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State v. Lioen11/24/2004
Defendant-Appellant Kevin James Lioen (Lioen) appeals his conviction for driving while his license remained suspended or revoked for driving under the influence of intoxicating liquor or drugs (DWLSR-DUI) in violation of Hawaii Revised Statutes (HRS) § 291-4.5 (1993 and Supp.1998). Lioen was convicted after a bench trial on April 3, 2002, before Judge Douglas H. Ige, District Court of the Second Circuit (district court). Judge Ige entered the Judgment on April 17, 2002. [FN1]
FN1. District Court Judge Douglas H. Ige also found Defendant-Appellant Kevin James Lioen (Lioen) guilty of operating or using a motor vehicle without insurance in violation of Hawaii Revised Statutes (HRS) § 431:10C-104(a) (Supp.1998). Lioen does not appeal this conviction.
This appeal involves Lioen's third conviction for DWLSR-DUI. He was previously convicted of DWLSR-DUI on October 15, 1997, and May 30, 2001. To avoid confusion, we will refer to the case resulting in the October 15, 1997, conviction as the "first" DWLSR-DUI prosecution or conviction; the case resulting in the May 30, 2001, conviction as the "second" DWLSR-DUI prosecution or conviction; and the case resulting in the April 17, 2002, conviction, which is challenged in this appeal, as the "third" or the "present" DWLSR-DUI prosecution or conviction.
On appeal, Lioen contends that his third DWLSR-DUI conviction should be reversed or vacated because 1) Judge Ige should have sua sponte recused himself because Judge Ige had presided over Lioen's second DWLSR-DUI conviction; 2) the State of Hawaii (the State) failed to prove that Lioen had the required mens rea with respect to the attendant circumstances of the DWLSR-DUI offense; 3) the trial court abused its discretion in admitting testimony pertaining to Lioen's second DWLSR-DUI conviction; and 4) the State failed to prove that Lioen had been driving. We reject each of Lioen's contentions and affirm the district court's Judgment.
BACKGROUND
A. The State's Trial Evidence.
On October 11, 2001, Maui Police Department Officer Keith Taguma was on patrol in Wailuku, Maui. At about 1:05 p.m., he saw a truck stopped in the middle of High Street, a two-lane roadway. The truck appeared to have stalled and was completely obstructing the northbound lane. Officer Taguma saw Lioen get out of the driver's side of the truck and start to push it, and Officer Taguma went over to help. Lioen told Officer Taguma that he had "just stalled out." Officer Taguma did not notice anyone else around the truck.
Officer Taguma and Lioen pushed the truck to an adjoining street, and Lioen got into the driver's seat and maneuvered the truck into a parking lot. While assisting Lioen, Officer Taguma began to wonder whether Lioen was the owner of the truck. Once the truck was parked, Officer Taguma asked Lioen for his driver's license, an insurance card, and the registration for the truck. Lioen was unable to produce these documents and admitted that he had no driver's license or insurance card. Lioen was evasive and Officer Taguma had to repeatedly question Lioen to get information from him.
Officer Taguma cited Lioen for driving without a license and without insurance. [FN2] He told Lioen not to move the truck unless Lioen could summon someone with a license or a tow truck. During his entire encounter with Officer Taguma, Lioen never claimed that he had been traveling in the truck with another person. After citing Lioen, Officer Taguma remained on patrol in the area for another hour, until about 2:00 p.m., and did not notice anyone approach the truck.
FN2. The State of Hawaii (the State) later filed an amended complaint charging Lioen with driving while his license remained suspended or revoked for driving under the influence of intoxicating liquor or drug
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