State v. Thromman ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-FEB-2022
02:37 PM
Dkt. 140 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
MACDON DONNY THROMMAN, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CR. NOS. 15-1-216K and 16-1-299K)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)
I. Introduction
Defendant-Appellant Macdon Thromman (Thromman) appeals
from the "Judgment of Conviction and Sentence" (Judgment) entered
on April 18, 2017, by the Circuit Court of the Third Circuit
(Circuit Court).1 As part of his appeal, Thromman also
challenges the Circuit Court's "Findings of Facts and Conclusions
of Law Re: Motion to Determine Voluntariness of Defendant's
Statements" (Voluntariness Order), entered on January 18, 2017,
and the "Findings of Fact and Conclusions of Law Re: Defendant's
Motion to Dismiss Counts 14-15 in Cr. No. 15-1-216K and Counts 1-
27 in Cr. No. 16-1-299K" (Order Denying Dismissal), entered on
January 31, 2017, both in favor of Plaintiff-Appellee State of
Hawai#i (State).
This case arises from a July 13-14, 2015 incident
during which Thromman allegedly assaulted and shot Heather Coito
1
The Honorable Ronald Ibarra presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(Heather), the mother of his two minor children who lived with
Thromman at the time. In an ensuing police response by the
Hawai#i Police Department (HPD), Thromman allegedly shot at HPD
Officer Ray Fukada (Officer Fukada) and Officer Dale Ku (Officer
Ku), injuring Officer Fukada in the process. Thromman proceeded
to barricade himself inside his residence, prompting an armed
standoff with HPD that lasted several hours. After failed
attempts by HPD's Crisis Negotiation Team (CNT) to negotiate
Thromman's surrender, HPD deployed oleoresin capsicum (pepper
spray) canisters into his residence. In response Thromman
allegedly fired at HPD officers, including Officer Paul Kim
(Officer Kim). Thromman eventually surrendered to police, and
was indicted on multiple counts.
After a jury trial, Thromman was found guilty on nine
counts: Attempted Murder in the Second Degree, in violation of
Hawaii Revised Statutes (HRS) §§ 705-500(1)(b) (2014)2 and 707-
701.5 (2014)3 (count 3 in Cr. No. 16-1-299K indictment); four
counts of Terroristic Threatening in the First Degree, two being
in violation of HRS §§ 707-715(1) (2014)4 and 707-716(1)(b)
2
HRS § 705-500(1)(b) provides:
§705-500 Criminal attempt. (1) A person is guilty of
an attempt to commit a crime if the person:
. . . .
(b) Intentionally engages in conduct which, under the
circumstances as the person believes them to be,
constitutes a substantial step in a course of
conduct intended to culminate in the person's
commission of the crime.
3
At the time of the offense, HRS § 707-701.5 provided:
[§707-701.5] Murder in the second degree. (1) Except
as provided in section 707-701, a person commits the offense
of murder in the second degree if the person intentionally or
knowingly causes the death of another person.
(2) Murder in the second degree is a felony for which
the defendant shall be sentenced to imprisonment as provided
in section 706-656.
4
HRS § 707-715(1) provides:
§707-715 Terroristic threatening, defined. A person
commits the offense of terroristic threatening if the person
threatens, by word or conduct, to cause bodily injury to
another person or serious damage or harm to property,
(continued...)
2
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(2014) and/or 707-716(1)(e) (2014)5 (counts 7 and 8 in Cr. No.
16-1-299K indictment) and two in violation of HRS § 707-715(1)
and HRS § 707-716(1)(e) (counts 17 and 26 in Cr. No. 16-1-299K
indictment); Kidnapping, in violation of HRS §§ 707-720(1)(d)
(2014) and/or 707-720(1)(e) (2014)6 (count 10 in Cr. No. 16-1-
299K indictment); Assault in the First Degree, in violation of
HRS § 707-710 (2014)7 (count 13 in Cr. No. 16-1-299K indictment);
Reckless Endangering in the Second Degree, in violation of HRS
§ 707-714(1)(b) (2014)8 (count 20 in Cr. No. 15-1-216K
4
(...continued)
including the pets or livestock, of another or to commit a
felony:
(1) With the intent to terrorize, or in reckless
disregard of the risk of terrorizing, another
person[.]
5
HRS § 707-716(1)(b) & (e) provides:
§707-716 Terroristic threatening in the first degree.
(1) A person commits the offense of terroristic threatening in
the first degree if the person commits terroristic
threatening:
. . . .
(b) By threats made in a common scheme against
different persons[.]
. . . .
(e) With the use of a dangerous instrument or a
simulated firearm. For purposes of this section,
"simulated firearm" means any object that:
(i) Substantially resembles a firearm;
(ii) Can reasonably be perceived to be a
firearm; or
(iii) Is used or brandished as a firearm[.]
6
HRS § 707-720(1)(d) & (e) provides:
§707-720 Kidnapping. (1) A person commits the offense
of kidnapping if the person intentionally or knowingly
restrains another person with intent to:
. . . .
(d) Inflict bodily injury upon that person or subject
that person to a sexual offense;
(e) Terrorize that person or a third person[.]
7
HRS § 707-710 provides:
§707-710 Assault in the first degree. (1) A person
commits the offense of assault in the first degree if the
person intentionally or knowingly causes serious bodily injury
to another person.
(2) Assault in the first degree is a class B felony.
8
HRS § 707-714(1)(b) provides:
(continued...)
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indictment); and Permits to Acquire, in violation of HRS §§ 134-
2(a) (2011)9 and 134-17 (2011)10 (count 21 in Cr. No. 15-1-216K
indictment).
8
(...continued)
§707-714 Reckless endangering in the second degree.
(1) A person commits the offense of reckless endangering in
the second degree if the person:
. . . .
(b) Intentionally discharges a firearm in a populated
area, in a residential area, or within the
boundaries or in the direction of any road,
street, or highway; provided that the provisions
of this paragraph shall not apply to any person
who discharges a firearm upon a target range for
the purpose of the target shooting done in
compliance with all laws and regulations
applicable thereto.
9
At the time of the offense, HRS § 134-2(a) provided:
§134-2 Permits to acquire. (a) No person shall acquire
the ownership of a firearm, whether usable or unusable,
serviceable or unserviceable, modern or antique, registered
under prior law or by a prior owner or unregistered, either by
purchase, gift, inheritance, bequest, or in any other manner,
whether procured in the State or imported by mail, express,
freight, or otherwise, until the person has first procured
from the chief of police of the county of the person's place
of business or, if there is no place of business, the person's
residence or, if there is neither place of business nor
residence, the person's place of sojourn, a permit to acquire
the ownership of a firearm as prescribed in this section. When
title to any firearm is acquired by inheritance or bequest,
the foregoing permit shall be obtained before taking
possession of a firearm; provided that upon presentation of a
copy of the death certificate of the owner making the bequest,
any heir or legatee may transfer the inherited or bequested
firearm directly to a dealer licensed under section 134-31 or
licensed by the United States Department of Justice without
complying with the requirements of this section.
10
HRS § 134-17 provides:
§134-17 Penalties. (a) If any person gives false
information or offers false evidence of the person's identity
in complying with any of the requirements of this part, that
person shall be guilty of a misdemeanor, provided, however
that if any person intentionally gives false information or
offers false evidence concerning their psychiatric or criminal
history in complying with any of the requirements of this
part, that person shall be guilty of a class C felony.
(b) Any person who violates section 134-3(a) shall be
guilty of a petty misdemeanor.
(c) Any person who violates section 134-2, 134-4,
134-10, 134-15, or 134-16(a) shall be guilty of a misdemeanor.
Any person who violates section 134-3(b) shall be guilty of a
petty misdemeanor and the firearm shall be confiscated as
contraband and disposed of, if the firearm is not registered
within five days of the person receiving notice of the
violation.
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On appeal, Thromman raises seven points of error,
contending the Circuit Court erred in: (1) the Order Denying
Dismissal because the CNT failed to memorialize or record its
negotiations with Thromman during the armed standoff, thus
depriving Thromman of potentially exculpatory evidence and a fair
trial; (2) the Voluntariness Order because Thromman's statements
made to the CNT during its negotiations were made without any
Miranda warnings, and thus were inadmissible at trial; (3)
denying Thromman's request to include Kidnapping in the merger
instruction for the offenses involving Heather; (4) excluding lay
witness testimony in support of Thromman's Extreme Mental or
Emotional Disturbance (EMED) defense at trial; (5) permitting the
State to recall Heather as a witness and permitting publication
of hearsay statements that were neither denied nor contradicted
by her testimony; (6) admitting the State's Exhibit 431, a news
video portraying Thromman after the incident in police custody
and being placed into a vehicle, into evidence; and (7)
sentencing Thromman to consecutive prison terms without putting
reasons on the record.
