NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000653

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

RAY ALIWIS, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT

(CASE NO. 1DTC-19-039513)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

Defendant-Appellant Ray Aliwis (Aliwis) appeals from

the Notice of Entry of Judgment and/or Order and Plea/Judgment,

filed August 22, 2019 (Judgment), in the District Court of the

First Circuit (District Court),1 convicting Aliwis of Operating a

Vehicle After License and Privilege Have Been Suspended or

Revoked for Operating a Vehicle Under the Influence of an

Intoxicant (OVLSR-OVUII), in violation of Hawaii Revised Statutes

(HRS) § 291E-62(a)(1)(2)(c) and/or (a)(2), (c)(1).2

1 The Honorable Michelle Comeau presided.

2 HRS § 291E-62 (Supp. 2018) provides in part:

(a) No person whose license and privilege to operate a

vehicle have been revoked, suspended, or otherwise

restricted . . . shall operate or assume actual physical

control of any vehicle:

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000653

17-MAY-2022

08:01 AM

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On appeal, Aliwis raises five points of error: (1)

sufficiency of the charge, (2) admission of the PlaintiffAppellee State of Hawai#i's (State) Exhibits 1-3,3 (3) denial of

Aliwis' Motion for Judgment of Acquittal (MJOA), (4) sufficiency

of the evidence, and (5) failure to enter a finding that Aliwis'

waiver of his right to testify was knowing and voluntary.

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 Aliwis' points of error as follows, and affirm. 

2(...continued)

(1) In violation of any restrictions placed on the

person's license;

(2) While the person's license or privilege to

operate a vehicle remains suspended or revoked;

. . . . 

(c) Any person convicted of violating this section shall be

sentenced as follows without possibility of probation or

suspension of sentence:

(1) For a first offense or any offense not preceded

within a five-year period by conviction for an

offense under this section . . .:

(A) A term of imprisonment of not less than

three consecutive days but not more than

thirty days;

(B) A fine of not less than $250 but not more

than $1,000;

(C) Revocation of license and privilege to

operate a vehicle for an additional year;

and

(D) Loss of the privilege to operate a vehicle

equipped with an ignition interlock

device, if applicable[.]

3 Aliwis challenged State's Exhibits 1 and 2 in his Points of Error

section of his Opening Brief, but the header in the argument section

challenges the admission of State's Exhibits 2 and 3. We address all three

exhibits.

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(1) "[C]harges which are tardily challenged after

conviction are liberally construed in favor of validity." State

v. Elliott, 77 Hawai#i 309, 311, 884 P.2d 372, 374 (1994)

(brackets, quotations, and block quote formatting omitted). "Our

adoption of this liberal construction standard for

post-conviction challenges to indictments means we will not

reverse a conviction based upon a defective indictment unless the

defendant can show prejudice or that the indictment cannot within

reason be construed to charge a crime." State v. Motta, 66 Haw.

89, 91, 657 P.2d 1019, 1020 (1983). Aliwis did not challenge the

sufficiency of the charge below. Aliwis does not assert or show

any prejudice caused by the State's allegedly defective charge.

Aliwis' first contention is without merit.

(2) Aliwis challenges the admission of State's

Exhibits 1, 2, and 3 as being irrelevant because there is no

evidence linking the exhibits to him; his statement of the points

of error also mentions, but his brief makes no discernible

argument about, hearsay. "A trial court's determination that

evidence is 'relevant' within the meaning of [Hawaii Rules of

Evidence (HRE)] Rule 401 is reviewed under the right/wrong

standard of review." State v. Wagner, 139 Hawai#i 475, 480, 394

P.3d 705, 710 (2017) (citation and block quote formatting

omitted). "Relevant evidence" is "evidence having any tendency

to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence." HRE Rule 401 (2016). Here,

the three exhibits admitted -- (1) a certified traffic abstract

(Traffic Abstract); (2) a certified ADLRO Notice of

Administrative Review Decision (ADLRO Decision); and (3) a ADLRO

Notice of Administrative Revocation (NOAR)4 -- all relate to

4 As to Exhibit 3, the NOAR, the District Court limited its

admission into evidence, stating: "I'm not going to consider this document .

. . for the truth of any matters asserted."

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Aliwis' prior OVUII charge and, thus, make the fact that Aliwis

committed OVLPSR-OVUII more probable than without them.

