State v. Macariola ( 2021 )


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    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    17-DEC-2021
    07:58 AM
    Dkt. 70 MO
    NO. CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    STATE OF HAWAI#I, Plaintiff-Appellee, v.
    ROSS K. MACARIOLA, JR., Defendant-Appellant
    APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
    (SOUTH KOHALA DIVISION)
    (CASE NO. 3DCW-XX-XXXXXXX)
    MEMORANDUM OPINION
    (By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
    Defendant-Appellant Ross K. Macariola (Macariola)
    appeals from the September 20, 2018 Judgment and Notice of Entry
    of Judgment (Judgment) entered against him by the District Court
    of the Third Circuit, South Kohala Division (District Court).1
    Macariola was convicted of Assault in the Third Degree
    under Hawaii Revised Statutes (HRS) § 707-712(1)(a)(2014)2
    (Assault Third) and sentenced to ten days of confinement with
    1
    The Honorable Mahilani E.K. Hiatt presided.
    2
    HRS § 707-712 provides, in pertinent part:
    § 707-712 Assault in the third degree. (1) A person
    commits the offense of assault in the third degree if the
    person:
    (a)   Intentionally, knowingly, or recklessly causes bodily
    injury to another person; or
    (b)   Negligently causes bodily injury to another person
    with a dangerous instrument.
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    eight days suspended and placed on probation for one year.         On
    appeal, Macariola requests that this court reverse the
    conviction.
    I.      BACKGROUND
    On May 2, 2018, the State of Hawai#i (State) filed a
    Complaint against Macariola, alleging that Macariola had
    "intentionally, knowingly or recklessly caused bodily injury to
    another person, RAYNARD TORRES [(Torres)], thereby committing the
    offense of Assault in the Third Degree, in violation of Section
    707-712(1)(a), [HRS]."
    During pretrial proceedings on August 7, 2018, the
    District Court stated that pretrial motions were due on or before
    August 23, 2018, and that responses to these motions, witness
    lists, and exhibit lists were due on September 13, 2018.         As
    discussed herein, both the State and District Court subsequently
    misstated the date that witness and exhibit lists were due.           On
    appeal, the parties concur that the deadline for witness and
    exhibit lists was September 13, 2018.
    On September 13, 2018, Macariola filed a witness list
    and a Notice of Intent to Offer Character Evidence (Notice) under
    Hawai#i Rules of Evidence (HRE) Rules 404(a)(2) and 404(b).
    Macariola's Notice indicated his intent to introduce evidence
    about Torres's prior criminal convictions, specifically, "an
    assault in 2007, a TRO violation in 2013, a harassment case in
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    2013, and a case of Abuse of a Family/Household Member in 2014;
    as well as evidence of his Promotion of Dangerous Drugs in 2008."
    Macariola's witness list named Harry Yim (Yim) as a
    defense witness, though it did not provide an address or any
    other contact information and stated that Yim's address was
    unknown.
    The District Court found the Notice was sufficient, but
    excluded the character evidence as irrelevant.           The District
    Court also denied Macariola's request to present Yim as a
    witness, as well as his request to continue the trial to permit
    the State to interview Yim.       The District Court's decision to
    preclude Yim's testimony was largely premised on both the State
    and District Court's mistaken belief that the witness list had
    not been filed in accordance with trial milestones.
    MS. BAILEY: Um, the State does not have that
    witness list in its file, but the deadline was August
    23rd, 2018. And pursuant to Rule 16, there also be --
    needs to be a way for, especially if the person's not
    identified in discovery, a way for the State to -- to
    contact that individual, and there was no contact
    information provided.
    . . . .
    THE COURT: Uh, my understanding, from review of
    the minutes3 and from the procedure, uh, that I've
    seen the Court follow, is that the pretrial motion
    deadline is the same as the witness and exhibit list
    deadline. The trial -- the -- the third -- the week
    before trial is the response to any pretrial motions.
    So if you filed your witness list on the 13th of September,
    that's past the deadline of the August 23rd, Mr. Miller.
    . . . .
    3
    The August 7, 2018 minutes read, in relevant part, "pretrial mot
    deadline 23-Aug-2018 witness/exhibit lists and response deadline 13-Sep-2018."