After careful review, we conclude the Circuit Court did
not err in its Order Denying Dismissal, and that Thromman waived
his arguments related to the Voluntariness Order because he did
not object to or otherwise challenge the voluntariness of his
statements to the CNT in the Circuit Court. We further conclude
the Circuit Court did not err in admitting the State's Exhibit
431 or in excluding proffered testimony about Thromman's alleged
request for counseling services at work and his having anxiety
attacks preceding the incident in support of his EMED defense.
However, we conclude the Circuit Court erred by
admitting hearsay evidence –- audio recordings of an HPD
interview of Heather -- under Hawai#i Rules of Evidence (HRE)
Rules 802.1 and 613(b), which was relevant to Thromman's
convictions in: count 7, Terrorist Threatening in the First
Degree related to Timothy Coito (Timothy), Heather's father;
count 10, Kidnapping relating to Heather; and count 13, Assault
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in the First Degree related to Heather. We also conclude the
Circuit Court erred in rejecting Thromman's request that the
Kidnapping charge, count 10, be included in a merger instruction
to the jury. We therefore vacate the Judgment with respect to
counts 7, 10, and 13, and remand for a new trial on these counts.
We further conclude the Circuit Court did not provide
adequate reasons in the record for its imposition of consecutive
sentences for counts 3, 17, and 26. We thus vacate the
consecutive sentences for these counts and remand for further
proceedings so that the Circuit Court may further address
consecutive sentencing for these counts.
We affirm in all other respects.
II. Background
A. Relevant Pretrial Motions
On August 10, 2015, the State filed a twenty-two count
indictment against Thromman in relation to the July 13-14, 2015
incident in Cr. No. 15-1-216K. On September 12, 2016, Thromman
was re-indicted in Cr. No. 16-1-299K on twenty-seven charges.
Accordingly, on September 20, 2016, the Circuit Court dismissed
many of the counts in Cr. No. 15-1-216K and the cases were
consolidated on October 14, 2016.
On March 8, 2016, the State filed its Motion to
Determine Voluntariness of Defendant's Statements. The Motion
sought an order determining whether certain statements Thromman
made to HPD during and after the incident, including statements
made to the CNT team during its negotiations, were voluntarily
made. On January 18, 2017, the Circuit Court entered its
Voluntariness Order. It is undisputed that Thromman did not
object to the admission of any statements at the hearings on the
State's motion.
On October 31, 2016, Thromman filed his "Notice of
Motion of Macdon Donny Thromman to Dismiss Counts 14-15 in CR 15-
1-216K and Counts 1-27 in CR 16-1-299K" (Motion to Dismiss). In
his Motion to Dismiss, Thromman argued, inter alia, that twenty-
eight of the thirty-two charges must be dismissed with prejudice
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due to the State's spoliation of and failure to preserve
potentially exculpatory evidence, including "numerous statements
made by [Thromman] during negotiations with police spanning 20
hours." Thromman asserted that the CNT's failure to record its
negotiations with Thromman during the incident or to keep
adequate notes of the conversations deprived him of crucial
evidence such that it violated his due process right to a fair
trial. On January 17, 2017, the Circuit Court orally denied
Thromman's Motion to Dismiss and entered its Order Denying
Dismissal on January 31, 2017.
B. Relevant Evidence Presented at Trial
On January 17, 2017, a jury trial commenced in the
State's case against Thromman. Relevant to this appeal, the
State introduced the following exhibits into evidence in its case
against Thromman: (1) State's Exhibit 431, a video of media
footage depicting Thromman in police custody and being placed
into a vehicle for transport on the day of the incident; and (2)
State's Exhibits 430E, 430F, 430G, 430I, 430J, 430K, 430L, and
430M, which are audio recordings of various statements that
Heather allegedly made to HPD following the incident.
As more fully explained in our discussion, the State
sought to introduce State's Exhibit 431 as probative evidence of
Thromman's demeanor and appearance on the day of the incident and
to rebut Thromman's claim that his ability to see was impaired by
pepper spray canisters deployed by HPD. The State sought to
introduce Exhibits 430E-G and 430I-M under HRE Rules 802.1 and
613(b), relating to prior inconsistent statements, to impeach
Heather's testimony at trial that she could not remember making
the statements recorded in her interview with HPD following the
incident. The Circuit Court admitted the aforementioned exhibits
into evidence over Thromman's objection.
As part of his defense, Thromman sought to introduce
the testimony of Jayson Galinato (Galinato) and Kyle Kawai
(Kawai) in support of his claim that he was under the influence
of EMED at the time of the incident. In his offer of proof,
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Thromman asserted that the witnesses would testify that Thromman
had requested to obtain counseling services from his employer in
the days preceding the incident and that Thromman had suffered
multiple anxiety attacks in the months preceding the incident.
As more fully explained in our discussion, the Circuit Court
ultimately precluded the testimony of both witnesses because it
determined that the evidence was not relevant to show that
Thromman was under the influence of EMED on the day of the
incident and because neither witnesses were qualified to connect
the past behavior to the behavior on the day of the incident.
C. Jury Instruction, Verdict and Sentence
Prior to the case being submitted to the jury, Thromman
requested that the jury be instructed on merger for all offenses
and lesser included offenses involving Heather, including count
10, Kidnapping. The Circuit Court ultimately instructed the jury
regarding potential merger of all charges involving Heather,
except Kidnapping.
After its deliberations, the jury returned guilty
verdicts on nine of the twenty-one charges that went to trial,
which were: count 3, Attempted Murder in the Second degree
(relating to Officer Fukada); counts 7, 8, 17, and 26,
Terroristic Threatening in the First Degree (relating to Timothy,
Ann Coito (Heather's mother), Officer Dale Ku and Officer Paul
Kim); count 10, Kidnapping (relating to Heather); count 13,
Assault in the First Degree (relating to Heather); count 20,
Reckless Endangering in the Second Degree; and count 21, Permit
to Acquire Firearm.
On April 18, 2017, the Circuit Court entered its
Judgment and corresponding sentence. As part of its sentence,
the Circuit Court sentenced Thromman to: life imprisonment with
possibility of parole on count 3, with a mandatory minimum term
of fifteen years; five years imprisonment as to each count on
counts 7 and 8, with a mandatory minimum term of three years,
concurrent with all other charges; twenty years imprisonment on
count 10, with a mandatory minimum term of ten years, concurrent
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with all other charges; ten years imprisonment on count 13, with
a mandatory minimum term of five years, concurrent with all other
charges; five years imprisonment as to each count on counts 17
and 26, with a mandatory minimum term of three years, consecutive
with each other and consecutive with count 3; one year of
imprisonment on count 20, concurrent with all other charges; and
one year of imprisonment on count 21, concurrent with all other
charges.
III. Standards of Review
A. Due Process Right to a Fair Trial
"We answer questions of constitutional law by
exercising our own independent judgment based on the facts of the
case. Thus, we review questions of constitutional law under the
right/wrong standard." State v. Jenkins, 93 Hawai#i 87, 100, 997
P.2d 13, 26 (2000) (internal quotation marks and citations
omitted).
B. Admissibility of Evidence
"As a general rule, [the appellate] court reviews
evidentiary rulings for abuse of discretion." State v. Acacio,
140 Hawai#i 92, 98, 398 P.3d 681, 687 (2017) (alteration in
original) (citing Kealoha v. County of Hawai#i, 74 Haw. 308, 319,
844 P.2d 670, 676 (1993)). "However, when there can only be one
correct answer to the admissibility question, or when reviewing
questions of relevance under Hawai#i Rules of Evidence (HRE)
Rules 401 and 402, [the appellate] court applies the right/wrong
standard of review." Id. (citing Kealoha, 74 Haw. at 319, 844
P.2d at 676) (alteration in original) (other citations omitted).
We review evidentiary rulings under HRE Rules 802.1 and
613(b) under the right/wrong standard. See State v. Ortiz, 91
Hawai#i 181, 189, 981 P.2d 1127, 1135 (1999).
C. Jury Instructions
"[W]hen jury instructions or the omission thereof are
at issue on appeal, the standard of review is whether, when read
and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
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misleading." State v. Mark, 123 Hawai#i 205, 219, 231 P.3d 478,
492 (2010) (citation, internal quotation marks, and brackets
omitted). Jury instructions "must be examined in the light of
the entire proceedings and given the effect which the whole
record shows [them] to be entitled." State v. Nichols, 111
Hawai#i 327, 334, 141 P.3d 974, 981 (2006) (citation omitted).
D. Findings of Fact and Conclusions of Law
A circuit court's findings of fact and conclusions of law are
reviewed as follows:
[A] trial court's findings of fact are subject to the
clearly erroneous standard of review. A finding of
fact is clearly erroneous when, despite evidence to
support the finding, the appellate court is left with
a definite and firm conviction that a mistake has been
committed.
A conclusion of law is not binding upon an appellate
court and is freely reviewable for its correctness.
