, the video

is not listed as an exhibit in the record on appeal, which is

required for consideration on appeal. See Hawai#i Rules of

Appellate Procedure Rule 10 (requiring the record on appeal

"consist of the trial court . . . record, as set out in Rule 4 of

the Hawai#i Court Records Rules"); Hawai#i Court Records Rules

(HCRR) Rule 4(c) (requiring the record of each case to include

exhibits).13 Thus, the record on appeal contains no video, which

13 HCRR Rule 4, setting forth the content of court records, provides:

The record of each case, whether electronic, paper, or

a combination thereof, shall include:

(continued...)

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was the only evidence that purportedly provided the basis for the

officers' identification of Amar as the operator of the vehicle

when the MVC occurred. 

The only evidence of identification of Amar as the

driver of the vehicle when the MVC occurred is Officer Rezentes's

and Officer DeGuzman's recollections of what they observed on the

video. The officers were not eyewitnesses to, and had no

personal knowledge of, the circumstances immediately after the

MVC depicted in Saunoa's video. See HRE Rule 602 (prohibiting

testimony by one who lacks personal knowledge). There was no

required foundation laid through Saunoa, the only witness with

personal knowledge, that the video was a fair and accurate

depiction of the vehicle and its operator immediately after the

MVC. See HRE Rule 901 (requiring authentication of evidence as a

condition precedent to admissibility). Thus, allowing the

officers' testimonies of what the video depicted, when no

foundation was laid for the admission of the video, was an abuse

of discretion. See Assaye, 121 Hawai#i at 210, 216 P.3d at 1233. 

 "[W]here a case is tried without a jury, it is presumed

that the presiding judge will have disregarded the incompetent

evidence and relied upon that which was competent." State v.

Kiese, 126 Hawai#i 494, 507, 273 P.3d 1180, 1193 (2012)

(citations omitted). On this record, however, where the District

Court relied on Officer Rezentes's and/or Officer DeGuzman's

13(...continued)

(a) all documents related to the case, including

correspondence, submitted for filing in any form;

(b) any written jury instructions given or refused;

(c) exhibits, including, but not limited to,

presentence reports, social work reports, and tangible

items, whether admitted into evidence or refused, provided

that exhibits marked for identification but never offered

shall not be included;

(d) court reporters' notes, audio or video recordings

of court proceedings, and any transcripts prepared from

them;

(e) a docket;

(f) minutes; and

(g) information contained in the electronic case

management system . . . .

(Emphases added.)

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inadmissible testimony regarding the video to establish

identification of Amar as the driver of the vehicle when the MVC

occurred, we conclude that Amar has rebutted the presumption. 

See id. The record thus lacks admissible evidence of

identification of Amar as the driver of the vehicle involved in

the MVC at the Accident Scene. See State v. Wallace, 80 Hawai#i

382, 413, 910 P.2d 695, 726 (1996)(requiring that review for

evidentiary sufficiency be based on "admissible evidence[.]").

POE 2 - Insufficient evidence of operation of the

vehicle on a public way, street, road, or highway

Amar also contends that "[t]he State presented

insufficient evidence that Amar drove on a 'public way, street,

road, or highway.'" Amar argues that since "the parking lot was

not a public way, street, road, or highway" and "[s]ince Saunoa

only witnessed driving in the parking lot, Amar cannot be

convicted of OVUII."

When reviewing the sufficiency of evidence on appeal,

the court applies the following deferential standard of review:

[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, 56, 237 P.3d 1109, 1123 (2010)

(citations 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 omitted). 

The operation of the vehicle on a public way, street,

road or highway is an essential element of the offense of OVUII. 

State v. Wheeler, 121 Hawai#i 383, 386, 219 P.2d 1170, 1174

(2009). To "'[o]perate' means to drive or assume actual physical

control of a vehicle upon a public way, street, road, or highway

. . . ." HRS § 291E-1 (2020).

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Here, Saunoa, the only eyewitness from the Accident

Scene who testified at trial, observed the vehicle "stuck" in the

"Verizon" parking lot after the MVC. Saunoa testified that the

vehicle did not drive onto the street and that "it stayed on the

gravel." Corporal Izuka observed damage from the MVC to the

"Shred-X" building wall, and to the trailer parked in the Shred-X

"gravel lot." A parking lot for a business, whether Verizon or

Shred-X, is not a "public way, street, road, or highway" under

HRS § 291E-1. While witnesses testified that Moanalua Loop was a

public street, no witness testified that they saw Amar operating

the vehicle on Moanalua Loop at the Accident Scene. The

officers' testimonies regarding what they observed on the video

are inadmissible and cannot be considered in appellate review for

evidentiary sufficiency. See Wallace, 80 Hawai#i at 413, 910

P.2d at 726. We conclude that even when viewing the evidence in

the strongest light for the prosecution, the record does not

contain substantial evidence that Amar operated the vehicle on a

public way, street, road, or highway at the Accident Scene. See

Kalaola, 124 Hawai#i at 56, 237 P.3d at 1123.

Therefore, IT IS HEREBY ORDERED that the February 5,

2019 Notice of Entry of Judgment and/or Order and Plea/Judgment

and March 1, 2021 Notice of Entry of Judgment and/or Order and

Plea/Judgment by the District Court of the First Circuit, #Ewa

Division are reversed. 

DATED: Honolulu, Hawai#i, December 26, 2023.

On the briefs:

Phyllis J. Hironaka,

Deputy Public Defender,

for Defendant-Appellant.

Donn Fudo,

Deputy Prosecuting Attorney,

for Plaintiff-Appellee.

/s/ Clyde J. Wadsworth

Presiding Judge

/s/ Karen T. Nakasone

Associate Judge

/s/ Kimberly T. Guidry

Associate Judge

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