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    THE COURT: Well the -- the issue that I have is, um,
    is sufficient notice to the State. So if the deadline for
    the witness list was -- it -- which -- which it was, was
    August 23rd, you don't meet that deadline, um, by filing on
    September 13th. Um, and I wouldn't, uh, I mean if -- if you
    had filed on August 23rd and you had said, "address
    unknown," um, and then you did find him subsequently, uh, I
    would be inclined to allow him to testify, uh, because that
    would have been sufficient notice to the State, um, I think.
    But filing a witness September 23rd, or excuse me, on
    September 13th when it was due August 23rd, I understand
    we're all busy people but, uh, that's two weeks after the
    deadline.
    . . . .
    THE COURT: So, Mr. Miller, it's not just some rule or
    just some procedure, uh, you know, for –- for no purpose.
    And really the rule is to allow notice to the other side, in
    this case the State, to prepare. And by filing something on
    the 13th and then calling him today, I -- I just don't see
    that the State had proper notice and an ability to prepare.
    So, uh, I am not going to allow his testimony. Uh,
    and I understand you're busy, but I'm busy, too, and the
    State's busy. We're -- we're all busy.
    You were in front of the Court on September 11th, um,
    and at that time could have had the opportunity to let the
    Court know what the status was of your investigation and
    what your calendar looked like, and the Court could have
    entertained a motion to continue trial at that point. But
    and then to come here today for trial and say you're
    prepared to proceed, and then call somebody that is, uh, not
    previously disclosed, uh, Court not -- Court's not going to
    allow him.
    (Emphasis added).
    The State called three witnesses during its case-in-
    chief, including Torres.     Torres testified that he was in the
    area to sell a tattoo gun to Lovelyn Yamamoto (Yamamoto).            Torres
    further testified that Shane Batalona (Batalona) accompanied
    Yamamoto to Torres's vehicle and examined the tattoo gun.
    Shortly thereafter, the encounter became violent and Torres was
    struck by both Batalona and Macariola.
    Macariola was the only witness in the defense case-in-
    chief.   He testified that he had acted in defense of Batalona and
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    of himself, and that Torres was the initial aggressor.      The
    District Court found that Macariola struck Torres in the face and
    that Macariola did not have a reasonable belief to act in self-
    defense or in defense of another.
    II.   POINTS OF ERROR
    Macariola asserts three points of error on appeal:     (1)
    the District Court's refusal to allow the Defense to introduce
    complainant's prior acts, including a drug conviction and
    convictions for charges involving violence and aggression,
    prevented Macariola from presenting a complete defense; (2) the
    District Court abused its discretion in precluding Macariola from
    presenting the testimony of a percipient witness to the incident
    based on an erroneous belief that trial counsel had missed the
    deadline for filing his witness list; and (3) Macariola's
    conviction must be reversed because the State failed to adduce
    substantial evidence that any physical contact Macariola made
    with the complainant was not in defense of others or in self-
    defense.
    III. APPLICABLE STANDARDS OF REVIEW
    "The admissibility of evidence requires different
    standards of review depending on the particular rule of evidence
    at issue.    When application of a particular evidentiary rule can
    yield only one correct result, the proper standard for appellate
    review is the right/wrong standard.    The traditional abuse of
    discretion standard should be applied in the case of those rules
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    of evidence that require a 'judgment call' on the part of the
    trial court."    State v. Pond, 118 Hawai#i 452, 461, 
    193 P.3d 368
    ,
    377 (2008) (citing State v. St. Clair, 101 Hawai#i 280, 286, 
    67 P.3d 779
    , 785 (2003)) (bracket omitted).
    Evidentiary rulings made pursuant to HRE Rule 404
    require a "judgment call," and therefore we apply the abuse of
    discretion standard.     State v. Williams, 147 Hawai#i 606, 613,
    
    465 P.3d 1053
    , 1060 (2020) (citing State v. Richie, 88 Hawai#i
    19, 37, 
    960 P.2d 1227
    , 1245 (1998)).        An abuse of discretion
    occurs when the trial court "clearly exceeds the bounds of reason
    or disregards rules or principles of law or practice to the
    substantial detriment of a party litigant."          
    Id.
     (citing Samson
    v. Nahulu, 136 Hawai#i 415, 425, 
    363 P.3d 263
    , 273 (2015)).
    "A trial court's determination that evidence is
    'relevant' within the meaning of HRE Rule 401 [] is reviewed
    under the right/wrong standard of review."         St. Clair, 101
    Hawai#i at 286, 
    67 P.3d at 785
    .       HRE Rule 401 defines relevant
    evidence as "evidence having any tendency to make the existence
    of any fact that is of consequence to the determination of the
    action more probable or less probable than it would be without
    the evidence."