This court ordinarily reviews conclusions of law under
the right/wrong standard. Thus, a conclusion of law
that is supported by the trial court's findings of
fact and that reflects an application of the correct
rule of law will not be overturned. However, a
conclusion of law that presents mixed questions of
fact and law is reviewed under the clearly erroneous
standard because the court's conclusions are dependent
upon the facts and circumstances of each individual
case."
State v. Rapozo, 123 Hawai#i 329, 336, 235 P.3d 325, 332 (2010)
(alteration in original) (citation omitted).
IV. Discussion
A. HPD's decision not to record its negotiations with
Thromman did not deprive him of his due process rights
to a fair trial.
1. Relevant case authority
In his first point of error, Thromman asserts that
HPD's decision not to record or adequately memorialize the CNT
negotiations, which he contends would have constituted material
evidence of whether he intended to kill Heather and Officer
Fukada, his EMED defense, and whether his statements to CNT
negotiators were voluntarily made, violated his due process right
to a fair trial. Thromman also contends there is evidence that
HPD acted in bad faith in failing to record the CNT negotiations
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and there was no equivalent evidence available to mitigate the
harm to his defense. Thromman thus asserts the Circuit Court
erred in denying his Motion to Dismiss, and asks this court to
reverse his convictions.
In Arizona v. Youngblood, 488 U.S. 51 (1988), the
United States Supreme Court considered the due process
implications of the prosecution's inadvertent loss or destruction
of potentially exculpatory evidence that had been collected by
law enforcement officials. 488 U.S. at 57-58. The Court
ultimately held that "unless a criminal defendant can show bad
faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of
law." Id. at 58. In State v. Matafeo, 71 Haw. 183, 787 P.2d 671(1990), the Hawai#i Supreme Court went beyond the majority
decision in Youngblood, and determined that under Hawai#i law,
"[i]n certain circumstances, regardless of good or bad faith, the
State may lose or destroy material evidence which is 'so critical
to the defense as to make a criminal trial fundamentally unfair'
without it." 71 Haw. at 187, 787 P.2d at 673 (emphasis added)
(citing Youngblood, 488 U.S. at 61 (Stevens, J., concurring)).
Thus, Thromman asserts under Matafeo that dismissal of his case
is appropriate because HPD acted in bad faith in failing to
record or adequately memorialize the CNT negotiations, which he
contends was material to his defense.
We note, however, that Matafeo and Youngblood are
factually distinguishable from the instant case because they both
dealt with the State's failure to preserve potentially
exculpatory evidence that had been collected by the police,
rather than an alleged failure of law enforcement officials to
collect, or in this case create evidence in the first instance
(i.e., to record or memorialize the CNT negotiations). See
Matafeo, 71 Haw. at 184, 787 P.2d at 672 (noting police
inadvertently destroyed all physical evidence collected relating
to appellant's case); Youngblood, 488 U.S. at 53-54 (noting the
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State failed to properly preserve samples and evidence of sexual
assault).
Other jurisdictions have recognized that law
enforcement officials generally have no duty to collect
particular evidence at the crime scene. See Miller v. Vasquez,
868 F.2d 1116, 1119-20 (9th Cir. 1989) (noting that the
government's duty to preserve evidence does not impose a duty to
obtain evidence); State v. Ware, 881 P.2d 679, 683 (N.M. 1994)
(noting that "[u]sually, the failure to gather evidence is not
the same as the failure to preserve evidence, and that the State
generally has no duty to collect particular evidence at the crime
scene" (citations omitted)); State v. Steffes, 500 N.W. 2d 608,
612 (N.D. 1993) (holding that "[p]olice generally have no duty to
collect evidence for the defense"); People v. Bradley, 205 Cal.
Rptr. 485, 488 (Cal. Ct. App. 1984) (holding that the duty to
preserve evidence does not encompass an initial duty to gather or
collect or seize potential evidence at the scene of the crime for
defendant's use); Taylor v. State, 335 P.3d 1218, 1222 (Mont.
2014) (holding police officers have no duty to assist in
procuring evidence for a defendant, and "[a] defendant must show
bad faith to prove a due process violation when lost evidence is
only potentially exculpatory, rather than apparently
exculpatory").
In Miller, the Ninth Circuit Court of Appeals discussed
the due process implications of the government's failure to
collect potentially exculpatory evidence. 868 F.2d at 1119-21(discussing whether police failure to collect victim's
bloodstained jacket and to photograph defendant's scratched arms
violated defendant's due process right to a fair trial). The
court first noted that while "the government may have a duty to
preserve evidence after the evidence is gathered and in
possession of the police[,]" such duty "[does] not impose a duty
to obtain evidence." 868 F.2d at 1119 (emphases in original)
(citations omitted).
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The court did, however, hold that "a bad faith failure
to collect potentially exculpatory evidence would violate the due
process clause." Id. at 1120. The court reasoned that, just as
in Youngblood,
limiting the scope of the due process clause in this context
to a bad faith failure to collect such evidence "both limits
the extent of the police's obligation . . . to reasonable
bounds and confines it to that class of cases where the
interests of justice most clearly require it, i.e., those
cases in which the police themselves by their conduct
indicate that the evidence could form a basis for
exonerating the defendant.
Id. (ellipses in original) (quoting Youngblood, 488 U.S. at 58).
For purposes of this case, we need not decide whether
to adopt the articulation of due process rights set forth in
Miller regarding the failure to collect potentially exculpatory
evidence. As discussed below, even assuming arguendo that the
Miller rule applied, the Circuit Court properly found no bad
faith on the part of HPD.
2. The Circuit Court did not err in its order denying
dismissal
The Circuit Court's conclusion that Thromman's due
process rights were not violated based on the failure of officers
to record or memorialize the CNT negotiations was dependent on
the Circuit Court's relevant findings of fact. We therefore
review the Circuit Court's Order Denying Dismissal under the
clearly erroneous standard. See Rapozo, 123 Hawai#i at 336, 235
P.3d at 332. "In the absence of evidence of bad faith by the
State, we cannot presume that the police detectives involved in
the investigation will be less than truthful about the evidence."
Matafeo, 71 Haw. at 188, 787 P.2d at 674. In its Order Denying
Dismissal, the Circuit Court concluded that Thromman made "no
showing of materiality or bad faith by the actions of the [HPD,]"
and thus denied his Motion to Dismiss.
Thromman asserts there is evidence that HPD acted in
bad faith in its decision not to record or adequately memorialize
the CNT negotiations. Thromman asserts: (1) the responding CNT
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officers had all acknowledged they were informed that Thromman
had shot fellow HPD Officer Fukada, and thus had an "animus"
toward defendant; (2) HPD had also disregarded potentially
exculpatory evidence in executing a search warrant of the
premises after the shooting occurred; (3) HPD's "implausible and
contradictory excuses" for not recording the negotiations; and
(4) HPD Sergeant Reynold Kahalewai's (Sergeant Kahalewai)
decision making on the days of the incident and his delayed
production of his police report and handwritten notes of the
incident. In light of the Circuit Court's findings, which are
unchallenged, these assertions do not convince us that HPD acted
in bad faith in not recording the CNT negotiations.
In its Order Denying Dismissal, the Circuit Court made
relevant findings of fact regarding HPD and the CNT's response to
the July 13-14, 2015 incident, which are not challenged by
Thromman and are thus binding on this Court. See Rapozo, 123
Hawai#i at 334 n.4, 235 P.3d at 330 n.4. The Circuit Court's
findings indicated that on the day of the incident, HPD officers
retrieved CNT equipment to potentially be used in the ongoing
negotiations with Thromman. Such equipment included a "throw
phone," which is a device that can be thrown to a barricaded
person that allows police to communicate with that person. The
"throw phone" is connected to a "call box" by a cable line, and
the "call box" is capable of recording the conversations on a
cassette tape. HPD did not use the "throw phone" to communicate
with Thromman during the incident, and instead communicated with
him primarily through the land line located in the North Kohala
Police Station.
The Circuit Court found that,
[i]n this case, the throw phone was not optimal because of
the dangerousness of the situation, their Ford 250 was not
bullet proof, negotiations were on-going prior to the
equipment arriving, and there was not enough cable between
the North Kohala Police Station and the house Defendant
barricaded himself within. If the call box were to be used,
the phone company's assistance was necessary to enable
officers to use the call box with the station phone; this
would interfere with ongoing negotiations.
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As indicated in the Circuit Court's findings, HPD had strategic,
practical, and safety reasons for not using the "throw phone" to
negotiate with Thromman or to record the conversations with the
"call box". The findings also indicate that CNT negotiators did
not conduct negotiations with Thromman on a speaker phone
"because the background noise would make it difficult to
negotiate with [Thromman]" and because Sergeant Kahalewai "was
concerned that [Thromman] would hear things not intended for
him." Thus, it was not feasible for HPD to conduct the
negotiations on speaker phone so that a scribe could transcribe
or record the conversations.
