State v. Rabellizsa

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-DEC-2020
07:47 AM
Dkt. 55 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
DICKIE RABELLIZSA, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(WAIANAE DIVISION)
(CASE NO. 1DTC-19-015651)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendant-Appellant Dickie Rabellizsa (Rabellizsa)

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

Plea/Judgment (Judgment) entered on November 4, 2019, in the

District Court of the First Circuit, Wai#anae Division (District

Court).1 After a bench trial, the District Court convicted

Rabellizsa of one count of Excessive Speeding, in violation of

1
The Honorable Michelle N. Comeau presided.
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Hawaii Revised Statutes (HRS) § 291C-105(a)(1) and/or (a)(2)

(2007).2

Rabellizsa raises a single point of error on appeal,

contending that the District Court erred in allowing Honolulu

Police Department Officer Steven A.Y. Chun's (Officer Chun's)

testimony as to a radar speed reading because the State failed to

lay sufficient foundation, and therefore, there was insufficient

evidence to convict Rabellizsa.

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 Rabellizsa's point of error as follows:

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HRS § 291C-105 provides, in relevant part:

§ 291C-105 Excessive speeding. (a) No person shall
drive a motor vehicle at a speed exceeding:

(1) The applicable state or county speed limit by
thirty miles per hour or more; or

(2) Eighty miles per hour or more irrespective of
the applicable state or county speed limit.

(b) For the purposes of this section, "the
applicable state or county speed limit" means:

(1) The maximum speed limit established by county
ordinance;

(2) The maximum speed limit established by official
signs placed by the director of transportation
on highways under the director's jurisdiction;
or

(3) The maximum speed limit established pursuant to
section 291C-104 by the director of
transportation or the counties for school zones
and construction areas in their respective
jurisdictions.

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To lay an adequate foundation for the speed reading

from a laser device, the State must demonstrate that: (a) the

accuracy of the laser device was tested according to the

manufacturer's recommended procedures; and (b) "the nature and

extent of an officer's training in the operation of a laser

[device met] the requirements indicated by the manufacturer."

State v. Assaye, 121 Hawai#i 204, 213-15, 216 P.3d 1227, 1236-38

(2009). To meet the training prong, "the prosecution must

establish both (1) the requirements indicated by the

manufacturer, and (2) the training actually received by the

operator of the laser gun." State v. Gonzalez, 128 Hawai#i 314,

327, 288 P.3d 788, 801 (2012).

Officer Chun testified that he measured Rabellizsa's

speed at 83 miles per hour using his Stalker Radar device, which

is installed in his vehicle. Officer Chun testified that he

received classroom training, as well as training in his vehicle,

and that he was tested on how to set up, test, and use the

device. He testified that he received his training from Steve

Hocker (Hocker), who is a representative from Stalker, and that

the training was specific to the Stalker Radar device (as well as

the Stalker Lidar, which is a handheld unit). Office Chun stated

that Hocker provided a written manual for the radar device during

the training and that the device manufacturer was Applied

Concepts. Officer Chun was asked whether that was the same name

as on the manual he was given, but after an objection (which was

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overruled), no answer was recorded in the transcript. The next

questions pertained to whether the manual provided specific

training, procedures or requirements necessary to use the radar

device, and Officer Chun's awareness of the procedures and

requirements in the manual. Further questions regarding Officer

Chun's training regarding the Stalker Radar device were asked and

answered, including questions as to the training he received to

ensure that the device was functioning accurately, as well as the

training that a person must receive to use the radar device.3

Officer Chun was specifically asked whether the

training he was given was "provided by the manufacturer" and,

without objection, he answered yes. He was asked how he knew

this and, without objection, he responded that he was told that

by the instructor and it was in the manual. Further testimony

was given regarding the specific training.

Later in his testimony, Officer Chun was asked more

specifically about the trainer and he testified that Hocker was a

representative from Stalker, which is the company that provides

the Stalker Radar units from Applied Concepts. Officer Chun

testified that Hocker provided him with an instructor

certificate, and a photo identification of the instructor

(Hocker), and that the instructor's certificate stated that he

3
Officer Chun was also examined on the manufacturer's recommended
procedures for testing the device and Officer Chun's testing of the device in
accordance with those procedures.

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(Hocker) is an instructor from Applied Concepts and that he is an

instructor for the specific radar device at issue in this case.

Officer Chun further testified that, although the

device is installed in his vehicle and connects to the vehicle's

speedometer, it obtains speeds using an antenna and measures

speed based on its own, independent, software and the device gets

recalibrated or updated by the manufacturer every three years.

In reference to the date of the speeding incident, Officer Chun

was asked whether his radar device had been calibrated within the

three years; he responded affirmatively, that it had.

On appeal, Rabellizsa contends that there was

insufficient foundation laid because there was no testimony on

(a) whether the manual was created and endorsed by the

manufacturer, Applied Concepts – referencing the above-referenced

lack of response in the transcript to the question about the name

on the manual – and (b) whether the manufacturer recommends

training through the manual, the instructor, or both, in order to

operate and test the radar device. Rabellizsa also argues on

appeal – although he did not object to a lack of foundation on

this basis in the District Court – that the State failed to

establish that the Stalker Radar device was properly calibrated

by Applied Concept's service representative.

"When a question arises regarding the necessary

foundation for the introduction of evidence, the determination of

whether proper foundation has been established lies within the

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discretion of [district court], and its determination will not be

overturned absent a showing of clear abuse." Assaye, 121 Hawai#i

at 210, 216 P.3d at 1233 (citations, internal quotation marks and

brackets omitted).

Based on our review of the entirety of Officer Chun's

testimony, we conclude that the District Court did not abuse its

discretion in determining that the State carried its burden to

establish that the training provided through the instruction of

Hocker and pursuant to the manual were the requirements indicated

by the manufacturer, and that the training received by Officer

Chun was pursuant to the manufacturer's requirements. See

Gonzalez, 128 Hawai#i at 327, 288 P.3d at 801. We further

conclude, based on our review of the entire record, that the

State established that the radar device's accuracy was tested

according to the procedures recommended by the manufacturer, and

the District Court did not plainly err with respect to

calibration of the radar device. In addition to Officer Chun's

testimony that his radar device had been calibrated by the

manufacturer within the three years recommended by the

manufacturer, Officer Chun testified as to his training and

execution of the use of two tuning forks and other tests used to

test the accuracy of the radar device, in accordance with the

manufacturer's recommendations. See State v. Tailo, 70 Haw. 580,

583, 779 P.2d 11, 13 (1989) (explaining that a special tuning

fork can be used to check the calibration of a radar device;

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"[t]he tuning fork is specially tuned to vibrate at a frequency

equal to the Doppler frequency for some set speed stamped into

the handle of the fork"). Accordingly, we conclude that the

District Court did not abuse its discretion in determining that a

proper foundation was laid and in admitting the speed reading

from the radar device in this case.

For these reasons, the District Court's November 4,

2019 Judgment is affirmed.

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

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Andrew I. Kim,
Deputy Public Defender, /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge

Sonja P. McCullen, /s/ Keith K. Hiraoka
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.

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