    We review the sufficiency of evidence on appeal as
    follows:
    [E]vidence adduced in the trial court must be considered in
    the strongest light for the prosecution when the appellate
    court passes on the legal sufficiency of such evidence to
    support a conviction; the same standard applies whether the
    case was before a judge or jury. The test on appeal is not
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    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. Kalaola, 124 Hawai#i 43, 49, 
    237 P.3d 1109
    , 1115 (2010)
    (citation omitted).
    "'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.         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. Matavale, 115 Hawai#i 149, 157-58, 
    166 P.3d 322
    , 330-31
    (2007) (citation omitted).
    IV.   DISCUSSION
    Macariola's main argument on appeal is that his
    constitutional right to present a complete defense was violated.
    The protections granted to an accused by article 1, section 14 of
    the Hawai#i Constitution include "a meaningful opportunity to
    present a complete defense."       State v. Pulse, 83 Hawai#i 229,
    246, 
    925 P.2d 797
    , 814 (1996) (citation omitted).           The right to
    present a complete defense includes the "constitutional right to
    present any and all competent evidence to support a defense."
    State v. David, 149 Hawai#i 469, 481, 
    494 P.3d 1202
    , 1214 (2021)
    (citing State v. Abion, 148 Hawai#i 445, 448, 
    478 P.3d 270
    , 273
    (2020)).   The Hawai#i Supreme Court held in Abion:
    Where the accused asserts a defense sanctioned by law to
    justify or to excuse the criminal conduct charged, and there
    is some credible evidence to support it, the issue is one of
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    fact that must be submitted to the jury, and it is
    reversible error for the court to reject evidence which, if
    admitted, would present an essential factual issue for the
    trier of fact.
    Abion, 148 Hawai#i at 448, 478 P.3d at 273 (emphasis added)
    (quotation marks omitted).
    In David, the defendant-appellant was convicted of
    assault in the first degree after he stabbed and killed his
    cousin at a family gathering.       149 Hawai#i at 471, 494 P.3d at
    1204.   The trial court permitted the introduction of evidence
    that the victim had been drinking and was aggressive that evening
    as evidence of the defendant's self-defense.          However, the trial
    court also excluded evidence of the victim's .252 blood alcohol
    concentration (BAC), absent expert testimony.          Id.   The supreme
    court vacated the conviction and held that excluding the BAC
    evidence violated the defendant's constitutional right to present
    a complete defense, and that expert testimony was not required to
    present the BAC evidence.       Id. at 481, 494 P.3d at 1214.       The
    supreme court reasoned that the defendant's case "hinged on his
    credibility" and that because his defense "depended on his
    account of [the victim's] behavior before the fatal altercation
    and, by extension, on his credibility, we hold that there is a
    reasonable possibility that excluding the BAC evidence affected
    the trial's outcome."     Id.    Thus, the defendant's due process
    rights were violated because he was not permitted to "present any
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    and all competent evidence tending to show that he acted in self-
    defense."   Id. at 482, 494 P.3d at 1215 (citing Abion, 148
    Hawai#i at 448, 478 P.3d at 273)).
    In Williams, the defendant-appellant was convicted of
    attempted murder in the second degree.     On appeal, he alleged
    that the trial court erred in precluding admission of several
    statements in the weeks leading up to the incident that supported
    the defendant's self-defense claim.    Williams, 147 Hawai#i at
    607-08, 465 P.3d at 1054-55.    The defendant attempted to
    introduce evidence that the victim had "boasted" about the
    following seven acts:   (1) doing time for the crime of murder in
    California; (2) that he did hard time in California; (3) that he
    knew how to fight because of the time he spent in jail and that
    he had to learn to fight to survive; (4) that he knew about gang-
    bangers and gang-members; (5) that he had experience with
    violence from spending time in jail; (6) that he "got away" with
    murder by beating the charge – because someone else took credit
    for it; and (7) that he did the crime but got off on a
    technicality.   Id.   The trial court permitted the defendant only
    to testify that "[victim] knows how to fight.     He learned how to
    fight in jail."   Id. at 609, 465 P.3d at 1056.    The supreme court
    held that the trial court's "curtailment of the defendant's
    testimony as to his state of mind at the time he committed the
    offense bespeaks a misapprehension of the discretion available to
    the court."   Id. at 615, 465 P.3d at 1062.    The supreme court
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    reasoned that the trial court had "prevented [the defendant] from
    offering his own version of facts relevant to his self-defense
    claim" and thus "violated his constitutional right to present a
    complete defense."    Id. at 614, 465 P.3d at 1061.