Further, as the Circuit Court noted in its conclusions
of law, HPD and CNT members were responding to an emergency
situation where Thromman was armed and had allegedly shot Heather
and Officer Fukada. Thus, the Circuit Court found that HPD was
concerned with the immediate barricaded situation and was not
concerned with recording the negotiations.
Based on the record, the Circuit Court did not err in
denying Thromman's Motion to Dismiss.
B. Thromman's challenge to the Circuit Court's Order
Granting the State's Motion to Determine Voluntariness
was not asserted below and is thus waived.
For the first time on appeal, Thromman asserts that his
statements made to the CNT negotiators during the July 13-14,
2015 negotiations were inadmissible because they were elicited
through a custodial interrogation of Thromman, where no Miranda11
warnings were given. Thromman concedes that he did not object to
the admissibility of these statements at the time of the hearing
on the State's Motion to Determine Voluntariness. "As a general
rule, if a party does not raise an argument at trial, that
argument will be deemed to have been waived on appeal; this rule
applies in both criminal and civil cases." State v. Moses, 102
Hawai#i 449, 456, 77 P.3d 940, 947 (2003) (citation omitted).
11
Miranda v. Arizona, 384 U.S. 436 (1966).
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Thus, Thromman has waived the issue and we need not discuss it
further.
C. Generalized testimony of Thromman's alleged attempt to
obtain counseling and anxiety attacks preceding the
incident, without more, was not relevant to Thromman's
EMED defense.
In count 3, Thromman was convicted of Attempted Murder
in the Second Degree for shooting Officer Fukada. In his fourth
point of error, Thromman asserts the Circuit Court erred in
excluding the testimony of Galinato and Kawai in support of his
EMED defense. Galinato and Kawai were friends of Thromman, and
Galinato was also Thromman's supervisor at work. Thromman
asserts that Galinato’s and Kawai's testimony regarding
Thromman's mental state in the days and months preceding the
incident were "highly relevant evidence of his subjective sense
that he desperately needed professional help[,]" and were thus
relevant to his EMED defense to the attempted murder charge. We
disagree.
"EMED is an affirmative defense to murder or attempted
murder, 'which reduces the offense to manslaughter or attempted
manslaughter' if 'the defendant was, at the time the defendant
caused the death of the other person, under the influence of
extreme mental or emotional disturbance for which there is a
reasonable explanation.'" State v. Adviento, 132 Hawai#i 123,
137, 319 P.3d 1131, 1145 (2014) (emphasis added) (footnote and
citation omitted). "The reasonableness of the explanation shall
be determined from the viewpoint of a reasonable person in the
circumstances as the defendant believed them to be." Id.(quotation marks and citation omitted).
At trial, Thromman sought to introduce the testimony of
Galinato and Kawai to support his EMED defense. Specifically,
Thromman anticipated that Galinato would testify to his knowledge
of Thromman's efforts in the days preceding the incident to
obtain counseling services offered through his employer for
stress related issues with his work and family that was
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ultimately denied.12 Thromman anticipated that Kawai would
testify that Thromman had suffered from multiple debilitating
anxiety attacks in the months preceding the incident. Thromman
asserted that the evidence of his prior efforts to obtain
counseling and his anxiety attacks preceding the incident were
relevant to his behavior on the day of the incident, including
whether there was a reasonable explanation that he was under the
influence of EMED at the time of the incident. Thromman also
asserted that each witness's testimony would be offered to show
Thromman's then-existing state of mind or physical condition.
The Circuit Court ultimately precluded Galinato and
Kawai's testimony because it determined that it would be
irrelevant to Thromman's EMED defense without other evidence such
as medical expert testimony, or Thromman himself, to connect the
past behavior, i.e., him seeking counseling for stress and his
alleged anxiety attacks, to his behavior on the day of the
incident. The Circuit Court indicated that as lay witnesses,
Galinato and Kawai were not qualified to relate the previous
instances of stress and anxiety attacks to how Thromman had acted
on the day of the incident. Also, it appears the Circuit Court
believed that only a medical expert could speak to the "medical
probability" of the relation of Thromman's prior conduct to his
state of mind at the time of the incident.
The Circuit Court noted that it would have been more
inclined to allow Galinato and Kawai's testimony had there been
other evidence that Thromman was suffering from EMED at the time
of the incident. However, the Circuit Court ultimately
disallowed the testimony based on the "state of the record" at
that point in trial, noting that if other witnesses could lay
other foundation it may allow the testimony.
We first note the Circuit Court erred to the extent
that it appeared to require Thromman to present medical expert
12
Thromman indicated that he was unsure of the exact date of when
Galinato had become aware of Thromman's efforts to obtain counseling, but he
stated that he believed it was in the days immediately preceding the incident.
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testimony in support of his EMED defense. The Supreme Court of
Hawai#i has explained that "[e]xpert testimony about defendant
being under the influence of extreme mental or emotional
disturbance for which there is a reasonable explanation is
allowable, since such a disturbance can reduce a murder to
manslaughter." State v. Klafta, 73 Haw. 109, 117, 831 P.2d 512,
517 (1992) (emphasis added) (citation omitted). However, we have
previously noted we were "not rul[ing] that expert testimony is
required to explain a defendant's mental or emotional
disturbance." State v. Tyquiengco, 6 Haw.App. 409, 411 n.2, 723
P.2d 186, 188 n.2 (1986). Thus, the Circuit Court erred in
excluding Galinato's and Kawai's testimony to the extent that it
found that medical expert testimony was required.
However, the Circuit Court's error was harmless because
Galinato's and Kawai's proffered testimony was not relevant to
whether Thromman was under the influence of EMED at the time of
the incident or whether there was a reasonable explanation for
the disturbance at that time. As this court explained in State
v. Pavich, "the relevant inquiry is whether the defendant was
under the influence of an EMED 'at the time he [committed the
crime].'" 119 Hawai#i 74, 88-89, 193 P.3d 1274, 1288-89 (App.
2008) (emphasis and alteration in original) (quoting State v.
Moore, 82 Hawai#i 202, 210, 921 P.2d 122, 130) (1996)).
Moreover, as the Hawai#i Supreme Court has explained, "EMED
manslaughter is the intentional or knowing killing of another
while under the influence of a reasonably induced emotional
disturbance causing a temporary loss of normal self-control, as
described in HRS § 707–702(2)." State v. Aganon, 97 Hawai#i 299,
304, 36 P.3d 1269, 1274 (2001) (emphasis added) (brackets,
ellipsis, and internal quotations omitted) (citing State v.
Sawyer, 88 Hawai#i 325, 333, 966 P.2d 637, 645 (1998)).
As Heather testified, on the evening of the incident,
Thromman "wanted to work things out" with Heather but Heather
told him she "didn't want to." Sergeant Kahalewai also testified
to receiving information that Heather had told Thromman she was
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seeing someone else. Heather further testified that after she
told Thromman she did not want to work things out, Thromman "got
mad" and "left [to get] a rifle." When Thromman returned, he
continued to ask Heather to work things out to which she
responded she did not want to and they continued "arguing back
and forth about [their relationship]." The situation got worse
from there.
Given the record in this case, there was no proffer
that either Galinato or Kawai could testify to Thromman's state
of mind on the day of the incident, or that they could provide a
link between Thromman's alleged prior anxiety attacks and attempt
to seek counseling from his employer to his behavior on the day
of the incident. Without such a link, the proffered evidence was
not probative of the presence or reasonableness of Thromman's
alleged EMED when he shot Officer Fukada, for purposes of count
3. See State v. Lavoie, 145 Hawai#i 409, 426, 453 P.3d 229, 246
(2019) as corrected (Dec. 2, 2019). In Lavoie, the Hawai#i
Supreme Court held that evidence of a defendant's prior abuse
against his wife was not probative as to his state of mind at the
time he shot her or the reasonableness of his state of mind,
explaining:
the evidence of Lavoie's prior abuse had little, if any,
probative value as to his state of mind at the time of the
shooting or to its reasonableness. Lavoie's EMED defense
stemmed from the stress that he felt after Kahalewai said
she would leave him, coupled with Kahalewai's insults and
references to his childhood sexual trauma immediately prior
to the shooting. The evidence of his prior abuse of
Kahalewai was not probative of the presence or
reasonableness of Lavoie's EMED because the witnesses
testifying to the incidents did not link the abuse to
Kahalewai leaving Lavoie. Absent such a link, Lavoie's
prior bad acts were not relevant to the reasonableness of
Lavoie's EMED at the time of the shooting.
Id. (emphases added).
Further, the Hawai#i Supreme Court has explained that
generalized testimony such as evidence of defendant's propensity
to lose her temper in stressful situations and that the infant
victim could cry a lot, without more, is not probative to whether
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defendant had acted under a loss of self-control resulting from
EMED during the incident. State v. Aganon, 97 Hawai#i at 304, 36
P.3d at 1274. Applied here, the proffer of Galinato's and
Kawai's generalized testimony that Thromman had attempted to
obtain counseling for stress related to work and family in the
days preceding the incident, or that he had suffered anxiety
attacks in the months preceding the incident, without more, was
not probative to whether Thromman had acted under a reasonably
induced emotional disturbance causing a temporary loss of normal
self-control when he shot Officer Fukada.
