** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER **

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

---o0o--- 

STATE OF HAWAIʻI, 

Respondent/Plaintiff-Appellee, 

vs. 

CHARLES TUNG MING YUEN, 

Petitioner/Defendant-Appellant. 

SCWC-21-0000679 

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 

(CAAP-21-0000679; CASE NO. 1DTA-18-03510] 

AUGUST 20, 2024 

McKENNA, EDDINS, AND DEVENS, JJ., 

AND RECKTENWALD, C.J., DISSENTING, WITH WHOM GINOZA, J., JOINS 

OPINION OF THE COURT BY McKENNA, J.

I. Introduction and Summary 

This case arises out of a motor vehicle collision (“MVC”) 

that occurred in the City & County of Honolulu (“City”), 50 feet 

from the entrance to the O’Malley Gate of Hickam Air Force Base 

(“HAFB”). As he approached the gate, defendant Charles Yuen 

(“Yuen”) allegedly rear-ended and caused significant bumper 

Electronically Filed

Supreme Court

SCWC-21-0000679

20-AUG-2024

09:23 AM

Dkt. 17 OP
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damage to another car. Yuen’s car apparently had no visible 

damage. 

Military police or personnel (“MPs”) apparently came to the 

scene just outside the military base and identified Yuen as the 

responsible driver. They apparently then seized Yuen and 

subjected him to a preliminary screening to see if he was 

intoxicated, including standard field sobriety tests (“SFSTs”) 

and/or a preliminary alcohol screening (“PAS”). It appears they 

then called the Honolulu Police Department (“HPD”) to report a 

MVC and a “DUI at the gate” and detained Yuen until HPD arrived. 

At some point, HPD officers responded and the MPs identified 

Yuen as the driver to HPD. HPD then administered their own 

SFSTs and PAS. Thereafter, Yuen was arrested and charged with 

OVUII in violation of Hawaiʻi Revised Statutes (“HRS”) § 291E61(a)(1) (2007).1 

1 HRS § 291E-61(a)(1) provides:

(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. . . .

Yuen was also charged with Inattention to Driving under HRS § 291-12 

(2007 & Supps. 2008 & 2016). The district court dismissed this charge 

indicating “insufficient facts were established at trial to meet the elements 

of that charge.” 
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 As trial was starting, Yuen’s trial counsel sought to 

exclude evidence from the MPs based on the Posse Comitatus Act 

(“PCA”), 18 U.S.C. § 1385 (1994). The PCA generally prohibits 

use of the military to conduct civilian law enforcement 

activities. In State v. Pattioay, 78 Hawaiʻi 455, 896 P.2d 911 

(1995), we held that evidence obtained in violation of the PCA 

must be suppressed. 78 Hawaiʻi at 468-69, 896 P.2d at 924-25. 

In addition, the “fruit of the poisonous tree” doctrine requires 

exclusion of evidence obtained as a result of an illegal seizure 

or search. State v. Weldon, 144 Hawaiʻi 522, 534, 445 P.3d 103, 

115 (2019) (illegal seizure); State v. Knight, 63 Haw. 90, 93, 

621 P.2d 370, 374 (1980) (per curiam) (illegal search); see 

also, State v. Won, 137 Hawaiʻi 330, 338, 372 P.3d 1065, 1073 

(2015) (holding that a breath test is a search subject to the 

constitutional constraints of Article I, Section 7 of the Hawaiʻi 

Constitution). 

Yuen’s trial counsel did not, however, file a motion to or 

orally move to suppress all evidence against Yuen based on an 

alleged PCA violation. If a motion to suppress had been made, 

more evidence could have been developed. The MPs could have 

been subpoenaed to testify. Yuen himself would have been able 

to testify regarding the actions and statements of the MPs 

without waiving his right against self-incrimination; his 
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testimony also could not have been used against him at trial. 

State v. Chang, 144 Hawaiʻi 535, 545, 445 P.3d 116, 126 (2019). 

Even without a motion to suppress, the District Court of 

the First Circuit of the State of Hawaiʻi (“district court” or 

“court”)2 recognized and expressed concerns based on the PCA. 

The district court generally excluded or sua sponte struck most 

of the evidence regarding the MPs’ actions and statements. 

Testimony was received, however, from the State’s three HPD 

trial witnesses. They testified they were called to respond to 

the scene of an MVC and “DUI at the gate.” Upon HPD’s arrival, 

Yuen was initially sitting in the rear vehicle. Based on signs 

of intoxication, an HPD officer administered SFSTs and Yuen was 

arrested. Yuen called no witnesses. The district court 

adjudicated Yuen guilty of OVUII. 

The Intermediate Court of Appeals (“ICA”) affirmed. 

Relevant here, the ICA deemed the record insufficient to 

establish ineffective assistance of counsel based on trial 

counsel’s failure to file a motion to suppress based on the PCA. 

The ICA further determined there was substantial evidence to 

support Yuen’s conviction. 

 On certiorari, Yuen asserts the ICA erred: (1) by not 

holding Yuen’s trial counsel ineffective for failing to file a 

2 The Honorable John A. Montalbano presided.
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motion to suppress based on Yuen’s right against unreasonable 

searches and seizures under Article I, Section 7 of the Hawaiʻi 

Constitution in correlation with the PCA violation; and (2) by 

holding there was substantial evidence to support Yuen’s 

conviction. 

We hold Yuen’s trial counsel’s failure to file a motion to 

suppress constituted ineffective assistance but that there was 

substantial evidence to support Yuen’s conviction. 

“Ineffective assistance of counsel” exists when (1) there 

were specific errors or omissions reflecting counsel’s lack of 

skill, judgment, or diligence; and (2) such errors or omissions 

resulted in either the withdrawal or substantial impairment of a 

potentially meritorious defense. To satisfy the second prong, 

the defendant only needs to show a possible impairment, rather 

than a probable impairment, of a potentially meritorious 

defense; a defendant need not prove actual prejudice. State v. 