    A defendant's right to present evidence is not,
    however, limitless and "may, in appropriate cases, bow to
    accommodate other legitimate interests in the criminal trial
    process."    Abion, 148 Hawai#i at 454, 478 P.3d at 279 (citing
    State v. Kassebeer, 118 Hawai#i 493, 514, 
    193 P.3d 409
    , 430
    (2008)).
    In Kassebeer, the supreme court held that the trial
    court's two evidentiary rulings did not violate the defendant-
    appellant's constitutional right to present a complete defense.
    Kassebeer, 118 Hawai#i at 514, 193 P.3d at 430.     The trial court
    permitted the prosecution to ask the police officer, who had
    responded to a report of sexual assault and kidnapping, whether
    "[w]hat she told you, did - did that jive with the injuries that
    she had?" but prevented Kassebeer from asking the same police
    officer, "[i]nsofar as the injuries, do you recall that [the
    complainant] told you that the injuries that you saw were from a
    prior incident?"    Id.   In upholding the trial court's ruling, the
    supreme court reasoned that the defendant had "other potential
    avenues of laying the required foundation as to the source of the
    complainant's injuries, and he was not denied the opportunity to
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    do so."   Id.     Accordingly, his constitutional rights to present
    evidence and to confront witnesses were not violated.                 Id.
    A.    The Evidence re Acts Involving Drugs and Violence
    Macariola contends that the District Court abused its
    discretion in precluding cross-examination of Torres regarding
    his "knowledge of drugs" and character for violence.                Macariola
    argues that Torres's convictions were relevant character evidence
    on the issue of Torres's credibility, who was the first
    aggressor, and to Macariola's state of mind, and thus the
    exclusion of this evidence violated his constitutional right to
    present a complete defense.
    As to the first issue, Macariola attempted to cross-
    examine Torres on his "knowledge of drugs" after Torres expressed
    confusion as to why Macariola confronted him about drugs on the
    night of the altercation.
    A. –- yeah. Um, he had walked in about I'd say
    halfway through, and to the passenger window, and asked my
    wife if –- if "that is JR," and then came around the car and
    then –-
    Q. Okay, so –-
    A.   –- tried to confront me about –-
    . . . .
    THE WITNESS:    –- drugs, and it –- it's, like –-
    Q.   (BY MR. MILLER)   Why –- what is that so amazing to
    you?
    A. Because –- I mean for him to like just walk up
    and just start asking me if I'm there to sell drugs is –-
    kinna make –- I'm kind of dumbfounded. I don't know what to
    say to that. Like, its like --
    Q.   Well you –-
    A. –- I don't know what even gives him that
    impression or why, you know, to just go and just start –-
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    Q.   You don't know –-
    A.   –- I mean it –-
    Q.   –- why he had that impression?
    A.   Yeah, I don't.
    . . . .
    Q. . . . Okay.
    So –- and my question is, uh, weren't you in
    the –- in the past, previously, involved in some
    drugs?
    After the State's objection, Macariola rephrased the
    question and instead asked whether Torres had "knowledge about
    different kinds of illegal drugs."             After the District Court
    sustained the State's relevance objection, Macariola's attorney
    stated, "Your Honor, he's saying he doesn't know why they were
    bringing up this stuff about drugs, and I wanted to establish,
    well, he's not a totally innocent person regarding knowledge of
    drugs, that he knows about drugs.             That's all."   The District
    Court then again sustained the State's relevance objection.
    Because the District Court excluded the line of
    questioning as irrelevant, we analyze under a right/wrong
    standard.    We also note that HRE Rule 607 states that, "[t]he
    credibility of a witness may be attacked by any party, including
    the party calling the witness."            Torres's testimony that he "had
    no idea" why Macariola would mention drugs opened the door for
    defense counsel to challenge that assertion and test Torres's
    credibility.    Thus, the District Court erred in prohibiting this
    cross-examination, which tended to impugn Torres's testimony that
    he had no idea why someone might think he was selling drugs.