In this case, the Circuit Court did not err in
precluding Galinato and Kawai from testifying.
D. The Circuit Court did not abuse its discretion in
admitting video evidence of Thromman in police custody
on the day of the incident.
In his sixth point of error, Thromman asserts the
Circuit Court abused its discretion in admitting into evidence
State's Exhibit 431. State's Exhibit 431 was media footage
depicting Thromman on the day of the incident in police custody
and being placed into a vehicle for transport. The State offered
Exhibit 431 as probative evidence to show Thromman's demeanor on
the day of the incident and to rebut Thromman's argument that the
deployed pepper spray canisters had affected Thromman's ability
to see. Thromman contends such evidence was irrelevant and that
any probative value of the video was substantially outweighed by
the danger of unfair prejudice. We disagree and conclude the
Circuit Court did not abuse its discretion in admitting the
State's Exhibit 431.
"Relevant evidence may be excluded pursuant to HRE Rule
403 'if its probative value is substantially outweighed by the
danger of unfair prejudice[.]'" State v. Pasene, 144 Hawai#i
339, 362, 439 P.3d 864, 887 (2019) (alteration in original).
Here, Thromman asserts that State's Exhibit 431 was irrelevant to
show Thromman's demeanor and ability to see because the video was
recorded more than an hour after the pepper spray canisters were
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deployed and in any event Thromman was too far away from the
camera for the jury to actually observe his eyes or his demeanor.
Thromman also asserts that whatever minimal probative value that
the video had was substantially outweighed by the danger of
unfair prejudice because viewing the media clip may have
potentially evoked the jury's memories of the news coverage of
the incident and because it shows Thromman in custody.
As to the probative value of the video, the Circuit
Court noted that the video was the only evidence that depicted
what Thromman looked like on the day of the incident. Therefore,
it was probative to show his demeanor and his appearance on the
day of the incident. We further note that the danger of unfair
prejudice was low. As both the State and Thromman acknowledged,
the evidence introduced at trial established that Thromman was
taken into police custody after the incident.13 Any prejudice
from viewing the video of Thromman in police custody did not
substantially outweigh the probative value of the video. We
conclude the Circuit Court did not abuse its discretion in
admitting State's Exhibit 431 into evidence.
E. The Circuit Court erred in permitting the admission of
Heather's hearsay statements under HRE Rule 802.1 as
substantive evidence.
In his fifth point of error, Thromman asserts the
Circuit Court erred in permitting Heather to be recalled at the
end of the State's case-in-chief to admit audio recordings of
certain statements that she made to HPD after the incident. The
State sought to introduce the audio recordings at trial under the
hearsay exception for prior inconsistent statements set forth in
13
The State offered Exhibit 431 through the testimony of HPD Officer
Joseph Stender (Officer Stender), one of the HPD officers who took Thromman
into custody. Officer Stender testified, inter alia, to his recollection of
Thromman being placed in custody and transported on the day of the incident.
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HRE Rule 802.114 and 613(b).15 We conclude the audio recordings
were improperly admitted under HRE Rule 802.1 because Heather was
not capable of testifying substantively about the events
described in her prior statement such as to allow the jury to
meaningfully compare the prior version of the event with the
version recounted at trial. See State v. Canady, 80 Hawai#i 469,
480-81, 911 P.2d 104, 115-16 (App. 1996); State v. Clark, 83
Hawai#i 289, 295, 926 P.2d 194, 200 (1996).
The prior statements that the State introduced at trial
were excerpts from an interview of Heather that was conducted and
recorded days after the incident by HPD Detective Sandor Finkey
(Detective Finkey). Detective Finkey interviewed Heather while
she was in the hospital, where she allegedly made the following
statements about the incident that were memorialized in State's
Exhibits 430E, 430F, 430G, 430I, 430J, 430K, 430L, and 430M as
follows:
430E: "He stand up and he told me 'You're gonna die
tonight.' 'If I cannot have you, nobody can have you,
you gonna die'."
430F: "And um he came in the front room the kid's room..., I
just put my son down to sleep and he was yelling at
me, 'Fuck you, you fucking bitch. You're gonna
die[.]"
430G: Q. When you say he punched you, do you recall um ah
with what?
A. His fist.
Q. And he punch with, with what fist he punch you
with, the left or the right or, or both?
A. His left hand.
Q. Okay.
A. Closed fist, he punched me twice.
430I: "[A]nd he told me I'm gonna grab the hammer and I
wanna bash your head in[.]"
14
The relevant language of HRE Rule 802.1 is quoted in our discussion
below.
15
HRE Rule 613(b) provides:
(b) Extrinsic evidence of prior inconsistent statement of
witness. Extrinsic evidence of a prior inconsistent statement
by a witness is not admissible unless, on direct or
cross-examination, (1) the circumstances of the statement have
been brought to the attention of the witness, and (2) the
witness has been asked whether the witness made the statement.
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430J: "I just made it right out the kitchen door and he told
me you better get your ass in this house before I
shoot you. And that's when he cock the gun and he
shot me in my, in my thigh."
430K: "Um he laughed at me, he said good for me, you
deserved it, and I better stay there or he's gonna put
another bullet to the back of my head. But when he
shot me in my thigh, I passed out for a little while.
I woke up and that's when I lean myself against the
wall and I sat there and he was just laughing at me
after."
430L: "Um he went, he went in the kitchen, he grab some ah
gallon water and he was throwing water at my face,
telling me if I'm thirsty. Here drink some water you
fucking bitch, drink some water, drink some water
cause you're gonna die[.]"
430M: "[A]nd he told my daddy better turn around and get the
fuck out of here cause he's gonna kill him too."
At trial, the State directly examined Heather as a
witness and elicited testimony from her about her recollection of
the incident. After recounting the incident, Heather testified
that she did not remember parts of the night. The State then
questioned her about her recorded interview with Detective
Finkey, and whether she had an opportunity to listen to it prior
to testifying at court. Heather acknowledged that she listened
to the recording, and that she recognized her voice in the
recording.16 However, Heather indicated that she could not
recall most of the events she described in the audio recording,
noting that she could only remember having her fingers slammed in
the door, getting shot in the leg, having various injuries to her
head, and that Thromman had told her she "better stay." Heather
also testified that she could not remember what she had told the
HPD officers during the interview because she claimed that she
had "been on a lot of medications."
The State proceeded to question Heather whether she
remembered making specific statements recorded in her interview,
including statements reflected in State's Exhibits 430E-G and
430I-M, to which she continued to claim she could not recall. At
16
Heather also indicated that she initialed the copy of the recording
after listening to it.
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the end of the State's direct examination, Heather acknowledged
that she testified to all that she could remember from what
happened during the incident. On cross-examination, Heather
again acknowledged that she recognized her voice in the audio
recording but could not recall whether she made some of those
statements, or the accuracy of some of those statements. The
Circuit Court then dismissed Heather, subject to recall.
The State recalled Heather near the end of its case-in-
chief. At the hearing on Thromman's motion in limine opposing
Heather's recall, the State indicated that it sought to admit
redacted portions of the recorded interview under HRE Rules 802.1
and Rule 613(b) to impeach her prior testimony that she could not
remember making certain statements or could not recall being
punched or slapped by Thromman. Thromman argued to the Circuit
Court that the recordings could not be brought in as substantive
evidence because Heather never denied making those statements,
but rather testified that she no longer remembered the events
pertaining to those statements. The Circuit Court ultimately
determined that it would allow the State to recall Heather to
impeach her on the statements she testified to not remembering.
The Circuit Court also noted that based on Heather's demeanor
during hearings in this case, and her testimony that she did not
remember some of the events, it was the Court's evaluation that
Heather was more aligned to the defense than the State.
In its direct examination on recall, the State
specifically questioned Heather whether she had made the
statements recorded in her interview with Detective Finkey, to
which she continued to assert that she could not remember. The
Circuit Court then conducted an HRE Rule 104 (preliminary
questions concerning the qualification of a person to be a
witness) hearing outside the presence of the jury so that the
State could establish foundation regarding the identification of
voices in the State's exhibits. At the conclusion of the HRE
Rule 104 hearing the Circuit Court admitted the recordings into
evidence, and stated the following:
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The Court: So the 430 series whether it's, uh, E which
was received into evidence the Court, uh, would state that,
yes, uh, the witness is -- the witness did testify she did
not remember making those statements on the exhibit.
However, she did acknowledge that's her voice.
The Court has also heard the detective who recorded
the statements state the demeanor under which the witness
has made those statements. The Court has also considered
the relationship between the witness and the defendant.
And it is true generally a witness who claims to have
forgotten the matter previously asserted, uh, there is no
inherent contradiction because memories do fade and the
witnesses may be telling the truth about not being able to
recollect.