Wakisaka, 102 Hawaiʻi 504, 514, 78 P.3d 317, 327 (2003) (cleaned 

up). In some cases, the ineffective assistance of counsel may 

be so obvious from the record that a Hawaiʻi Rules of Penal 

Procedure (“HRPP”) Rule 40 (eff. 2006) post-conviction 

proceeding, through which a conviction can also be set aside 

based on ineffective assistance of counsel, serves no purpose 

except to delay the inevitable and expend resources 
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unnecessarily. State v. Silva, 75 Hawaiʻi 419, 438-39, 864 P.2d 

583, 592 (1993). 

In this case, trial counsel’s ineffective assistance of 

counsel is obvious from the record. Although defense counsel 

orally expressed concerns regarding the admission of evidence 

from the MPs regarding their alleged seizure, investigation, and 

search of Yuen, he did not file a motion to suppress to 

establish a PCA violation and ban its alleged “fruit,” the 

testimony of HPD officers which allegedly followed the alleged 

illegal seizure and/or search by the MPs. Ineffective 

assistance only requires possible impairment of a potentially 

meritorious defense. If a motion had been filed, additional 

evidence could have been adduced regarding a possible PCA 

violation by the MPs. If a PCA violation had been established, 

evidence obtained as its fruit could have been subject to 

suppression. Hence, trial counsel’s failure to file a motion to 

suppress constituted ineffective assistance. We therefore 

disagree with the ICA that the record was insufficiently 

developed to establish ineffective assistance. 

Because we vacate the conviction and remand based on the 

first issue on certiorari, we must also address the second issue 

alleging insufficient evidence. See State v. Davis, 133 Hawaiʻi 

102, 120, 324 P.3d 912, 930 (2014) (holding that the double 
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jeopardy clause of Article I, Section 10 of the Hawaiʻi 

Constitution requires an appellate court to address a 

defendant’s express claim of insufficiency of the evidence 

before remanding). On this issue, we agree with the ICA that 

there was substantial evidence to support Yuen’s conviction. 

Therefore, Yuen is not entitled to a dismissal of the OVUII 

charge on appeal. 

Hence, we vacate Yuen’s OVUII conviction and remand to the 

district court for further proceedings consistent with this 

opinion. 

II. Background 

A. Factual background 

On October 25, 2018, a MVC occurred in an area 

approximately 50 feet in front of the north O’Malley Gate of 

HAFB in the City and County of Honolulu, Hawaiʻi. The collision 

involved two vehicles. 

As no motion to suppress based on the alleged PCA violation 

was filed, the record does not contain sworn testimony regarding 

what happened before HPD arrived and the details of the 

interaction the MPs had with Yuen. The factual background 

provided regarding the time period before HPD’s arrival is 

therefore based on representations on the record from the 

State’s deputy prosecuting attorney and Yuen’s trial attorney. 
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The MVC had occurred as the vehicles were approaching 

military property. MPs then came out to the scene outside the 

military base. They identified Yuen as the Unit 1 (rear) 

vehicle driver. MPs then apparently seized Yuen and subjected 

him to SFSTs. They apparently did so without Miranda warnings 

regarding the medical rule-out questions.3 MPs also apparently 

administered a PAS test on Yuen. The MPs apparently then 

continued Yuen’s seizure and called HPD to report a MVC and “a 

possible DUI outside the gate.” 

The MVC occurred and the MPs apparently seized Yuen on 

City, not military, property. According to HPD officers, they 

were called to respond to a MVC and possible DUI. Upon arrival, 

Yuen was the sole passenger seated in the Unit 1 (rear) vehicle. 

An adult male was identified as the driver of the Unit 2 (front) 

vehicle, which also contained two children ages eleven and two 

years old. 

 After observing symptoms of intoxication, an HPD officer 

conducted SFSTs on Yuen. After the tests, Yuen was arrested for 

OVUII. 

 

3 In State v. Skapinok, 151 Hawaiʻi 170, 510 P.3d 599 (2022), we held that 

medical rule-out questions are “interrogation” when a defendant is in 

custody. It appears a motion to suppress might also have developed further 

evidence regarding the “custody” issue based on what the MP said to Yuen. 

According to Yuen’s trial counsel, the MPs had taken Yuen “in custody.”

 
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B. District court proceedings

On October 26, 2018, the State filed a complaint charging 

Yuen with OVUII. The court conducted Yuen’s trial on October 8, 

2019 and December 11, 2019. 

1. Pre-trial issues

Before trial, Yuen’s trial counsel4 raised concerns about 

the admissibility of State evidence based on the PCA. Trial 

counsel anticipated that, during trial, the State would call the 

MPs who detained Yuen and conducted their own SFSTs and PAS 

before HPD officers arrived. Trial counsel asserted the court 

should determine the admissibility of the evidence regarding the 

MPs. 

The State responded that the only evidence from the MPs it 

intended to proffer was their identification of Yuen as the 

driver of the vehicle.5 After confirming the State would not be 

proffering evidence of the MPs’ SFSTs or statements 

incriminating Yuen, the district court commenced trial. 

4 Yuen was represented at trial by attorney Barry Sooalo. 

5 The State did not end up calling any of the MPs because it was 

apparently unable to “secure” them as witnesses. It is unclear whether they 

were subpoenaed for the second trial date. But it is clear the State did not 

subpoena them for the first day of trial.
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2. Officer Peter’s testimony

The State’s first witness was Officer Jody Peter, who 

prepared the MVC report. On direct examination, Officer Peter 

testified as follows.

In the evening of October 25, 2018, she was sent to the 

scene of a MVC approximately 50 feet north of the gate going 

into HAFB. Upon her arrival at the scene, Yuen was sitting in 

the rear vehicle. The vehicle in front had an adult male and 

two children. 