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    Next, we turn to whether the District Court erred when
    it declined to admit any evidence concerning Torres's past
    convictions for crimes that would indicate a character of
    aggressiveness and violence.    We recognize that here, as in
    David, Macariola's defense "hinged on his credibility" and the
    believability of his testimony about Torres's violent behavior
    and how it influenced Macariola's conduct.     See David, 149
    Hawai#i at 481, 494 P.3d at 1214 (citing State v. Lealoa, 126
    Hawai#i 460, 470, 
    272 P.3d 1227
    , 1237 (2012) (recognizing that in
    a self-defense case, the defendant's credibility is "at the crux"
    of the case because the jury must decide "whether the defendant
    did in fact subjectively believe the use of force was
    necessary")).
    However, as stated in Abion, a defendant's right to
    present relevant evidence "is not without limitation and may, in
    appropriate cases, bow to accommodate other legitimate interests
    in the criminal trial process."    Abion, 148 Hawai#i at 454, 478
    P.3d at 279.    Laying the requisite evidentiary foundation is a
    legitimate interest in the criminal trial process.      See
    Kassebeer, 118 Hawai#i at 430, 193 P.3d at 514; see also State v.
    Maddox, 116 Hawai#i 445, 460, 
    173 P.3d 592
    , 607 (App. 2007)
    (requiring that foundation be established before permitting the
    introduction of character evidence under HRE Rule 404(a)(2)).
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    Accordingly, our analysis turns on whether Macariola laid
    sufficient foundation to admit character evidence under HRE Rule
    404(a)(2).4
    A party may introduce "specific instances of conduct
    [under HRE Rule 405(b)] to prove character when character is an
    essential element of, inter alia, a defense to the crime."              State
    v. DeLeon, 143 Hawai#i 208, 215, 
    426 P.3d 432
    , 439 (2018).             When
    there is a factual dispute as to who was the initial aggressor,
    "a victim's pertinent character trait is an 'essential element'
    to a claim of self-defense, and therefore, evidence of specific
    instances of conduct concerning that character trait, such as the
    victim's prior violent acts, may be admissible under HRE 405(b)."
    
    Id.
       A factual dispute about who was the first aggressor arises
    when there is some evidence to support such a finding.             Id. at
    215-18, 426 P.3d at 439-42.       The trial court has "discretion to
    determine to what extent, and in what manner, evidence" of a
    victim's criminal record may be permitted.          State v. Basque, 
    66 Haw. 510
    , 515, 
    666 P.2d 599
    , 603 (1983).
    In DeLeon, the defendant argued that he acted in self-
    defense when he shot and killed a person in a group that was
    allegedly threatening him.       In support of his defense, he
    4
    HRE Rule 404(a)(2), Character of victim, provides an exception to
    HRE Rule 404's general prohibition against admitting evidence of a person's
    character to show that the person acted in conformity with that trait. HRE
    Rule 404(a)(2) permits "[e]vidence of a pertinent trait of character of the
    victim of the crime offered by an accused, or by the prosecution to rebut the
    same, or evidence of a character trait of peacefulness of the victim offered
    by the prosecution in a homicide case to rebut evidence that the victim was
    the first aggressor."
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    testified that he got out of his vehicle and heard someone behind
    him say, "[t]here's that fucking Mexican."          DeLeon, 143 Hawai#i
    at 217, 426 P.3d at 441.       He then turned and saw three to four
    men, including Powell and Beaudoin, approaching him that he
    recognized from an altercation earlier that night.            Id. at 217-
    18, 426 P.3d at 441-42.       DeLeon then pointed his gun at Powell
    and shot him while his hands were open and raised.            Id. at 218,
    426 P.3d at 442.     At the completion of the defense case, DeLeon
    sought to introduce evidence of Powell's and Beaudoin's prior
    violent acts to support his position that Powell and Beaudoin had
    been the first aggressors.       Id. at 212, 426 P.3d at 436.        The
    trial court excluded the evidence and held that no factual
    dispute existed because Beaudoin's conduct was remote in time,
    place, and to the incident, and Powell's conduct was roughly one
    hour before the confrontation that resulted in Powell's death.
    Id. at 212, 426 P.2d at 436.        The supreme court, viewing the
    totality of the circumstances, concluded that a factual dispute
    as to who was the first aggressor existed, and thus the trial
    court erred in excluding evidence of two of the witness's prior
    bad acts.    Id. at 218-19, 426 P.3d at 442-43.         The DeLeon court
    held that a factual dispute existed because
    (1) DeLeon, by himself, faced Powell and his group, which
    consisted of three to four people, including Beaudoin; (2)
    someone from that group said, "[t]here's that fucking
    Mexican"; (3) Powell, and possibly two others from the
    group, which may have included Beaudoin, continued to
    approach after DeLeon fired warning shots into the air and
    ground and told them several times to stay back; [and] (4)
    as Powell continued to approach, Powell stated, "[w]hat, you
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    think one gun is going to stop us all?" when he was within
    arm's length of DeLeon.