On the other hand a witness who basically states,
"Don't recall" or inability to remember may not escape
cross-examination or -- or, uh, examination, uh, by
asserting no recollection or not remember making the
statements.
And in admitting these exhibits the Court has
considered and heard the tape of the witness's demeanor, the
voice on the tape, the detailed statements on the tape by
the witness and the relationship between the parties.
The Court also would note that the witness is here to
be cross-examined by the -- a party who wishes to examine on
the statement in the exhibits. So that's the reason the
Court is allowing these exhibits.
(Emphasis added.) During the hearing, the Circuit Court also
acknowledged its determination that "with respect to [Heather]
saying that she doesn't recall . . . . the Court will consider
that inconsistent." Once the jury was reconvened, the Circuit
Court allowed the State to publish the audio recordings, and the
Circuit Court gave no limiting instructions to the jury.17
Finally, on cross-examination during recall, Heather
once again testified that she recognized her voice in the
recordings and that she did not deny making those statements to
17
Prior to Heather's recall, the Circuit Court received State's
Exhibits 430E-G, and 430I-L into evidence "subject to further foundation from
[Heather]" through the testimony of Detective Finkey. During the State's
direct examination, Detective Finkey was asked whether Heather had made the
statements recorded in the State's exhibits, to which he responded yes. The
Circuit Court gave limiting instructions to the jury that Detective Finkey's
responses are not to be considered for the truth of the matter asserted.
Heather and Detective Finkey were recalled later that day to admit
State's Exhibit 430M in a substantially similar manner.
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Detective Finkey. However, Heather testified that she could not
remember being interviewed in the hospital. Heather also
testified that the only thing she could remember about the event
described in the audio recording was that Thromman had closed the
door on her, and that she told him to move out of the way so that
she could leave the house.
We conclude the State's exhibits were not admissible
under HRE Rule 802.1 as substantive evidence of the matters
stated on the recordings because Heather testified she could not
recall the events described in the audio recordings and thus was
not subject to cross-examination concerning the "subject matter"
of her prior statements.
HRE Rule 802.1(1) provides as follows:
The following statements previously made by witnesses who
testify at the trial or hearing are not excluded by the
hearsay rule:
(1) Inconsistent statement. The declarant is subject
to cross-examination concerning the subject
matter of the declarant's statement, the
statement is inconsistent with the declarant's
testimony, the statement is offered in compliance
with rule 613(b), and the statement was:
(A) Given under oath subject to the penalty of
perjury at a trial, hearing, or other
proceeding, or in a deposition; or
(B) Reduced to writing and signed or otherwise
adopted or approved by the declarant; or
(C) Recorded in substantially verbatim fashion
by stenographic, mechanical, electrical, or
other means contemporaneously with the
making of the statement[.]
(Emphasis added.) As this court explained:
[T]he rule was intended to exclude the prior
statements of a witness who could no longer remember the
underlying events described in the statement. Absent the
opportunity to cross-examine a witness about the material
events described in a prior statement, the statement would
lack one of the twin guarantees of trustworthiness
supporting its admissibility as substantive evidence of the
matters asserted in the statement.
Hence, unlike FRE Rule 801(d)(1), HRE Rule 802.1(1)
requires more of the witness than just that he or she be
placed on the stand, under oath and respond willingly to
questions. We hold that HRE Rule 802.1(1) requires, as a
guarantee of the trustworthiness of a prior inconsistent
statement, that the witness be subject to cross-examination
about the subject matter of the prior statement, that is,
that the witness be capable of testifying substantively
about the event, allowing the trier of fact to meaningfully
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compare the prior version of the event with the version
recounted at trial before the statement would be admissible
as substantive evidence of the matters stated therein.
State v. Canady, 80 Hawai#i at 480-81, 911 P.2d at 115-16(emphases added) (footnote, internal quotation marks, citations,
and brackets omitted). Here, the requirement of HRE Rule
802.1(1) that "[t]he declarant is subject to cross-examination
concerning the subject matter of the declarant's statement" was
not satisfied because Heather testified that she was unable to
recall the events that she allegedly described in the audio
recordings. See id. at 481, 911 P.2d at 116.
While Heather testified to her recollection of the
incident, she continually testified that she could not remember
the events that she described in the audio recordings, that is,
whether Thromman had threatened her before and after he had shot
her, whether Thromman had punched her, whether Thromman
threatened to kill her father, or whether Thromman threatened to
kill her if she left the house. Thus, Thromman was not afforded
the opportunity to have Heather fully explain to the trier of
fact why her testimony may have been inconsistent with her out of
court statements to enable the jury to determine where the truth
lay. See Clark, 83 Hawai#i at 295, 926 P.2d at 200.
As explained above, while the Circuit Court noted that
Heather was available at trial for cross-examination, "HRE Rule
802.1(1) requires more of the witness than just that he or she be
'placed on the stand, under oath and respond willingly to
questions.'" Canady, 80 Hawai#i at 480, 911 P.2d at 115(citation and brackets omitted). Accordingly, because Heather
could not testify substantively about the specific material
events described in the audio recording, Thromman was not
afforded the opportunity to cross-examine her about the subject
matter of the prior statement to allow the jury to meaningfully
compare the prior version of the incident with the version
recounted at trial. See id. at 480-81, 911 P.2d at 115-16.
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We further note that the Circuit Court gave no limiting
instructions to the jury when the State's exhibits were
published. Accordingly, even if the audio recordings were
properly introduced as extrinsic evidence to impeach Heather on
her prior "inconsistent" statements, the failure to instruct the
jury that the evidence was not to be considered as substantive
evidence of Thromman's guilt was error. See Clark, 83 Hawai#i at
296, 926 P.2d at 201 (noting that if extrinsic evidence of
witness's prior inconsistent statements was admissible only for
purposes of impeachment, then the failure to instruct that the
evidence was not to be considered as substantive evidence of
defendant's guilt may have been error).
The State, citing State v. Fields, 115 Hawai#i 503, 168
P.3d 955 (2007), responds that the fact Heather appeared at trial
and testified was sufficient to satisfy the requirements of the
confrontation clause. However, Thromman's point of error
challenges the admission of the audio recordings as inadmissible
hearsay, improperly admitted under HRE Rules 802.1 and 613(b).
Thromman does not challenge based on the confrontation clause.18
The State also asserts the Circuit Court had an
adequate basis to determine that Heather's claim of lack of
memory was not credible, and thus inconsistent with her prior
recorded statements. However, the State fails to point to any
authority that such a determination was relevant in admitting the
audio recordings under HRE Rules 802.1 and 613(b).
Finally, we conclude the admission of the audio
recordings as substantive evidence of Thromman's guilt was not
harmless, in that "there is a reasonable possibility that the
error complained of might have contributed to the conviction."
18
Different tests apply regarding the confrontation clause and HRE
Rule 802.1. With regard to the confrontation clause, the Hawai#i Supreme
Court noted that "this court has not adopted HRE Rule 802.1 as its test for
whether a witness appears at trial for cross-examination." See State v. Delos
Santos, 124 Hawai#i 130, 149-50, 238 P.3d 162, 181-82 (2010) (declining to
interpret Fields to require cross-examination regarding the subject matter of
the statement to satisfy the confrontation clause).
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State v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d 1215, 1220
(1996) (citation and internal quotation marks omitted). In the
audio recordings, Heather stated, inter alia, that Thromman had
threatened to kill her and her father, had punched her with a
closed fist, had laughed at her after shooting her, and had
threatened to kill her if she attempted to leave the house. As
challenged by Thromman, this evidence was admitted as substantive
evidence when Heather was recalled as a witness by the State, and
was not used only to impeach Heather. Such evidence was
probative regarding Thromman's convictions on count 7
(Terroristic Threatening in the First Degree relating to
Timothy), count 10 (Kidnapping relating to Heather), and count 13
(Assault in the First Degree relating to Heather).
Therefore, Thromman's convictions on counts 7, 10, and
13 must be vacated, and the case remanded for a new trial on
these counts.
F. The Circuit Court erred in denying Thromman's request
to include Kidnapping in the merger instruction for the
offenses involving Heather.
In his third point of error, Thromman contends the
Circuit Court erroneously denied his request to include
Kidnapping in the merger instruction for the offenses involving
Heather. Thromman asserts this failure prevented the jury from
considering whether Kidnapping was part of the same course of
conduct as Assault in the First Degree against Heather.
Consequently, Thromman argues the convictions for Kidnapping and
First Degree Assault should be vacated and remanded for the State
to elect to dismiss one of the convictions or retry the charges
with a merger instruction, pursuant to State v. Padilla, 114
Hawai#i 507, 509-10, 164 P.3d 765, 767-68 (App. 2007), as
corrected (Aug. 16, 2007). We agree that Kidnapping should have
been included in the merger instruction.
The Hawai#i Supreme Court has stated:
Generally, when the same conduct of a defendant may
establish an element of more than one offense, the
defendant may be prosecuted for each offense of which
such conduct is an element. HRS § 701-109(1) (1993).