A. When I arrived on scene, I observed two vehicles 

in the front of me already in a parked position. The two 

vehicles were the ones that were involved in the motor 

vehicle collision. I was -- I was approached by military 

personnel and he stated that there was a motor vehicle 

collision and that they –- he already identified who the 

driver of Unit 1 vehicle was.

Q. Okay. And who did he identify as the Unit 1 

driver?

A. Charles Yuen

Q. Okay. And when you approached the vehicles, were 

there -- was the driver in the vehicle?

A. He [Yuen] was sitt[ing] in -- in the vehicle at 

the time.

The district court sua sponte expressed concerns that the 

testimony regarding what the MP6 told her about Yuen being the 

responsible driver violated the PCA and struck that testimony. 

Officer Peter noticed damage to the rear of the bumper of 

car in front: “the rear of the bumper was smashed, was bent 

in.” While she was preparing the MVC report, she saw Yuen 

6 Officer Laganse’s later testimony referred to the “military personnel” 

as MPs. 
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standing around. She smelled alcohol on Yuen’s breath and 

observed him swaying, but he was otherwise cooperative with HPD 

officers. 

On cross-examination, Officer Peter testified she was 

certain that the physical area of her investigation was City and 

not military property. 

3. Officer Laganse’s testimony 

The State’s next witness was Officer Jennifer Laganse, the 

officer who administered the SFSTs7 and made the arrest. She 

testified that HPD responded because MPs said they had a DUI at 

the gate; upon objection from Yuen’s trial counsel, the court 

struck this initial testimony. But Officer Laganse later 

testified on cross-examination that she had been apprised Yuen 

was the driver and that she had been instructed to conduct 

SFSTs. She also testified that she had been apprised it might 

be a possible DUI and that she was then instructed to do the 

SFST to determine that.8 

7 At the December 11, 2019 trial continuance, the court indicated it 

would not consider testimony by Officer Laganse as an expert regarding Yuen’s 

possible intoxication, the HGN test, and her conclusions of law relating to 

Yuen’s possible intoxication. However, the court considered Officer 

Laganse’s testimony as a layperson, admitting her observations of Yuen during 

the SFSTs and interactions with him during the MVC investigation. This trial 

took place before State v. Jones, 148 Hawaiʻi 152, 468 P.3d 166 (2020) 

(prospectively holding that for trials occurring after June 30, 2020, police 

officers may no longer testify, whether in a lay or expert capacity, that a 

driver appeared “intoxicated”). 148 Hawaiʻi at 176, 468 P.3d at 190. 

8 Who said what could have been clarified in a motion to suppress.
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Officer Laganse also testified as follows:

Q. Okay. And when you arrived, where were the 

vehicles that you were called to investigate?

A. They were in the left-most lane, parked to the

side.

Q. And is this prior to the Hickam gate?

A. Yes, prior to the Hickam gate. Yes, ma’am. 

Q. Is that area open to the general public –-

A. Yes, ma’am.

Q. -- at all times? Okay. Is it a public way, 

street, road, or highway? 

A. Yes, ma’am.

Q. And in the City and County of Honolulu, [S]tate of

Hawaii [Hawaiʻi]?

A. Yes, ma’am.

Q. Okay. When you arrived on scene, did you make any 

observations initially?

A. I did observe the two vehicles with their hazard 

lights on.

. . . . 

Q. Okay. Did you make any observations of Mr. Yuen?

A. When I was speaking to Mr. Yuen, his -- his eyes 

appeared to be red and watery and -- well, as he continued 

to speak to me, I could smell alcohol coming from his 

breath. . . . When I was initially talking with him, at one 

point when he was off to the side, he kind of fell into the 

bushes.

Q. Is there anything that may have caused him to fall 

into the bushes?

A. No. And -- and then Mr. Yuen was also slurring 

some of his words when he was talking to me.

Q. So based on these observations, did you perform a 

standardized field sobriety test on the defendant?

A. Yes, I did, ma’am.

When she began to administer a SFST on Yuen, she noticed 

“an alcoholic-type beverage” odor when Yuen was speaking to her. 

When she conducted the walk and turn test, Yuen missed steps and 

failed to follow instructions. Yuen was also unable to maintain 

his balance in a position of instruction.9 Yuen was swaying and 

could not keep his balance during the one-leg stand test. 

9 The “position of instruction” is where one stands with the “right foot 

in front of left, heel to toe, arms at [one’s] side.” 
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[He] actually put his foot down [a] couple times, and then 

he would sway left and right. And I had to instruct him 

multiple times, actually, to look down at his foot during 

the test, because he had to count. He’d count, but look --

be looking upward, which actually helps the person maintain 

their balance. So I instructed him two times to look down 

at his foot and continue counting. And when he did look 

down, I noticed that he would hop to maintain the balance.

Yuen had “red, watery eyes[,] slurring words[,] and alcohol 

emitting from his breath.” 

On cross-examination, Officer Laganse testified that after 

arriving at the scene, she was apprised by Officer Peter about 

what happened, and that Officer Peter identified Yuen as the 

driver. 

4. Officer Tablit’s testimony

As its last witness, the State called Officer Marie Tablit, 

the officer instructed to administer the PAS test10 and transport 

Yuen to the station. Upon arriving at the scene, Officer Tablit 

observed that Yuen had “glassy, watery eyes.” Officer Tablit 

made no further observations of Yuen during transport. 

After Officer Tablit’s testimony, the court continued trial 

until December 11, 2019. 

10 The court struck Officer Tablit’s testimony regarding the result of the 

PAS test for lack of foundation. 
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5. December 11, 2019 trial continuance

At the December 11, 2019 trial continuance, the State 

rested its case. Yuen then moved for a judgment of acquittal. 

The court denied the motion. Yuen did not call any witnesses. 