Moreover, contrary to Aliwis' assertions, the exhibits

were linked to Aliwis by more than his name alone. Exhibit 3

contains the same birth year and last four digits of Aliwis'

social security number (SSN) as reflected in Exhibit 1. 

Additionally, Exhibits 1, 2, and 3 contain the same police report

number and date of arrest. The matching information in Exhibit 3

was sufficient to link all of the exhibits to Aliwis. See State

v. Kam, 134 Hawai#i 280, 288-89, 339 P.3d 1081, 1089-90 (App.

2014) (holding that "matches" in various exhibits containing

defendant's name, address, date of birth, and last four digits of

SSN constituted sufficient evidence of a prior OVUII conviction).

(3) and (4) The standard applied when assessing a

ruling on an MJOA is: "whether, upon the evidence viewed in the

light most favorable to the prosecution and in full recognition

of the province of the jury, a reasonable mind might fairly

conclude guilt beyond a reasonable doubt." State v. Alston, 75

Haw. 517, 528, 865 P.2d 157, 164 (1994) (citations omitted). 

Sufficiency of evidence to support a conviction is measured by

viewing the evidence in the light most favorable to the

prosecution, to determine "whether there was substantial evidence

to support the conclusion of the trier of fact." State v. Young,

93 Hawai#i 224, 230, 999 P.2d 230, 236 (2000). 

Aliwis premised his MJOA on two grounds: (a) without a

license, the State could not prove the prior revocation of a

"non-existent license" element of OVLSR-OVUII, and (b) without

proof that Aliwis received the ADLRO Decision, the State could

not establish the requisite "intentional, knowing, or reckless"

intent. Aliwis' challenge to the sufficiency of evidence to

support his conviction incorporates the same arguments.

Aliwis' arguments are without merit. First, Aliwis'

failure to have a driver's license during his arrests for OVUII

and OVLSR-OVUII does not insulate him from prosecution. See HRS

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§ 291E-61 (Supp. 2018) (applying to any person operating or

assuming physical control of a vehicle); HRS § 291E-62 (applying

to any person whose "license and privilege to operate a vehicle

have been revoked, suspended, or otherwise restricted"); HRS §

291E-1 (2020) (defining "license" to include "[t]he eligibility,

including future eligibility, of any person to apply for a

license or privilege to operate a motor vehicle"); see also State

v. Alesana, NO. CAAP-19-0000612, 2021 WL 1694869, at *4 (App.

Apr. 29, 2021) (SDO), cert. denied, SCWC-19-0000612, 2021 WL

3834174 (Haw. Aug. 23, 2021) (affirming conviction where the

defendant "consciously disregarded a substantial and

unjustifiable risk that his license was revoked when he operated

a moped and was stopped by [the officer], even if there was no

proof that [the defendant] actually received a copy of the Notice

of Administrative Review Decision"); State v. Rios, No.

CAAP-19-0000718, 2021 WL 964862, at *2 (App. Mar. 15, 2021)

(SDO), cert denied, SCWC-19-0000718, 2021 WL 1996465 (Haw. May

18, 2021) (affirming trial court's finding that the defendant

consciously disregarded a substantial and unjustifiable risk that

his license was revoked when he drove his car months later, and

that there was sufficient evidence to support the conviction for

OVUII).

Second, the absence of proof that Aliwis received the

ADLRO Decision did not preclude conviction because a reasonable

mind might still fairly conclude guilt beyond a reasonable doubt

based on recklessness. See Alesana, 2021 WL 1694869, at *4;

Rios, 2021 WL 964862, at *2. "When the state of mind required to

establish an element of an offense is not specified by the law,

that element is established if, with respect thereto, a person

acts intentionally, knowingly, or recklessly." HRS § 702-204

(2014). HRS § 291E-62 does not specify a state of mind,

therefore, the State must prove Aliwis acted intentionally,

knowingly, or recklessly, with respect to operating or assuming

actual physical control of a vehicle while his license was

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suspended or revoked. State v. Nesmith, 127 Hawai#i 48, 53-54,

276 P.3d 617, 622-23 (2012) (holding that HRS § 702-204 applies

to HRS § 291E-61). "A person acts recklessly with respect to his

conduct when he consciously disregards a substantial and

unjustifiable risk that the person's conduct is of the specified

nature." HRS § 702-206(3)(a) (2014).

