State v. Ahsing

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-JUL-2021
07:49 AM
Dkt. 50 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
KAHAMAIOKUMOAE AHSING, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL CASE NO. 1PC151001824)
MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Defendant-Appellant Kahamaiokumoae Ahsing (sometimes,
Kahamai) appeals from the "Amended Judgment of Conviction and
Probation Sentence" (Amended Judgment) entered by the Circuit
Court of the First Circuit on September 26, 2018.1 For the
reasons explained below, we affirm the Amended Judgment.
On November 19, 2015, Ahsing was indicted by a grand
jury for: assault against a law enforcement officer (Officer
Dannan Smith) in the first degree (Count 1); assault against a
law enforcement officer (Officer Kathleen Cruz) in the first
degree (Count 2); and criminal property damage in the third
degree (to property of Officer Leonardo Juarez) (Count 3).
On May 17, 2017, a jury returned a verdict of not
guilty on Count 1, guilty as charged on Count 2, and guilty of
the lesser-included offense of criminal property damage in the
fourth degree on Count 3. A judgment was entered on August 28,
1
The Honorable Rom A. Trader presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
2018.2 The Amended Judgment was entered on September 26, 2018,
to correct a clerical error in the name of the recipient of
restitution. This appeal followed.
Ahsing contends: (1) "The Circuit Court erred in
permitting Officer Juarez to testify that the clarity of the
Taser video images lost clarity upon being downloaded and that
the original video showed Ahsing throwing the chair"; and (2)
"The Trial Court Erred in Denying Ahsing's Motion for Judgment of
Acquittal."
TRIAL PROCEEDINGS
The State's first trial witness was Honolulu Police
Department (HPD) officer Juarez. Officer Juarez was on duty on
June 21, 2015. At 10:45 p.m. he responded to a call about an
argument. The scene was a house surrounded by a fence. When he
arrived at the scene he saw four males in the driveway of the
house. One of the males was Ahsing. According to Officer
Juarez, another male (Ahsing's father, Clayton) "was screaming
and yelling, fuck you, fuck you, I got a gun, fuck you, shoot
me." Two other males (Ahsing and his younger brother, Kaulupono
or Kaulu) "were yelling, what the fuck, what the fuck, fuck you,
what the fuck. Same thing, except he was -- the father was
yelling he had a gun."
Officer Juarez called for backup. HPD officers Smith,
Cruz, and Kenneth Fontes soon arrived at the scene. As the four
police officers started approaching the house, Clayton "busted
out through the gate. The boys were trying to restrain him. And
he was just going wild, trying to come at me, coming towards us.
He was getting wild." Officer Juarez activated the camera on his
Taser to record Clayton's aggressive demeanor.
Officer Juarez again activated the camera on his Taser
"when [Ahsing] threw the chair at us." Officer Juarez described
State's Exhibits 6 and 7 as photographs of the metal folding
chair thrown by Ahsing, on the ground next to a spent Taser
2
A Judgment of Acquittal as to Count 1 had been entered on May 17,
2017.
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
cartridge. Officer Juarez authenticated State's Exhibit 14 as
the folding chair he saw Ahsing throw. Officer Juarez saw the
chair hit Officer Smith and then hit Officer Cruz.
Officer Juarez shot the Taser at Ahsing after Ahsing
threw the chair. The Taser prongs hit Ahsing, who fell down.
Clayton got tangled in the Taser wires, severing the electrical
connection. Ahsing then got up and ran away.
Officer Juarez reloaded his Taser and attempted to
pursue Ahsing. When he turned back he saw Ahsing pounding on the
back window of his police-subsidized vehicle with what looked
like a rake. Officer Juarez ran to his vehicle; Ahsing dropped
the rake and ran away. Officer Juarez authenticated photographs
of the damage to his vehicle, and of the rake used by Ahsing to
cause the damage, all of which were received in evidence.
Officer Juarez then authenticated State's Exhibits 11,
12, and 13 as CDs of his Taser videos. The CDs were received in
evidence without objection. The videos were played for the jury.
After State's Exhibit 12 was played, Officer Juarez described
Ahsing throwing the chair and being Tased, with the Taser wires
shown in the video, and Clayton getting tangled in the Taser
wires.
On cross-examination, defense counsel replayed State's
Exhibit 12 for the jury and asked Officer Juarez:
Q. And at this point, Clayton is on the ground;
right? Right? 8:53:49.
A. I can't see it, sir. (Steps down from witness
stand.)
Q. White shirt?
A. Yes, sir.
Can I say something?
THE COURT: No. Hold on. Wait until there's a
question, and then you may respond.
Q. (BY [DEPUTY PROSECUTING ATTORNEY]) So Clayton is
on the ground?