    Id. at 218, 426 P.3d at 442.
    In Maddox, the trial court granted the State's motion
    in limine precluding Maddox from cross-examining the complaining
    witness (Mota) on Mota's character for violence, as evidenced by
    petitions for restraining orders and judgments of conviction for
    violating two restraining orders in Oregon.         116 Hawai#i at 458,
    
    173 P.3d at 605
    .   After Mota testified, Maddox renewed his
    request to cross-examine Mota about the bad acts alleged in the
    restraining order petitions.      Id. at 459, 
    173 P.3d at 606
    .           The
    trial court denied the request and noted that the evidence did
    not raise a factual issue as to whether Mota had been the first
    aggressor.   
    Id.
       On appeal, this court held that the trial court
    had not erred in excluding the character evidence.          Id. at 460,
    
    173 P.3d at 607
    .   We also noted that the disputed character
    evidence would have been admissible later in trial, after Maddox
    had laid the requisite foundation.       
    Id.
    Once Maddox testified in the defense case, there was ample
    evidence to support a finding that Mota was the first
    aggressor. . . . At that point in the trial, Maddox was
    clearly entitled to question Mota about the past acts of
    violence reflected in the Oregon court documents. Maddox,
    however, did not attempt or seek permission to question Mota
    about past acts of violence after Maddox had introduced
    evidence supporting a finding that Mota was the first
    aggressor. Thus, the circuit court was never called upon to
    rule on whether such questions were permissible after the
    required evidentiary foundation had been laid. Under these
    circumstances, we cannot say that the circuit court erred.
    
    Id.
    Here, as in Maddox, Macariola attempted to cross-
    examine Torres about prior acts of violence without laying the
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    requisite foundation.     Viewing the totality of the circumstances
    at the time of the request, no factual issue had been raised as
    to who was the first aggressor.       Only Officer Ines and Torres had
    testified when Macariola requested to cross-examine Torres on his
    character for aggressiveness and violence.         Neither witness's
    testimony raised a factual issue as to Torres being the first
    aggressor.   Rather, Officer Ines's testimony regarding
    Macariola's voluntary statement indicated that Macariola was the
    initial aggressor.
    A. Yes. When I spoke with him [Macariola], he
    stated that, um, he was outside, having a few beers.
    That –-
    . . . .
    THE WITNESS: Mr. Macariola was out on
    Opelo Road having some –- few beers. He saw a vehicle
    pull up, um, with a male driver, who was the victim,
    uh, and –- in this case, and was yelling out the
    window "who wanted to buy ice?" Uh, he repeated that
    again. Mr. Macariola then said, "You know what, get
    the F out of here. We don't –- we don't want that
    kind of stuff."
    . . . .
    THE WITNESS: And, uh, then Mr. Macariola hit him
    [Torres] in the face with a closed fist.
    On cross-examination of Officer Ines, Macariola's
    questions did not raise the issue of self-defense or defense of
    others.   There was only one question that may have been trying to
    get to the defense-of-others defense – with Batalona being the
    other – and the response was insufficient to establish a factual
    issue.
    MR. MILLER: Q. Did Mr. Macariola tell you
    how Mr. Batalona was involved?
    A.   He –- he says that he was involved also.
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    Q.   Okay.
    Did he tell you any more detail about how he
    was involved?
    A.   That I don't remember.   I don't know.
    Torres testified during the State's case-in-chief that
    he had not initiated the altercation with Macariola.          Torres then
    testified consistently on cross-examination.
    Q. Um, when you got out of the car to get your stuff
    back, did you, you know, how were you –- did you –- did you
    push Mr. Batalona or hit him or shove him in any way?
    A.   No.
    Q.   No.
    A.   He [Batalona] grabbed me.
    Q. And when Mr. Macariola came over, did you try to
    swing at him?
    A.   No.
    Q.   You didn't try to swing at him?
    A.   No.
    Q. Do you ever remember grabbing, uh, Mr. Batalona by
    the necklace around his neck?
