State v. Hoe (ICA February 25, 2010)
Background. Hoe was charged with consuming liquor while being under twenty-one years old (HRS § 281-101.5). At a bench trial, Maui High vice principal David Tanuvasa testified that during a school assembly he saw Hoe acting rowdy. Tanuvasa took him out of the assembly and put him in an office. Tanuvasa testified that he was familiar with the way people smell when they drink and testified that he could smell alcohol coming from Hoe. The principal of the school also testified that he was familiar with the smell of booze and that he went to the office and could smell alcohol emitting from Hoe. Officer Terry testified that he responded to the situation and that he was trained to detect the odor of alcohol. Officer Terry testified that he could smell alcohol on Hoe. Officer Terry attempted to administer a breath test on Hoe, but it failed. Officer Terry also testified that Hoe was unsteady on his feet, rowdy, and that he believed Hoe had consumed alcohol because he could smell it on him.
Circumstantial Evidence of Liquor Consumption is Sufficient. No minor shall consume liquor. HRS § 281-1. "Liquor" includes alcohol. HRS § 281-101.5(e). The ICA rejected Hoe's argument that there was insufficient evidence establishing that Hoe consumed liquor. The sufficiency of evidence is viewed in the light most favorable to the prosecution. State v. Ildefonso, 72 Haw. 573, 576, 827 P.2d 648, 651 (1992). "Substantial evidence" means that there was "credible evidence which is of sufficient quality and probative value to enable a [person] of reasonable caution to support a conclusion. And as trier of fact, the trial judge is free to make all reasonable and rational inferences under the facts in evidence including circumstantial evidence." State v. Batson, 73 Hawai'i 236, 248-49, 831 P.2d 924, 931 (1992).
The ICA held that there was sufficient circumstantial evidence establishing that Hoe had consumed liquor. "[I]t is elementary that a criminal case may be proved beyond a reasonable doubt on the basis of reasonable inferences drawn from circumstantial evidence." State v. Murphy, 59 Haw. 1, 19, 575 P.2d 448, 460 (1978). The State was not required, according to the ICA, to establish this element with direct testimony from a witness who saw Hoe consume liquor or evidence of Hoe's blood alcohol level. The smell of alcohol, and his rowdy behavior, was circumstantial evidence that allowed the trier of fact to infer that he had indeed consumed the liquor.
What is Circumstantial Evidence? This case reminds us a well-established principle: that circumstantial evidence can constitute the only evidence in proving elements to an offense. The ICA cites State v. Torres, where it held that there can be circumstantial evidence of a murder even when the State fails to provide a dead body. Standard jury instructions define circumstantial evidence as evidence that "permits a reasonable inference of the existence of another fact." Criminal HAWJIC Instruction 3.07. Similarly, the Hawai'i Supreme Court found no error this instruction: "Circumstantial evidence consists of proof of certain facts or circumstances from which a reasonable inference or deduction can be made that another fact is true." State v. Bush, 58 Haw. 340, 342 n. 3, 569 P.2d 349, 350 n. 3 (1977). This case nicely illustrates the principle of circumstantial evidence. The State established evidence that because booze could be smelled from Hoe the trier of fact can reasonably infer that he drank booze.
Who is Qualified to Smell Booze? The State's witnesses in this case generally testified about two things: (1) that they have dealt with intoxicated folks before and (2) that they could smell booze coming from Hoe. Hoe never objected to their past experiences with the consumption of alcohol and its related smells. What of that? How qualified does a person have to be in order to testify that they could smell booze coming from Hoe?