A. Yes.
Q. And the Taser has deployed?
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
A. Yes.
Q. Okay. And [Defendant Ahsing] is hit with the
Taser; right?
A. Yes.
Q. And he goes down?
A. Yes, sir.
Q. And Clayton stands up; it's dislodged?
A. Yes, sir.
Q. And [Defendant Ahsing] runs out the back?
A. Yes, sir.
(Emphasis added.)
On redirect examination, the State asked Officer
Juarez:
Q. Officer Juarez, as defense was playing State's
Exhibit 12 to you --
A. Yes.
Q. -- at one point, there was something you wanted
to clarify.
A. The clarity on the video, it's not as clear as
when you -- when they downloaded it. This TV is not -- the
pixel is not as clear. When you see it on -- on the --
actually see the video, you can actually see him.
[DEFENSE COUNSEL]: Judge, we object. And move to
strike.
(Emphasis added.)
The circuit court called counsel to the bench. The
following exchange took place:
THE COURT: The basis of your objection?
[DEFENSE COUNSEL]: Something just seems wrong about
this. I mean, it's -- he's vouching for evidence that
essentially doesn't exist.
And I'd like permission to ask if, number one, if he
can use the Taser camera to actually show the video. In
other words, is there a screen where you can use it to show
the video? And if possible, maybe we can use that, if he's
going to be saying there's something wrong with State's
Exhibit 12.
THE COURT: Your legal objection is what?
[DEFENSE COUNSEL]: Is that -- it's not speculation.
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
But --
[DEPUTY PROSECUTING ATTORNEY]: Judge, I don't see any
best evidence rule here.
[DEFENSE COUNSEL]: Yeah, I was going to say best
evidence, but frankly speaking, just something seems wrong
about this.
THE COURT: At this point, I'm going to overrule the
objection.
[DEPUTY PROSECUTING ATTORNEY]: I'll move on.
THE COURT: With that, the officer communicated that
or was commenting that what you viewed in court isn't the --
as I took it, it's not the recording itself, but it's the
playback or display. And it was left unclear as to what was
used to facilitate that playback. I could be wrong, but I
don't necessarily believe that Tasers have a video screen.
[DEFENSE COUNSEL]: Okay.
THE COURT: If they do, I stand corrected. But I would
be surprised about that. But certainly, you may be free to
follow up as you feel appropriate. But I'm going to
overrule the objection. Okay? Thank you.
(Emphasis added.) There was no further redirect on State's
Exhibit 12.
On recross-examination, Ahsing's attorney asked follow-
up questions about State's Exhibit 12:
Q. Does the Taser have a screen by which you can
watch recorded --
A. No.
Q. Okay. So you're saying that if we were to use
-- if we use some other device to look at this data, it
would be better?
A. Maybe a smaller screen on a computer.
Q. Do you admit that these images look like
Kaulupono's throwing the chair? Would you admit to that?
A. No. Not that chair.
Q. Bear with me, Officer.
(Video is played.)
[DEFENSE COUNSEL]: And, Judge, I'm playing [State's]
Exhibit 12 again.
Q. (BY [DEFENSE COUNSEL]): Okay. And at, we're
once again, 8:53:48. Officer, do you mind? (Gestures.)
A. (Steps down from the witness stand.)
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Q. Okay. And all this happened, like, within a
matter of a second or two; would that be fair?
A. Yes.
Q. Okay.
A. About, yes, sir.
Q. So who is on -- do you see the chair on the
right-hand side of the screen?
A. Yes, sir.
Q. Okay. Behind the chair, you see Kaulupono with
no shirt on, with a dot, basically some type of reflection;
is that fair to say?
A. Yes, sir. He's more to the right.
Q. Yes, yes, to the right. Thank you.
Mr. Ahsing is -- well, he's hunched over, isn't
he, in the black?
A. Which Ahsing?
Q. I'm sorry. Kahamai Ahsing.
A. Like he's kind of --
Q. He's not standing facing you, as is Kaulupono?
A. I can't really tell right here. I can see his
face right here. (Indicates.) That looks like his face.
Q. But whatever it is, he's crouched down; right?
Right? He doesn't have his hands in the air; right? He's
at least lower than Kaulupono's shoulders?
A. Yes.
Q. And it's actually Kaulupono with his arms
raised, not above his head, but raised above his waist;
correct? Is that fair to say?
A. To the side, yes.
Q. Dad [Clayton] is down below in the white shirt;
right?
A. Yes.
Q. And there Kaulupono is with his back to you?
A. Yes.
Q. Okay. And that's like just a second later?
A. About, yes, sir.
[DEFENSE COUNSEL]: Okay. Thank you.
