NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER


NO. 29052





IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I





STATE OF HAWAI‘I, Plaintiff-Appellee, v.
JERMAINE KEOKI TURNER, Defendant-Appellant





APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(HPD Traffic No. 1DTA-07-13092)





SUMMARY DISPOSITION ORDER
(By: Watanabe, Presiding Judge, Foley and Fujise, JJ.)

Defendant-Appellant Jermaine Keoki Turner (Turner) appeals from the Judgment filed on February 13, 2008 in the District Court of the First Circuit, Ewa Division (district court). (1)

Turner was convicted of Operating a Vehicle Under the Influence of an Intoxicant, in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1)(2007) and Excessive Speeding, in violation of HRS § 291C-105(a)(1) and/or (a)(2)(Supp. 2007). Turner appeals from his conviction for Excessive Speeding only.

On appeal, Turner contends that (1) the district court erred by admitting Officer Leony Macapagal's (Officer Macapagal) testimony about the results of the speed check, (2) the district court erred when it ruled that sufficient foundation had been laid for the speedometer reading evidence, and (3) there was insufficient evidence to convict Turner of Excessive Speeding.

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 Turner's points of error as follows:

The district court erred by admitting Officer Macapagal's testimony regarding the results of the speed check card without actual admission of the speed check card into evidence because it was hearsay and violated the best evidence rule. State v. Kreidler, 122 S.W.3d 646, 649-51 (Mo. Ct. App. 2003); State v. Muck, 262 Kan. 459, 462-64, 939 P.2d 896, 899-900 (1997), Hawaii Rules of Evidence Rule 1002 and 1003.

The district court did not err by admitting Officer Macapagal's testimony regarding his personal observation of his speedometer. State v. Ing, 53 Haw. 466, 467-68, 497 P.2d 575, 577 (1972).

There was insufficient evidence to convict Turner of Excessive Speeding without admissible evidence as to the accuracy of Officer Macapagal's speedometer. Ing, 53 Haw. at 471-72, 497 P.2d at 579; People v. Dusing, 5 N.Y.2d 126, 128, 181 N.Y.S.2d 493, 495 (1959);

Therefore,

The Judgment filed on February 13, 2008 in the District Court of the First Circuit, Ewa Division, is reversed.

DATED: Honolulu, Hawaii, December 1, 2008.


On the briefs:

Timothy I. MacMaster,
for Defendant-Appellant.

Anne K. Clarkin,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.




1.      The Honorable James Dannenberg presided.