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NO. CAAP-18-0000974

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

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

MARCELINO ALDAYA, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT

KONA DIVISION

(CASE NO. 3DCC-18-0000711)

SUMMARY DISPOSITION ORDER

(By: Ginoza, C.J., and Hiraoka and Wadsworth, JJ.)

 Defendant-Appellant Marcelino Aldaya (Aldaya) appeals

from the Judgment and Notice of Entry of Judgment (Judgment),

entered on November 29, 2018, in the District Court of the Third

Circuit, Kona Division (District Court).

1/ Following a bench

trial, Aldaya was convicted of violating Hawai#i County Code

(HCC) § 15-8 (2016), entitled "Visiting hours; closing areas,"

for remaining in Hale Halawai Park after it was closed.2/

On appeal, Aldaya contends that the District Court

erred in denying Aldaya's motion for judgment of acquittal and in

1/ The Honorable Margaret Masunaga presided. 

2/ HCC § 15-8 states:

Visiting hours; closing areas.

The director may establish a reasonable schedule of

visiting hours for all or portions of a park area and close

or restrict the public use of all or any portion of a park

area, when necessary for the protection of the area or the

safety and welfare of persons or property[,] by the posting

of appropriate signs indicating the extent and scope of

closure. All persons shall observe and abide by the

officially posted signs and [sic] designating closed areas

and visiting hours.

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000974

19-NOV-2020

07:48 AM

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finding him guilty as charged, where there was no substantial

evidence that he acted with the requisite state of mind. 

Relatedly, Aldaya argues that the State failed to adduce

sufficient evidence to prove: (1) when Aldaya was cited, the

park was closed, as stated on an officially posted sign

indicating the extent and scope of closure; (2) the park, or the

area of the park where Aldaya was found, was designated as a

closed area; and (3) Aldaya had observed the sign and knew of the

park's closing hours. 

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we resolve

Aldaya's contentions as follows and reverse the Judgment.

The dispositive issue is whether the State adduced

sufficient evidence to prove that when Aldaya was cited, there

was an official sign posted stating the park's visiting hours or

otherwise indicating that the park was closed.3/

Sufficient evidence to support a conviction requires

substantial evidence as to every material element of the offense

charged. State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34

(App. 2005) (quoting State v. Ferrer, 95 Hawai#i 409, 422, 23

P.3d 744, 757 (App. 2001)). 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. The evidence must be "viewed in the light most favorable to

the prosecution and in full recognition of the province of the

trier of fact," who must "determine credibility, weigh the

evidence, and draw justifiable inferences of fact." Id.

To establish that Aldaya violated HCC § 15-8, the State

was required to prove beyond a reasonable doubt that: (1) there

3/ It does not appear that Aldaya directly argued in the District

Court that there was insufficient evidence of an official sign. Nevertheless,

Aldaya did argue below that the State had failed to prove that he acted with

the requisite state of mind to commit the charged offense. Further, the State

was required to prove that Aldaya acted with the requisite state of mind as to

each element of the offense, including its attendant circumstances. See HRS

§ 702-204 (2014); State v. Baker, 146 Hawai#i 299, 309, 463 P.3d 956, 966

(2020); State v. Lioen, 106 Hawai#i 123, 130, 102 P.3d 367, 374 (App. 2004). 

Accordingly, we view the identified dispositive issue as encompassed by the

argument raised below.

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was an "officially posted sign[]"; (2) that "designat[ed]" the

area in which Aldaya was cited as a "closed area" (or designated

"visiting hours" that had ended); (3) the "sign[] indicat[ed] the

extent and scope of closure"; and (4) Aldaya did not "abide by"

the directives of the sign. HCC § 15-8; see State v. Pratt, 127

Hawai#i 206, 222, 277 P.3d 300, 316 (2012) (Acoba, J., concurring

and dissenting) (stating the elements for a conviction under

Hawai#i Administrative Rules (HAR) § 13-146-4(a) (1999)4/).

In State v. Vallejo, 9 Haw. App. 73, 78, 80, 823 P.2d

154, 157, 158 (1992), this court affirmed the defendant's

conviction for operating his automobile in excess of the

officially posted speed limit, in violation of HRS § 291C-102(a)

(1985). At that time, HRS § 291C-102 stated: 

a) No person shall drive a vehicle at a speed greater

than a maximum speed limit and no person shall drive a motor

vehicle at a speed less than a minimum speed limit

established by county ordinance.

(b) The director of transportation with respect to

highways under the director's jurisdiction may place signs

establishing maximum speed limits or minimum speed limits. 

