NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER


NO. 29479







IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I







STATE OF HAWAI‘I, Plaintiff-Appellee, v.
DANIEL F. ACEVEDO, Defendant-Appellant




APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
Wahiawa Division
(HPD TRAFFIC NO. 1DTC-08-061781)





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

Defendant-Appellant Daniel F. Acevedo (Acevedo) appeals the Judgment entered on October 21, 2008, in the District Court of the First Circuit, Wahiawa Division (district court). (1)

Acevedo was convicted of Excessive Speeding, in violation of Hawaii Revised Statutes § 291C-105(a)(1) (2007).

On appeal, Acevedo contends (1) the district court abused its discretion by denying his motion to compel discovery; (2) the district court erred in admitting evidence of the laser-gun reading where insufficient foundation for the accuracy of the laser-gun existed because: (a) the State failed to establish that the laser-gun used by Honolulu Police Officer Duke Zoller (Officer Zoller) had been tested according to the manufacturer's accepted procedures, and (b) the State failed to establish that Officer Zoller was qualified by training and experience to operate the laser-gun; and (3) the State failed to negate his justification defense.

The State contends that the motion to compel discovery was properly denied, that the testimony of Officer Zoller on direct examination is sufficient to convict Acevedo, and that sufficient evidence existed to negate a justification defense.

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 Acevedo's points of error as follows:

In this case, the record is sufficient to review Acevedo's point of error that the State failed to adduce sufficient evidence that the laser-gun was tested according to the manufacturer's recommended procedures in order to establish sufficient foundation for the laser-gun reading.

Officer Zoller did not testify that the laser-gun was tested in accordance with the manufacturer's specifications. Therefore, the State failed to adduce sufficient evidence regarding the accuracy of the laser-gun, and the laser-gun reading should not have been admitted into evidence. State v. Assaye, 121 Hawai‘i 204, 216 P.3d 1227 (2009). Without evidence of the laser-gun reading, there is insufficient evidence to convict Acevedo of Excessive Speeding. We need not address Acevedo's other points of error.

Therefore,

IT IS HEREBY ORDERED THAT the October 21, 2008 Judgment of the District Court of the First Circuit, Wahiawa Division, is reversed.

DATED: Honolulu, Hawai‘i, November 30, 2009.


On the briefs:

Setsuko Regina Gormley,
Deputy Public Defender,
for Defendant-Appellant.

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



1.      The Honorable Lono J. Lee presided.