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A defendant may not, however, be convicted of more
than one offense if the offense is defined as a
continuing course of conduct and the defendant's
course of conduct was uninterrupted, unless the law
provides that specific periods of conduct constitute
separate offenses. HRS § 701-109(1)(e).[19] Thus,
this court has concluded that only one crime is
committed when (1) there is but one intention, one
general impulse, and one plan, (2) the two offenses
are part and parcel of a continuing and uninterrupted
course of conduct, and (3) the law does not provide
that specific periods of conduct constitute separate
offenses.
State v. Martin, 146 Hawai#i 365, 389, 463 P.3d 1022, 1046
(2020), as corrected (Apr. 23, 2020), reconsideration denied, No.
SCWC-XX-XXXXXXX, 2020 WL 2538923 (Haw. May 19, 2020) (citing
Lavoie, 145 Hawai#i at 431-33, 453 P.3d at 251-53; State v.
Matias, 102 Hawai#i 300, 75 P.3d 1191 (2003)) (brackets and
footnote added).
Whether a defendant's conduct constitutes "separate and
distinct culpable acts or an uninterrupted continuous course of
conduct" is a question for the trier of fact. Martin, 146
Hawai#i at 390, 463 P.3d at 1047. "And, the jury should also be
required to determine whether [the defendant] had one intention,
one general impulse, and one plan to commit both offenses." Id.
(citing Lavoie, 145 Hawai#i at 433, 453 P.3d at 253 (holding the
determination of merger must be made by the trier of fact)).
19
HRS § 701-109(1)(e) (2014) provides:
HRS §701-109 Method of prosecution when conduct
establishes an element of more than one offense. (1) When the
same conduct of a defendant may establish an element of more
than one offense, the defendant may be prosecuted for each
offense of which such conduct is an element. The defendant may
not, however, be convicted of more than one offense if:
. . . .
(e) The offense is defined as a continuing course of
conduct and the defendant's course of conduct was
uninterrupted, unless the law provides that
specific periods of conduct constitute separate
offenses.
"This subsection reflects a policy to limit the possibility of multiple
convictions and extended sentences when the defendant has basically engaged in
only one course of criminal conduct directed at one criminal goal, or when it
would otherwise be unjust to convict the defendant for more than one offense."
HRS § 709-109 cmt.
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The State contends that it can be inferred from
Heather's testimony that the act and intent of Thromman by
keeping Heather in the home with him (Kidnapping) is separate and
apart from shooting her in the leg (Assault in the First Degree).
However, the jury and not the trial court is to draw this
inference, and the lack of a merger instruction precluded the
jury from determining whether there was one intention, one
general impulse, and one plan.
The State charged Thromman with Kidnapping as to
Heather in count 10 and Assault in the First Degree as to Heather
in count 13, alleging both occurred on July 13, 2015. The
Circuit Court's jury instructions on those counts also specified
that date. Through the State's opening statement, closing
argument, and during Heather's testimony, the jury heard
descriptions of the incident leading up to Heather being shot in
the leg: Thromman had asked whether she wanted to work things
out, Heather told him she did not want to and that there was
someone else, and they began to argue. Thromman then left the
house and obtained from his car a rifle, which he loaded, and
came back into the house, yelling. In the meantime, Heather was
holding her six-month old son in her arms. Heather attempted to
leave the house but Thromman closed the door on her hand and
pulled her hair or her shirt to keep her in the house, where they
continued to argue. Heather called out for help and her uncle,
Frank Coito (Frank), heard her, came to the house, and Thromman
told Frank to leave, which Thromman allowed Frank to do.
Heather, in the meantime, remained trapped in the house with her
son. Frank called Heather's parents, who arrived at the house.
Thromman continued to block Heather from leaving, but Heather
demanded to be let out so that she could give her son to her
parents. Thromman let Heather out through the kitchen door onto
the ramp and kept a grasp on her hair or her shirt at arm's
length as she handed her son over the railing to Timothy, her
father. While Heather was on the ramp leading from the carport
up to the entryway into the house, Thromman grabbed her and tried
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to drag her back into the house. Again, Heather tried to escape
and managed to get outside on the ramp, with Thromman not far
behind her, when he shot her in the right thigh. Given the
record, the jury could have reasonably construed the evidence as
supporting separate and distinct culpable acts of Kidnapping and
Assault in the First Degree as to Heather, or as an uninterrupted
continuous course of conduct, such that a merger instruction was
warranted.
This court has determined that Kidnapping and Assault
in the First Degree may be charged as continuous offenses
because:
First, the statutes proscribing first-degree assault and
kidnapping do not prohibit charging the offenses as a
continuing offense. . . . Second, the relevant element of
first-degree assault (causes serious bodily injury) and
kidnapping (restrains another) may constitute a continuous
act or series of acts.
Smith v. State, No. CAAP-XX-XXXXXXX, 2020 WL 2790498, at *10
(Haw. App. May 29, 2020) (mem.) (citation in quote and internal
quotation marks omitted) (citing State v. Apao, 95 Hawai#i 440,
448, 24 P.2d 32, 40 (2001) (examining whether a specific
unanimity instruction was required and stating "this court has
previously stated that, under certain circumstances, kidnapping
would be an example of a continuing offense")). Because these
offenses can be charged as continuous offenses, and given the
record in this case, the jury should have determined whether
there was one intention, one general impulse, and one plan, that
is, whether the two offenses merged. Martin, 146 Hawai#i at 390,
463 P.3d at 1047; State v. Hoey, 77 Hawai#i 17, 38, 881 P.2d 504,
525 (1994).
Here, as noted, the statutory language does not
prohibit charging Kidnapping as a continuous offense. Notably,
in its closing argument the prosecution relied on Thromman
shooting Heather in the leg for the Kidnapping charge.
Furthermore, the charge of Assault in the First Degree was based
on Thromman shooting Heather with a firearm. Therefore, it is
reasonably possible that the jury convicted Thromman of multiple
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offenses (i.e., Kidnapping and Assault in the First Degree) based
on the same conduct (shooting Heather in the leg with a firearm).
Moreover, there was sufficient evidence of Kidnapping and Assault
in the First Degree against Heather, as reflected by the jury's
verdict. Nonetheless, the trial court is not tasked with making
factual findings regarding when each offense occurred or whether
the defendant's conduct constitutes "an uninterrupted continuous
course of conduct." Lavoie, 145 Hawai#i at 433, 453 P.3d at 253.
That is the province of the trier of fact.
We conclude the Circuit Court erred by failing to
include Kidnapping (count 10) in the merger instruction. Given
our earlier holding to vacate count 10 (along with counts 7 and
13) due to the erroneous admission of the audio recordings of
Heather's hearsay statements, the State does not have the option
under Padilla to dismiss either Kidnapping (count 10) or Assault
in the First Degree as to Heather (count 13), or to maintain the
conviction as to one charge. Instead, because both counts 10 and
13 are vacated and HRS § 701-109(1)(e) only prohibits conviction
for merged offenses, the State is permitted to prosecute both
counts in a new trial with an appropriate merger instruction.
See Padilla, 114 Hawai#i at 517, 164 P.3d at 775.
G. The Circuit Court erred in imposing consecutive
sentences without adequate reasons on the record.
In his seventh point of error, Thromman contends that
although no objection was raised, the Circuit Court plainly erred
when it imposed consecutive sentences without adequate
explanation on the record. Thus, the sentences should be vacated
and the matter remanded for resentencing. We agree.
"Multiple terms of imprisonment run concurrently unless
the court orders or the statute mandates that the terms run
consecutively" and in determining whether a sentence runs
concurrently or consecutively, the court is required to consider
the factors set forth in HRS § 706-606 (2014). HRS § 706-668.5
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(2014).20 "[A] court must state its reasons as to why a
consecutive sentence rather than a concurrent one was required."
Lewi v. State, 145 Hawai#i 333, 350, 452 P.3d 330, 347 (2019)
(emphasis added) (quoting State v. Hussein, 122 Hawai#i 495, 509,
229 P.3d 313, 328 (2010), as corrected (Apr. 28, 2010)). "[T]he
dual purposes behind the requirement that reasons be stated for a
court's imposition of a consecutive sentence are to '(1) identify
the facts or circumstances within the range of statutory factors
that the court considered, and (2) confirm for the defendant, the
victim, the public, and the appellate court that the decision was
deliberate, rational, and fair.'" Id. (brackets omitted)
(quoting State v. Kong, 131 Hawai#i 94, 102-03, 315 P.3d 720,
728-29 (2013)). "[T]he sentencing court is not required to
articulate and explain its conclusions with respect to every
factor listed in HRS § 706-606. Rather, it is presumed that a
sentencing court will have considered all factors before imposing
20
HRS § 706-668.5 provides, in relevant part:
(1) If multiple terms of imprisonment are imposed on a
defendant, whether at the same time or at different times . .