Thank you, Officer.
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
The next witness was Officer Fontes. When he arrived
at the scene he saw four males. They were yelling. Officer
Fontes approached the driveway, where the males were located,
with Officers Juarez, Cruz, and Smith. Two chairs were thrown at
the police officers. The first was a dark-brown-colored folding
metal chair, thrown by Ahsing. It landed on Officer Smith, and
then hit Officer Cruz. The second chair was a blue chair, thrown
by Kaulupono, that hit Officer Juarez. Officer Fontes identified
State's Exhibit 14 as the chair thrown by Ahsing, and State's
Exhibit 9 as the chair thrown by Kaulupono. Officer Fontes had
never seen the Taser video.
The next witness was Officer Cruz. She was the fourth
HPD officer to arrive at the scene. Ahsing was in the driveway
with several other males. They were fighting. She approached
the driveway with Officer Smith on her left. When she was about
five feet away from Ahsing, Ahsing grabbed a brown folding chair
and threw it at Officer Smith. She identified State's Exhibit 14
as the chair thrown by Ahsing. The top portion of the chair hit
Officer Smith's right shoulder, then the legs of the chair hit
Officer Cruz's right shoulder. Officer Cruz deflected the chair
with her upper arm, or it would have hit her face. She felt pain
that lasted for about a week. After Ahsing was Tased, Kaulupono
threw a blue chair at the officers. Officer Cruz identified
State's Exhibit 9 as the chair thrown by Kaulupono. Officer Cruz
confirmed she had never seen the Taser video.
The State rested after Officer Cruz finished her
testimony, without calling Officer Smith as a witness. Ahsing
moved for a judgment of acquittal. The circuit court denied the
motion.
Ahsing testified. On direct examination he explained
the incident that happened on Father's Day.
Q. Is it fair to say that there were issues in the
household on that day?
A. Yes. There was some issues with my mom. She's
kind of doing stuff behind my dad's back, so that's how
everything started. I guess she was on the phone talking to
somebody else, and then my dad caught her.
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Q. Okay.
A. And then that's how everything started. He just
blew up. And . . .
Q. Okay.
A. I don't know.
Q. Were you guys -- were you guys -- Father's Day,
were you guys having beers in the garage?
A. We were. We was having such a good time, and
then everything just happened.
Q. Okay. You saw the videos of when the police
came?
A. Yes, I did.
. . . .
Q. Okay. So later in the evening, can you tell us,
like, what kind of -- how was your father behaving?
A. He was good. He was -- we was all having a good
time. And he was like -- he was regular. He was having a
good -- good day. And then -- I don't know.
Q. And then those things came up?
A. Yeah. And . . .
Q. How did that affect him?
A. He got kind of mad. So I wasn't -- I wasn't
trying to hurt anybody. I was trying to get my dad in the
yard so he doesn't get arrested or he doesn't get Tasered.
But I ended up getting all Tasered. But as you can see in
the video, I didn't throw any chairs. So I don't know. I
have no clue what they're seeing, like . . .
. . . .
Q. You saw that second clip?
A. Yes, I saw the second clip.
Q. What is that showing?
A. I was trying to get my dad out of the way again.
The officers came into the yard. And they said that I threw
the chair, but I don't know, inside the video, I no see me
throwing no chair.
Q. Well, yeah, the video, let's just say the video
speaks for itself.
A. Right.
Q. But you saw something fly through the air?
A. Yeah, I guess that -- I don't know, like look
like light.
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Q. Okay.
A. I guess that was the chair, but I didn't -- I
didn't throw it.
Q. Who threw it?
A. I guess my brother. I don't know. Everything
happened so fast, that's why. So I didn't even -- I was
just trying to get out of the way, get my dad 'cause he kept
going, kept going, getting more nuts. And . . .
. . . .
Q. All right. Okay. So you ran away from the
police?
A. Yes, 'cause I -- I was scared after I got
Tasered. So, you know, that wasn't a good feeling. So
that's why I was trying to get away.
Q. Yeah. Okay.
A. I didn't -- I no understand why they did that,
'cause I didn't do anything. That's the thing. I just was
trying to get my dad off -- you know, out of the way.
Q. Okay. Did you damage anybody's property that
night?
A. No, I didn't. That's -- I did not. I didn't
damage nobody's car or . . .
Q. All right. Thank you. Thank you, Kahamai.
A. Thank you.
(Emphasis added.)
The defense rested without calling any other witnesses.
Ahsing renewed his motion for judgment of acquittal. The motion
was denied.
In closing, the State argued:
So based on the testimony of the officers, [Ahsing] is
guilty as charged. So the only real question in this case
for you to decide is, are the officers credible? And the
answer to that question is a resounding yes.