After closing arguments, the district court adjudicated 

Yuen guilty of OVUII based on the testimony of the HPD officers. 

The district court imposed fines and fees and ordered Yuen to 

attend a substance abuse and rehabilitation program.11

C. ICA proceedings

1. Yuen’s opening brief

On April 5, 2022, Yuen’s new counsel filed an appeal of the 

district court’s judgment with the ICA. In relevant part, Yuen 

raised the following issues: (1) Yuen’s trial counsel provided 

ineffective assistance of counsel because he failed to file a 

motion to suppress based on a violation of the PCA, the Fourth 

Amendment of the U.S. Constitution, and/or Article I, Section 7 

of the Hawaiʻi Constitution; and (2) there was insufficient 

evidence to establish Yuen’s guilt beyond a reasonable doubt.12 

Yuen first argued that his trial counsel was ineffective 

for failing to file a motion to suppress evidence. The MPs were 

11 The district court also ordered a restitution investigation. On 

November 12, 2021, it conducted a hearing and did not order any restitution. 

12 Yuen also raised issues no longer raised on certiorari. 
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within City jurisdiction while conducting their OVUII 

investigation. Because the HPD officers’ investigation resulted 

from the MPs’ initial seizure of Yuen, Yuen asserted the HPD 

investigation was “fruit of the poisonous tree” of the initial 

illegality. 

Yuen also argued that his trial counsel was ineffective for 

failing to file a motion to suppress based upon a violation of 

the PCA. Yuen cited Pattioay. 

Lastly, Yuen asserted substantial evidence did not exist to 

support his conviction because the State failed to prove he was 

the operator of the vehicle. No witnesses testified at trial 

they saw Yuen operating the rear vehicle. Yuen posited that his 

case is distinguishable from State v. Brown, 97 Hawaiʻi 323, 37 

P.3d 572 (App. 2001). There, the ICA held “a person may be 

proven to be a driver based on reasonable inferences drawn from 

circumstantial evidence.” 97 Hawaiʻi at 333, 37 P.3d at 582. 

Yuen asserted circumstantial evidence was nonexistent in his 

case. Yuen contended the officers only testified that he was in 

the Unit 1 vehicle, not that he was the driver. He additionally 

argued that the fact he provided his license and paperwork only 

confirmed he followed police directives, not that he was 

driving. Yuen argued there was insufficient evidence for his 
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conviction and asked the court to reverse his conviction and 

remand for a new trial. 

2. State’s answering brief 

The State asserted Yuen’s trial counsel was not ineffective 

for failing to file a motion to suppress. Citing Pattioay, 78 

Hawaiʻi at 464, 896 P.2d at 920, the State argued that “the PCA 

prohibits military participation in activities designed to 

execute civilian laws,” and the evidence adduced at trial only 

established that HPD responded to a request to respond to a MVC. 

The State also maintained the military cannot be expected to 

ignore a MVC that might potentially obstruct a major entrance to 

a military base. 

The State also argued Yuen had the burden of establishing 

that the evidence was unlawfully secured, and his constitutional 

rights were violated by the challenged search and seizure. The 

State posited that even if the MPs conducted an OVUII 

investigation before HPD arrived, HPD conducted its own 

independent investigation, and Yuen was arrested based on the 

HPD officers’ investigation. Furthermore, as none of the 

evidence from the MPs’ investigation was used at trial, there 

was no basis to file a motion to suppress; Yuen’s trial counsel 

was therefore not ineffective. 
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As to the sufficiency issue, the State contended there was 

sufficient evidence to support the district court’s finding that 

Yuen drove his vehicle while intoxicated. Officer Peter had 

testified that Yuen was still sitting in his vehicle when she 

approached the scene. The State argued there was sufficient 

circumstantial evidence to support the district court’s finding

that Yuen had operated his vehicle while intoxicated.

3. Yuen’s reply brief

In his reply brief, Yuen asserted that because the MPs went 

outside their jurisdiction to conduct the OVUII investigation,

held Yuen until HPD officers arrived, and because Yuen was not a 

member of the military, the military officers’ investigation was 

“only in furtherance of” the HPD investigation. Yuen argued 

that considering the factual scenario and trial counsel’s 

awareness of the PCA, there was no reason for trial counsel not 

to seek suppression of all evidence based on a violation of the 

PCA. Furthermore, Yuen insisted that given the significant 

involvement of the MPs in Yuen’s civilian investigation, the 

State was required to prove that the MPs had a purpose 

independent of their involvement with HPD’s investigation in 

order to avoid a violation of the PCA, and without such proof, 

the evidence of HPD’s investigation should have been suppressed 

because it was inextricably linked to the MPs’ investigation. 
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As to his second argument, Yuen asserted that although 

Officer Peter testified that Yuen was sitting in his car, she 

did not testify he was seated in the driver’s seat. He 

additionally argued that the vehicles were already pulled over 

on the side of the road when Officer Peter arrived. Yuen 

posited that without evidence about what seat he was in, or any 

other evidence that he had control of the vehicle, such as the 

possession of keys, the State failed to provide circumstantial 

evidence by which a reasonable inference could be made that Yuen 

was the driver. 

4. ICA’s summary disposition order 

 On September 22, 2023, the ICA issued its summary 

disposition order. State v. Yuen, No. CAAP-21-0000679, 2023 WL 

6185286 (Haw. App. Sept. 22, 2023) (SDO). The ICA noted that

this court has acknowledged that “direct involvement of military 

personnel in civilian law enforcement is generally prohibited.” 

Yuen, 2023 WL 6185286, at *2 (citing Pattioay, 78 Hawaiʻi at 460, 

896 P.2d at 916). The ICA indicated the Ninth Circuit has 

provided a three-part test to determine whether military 

involvement in civilian law enforcement is an exception to the 

PCA: “[t]he involvement must not constitute the exercise of 

regulatory, proscriptive, or compulsory military power, must not 

amount to direct active involvement in the execution of the 
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laws, and must not pervade the activities of civilian 

authorities.” Id. (citing United States v. Khan, 35 F.3d 426, 

431 (9th Cir. 1994) (cleaned up)).