    A.   No.   I don't remember that.
    After Torres's testimony, there was no factual question
    raised as to who was the first aggressor.           Thus, we conclude that
    the District Court did not err in excluding the character
    evidence at that time.
    During the defense case-in-chief, Macariola testified
    that he went towards the altercation to protect his uncle,
    Batalona, then struck Torres in self-defense.           Macariola did not,
    however, subsequently seek permission to question Torres about
    his character for violence after the requisite foundation had
    been laid.   Macariola had ample opportunity to do so during the
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    defense case-in-chief, or during his cross-examination of Torres
    after the State called Torres as a rebuttal witness.      As in
    Maddox, the District Court in this case was never called upon to
    rule on whether such questions were permissible after the
    required evidentiary foundation had been laid, and we cannot
    conclude that the District Court erred.
    B.   Exclusion of Yim Testimony
    Macariola contends that the District Court abused its
    discretion in precluding testimony of an eye witness to the
    incident (Yim), based on allegedly late identification of the
    witness, as well as rejecting Macariola's request for a recess or
    brief continuance to allow the State to interview the witness.
    The parties dispute which Hawai#i Rules of Penal
    Procedure (HRPP) discovery rule applied in this case.       Macariola
    argues that HRPP Rule 16.1 applied because this was a misdemeanor
    trial, and thus excluding Yim's testimony constituted an abuse of
    discretion because he did not fail to meet his discovery
    obligations.    The State argues that the trial court was
    exercising its discretion under HRPP Rule 16(d) and was
    "effectively allowing discovery pursuant to HRPP Rule 16."
    Generally, HRPP Rule 16 applies to felony cases.        HRPP
    Rule 16(a).    In misdemeanor cases, "[u]pon a showing of
    materiality and if the request is reasonable, the court in its
    discretion may require disclosure as provided for in this Rule 16
    in cases other than those in which the defendant is charged with
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    a felony, but not in cases involving violations."            HRPP Rule
    16(d).    HRPP Rule 16.1 applies to "non-felony criminal and
    criminal traffic cases."       HRPP Rule 16.1(a).      Under HRPP Rule
    16.1 "a request for discovery shall be made to the opposing side
    in writing and shall list the specific materials being sought.
    Unless otherwise ordered, the request shall not be filed with the
    court."    HRPP Rule 16.1(b).
    There is no evidence in the record that there was a
    showing of materiality that caused the District Court to exercise
    its discretion to apply HRPP Rule 16 to the entire proceedings.
    The record does, however, reflect that the District Court
    exercised its discretion to set certain discovery deadlines for
    the parties.
    MS. BAILEY: And then, Your Honor, may we set some
    motion deadlines and responses?
    THE COURT:   How much time do you need beforehand?
    MS. BAILEY: I'm looking at maybe August 23rd for
    motions. And then responses due by the 13th of September
    a week prior.
    THE COURT: Okay. So we'll go with those dates. And
    pretrial motions will be due on or before August 23rd. And
    responses to those motions shall be due September 13[th].
    And witness lists and exhibit list shall also be due
    September 13[th].
    We presume that the District Court's pretrial order,
    and subsequent sanctioning for failure to abide by that order,
    was issued pursuant to HRPP Rule 16.         See State v. Inman, 121
    Hawai#i 195, 198-99, 
    216 P.3d 121
    , 124-25 (App. 2009).
    Accordingly, we conclude that the District Court exercised its
    discretion to apply HRPP Rule 16 to witness and exhibit lists.
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    Thus, Macariola arguably was required to disclose to
    the prosecutor "[t]he names and last known addresses of persons
    whom the defendant intends to call as witnesses, in the
    presentation of the evidence in chief, together with their
    relevant written or recorded statements[.]"           HRPP Rule
    16(c)(2)(i).    On September 13, 2018, Macariola submitted his
    witness list.     The witness list included Yim, but stated that his
    address was unknown.      At the trial on September 20, 2018,
    Macariola's counsel represented that he did not know where Yim
    lived until "this past Sunday," which was September 16, 2018.