"[G]iven the difficulty of proving the requisite state

of mind by direct evidence in criminal cases, we have

consistently held that proof by circumstantial evidence and

reasonable inferences arising from circumstances surrounding the

defendant's conduct is sufficient." State v. Stocker, 90 Hawai#i

85, 92, 976 P.2d 399, 406 (1999) (block quote, brackets,

ellipses, citation & internal quotation marks omitted). "Thus,

the mind of alleged offender may be read from his acts, conduct

and inferences fairly drawn from all the circumstances." Id.

(block quotes, citation & internal quotation marks omitted). 

Here, Aliwis was arrested for OVUII, an officer read

Aliwis the NOAR, and Aliwis signed the NOAR. The NOAR informed

Aliwis that a decision as to whether his license and privilege to

operate a vehicle would be revoked would be mailed to him no

later than eight days after the NOAR. Despite this notice, three

months after the OVUII arrest, Aliwis operated a vehicle and was

cited for OVLSR-OVUII. In light of the foregoing, for the MJOA,

"a reasonable mind might fairly conclude guilt beyond a

reasonable doubt." Alston, 75 Haw. at 528, 865 P.2d at 164. 

Similarly, viewed in the light most favorable to the State, the

record reflects substantial evidence to support Aliwis'

conviction. See Young, 93 Hawai#i at 230, 999 P.2d at 236.

(5) "The validity of a criminal defendant's waiver of

the right to testify is a question of constitutional law reviewed

by [the appellate courts] under the right/wrong standard." State

v. Eduwensuyi, 141 Hawai#i 328, 332, 409 P.3d 732, 736 (2018)

(citation omitted). 

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Tachibana requires that "trial courts must advise

criminal defendants of their right to testify and must obtain an

on-the-record waiver of that right in every case in which the

defendant does not testify." Tachibana v. State, 79 Hawai#i 226,

236, 900 P.2d 1293, 1303 (1995). The purpose of the on-therecord waiver is to "ensure that [defendant] was aware of [the]

right to testify and that [he or she] knowingly and voluntarily

waived that right." Id. at 237, 900 P.2d at 1304. The

advisement includes the following two components:

The first is informing the defendant of fundamental

principles pertaining to the right to testify and the right

not to testify. We stated that this advisement should

consist of the following information:

that he [or she] has a right to testify, that if he

[or she] wants to testify that no one can prevent him

[or her] from doing so, [and] that if he [or she]

testifies the prosecution will be allowed to

cross-examine him [or her]. In connection with the

privilege against self-incrimination, the defendant

should also be advised that he [or she] has a right

not to testify and that if he [or she] does not

testify then the jury can be instructed about that

right.

The second component of the Tachibana colloquy

involves the court engaging in a true "colloquy" with the

defendant. This portion of the colloquy consists of a

verbal exchange between the judge and the defendant "in

which the judge ascertains the defendant's understanding of

the proceedings and of the defendant's rights." 

State v. Celestine, 142 Hawai#i 165, 170, 415 P.3d 907, 912

(2018) (citations omitted). No precedent requires the District

Court to make a specific finding that a defendant knowingly and

intelligently waived his or her right to testify, as urged by

Aliwis. Instead, courts look to the record to determine whether

a defendant knowingly, intelligently, and voluntarily waived

their right to testify.

Appellate review of the sufficiency of the Tachibana

colloquy is necessarily based on a cold record. We are

tasked with scrutinizing the language used by both the court

and the defendant to assess whether a defendant knowingly,

intelligently, and voluntarily waived his or her right to

testify. That task cannot be accomplished were we to defer

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to the trial court's apparent assessment of the defendant's

understanding whenever the express language on the record

leaves us with any doubt about the validity of the colloquy

and/or the defendant's waiver.

State v. Pomroy, 132 Hawai#i 85, 93 n.7, 319 P.3d 1093, 1101 n.7

(2014). Here, the record reflects that the District Court

engaged in the appropriate colloquy and obtained the on-therecord waiver.

For the foregoing reasons, the Notice of Entry of

Judgment and/or Order and Plea/Judgment, filed August 22, 2019,

in the District Court of the First Circuit, is affirmed.

DATED: Honolulu, Hawai#i, May 17, 2022.

On the briefs:

Walter R. Schoettle

for Defendant-Appellant

Chad M. Kumagai

Deputy Prosecuting Attorney

for Plaintiff-Appellee

/s/ Katherine G. Leonard

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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