State v. Purtzer

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-JAN-2021
07:58 AM
Dkt. 53 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
BRENNAN KYLE PURTZER, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HONOLULU DIVISION)
(CASE NO. 1DTA-19-00488)

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

Defendant-Appellant Brennan Kyle Purtzer (Purtzer)

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

Plea/Judgment (Judgment), entered on October 15, 2019, by the

District Court of the First Circuit, Honolulu Division (District

Court).1

1
The Honorable Russell Nagata presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Purtzer was convicted of Operating a Vehicle Under the

Influence of an Intoxicant (OVUII), in violation of Hawaii

Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2019).2

Purtzer raises two, related, points of error on appeal,

contending that: (1) the District Court clearly erred in finding

that Purtzer was operating a vehicle under the influence of

alcohol in an amount sufficient to impair his normal mental

faculties or ability to care for himself and guard against

casualty; and (2) there was insufficient evidence to convict

Purtzer of OVUII.

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 Purtzer's points of error as follows:

Purtzer contends that the evidence at trial was

insufficient to show that he was intoxicated to the point where

his normal mental faculties or ability to care for himself and

guard against casualty were impaired. Accordingly, he submits

2
HRS § 291E-61(a) 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[.]

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that we should conclude that there is insufficient evidence to

support his conviction.

It is well-established that the evidence adduced at

trial must be considered in the strongest light for the

prosecution. State v. Matavale, 115 Hawai#i 149, 157-58, 166

P.3d 322, 330-31 (2007). "[E]ven if it could be said [] that the

conviction is against the weight of the evidence, as long as

there is substantial evidence to support the requisite findings

for conviction, the trial court will be affirmed." State v.

Xiao, 123 Hawai#i 251, 257, 231 P.3d 968, 974 (2010) (citation

omitted).

In conjunction with his argument, Purtzer contends that

the District Court erred in its oral findings when it found that,

when Purtzer turned left after exiting the freeway, he crossed

the solid line a "couple times" before going back in his lane.

This finding is clearly erroneous because it is not supported by

the evidence. Honolulu Police Department (HPD) Officer James

Baik (Officer Baik) testified as to his observations of Purtzer's

driving, including that he saw Purtzer's vehicle, which was

headed westbound on the Moanalua Freeway, "completely cross[]

over" the center median dividing the Pu#uloa exit and the freeway

without signaling to get on the Pu#uloa exit. The median was

about a "one-lane width" and marked with solid diagonal lines.

Officer Baik testified that Purtzer thereafter made a "wide left"

turn onto Jarrett White Road; during the turn, Purtzer's right

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tires crossed a solid line by about a "couple feet" before he

"immediately jerked back" into his lane. Purtzer then turned

right onto Salt Lake Boulevard without signaling. Officer Baik

did not testify that Purtzer crossed the solid line more than

once. There is no other evidence related to this finding.

Therefore, we conclude that the District Court clearly erred in

finding that, when Purtzer turned left after exiting the freeway,

he crossed the solid line a "couple times" before going back in

his lane.

The Hawai#i Supreme Court has held that:
Error is not to be viewed in isolation and considered
purely in the abstract. It must be examined in light
of the entire proceedings and given the effect to
which the whole record shows it is entitled. In that
context, the real question becomes whether there is a
reasonable possibility that error might have
contributed to conviction. If there is such a
reasonable possibility in a criminal case, then the
error is not harmless beyond a reasonable doubt, and
the judgment of conviction on which it may have been
based must be set aside.

State v. Roman, 119 Hawai#i 468, 477, 199 P.3d 57, 66 (2008)

(citation omitted).

Here, the District Court expressly based its finding of

guilt on the "totality of the evidence" presented and "the

totality of the circumstances." The District Court found both

testifying officers to be credible, but acknowledged that their

testimonies were different in some regards, stating: "As to how

they individually viewed the events that day may be different

views, but both were credible. But they may have viewed the

events differently." The District Court also said it was not

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"going to consider" some of Officer Baik's testimony because the

court believed Purzter's explanation as to why he rested his

hands on the vehicle door when Purtzer exited the vehicle. In

light of the District Court's explanation for its determination

of guilt based on the totality of the evidence, we cannot

conclude that the District Court's erroneous finding as to

Purtzer's driving irregularities was harmless beyond a reasonable

doubt.

We must nevertheless address Purtzer's express claim of

insufficiency of the evidence. See State v. Davis, 133 Hawai#i

102, 120, 324 P.3d 912, 930 (2014).

In addition to the testimony noted above, Officer Baik

testified that during the traffic stop, Officer Baik detected a

"strong smell of alcohol" coming from Purtzer's vehicle,

Purtzer's eyes were "red and glassy," and Purtzer told the

officer that he was coming from a club or bar in Waikîkî where he

had a drink.

HPD Officer Garrett Elliott (Officer Elliott) testified

that he noted a "strong odor of alcohol" when he spoke to Purtzer

and that Purtzer had "glassy eyes." On cross-examination,

Officer Elliott testified that Purtzer's eyes were not red,

bloodshot, or watery. Officer Elliott administered a

standardized field sobriety test to Purtzer. During a

horizontal gaze nystagmus test, Purtzer kept moving his head,

which was contrary to Officer Elliott's instructions to keep his

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chin in place. When Officer Elliott instructed Purtzer to stand

with his right foot in front of his left for the walk-and-turn

test's instructional phase, Purtzer "had difficulty trying to

figure out which was left and which was right" and took about

three tries to get into the correct position. Purtzer broke that

stance after about three seconds, and began the test early.

Contrary to Officer Elliott's instructions, Purtzer's first nine

steps were not in line and he held out his arms, he turned by

spinning on the tips of his toes, and his nine steps back touched

heel to toe "only on the corners" and his arms extended from his

side. During a one-leg-stand test, contrary to Officer Elliott's

instructions, Purtzer swayed left to right, held his arms out

more than six inches from his side, dropped his foot after about

15 seconds, took about 10 more seconds for "a breather" before

raising it again, and kept his foot pointed up instead of

parallel to the ground.

On appeal, Purtzer notes that both officers testified

that Purtzer did not exhibit any slurred speech, that he did not

appear to be unsteady on his feet when he walked, and that

neither officer offered lay opinion testimony that Purtzer was

intoxicated. Purtzer also offered evidence that the exit was

poorly designed and that he was unfamiliar with it (as he was

from out of town), as an explanation for his unlawful maneuver

when he exited the freeway.

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We nevertheless conclude that when the evidence adduced

at trial is considered in the light strongest for the

prosecution, there was substantial evidence to convict Purtzer of

OVUII.

For these reasons, the District Court's October 15,

2019 Judgment is vacated, and this case is remanded to the

District Court for a new trial.

DATED: Honolulu, Hawai#i, January 26, 2021.

On the briefs:
/s/ Lisa M. Ginoza
William H. Jameson, Jr., Chief Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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