The ICA then discussed Pattioay. Yuen, 2023 WL 6185286, at 

*3. In Pattioay, a military police officer who acted as an 

undercover agent in the investigation, an army Criminal 

Investigation Department (“CID”) special agent, and an HPD 

officer testified. Id. (citing 78 Hawaiʻi at 456-57, 896 P.2d at 

912-13). The trial court had found there was no military 

function, and the matter was clearly within the scope of 

civilian law enforcement responsibility. Id. (citing Pattioay, 

78 Hawaiʻi at 459, 896 P.2d at 915). On appeal, this court 

concluded the defendants met their burden of demonstrating the 

joint operation violated the PCA. Id. (citing Pattioay, 78 

Hawaiʻi at 466, 896 P.2d at 922). Thus, suppression of the 

evidence was warranted. 

 The ICA noted that, here, the district court struck 

testimony that MPs informed HPD officers that Yuen was the 

driver of the Unit 1 vehicle out of concern of a potential PCA 

violation. Id. Furthermore, neither the State nor Yuen’s 

attorney attempted to introduce the MPs’ reported SFSTs or PAS 

into evidence. Id. The ICA concluded the record on appeal was 

therefore insufficient to establish a violation of the PCA. Id. 
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The ICA also indicated, however, that Yuen alleged facts 

which, if proven, might entitle him to relief and that his 

claims of ineffective assistance of counsel for failure to file 

a motion to suppress based on a violation of the PCA, the Fourth 

Amendment, and/or Article I, Section 7 were not patently 

frivolous and without trace of support in the record. Id. 

Hawaiʻi Rules of Appellate Procedure (“HRAP”) Rule 28(a) (eff. 

2022) requires, however, that “[i]f a brief raises ineffective 

assistance of counsel as a point of error, the appellant shall 

serve a copy of the brief on the attorney alleged to have been 

ineffective.” Yuen, 2023 WL 6185286, at *4 n.5 (citing HRAP 

Rule 28(a) (2016)). Because trial counsel had not been given a 

chance to respond to Yuen’s ineffectiveness allegations, the ICA 

said it could not conclude that the failure to file a motion to 

suppress constituted an error or omission which resulted in the 

withdrawal of a potentially meritorious defense. Yuen, 2023 WL 

6185286, at *3. Hence, instead of vacating Yuen’s conviction 

based on ineffective assistance of counsel, the ICA affirmed it 

without prejudice to Yuen filing a HRPP Rule 40 petition so that 

a factual record could be developed. Yuen, 2023 WL 6185286, at 

*4.

Lastly, the ICA considered whether there was substantial 

evidence that Yuen was the operator of the vehicle. Id. The 
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ICA noted, “A person can be proven to be the driver of a vehicle 

based on ‘reasonable inferences drawn from circumstantial 

evidence.’” Id. (citing Brown, 97 Hawaiʻi at 333, 37 P.3d at 

582). Officer Peter testified Yuen was the sole occupant of 

Unit 1, while there was a driver and two small children in Unit 

2. Id. She also testified to damage to the rear bumper of Unit 

2, but no damage to Unit 1. Id. Officer Laganse testified she 

interacted with Yuen and that Officer Peter identified Yuen as a 

driver. Id. The ICA concluded there was sufficient 

circumstantial evidence to support a finding that Yuen operated 

Unit 1. Id. Accordingly, the ICA affirmed the OVUII conviction 

without prejudice to Yuen filing a HRPP Rule 40 petition on his 

ineffective assistance of counsel claim. Id. 

D. Certiorari proceedings 

Yuen presents two questions on certiorari: 

1. Whether the ICA gravely erred in holding that Yuen’s 

trial counsel was not ineffective for failing to file a 

motion to suppress? 

2. Whether the ICA gravely erred in holding that there was 

substantial evidence to support Yuen’s conviction? 

III. Standards of Review 

A. Constitutional issues 

“Questions of constitutional law are reviewed under the 

right/wrong standard.” State v. Borge, 152 Hawaiʻi 458, 464, 526 

P.3d 435, 441 (2023) (citation omitted). 
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B. Ineffective assistance of counsel 

When reviewing a claim of ineffective assistance of 

counsel, [the appellate court] looks at whether defense 

counsel’s assistance was within the range of competence 

demanded of attorneys in criminal cases. The defendant has 

the burden of establishing ineffective assistance of 

counsel and must meet the following two-part test: 1) that 

there were specific errors or omissions reflecting 

counsel’s lack of skill, judgment, or diligence; and 2) 

that such errors or omissions resulted in either the 

withdrawal or substantial impairment of a potentially 

meritorious defense. To satisfy this second prong, the 

defendant needs to show a possible impairment, rather than 

a probable impairment, of a potentially meritorious 

defense. A defendant need not prove actual prejudice.

Wakisaka, 102 Hawaiʻi at 513-14, 78 P.3d at 326-27 (internal 

quotation marks, citations, and footnote omitted). 

C. Sufficiency of the evidence 

The appellate court reviews the sufficiency of evidence on 

appeal as follows: 

[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. Richie, 88 Hawaiʻi 19, 33, 960 P.2d 1227, 1241 (1998) 

(cleaned up). “‘Substantial evidence’ as to every material 

element 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.” Id. (cleaned up). 
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IV. Discussion 

A. Ineffective assistance of counsel 

1. Article I, Section 7 of the Hawaiʻi Constitution 

Article I, Section 7 of the Hawaiʻi Constitution protects 

“the right of the people to be secure in their persons, houses, 

papers and effects against unreasonable searches, seizures and 

invasions of privacy. . . .” Haw. Const. Art. I, § 7 (1978). 