. the terms may run concurrently or consecutively. Multiple
terms of imprisonment run concurrently unless the court orders
or the statute mandates that the terms run consecutively.
(2) The court, in determining whether the terms imposed
are to be ordered to run concurrently or consecutively, shall
consider the factors set forth in section 706-606.
In turn, the factors set forth in HRS § 706-606 are as follows:
(1) The nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense,
to promote respect for law, and to provide
just punishment for the offense;
(b) To afford adequate deterrence to criminal
conduct;
(c) To protect the public from further crimes
of the defendant; and
(d) To provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in
the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct.
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concurrent or consecutive terms of imprisonment under HRS
§ 706-606." Lewi, 145 Hawai#i at 350-51, 452 P.3d at 347-48
(footnote and internal quotation marks omitted) (quoting Kong,
131 Hawai#i at 102, 315 P.3d at 720). "Thus, a sentencing court
is required to articulate its reasoning only with respect to
those factors it relies on in imposing consecutive sentences."
Id. at 351, 452 P.3d at 348 (quoting Kong, 131 Hawai#i at 102,
315 P.3d at 720).
In State v. Barrios, the Hawai#i Supreme Court affirmed
the defendant's convictions but vacated the sentence, as the
Circuit Court failed to adequately explain its rationale for
imposing multiple consecutive sentences that resulted in a one
hundred-year prison sentence. 139 Hawai#i 321, 321, 389 P.3d
916, 916 (2016). The supreme court determined that the Circuit
Court examined the nature and circumstances of Barrios's crime
under HRS § 706–606(1) and the need for the sentence "[t]o
reflect the seriousness of the offense, [and] to promote respect
for the law" under HRS § 706–606(2)(a) in recounting the
following:
This young child was a child, a baby. I think she was
eight years old when the abuse started. Eight years
old, a second grader, and it went on for years and
years and years. You groomed her. You used threats.
You used manipulation. You used mind games. You
molded her to be a victim....
The history and circumstances of the crime that the
Court needs to look upon can be no more serious crime
than the 72 A felonies that you're looking at, a total
of 146 different counts. You have no respect for the
law.
Id. at 336, 389 P.3d at 931. The Circuit Court also apparently
relied upon the need for the sentence to afford adequate
deterrence to the defendant's criminal conduct under HRS
§ 706–606(2)(b). Id. at 337, 389 P.3d at 932 (first alteration
in original). The court further considered the need for the
sentence "[t]o protect the public from further crimes of the
defendant" under HRS § 706–606(2)(c), id. (alteration in
original), in stating, "[i]t is the hope of this Court for the
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safety of all children that you should never see the outside of a
prison's walls." Id. at 337, 389 P.3d at 932. Notwithstanding
the fact that the Circuit Court addressed statutory factors on
the record, the Hawai#i Supreme Court determined that the Circuit
Court did not sufficiently explain its decision to impose
multiple consecutive sentences as required by Hussein and Kong.
Id. As an example, the State recommended sentences for the counts
for kidnapping and sexual assault counts to run concurrently with
other sentences, but the Circuit Court imposed consecutive
sentences for those same counts without stating reasons why it
rejected the State's recommendation. Id.
Here, the State argued for consecutive sentencing for
count 3 (Attempted Murder in the Second Degree relating to
Officer Fukada) and count 17 (Terroristic Threatening relating to
Officer Ku) and count 26 (Terroristic Threatening relating to
Officer Kim). Thromman asked for all sentences to run
concurrently and for the court to impose only the mandatory
minimums.
For count 3, the Circuit Court imposed an
"indeterminate period of LIFE with the possibility of parole, and
with a mandatory minimum of fifteen (15) years[.]" For counts 17
and 26, the Circuit Court imposed "an indeterminate period of
FIVE (5) YEARS as to each count, with a mandatory minimum of
three (3) years, consecutive with each other and consecutive with
Count 3[.]" All other sentences were imposed to run
concurrently.
In announcing Thromman's sentence, the Circuit Court
stated:
In this case this is a -- an example of a
domestic violence case that shows that there are more
than two parties to a domestic violence case.
Certainly, the primary party, the -- the brunt of the
incident is the complaining victim. Nevertheless,
this case shows that there are more than the victim.
In fact there are multiple victims in the
domestic violence case such as this. You have the
family members who try to intervene. You have the
police officers in the community who tries [sic] to
protect the family -- other family members and the
victim in this case. So domestic violence is not a --
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a -- a case where only two people are involved and the
State should not be involved.
A -- certainly the police officers are
sworn to uphold the law, protect people, and certainly
what -- what I've heard their lives are just as
important as the victim. Notwithstanding that they're
trained to protect the public, they -- they're human
beings like everybody. They have families also, you
know. In the -- in the PSI, I've read the report from
family members of the police officers, and certainly
one -- the police officer got shot, stated succinctly,
"people have bad days and certainly, you know,
sometimes people break up. It's not uncommon
unfortunately. But people don't go out shooting other
people to try to maintain the relationship.
If that's the kind of relationship you
want, to threaten somebody to stay in a relationship,
that's not a relationship. It's like being in prison.
It's like being -- keeping someone from going their
separate ways [sic]. And like you mentioned it,
certainly, yes, you may have problems within your
relationship involving children, but does not -- that
does not mean that you cannot raise the children
separately. In fact in this particular case,
unfortunately, Mr. Thromman, I read a lot of support
letters from you, your family, your friends, but
unfortunately you made a bad choice that affects not
only your life but affects other people's life's
[sic]: The officer who was shot, the officers who were
shot at, your family members, your children, and
unfortunately for you, you know, like your lawyer
points out, 24 hours will have affect -- will affect
the rest of your life.
And so the Court having adjudge you guilty
of Count 3, Attempted Murder in the Second Degree, it
is the judgment and sentence of this Court that you be
committed . . . for an indeterminate period of life
with the possibility of parole with a mandatory
minimum of 15 years.
. . . .
As to the counts 17 and 26, the Terroristic
Threatening Against a [sic] Police Officers, it is the
judgment and sentence of this Court that you be
committed to the custody, [of the] Director, [of the]
Department of Public Safety, for an indeterminate
period of 5 years as to each count with a mandatory
minimum of 3 years for each count. Each count to run
consecutively with each other and each count to run
consecutively with Attempted Murder in the Second
Degree.
(Emphasis added.)
Applying Hussein and Kong, we must presume that the
Circuit Court considered all factors before imposing concurrent
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or consecutive sentences. Kong, 131 Hawai#i at 102, 315 P.3d at
728 (quoting Hussein, 122 Hawai#i at 503, 229 P.3d at 321). The
Circuit Court in this case hinted at "[t]he need for the sentence
imposed [(a)] to reflect the seriousness of the offense, to
promote respect for law, and to provide just punishment for the
offense," pursuant to HRS § 706-606(2)(a), when it stated that a
domestic violence case involves more than just the complaining
victim and made references to the involvement of the police.
However, similar to the trial court in Barrios, 139 Hawai#i at
337, 389 P.3d at 932, the Circuit Court failed to provide any
meaningful rationale for imposing consecutive sentences for each
of counts 3, 17, and 26. We therefore conclude that the Circuit
Court erred in failing to place adequate reasons on the record
for imposing consecutive sentences, in accordance with Hussein
and Kong.
V. Conclusion
Based on the foregoing, we affirm the following entered
by the Circuit Court of the Third Circuit:
(1) the January 18, 2017 "Findings of Facts and
Conclusions of Law re: Motion to Determine Voluntariness of
Defendant's Statements"; and
(2) the January 31, 2017 "Findings of Fact and
Conclusions of Law Re: Defendant's Motion to Dismiss Counts 14-15
in Cr. No. 15-1-216K and Counts 1-27 in Cr. No. 16-1-299K."
We vacate the "Judgment of Conviction and Sentence"
entered on April 18, 2017, with respect to the conviction and
sentence for: count 7 (Terroristic Threatening in the First
Degree as to Timothy Coito); count 10 (Kidnapping as to Heather
Coito); and count 13 (Assault in the First Degree as to Heather
Coito). We remand for a new trial on these counts.
We also vacate the "Judgment of Conviction and
Sentence" entered on April 18, 2017, to the extent that it
entered consecutive sentencing with respect to count 3 (Attempted
Murder in the Second Degree as to Officer Fukada), count 17
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(Terroristic Threatening in the First Degree relating to Officer
Ku) and count 26 (Terroristic Threatening in the First Degree
relating to Officer Kim). We remand for further proceedings in
the Circuit Court to address consecutive sentencing with respect
to these counts.
In all other respects, we affirm the "Judgment of
Conviction and Sentence" entered on April 18, 2017.
DATED: Honolulu, Hawai#i, February 28, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Terri L. Fujioka-Lilley,
for Defendant-Appellant /s/ Katherine G. Leonard
Associate Judge
Kauanoe A. Jackson,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
for Plaintiff-Appellee Associate Judge
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