State v. McCormick

151 Hawai‘i 327

511 P.3d 826 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v.Kyle P. MCCORMICK, Defendant-Appellant

NO. CAAP-21-0000294

Intermediate Court of Appeals of Hawai‘i.

June 28, 2022

On the briefs:

Amber P. Boll, Deputy Public Defender, for Defendant-Appellant.

Loren J. Thomas, Deputy Attorney General, for Plaintiff-Appellee.

(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)

SUMMARY DISPOSITION ORDER

Defendant-Appellant Kyle P. McCormick (McCormick ) appeals from the March 31, 2021 Notice of Entry of Judgment and/or Order and Plea/Judgment (Judgment ), entered by the District Court of the First Circuit, Wai‘anae Division¹ (District Court ), convicting him of Reckless Driving, in violation of Hawaii Revised Statutes (HRS ) § 291-2.² McCormick contends the evidence is insufficient to support the conviction because Plaintiff-Appellee State of Hawai‘i (State ) failed to show that he consciously disregarded a substantial and unjustifiable risk to the safety of persons or property to indicate a reckless state of mind.

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, we affirm for the following reasons.

In a sufficiency-of-the-evidence challenge, we consider the evidence in the strongest light for the prosecution; "[t]he test on appeal is not whether guilt is established beyond a reasonable doubt, but whether there was substantial evidence to support the conclusion of the trier of fact." State v. Matavale, 115 Hawai‘i 149, 157-58, 166 P.3d 322, 330-31 (2007). "[E]ven if ... the conviction is against the weight of the evidence," we will affirm "as long as there is substantial evidence to support the requisite findings for conviction ...." Id. at 158, 166 P.3d at 331. " ‘Substantial evidence’ as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id. (brackets omitted).

The Hawai‘i Supreme Court held in State v. Agard,

(1) the reckless state of mind definition under HRS § 702-206(3) (1993) applies to the reckless driving statute, HRS § 291-2 ; (2) in determining whether an identified risk is substantial and unjustifiable under HRS § 702-206(3), the nature and degree of the risk disregarded by the actor, the nature and purpose of his conduct, and the circumstances known to him in acting must be weighed; (3) in this case a reckless state of mind can be inferred from the circumstances to conclude that there was conscious awareness of a substantial and unjustifiable risk to the safety of others and property on the part of Respondent; and (4) deference must be given to the trier of fact with respect to questions of credibility and weight of the evidence.

113 Hawai‘i 321, 322, 151 P.3d 802, 803 (2007). HRS § 702-206(3) (2014) defines "recklessly" as follows:

(a) A person acts recklessly with respect to his conduct when he consciously disregards a substantial and unjustifiable risk that the person's conduct is of the specified nature.

(b) A person acts recklessly with respect to attendant circumstances when he consciously disregards a substantial and unjustifiable risk that such circumstances exist.

(c) A person acts recklessly with respect to a result of his conduct when he consciously disregards a substantial and unjustifiable risk that his conduct will cause such a result.

(d) A risk is substantial and unjustifiable within the meaning of this section if, considering the nature and purpose of the person's conduct and the circumstances known to him, the disregard of the risk involves a gross deviation from the standard of conduct that a law-abiding person would observe in the same situation.

At trial, Sergeant Cullen Kau (Sergeant Kau ) testified that: at approximately 6:35 p.m., McCormick drove 101 miles-per-hour (MPH ) in a 60 MPH zone on the H-1 freeway; he did not reduce his speed even after passing by Sergeant Kau; Sergeant Kau eventually caught up to McCormick as McCormick sped up to the vehicles ahead of McCormick "over a thousand feet away" that were in all three lanes of the freeway; McCormick "slowed down a little bit" as McCormick "got up right behind" the middle car, causing the car to move out of McCormick's way; McCormick did not stop or slow down even though Sergeant Kau was following McCormick with the lights and siren on; Sergeant Kau went into the fast lane to pull abreast of McCormick's driver's side window as McCormick was in the middle lane; at that point, while still driving, McCormick flashed an I.D. at Sergeant Kau as they traveled side by side; Sergeant Kau verbally told McCormick to pull over and McCormick did so. Kau cited McCormick for Reckless Driving "[b]ecause of the amount of speed and when [McCormick] caught up to the vehicles, he just went up to the cars until they moved out of the way. And he basically pushed the car out of the way by coming up behind him."

In finding McCormick guilty, the District Court found that Sergeant Kau credibly testified to McCormick's high rate of speed; it took Sergeant Kau "several seconds to catch up to" McCormick, who had not "slowed down at any point"; a car had to move out of McCormick's way to let him pass; Sergeant Kau tried to pull McCormick over...