We have held that the stop of a vehicle for an investigatory 

purpose constitutes a seizure within the meaning of the 

constitutional protection against unreasonable searches and 

seizures. State v. Heapy, 113 Hawaiʻi 283, 290, 151 P.3d 764, 

771 (2007) (cleaned up). 

 The “fruit of the poisonous tree” doctrine prohibits the 

use of evidence at trial which comes to light as a result of the 

exploitation of a previous illegal act of the police. State v. 

Trinque, 140 Hawaiʻi 269, 281, 400 P.3d 470, 482 (2017) 

(citations omitted)). Under the fruit of the poisonous tree 

doctrine, admissibility is determined by ascertaining whether 

the evidence objected to as being “fruit” was discovered or 

became known by the exploitation of the prior illegality or by 

other means sufficiently distinguished as to purge the later 

evidence of the initial taint. Trinque, 140 Hawaiʻi at 282, 400 

P.3d at 483. 
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To prevent evidence from being suppressed under this 

doctrine, the State must show that its evidence is untainted by 

the government’s purportedly unlawful act. See id. The State 

may do this by either showing that the police did not exploit 

the illegal activity to gather evidence, or by demonstrating 

that there is no causal link between the illegal activity and 

the evidence gathered. See Trinque, 140 Hawaiʻi at 281, 400 P.3d 

at 482. 

Yuen argues that the MPs’ actions resulted in his continued 

detention until HPD officers arrived, and the MPs’ statements 

identifying him as the driver of Unit 1 resulted in HPD officers 

conducting their own investigation based on a suspicion that 

Yuen was OVUII. 

2. Posse Comitatus Act 

Yuen’s Article I, Section 7 claim is tied to his PCA claim. 

The PCA is codified at 18 U.S.C. § 1385, which provides: 

§ 1385. Use of Army, Navy, Marine Corps, Air Force, and Space

Force as posse comitatus

Whoever, except in cases and under circumstances 

expressly authorized by the Constitution or Act of 

Congress, willfully uses any part of the Army, the 

Navy, the Marine Corps, the Air Force, or the Space 

Force as a posse comitatus or otherwise to execute 

the laws shall be fined under this title or 

imprisoned not more than two years, or both.

Per Black’s Law Dictionary (11th ed. 2019), “posse comitatus” is 

defined as “[a] group of citizens who are called together to 
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help the sheriff keep the peace or conduct rescue operations. — 

Often shortened to posse.” 

 As can be seen, the plain language of the PCA imposes 

criminal penalties on a military violator. It appears, however, 

that no one has been so prosecuted and that federal courts do 

not apply the exclusionary rule for PCA violations. United 

States v. Eleuterio, Case No. 3:21-cr-0001, 2024 WL 1620383, *1, 

at *3 (D.V.I. April 15, 2024) (“In particular, federal courts 

have overwhelmingly refused to impose the extraordinary remedy 

of the exclusionary rule for a violation of the PCA.”). 

Under Hawaiʻi law, however, evidence obtained in violation 

of the PCA and “then proferred in criminal proceedings against 

[a defendant] must be suppressed under the authority of this 

court’s supervisory powers in the administration of criminal 

justice in the courts of our state.” Pattioay, 78 Hawaiʻi at 

469, 896 P.2d at 925. Thus, evidence not shown to have been of 

such a manner consistent with a military function or purpose 

under the PCA is not admissible. 78 Hawaiʻi at 470, 896 P.2d at 

926. 

Also relevant is Brune v. Administrative Director of 

Courts, 110 Hawaiʻi 172, 130 P.3d 1037 (2006), in which a Navy 

lieutenant petitioned for judicial review of the administrative 
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revocation of his driver’s license, after his arrest on a Naval 

reservation by a Navy civilian police officer. We stated: 

In Pattioay, it was stated that “[w]here the target of a 

military investigation is a civilian and there is no

verified connection to military personnel, the PCA 

prohibits military participation in activities designed to 

execute civilian laws.” 78 Hawaiʻi at 464, 896 P.2d at 920 

(emphasis added). In that case, the prosecution argued that 

State v. Hayes, 102 N.C.App. 777, 404 S.E.2d 12 (1991), 

should control. Pattioay, 78 Hawaiʻi at 463–64, 896 P.2d at 

919–20. In Hayes, the North Carolina Court of Appeals held 

that the PCA was not violated when military investigators 

assisted local law enforcement officers in arresting an 

absent-without-official-leave soldier. 404 S.E.2d at 14–15. 

This court, in Pattioay, found Hayes to be clearly 

distinguishable because the defendant was a member of the 

military. Pattioay, 78 Hawaiʻi at 464, 896 P.2d at 911.

Thus the restrictions of the PCA do not appear to apply in 

the instant case as Appellant is a member of the military 

and was arrested on the Pearl Harbor Naval reservation. See

United States v. Thompson, 33 M.J. 218, 220–21 (C.M.A.1991) 

(concluding that the PCA was not violated when military 

agents accompanied local law enforcement agents to the offbase home of a senior airman with the U.S. Air Force to 

search the apartment and seize stolen property); cf. United

States v. Griley, 814 F.2d 967, 976 (4th Cir.1987) (stating 

that “[i]t is well settled that military investigators may 

look into violations of civil law that occur on military 

bases, or within military operations” and holding that the 

PCA was not violated when a civilian defendant’s home 

located on a military base was searched by a Federal Bureau 

of Investigation special agent and a military investigator 

for stolen property when it was not known whether the thief 

was a military employee or a civilian (internal citations 

omitted)). We thus agree with the reasoning of the North 

Carolina Court of Appeals in this respect.

Brune, 110 Hawaiʻi at 179, 130 P.3d at 1044 (emphases added). 