    Sanctions under HRPP Rule 16 are governed by HRPP Rule
    16(e)(9), which allows a court to order a party to "permit the
    discovery, grant a continuance, or it may enter such other order
    as it deems just under the circumstances."           HRPP Rule
    16(e)(9)(i).5    "A trial court's imposition of sanctions pursuant
    to HRPP Rule 16 for a discovery violation is reviewed for abuse
    of discretion."     Inman, 121 Hawai#i at 199, 
    216 P.3d at
    125
    (citing State v. Ahlo, 79 Hawai#i 385, 398, 
    903 P.2d 690
    , 703
    (App. 1995)).     In Ahlo, this court recognized that
    [W]hile [discovery] sanctions are designed to accomplish the
    purpose of discovery[,] it is clear that the imposition of
    sanctions should not encroach on a fair trial. In
    particular, the exclusion of defense evidence in criminal
    cases as a means of sanction is a drastic measure for the
    right of a defendant to adduce evidence in his behalf is one
    of the fundamentals inherent in the due process guarantee of
    a fair trial.
    5
    HRPP Rule 16(e)(9)(ii) addresses willful violation of discovery
    rules by counsel; there is no evidence to suggest that section applies to this
    case.
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    Ahlo, 79 Hawai#i at 399, 
    903 P.2d at 704
     (emphasis added)
    (brackets, citation, quotation marks, and ellipses omitted).
    When determining an appropriate sanction, a trial court must
    consider:    "(1) whether the defendant was acting maliciously or
    in bad faith; (2) the extent of the prejudice to the prosecution
    caused by the violation; (3) whether the prejudice could have
    been cured by measures less severe than excluding evidence; and
    (4) any other relevant circumstances."     Inman, 121 Hawai#i at
    199, 
    216 P.3d at
    125 (citing Ahlo, 79 Hawai#i at 400, 
    903 P.2d at 705
    )).
    In Inman, the trial court excluded two defense
    witnesses as a sanction for the defendant's failure to comply
    with a discovery order and limited the testimony of a third
    witness.    Id. at 196, 
    216 P.3d at 122
    .   Specifically, the
    defendant failed to provide a witness's birth date by the
    established deadline and failed to advise the State of the
    defendant's whereabouts at the time of the alleged offense, as it
    related to his alibi defense.    
    Id. at 198
    , 
    216 P.3d at 124
    .
    There, we held the trial court abused its discretion in
    precluding the defense witness testimony "essentially based on
    failure of the defense to provide the birth date for [the
    witness]."    
    Id. at 199
    , 
    216 P.3d at 125
    .
    Applying those factors, here, there was no evidence the
    defendant acted maliciously or in bad faith.     The extent of the
    prejudice to the prosecution was minimal and could have been
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    remedied without excluding the defense witness.     Macariola's
    failure to provide contact information for Yim could have been
    remedied by a brief recess or continuance.
    The District Court erred in finding that Macariola's
    witness list filing was late.    On appeal, the parties agree that
    witness lists were due on September 13, 2018.     Under the
    circumstances, we conclude that the District Court abused its
    discretion when it disallowed a defense eyewitness based on a
    mistaken belief about the court-imposed discovery deadlines and
    rejected Macariola's request for a recess or brief continuance to
    allow the State to interview the witness.
    C.   Sufficiency of the Evidence
    "It is well-settled that, even where this court finds
    trial error, challenges to the sufficiency of the evidence must
    always be decided on appeal."    State v. Davis, 133 Hawai#i 102,
    116, 
    324 P.3d 912
    , 926 (2014) (citing Kalaola, 124 Hawai#i at 59,
    
    237 P.3d at 1125
    ).    The Double Jeopardy Clause bars retrial of a
    defendant where the evidence is insufficient to support a
    conviction.   State v. Kaulia, 128 Hawai#i 479, 496, 
    291 P.3d 377
    ,
    394 (2013) (citing State v. Silver, 125 Hawai#i 1, 9, 
    249 P.3d 1141
    , 1149 (2011)).
    Here, the testimony presented by the State provided
    substantial evidence to support the District Court's findings and
    conclusions as to Macariola's conviction for Assault Third.
    Thus, a new trial is permissible.
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    V.      CONCLUSION
    For these reasons, the Distict Court's September 20,
    2018 Judgment is vacated; this case is remanded for a new trial.
    DATED: Honolulu, Hawai#i, December 17, 2021.
    On the briefs:                            /s/ Lisa M. Ginoza
    Chief Judge
    Donald L. Wilkerson,
    for Defendant-Appellant.                  /s/ Katherine G. Leonard
    Associate Judge
    Leneigha S. Downs,
    Deputy Prosecuting Attorney,              /s/ Keith K. Hiraoka
    County of Hawai#i                         Associate Judge
    for Plaintiff-Appellee.
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