Such signs shall be official signs and no person shall drive

a vehicle at a speed greater than a maximum speed limit and

no person shall drive a motor vehicle at a speed less than a

minimum speed limit stated on such signs.

HRS § 291C-102(a)-(b) (emphasis added). The defendant argued in

part that the State had failed to prove that the speed limit sign

at issue was official, and further contended that the trial court

had erred in permitting the citing police officer to testify that

the speed limit sign was an official sign. See Vallejo, 9 Haw.

App. at 78-80, 823 P.2d at 157-58. This court disagreed,

concluding that the officer's training and observations were

4/ The text of HCC § 15-8 substantially mirrors that of HAR § 13-146-

4(a). The latter rule provides:

The board [of land and natural resources] or its

authorized representative may establish a reasonable

schedule of visiting hours for all or portions of the

premises and close or restrict the public use of all or any

portion thereof, when necessary for the protection of the

area or the safety and welfare of persons or property, by

the posting of appropriate signs indicating the extent and

scope of closure. All persons shall observe and abide by

the officially posted signs designating closed areas and

visiting hours.

HAR § 13-146-4(a).

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sufficient to allow him to state his opinion that the sign was

official. Id. at 80, 823 P.3d at 158. In so doing, this court

implicitly recognized the State's burden to prove that the speed

limit sign was "official," pursuant to the language of HRS

§ 291C-102(b). Id. See also State v. Jenkins, No. 30295, 2011

WL 1620643, at *5 (Haw. App. Apr. 29, 2011) (mem. op.) (affirming

the defendant's conviction under HRS § 291C-105(a)(1) (2007),

where the State adduced sufficient evidence to prove, among other

things, that the maximum applicable speed limit had been

established by "official" signs). 

Similarly, here, HCC § 15-8 states in relevant part

that "[a]ll persons shall observe and abide by the officially

posted signs . . . designating closed areas and visiting hours."

Based on the plain language of the code, the State had the burden

to prove, among other things, that Aldaya did not abide by an

officially posted sign in the park.

Viewing the evidence adduced in the strongest light for

the prosecution, we conclude that the evidence was insufficient

to establish that the sign at issue was official. At trial, the

officer who cited Aldaya testified in relevant part as follows

concerning any signs in the park:

Q. [By DEPUTY PROSECUTING ATTORNEY] And was the park

closed at that time? 

A. [By OFFICER] Yes.

. . . .

Q. . . . And were there any signs in the park that

indicated the hours of the park? 

A. There are. 

Q. Do you know where the signs are located?

 

A. I know there is one sign by the parking lot. 

That's the -- to the best of my knowledge, I know that there

is that one. 

Q. Okay. And is that sign between the Alii Drive and

the building at Hale Halewai[sic]? 

A. Yes.

No other witness testified. In short, there is nothing in the

record that could reasonably support a conclusion that the sign

at issue was official. 

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The State argues that the evidence presented in this

case is substantially similar to that adduced in Pratt, where the

court found sufficient evidence to support a conviction under HAR

§ 13-146-4(a). However, unlike Aldaya, the defendant in Pratt

stipulated to the facts sufficient to establish a violation of

the closed-area regulation at issue, in furtherance of a tactical

decision to focus on affirmative defenses. 127 Hawai#i at 212-

13, 277 P.3d at 306-07. Under those circumstances, the supreme

court declined to exercise plain error review to invalidate the

stipulation, even in the absence of any physical evidence of the

signs at issue. Id. The court observed: "[T]he absence of

evidence to prove an element to which the opposing party has

stipulated is to be expected; having executed the stipulation,

the prosecution did not present its case in chief at trial." Id.

at 213, 277 P.3d at 307. 

Here, in contrast, Aldaya did not stipulate to the

facts necessary to warrant a conviction, and the State did

present its case in chief at trial for the purpose of

establishing such facts. Absent any stipulation, the State had

the burden to prove every element of the charged offense,

including that the sign at issue was official. On this record,

it failed to do so. Given our conclusion, we do not reach

Aldaya's arguments that the State failed to adduce sufficient 

evidence as to other elements of the charged offense. 

Therefore, IT IS HEREBY ORDERED that the Judgment and

Notice of Entry of Judgment, entered on November 29, 2018, in the

District Court of the Third Circuit, is reversed.

DATED: Honolulu, Hawai#i, November 19, 2020.

On the briefs:

Jon N. Ikenaga,

Deputy Public Defender,

for Defendant-Appellant.

Stephen L. Frye,

Deputy Prosecuting Attorney,

County of Hawai#i,

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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