 Thus, it appears that while the PCA allows military 

personnel to investigate violations of civil law occurring on 

military bases, where the target of a military investigation is 

a civilian and there is no verified connection to military 

personnel or military operations or purposes, the PCA prohibits 
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and restricts military participation in activities designed to 

execute civilian laws.13 

 The dissent cites to a Court of Appeals of Alaska opinion 

that held there was no PCA violation when a military police 

officer arrested a civilian exhibiting symptoms of intoxication 

at a routine identification check at a military gate. 

Municipality of Anchorage v. King, 754 P.2d 283 (Alaska Ct. App. 

1988). That case is distinguishable, however, as the defendant 

was already at the gate of a military base and had been stopped 

for a routine military identification check. 754 P.2d at 284. 

The dissent’s reliance on United States v. Bennett, No. 8:11-CR00014-T-33AEP, 2011 WL 1690122, *1 (M.D. Fla. Apr. 19, 2011), is 

13 Military police training information available online contains the 

following:

Military law enforcement authorities have no general 

authority to apprehend a civilian off post, in the absence 

of an applicable state law. AR 190-30, paragraph 4-2a, 

states: "in Conus, incidents occurring off post normally 

are investigated by civil law enforcement agencies." As we 

shall see later, the military may, however, investigate a 

crime off post so long as there is a "direct" military 

interest in it (CIDR 195-1, paragraph 2-2c). In other 

words, the investigation must "satisfy ARMY investigative 

needs in a criminal matter of ARMY interest." Such actions 

are not in violation Posse Comitatus Act (AR 195-2, 

Paragraph 3-1b). The authority to investigate does not 

confer a general authority to apprehend civilians off-post.

 

See Determine Investigative Responsibility/Jurisdiction

https://rdl.train.army.mil/catalog-ws/view/100.ATSC/D7D82012-83C4-4788-9279-

807097158E5B-1308937282846/mp1018/lsn1.htm [https://perma.cc/GAJ8-ZNSL] 

It appears the district court had concerns regarding potential 

violations of the PCA, as it sua sponte excluded any evidence regarding the 

MPs’ actions or statements. 
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also misplaced, as it involved the detention of an intoxicated 

person who had also already entered the gate area of a military 

base. 

The Ninth Circuit has held that there is no PCA violation 

where there is an independent military purpose. See, e.g., 

United States v. Chon, 210 F.3d 990, 994 (9th Cir. 2000).14

Here, the accident did not take place on a military base and 

there is no indication in the record that Yuen is a member of 

the military.15 The record does not reflect how many lanes led 

to the HAFB O’Malley Gate and whether the vehicles were blocking 

traffic or posed a risk to others. Because no motion to 

suppress was filed and the MPs did not testify, no military 

purpose was argued and no counter-arguments to any such 

14 Chon involved recovery of military equipment, and it says: 

Other courts have relied on the military purpose exception 

to sanction military assistance in law enforcement 

activities where the illegal acts were perpetrated by 

military personnel or where civilians committed illegal 

acts on military bases. See e.g. Applewhite v. United

States Air Force, 995 F.2d 997, 1001 (10th Cir. 1993)

(holding that the military may investigate illegal drug 

transactions by active duty military personnel); United

States v. Banks, 539 F.2d 14, 16 (9th Cir. 1976) (allowing 

military personnel to act upon on-base violations of civil 

law committed by civilians); United States v. Thompson, 30 

M.J. 570, 574 (1990) (allowing military jurisdiction over a 

military member who stole both civilian and military 

property).

Chon, 210 F.3d at 994. 

15 Arising out of this MVC, Yuen was also cited for Delinquent Vehicle Tax 

in 1DTI-18-181085. His ticket indicates “No” for “Military Service.” 
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arguments could have been made or considered.16 The record also 

does not reflect how much time lapsed between the MVC and the 

arrival of HPD officers. 

The dissent also cites to a Department of Defense (DOD) 

policy, DOD Instruction no. 3025.21, to justify the MPs’ 

actions. Hawaiʻi state courts are bound by United States Supreme 

Court interpretations of federal law but are not bound by DOD 

interpretations of the PCA. See James v. City of Boise, 577 

U.S. 306, 307 (2016) (per curiam); State Bank of Cherry v. CGB 

Enters., 984 N.E.2d 449, 458 (Ill. 2013). Moreover, this policy 

is titled “Defense Support of Civilian Law Enforcement 

Agencies.” Section (4)(a) defining the general policy says the 

“DoD shall be prepared to support civilian law enforcement 

agencies consistent with the needs of military preparedness of 

the United States, while recognizing and conforming to the legal 

limitations on direct DoD involvement in civilian law 

enforcement activities.” While this policy provides that DoD 

“[a]ctions taken for the primary purpose of furthering a DoD . . 

. function of the United States, regardless of incidental 

benefits to civil authorities” are permissible, it also makes 

16 The dissent would determine on appeal that an independent military 

purpose exists under the facts of this case, even though the issue was never 

addressed by the trial court below based on the lack of a motion to suppress. 

If the State argues an independent military purpose on remand, Yuen would 

have an opportunity to present opposing arguments. 

 
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clear that “[t]his does not include actions taken for the 

primary purpose of aiding civilian law enforcement officials or 

otherwise serving as a subterfuge to avoid the restrictions of 

the Posse Comitatus Act.” Instruction 3025.21 (2013), 

https://www.hsdl.org/c/view?docid=732255 [https://perma.cc/SW8X426U] (emphasis added). 

Here, the record does not contain any general request from 

HPD that MPs investigate possible state traffic law violations 

outside military bases or any suggestion that HPD specifically 

requested that MPs investigate, test, and apprehend Yuen. The 

MPs’ initial approach and investigation of the scene to see who 

was involved, check injuries, and ensure there was no one 

involved intending harm to HAFB would arguably be considered an 

independent military purpose, as suggested by the dissent. 

However, the MPs’ subsequent actions of initiating a PAS and 

SFST, then detaining Yuen as a result, was a step too far and 

constituted an “intrusion into civilian matters” as proscribed 

by the PCA. The proper response would have been to call local 

authorities and let them handle it from there as there was no 

evidence Yuen, or anyone else involved, posed a danger to the 

base, was attempting to enter the base, or flee the scene after 

the crash. The record also does not support that there were 
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other exigent circumstances requiring further MP involvement 

before the arrival of HPD. 

The dissent posits that Pattioay is factually 

distinguishable. Pattioay, however, clearly requires exclusion 

of evidence brought forth by military officers in violation of 

the PCA offered in a civilian criminal investigation. 78 Hawaiʻi 

at 470, 896 P.2d at 926. Even if the district court struck most 

of the HPD officer testimony regarding statements MPs made at 

the scene, the “fruit of the poisonous tree” doctrine would 

prohibit the use of evidence at trial which comes to light as a 

result of the exploitation of a previous illegal act of law 

enforcement. 

At bottom, ineffective assistance only requires possible 

impairment of a potentially meritorious defense. Based on this 

record, trial counsel was ineffective in not filing a motion to 

suppress, which could have resulted in all subsequent evidence 

being suppressed as fruit of the poisonous tree. There was a 

possible impairment of a potentially meritorious defense. 

B. Where ineffective assistance is clear from the existing 

record, it is inappropriate to defer a ruling to a Rule 40 

petition; also, appellate courts should order service of 

ineffective assistance claims on trial counsel where 

appellate counsel has failed to do so 

As noted, despite deeming the existing record insufficient 

to establish ineffective assistance, the ICA indicated Yuen had 
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a colorable claim based on trial counsel’s failure to file a 

motion to suppress and that a factual record could be developed 

at a Rule 40 hearing. Thus, the ICA affirmed Yuen’s conviction 

without prejudice him filing a Rule 40 petition. 

As explained, we disagree with the ICA that the existing 

record was insufficient to establish ineffective assistance. 

The ICA also noted, however, that it found the record 

insufficiently developed due to appellate counsel’s initial 

failure to serve trial counsel with the ineffective assistance 

claim asserted on appeal, as required by HRAP Rule 28(a). To 

provide trial counsel an opportunity to respond, along with 

acceptance of certiorari, we required Yuen’s appellate counsel 

to serve trial counsel as required by HRAP Rule 28(a). We 

provided trial counsel with thirty days to respond; no response 

was filed. 

Not addressing ineffective assistance claims on the basis 

of lack of service on trial counsel, however, can prejudice a 

defendant.17 Further, HRPP Rule 40(a) expressly provides that it 

17 It takes significant time after affirmance of a conviction on final 

appeal for a HRPP Rule 40 petition to be filed and resolved. In addition, 

allowing a Rule 40 petition instead of addressing an issue on direct appeal 

can also be detrimental to a defendant because defendants are not 

automatically entitled to counsel when they bring Rule 40 petitions. Only if 

a court finds a “colorable claim” will counsel be appointed. In contrast, 

our case law recognizes a criminal defendant’s right to counsel on appeal and 

on certiorari. See State v. Uchima, 147 Hawaiʻi 64, 464 P.3d 852 (2020). 
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“shall not be construed to limit the availability of remedies . 

. . on direct appeal.” 

Based on our supervisory powers under HRS § 602-4 (2016),18

we therefore hold that if new appellate counsel on direct appeal 

fails to serve an ineffective assistance claim on trial counsel, 

the appellate court must order counsel to do so and provide 

trial counsel with a reasonable opportunity to respond. The 

appellate court is to address the ineffective assistance claim 

based on the record after that opportunity has been provided 

instead of denying an ineffective assistance claim without 

prejudice to a HRPP Rule 40 petition.19 

C. Substantial evidence 

Finally, we must also address the second issue on 

certiorari alleging insufficient evidence. See Davis, 133 

Hawaiʻi at 118, 324 P.3d at 928. “On appeal, the test for a 

claim of insufficient evidence is whether, viewing the evidence 

in the light most favorable to the State, there is substantial 

evidence to support the conclusion of the trier of fact.” State 

v. Matias, 74 Haw. 197, 207, 840 P.3d 374, 379 (1992) (cleaned 

18 § 602-4 Superintendence of inferior courts. The supreme court shall 

have the general superintendence of all courts of inferior jurisdiction to 

prevent and correct errors and abuses therein where no other remedy is 

expressly provided by law.

19 The Standing Committee to Review the Hawaiʻi Rules of Appellate 

Procedure may wish to consider an appropriate amendment to HRAP Rule 28(a).
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up). “It matters not if a conviction under the evidence as so 

considered might be deemed to be against the weight of the 

evidence so long as there is substantial evidence tending to 

support the requisite findings for the conviction.” Id. 

(cleaned up). “Substantial evidence is credible evidence which 

is of sufficient quality and probative value to enable a 

[person] of reasonable caution to reach a conclusion.” Id. 

(cleaned up). 

 We agree with the ICA’s analysis of this issue. The ICA 

did not err in concluding that the testimony of Officers Peter 

and Laganse constituted sufficient circumstantial evidence to 

support a finding that Yuen operated Unit 1. 

V. Conclusion 

For the foregoing reasons, we vacate the ICA’s October 18, 

2023 judgment on appeal, only as to its affirmance of Yuen’s 

OVUII conviction and sentence, as well as the Honolulu Division 

of the District Court of the First Circuit’s December 11, 2019 

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

as to Yuen’s OVUII conviction and sentence. Judgment is to 

enter accordingly. 

Alen M.K. Kaneshiro /s/ Sabrina S. McKenna 

for petitioner 

 /s/ Todd W. Eddins 

Brian R. Vincent 

for respondent /s/ Vladimir P. Devens