. . . .
And the defense may talk about State's 12, that clip
of the Taser, and go into Officer Juarez's testimony, the
cross-examination, and point to the video and say, okay,
well, where do you see this chair? But the State's not
saying this case is about that video, because it's not. The
video is what it is. What matters to you and which should
carry a convincing force and what is sufficient to prove the
facts at issue in this case is the officers' testimony and
how it's corroborated by one another and by the rest of the
evidence.
9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(Emphasis added.)
The defense argued:
Why would I come in on Monday and so boldly announce
that the video shows Kaulu throwing the chair? Why would I
do that? I did that because the video does show Kaulu
throwing the chair.
Now, the judge -- the judge has made arrangements for
you. When you're in the jury deliberation room, there's
going to be the video cart that was here earlier that we
used on Monday with the officers. The judge is also
providing to you a laptop computer,[3] and the laptop
computer can play this DVD. The laptop computer has -- how
shall I say -- the ability to depict what happened in
State's Exhibit Number 12. That's the second video. The
pixelation is smaller, the images clearer. And what that
shows is that it's Kaulu throwing the chair at the officers.
. . . .
. . . [I]t's as simple as this: Take a close look at
the video, State's Exhibit Number 12. Please take a close
look at the video using not the huge screen, but the laptop,
and look at the first second or two of that video. You'll
see that it's Kaulu that threw -- Kaulu, excuse me, that
threw the chair. Not Kahamai.
. . . .
That second clip shows Kaulu throwing the chair. It
is not Kahamai throwing the chair. Please promise to take a
close look at that, because the video itself establishes
that he's innocent. The video establishes, in legal terms,
reasonable doubt.
Now, you know, the Ahsing family, not proud about what
happened on that Father's Day. There was a lot of emotion.
You can tell there's a lot of emotion going on about what
had happened between the parents there. But the fact of the
matter is that it was not Kahamai that threw that chair.
Look at the video, please. A fair decision in this
case is not guilty as far as the assault against the police
officers. Thank you.
(Emphasis added.)
3
The circuit court advised the jury, before deliberations began:
And the Court will be making available for you in the
jury room the laptop that was mentioned earlier by -- I
believe it was [defense counsel]. That particular laptop is
what we describe as being scrubbed, so there's nothing else
on there. You can simply play the video clips. If that's
what you'd like to do, feel free to do that.
10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
DISCUSSION
1. The circuit court did not err by
overruling Ahsing's objection.
Ahsing argues that "[t]he testimony of Officer Juarez
violated the best evidence rule set forth in HRE [Hawaii Rules of
Evidence] Rule 1002 because the State was required to introduce
the original images -- the best evidence of the [sic] whether or
not the Taser video showed Ahsing throwing the chair." Rule 1002
of the Hawaii Rules of Evidence provides:
Requirement of original. To prove the content of a writing,
recording, or photograph, the original writing, recording,
or photograph is required, except as otherwise provided in
these rules or by statute.
"Whether evidence should have been admitted or excluded
under the best evidence rule is a question of law that we review
de novo." In re "R" Children, No. 29541, 2009 WL 2778306, at *6
(Haw. App. Aug. 26, 2009) (mem.) (citing Kealoha v. Cty. of
Hawaii, 74 Haw. 308, 319, 844 P.2d 670, 676 (1993) (observing
analysis of the admissibility of documents under the best
evidence rule involves a determination of whether the evidence
fulfills the requirements of the evidence rules and is therefore
a right/wrong standard of review)).
The testimony at issue related to the clarity of
State's Exhibit 12, a compact disc containing video from Officer
Juarez's Taser. State's Exhibit 12 was admitted into evidence
without objection during the State's case-in-chief. Ahsing
objected to Officer Juarez's testimony about what the video would
show on a different viewing device, contending that Officer
Juarez was "vouching for evidence that essentially doesn't
exist." Officer Juarez testified that the television in the
courtroom "is not -- the pixel is not as clear." Officer
Juarez's testimony was that State's Exhibit 12 — admitted into
evidence without objection — could be seen more clearly on a
viewing device having more pixels; he was not testifying about a
video that was not in evidence. The circuit court recognized
that "it's not the recording itself, but it's the playback or
11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
display." The circuit court did not err by overruling Ahsing's
objection.
On recross-examination of Officer Juarez, Ahsing's
counsel established that the Taser does not have a screen for
viewing video. He elicited testimony from Officer Juarez
confirming that the video image might be clearer on "a smaller
screen on a computer." In closing argument, Ahsing's counsel
told the jury:
The judge is also providing to you a laptop computer, and
the laptop computer can play this DVD. The laptop computer
has -- how shall I say -- the ability to depict what
happened in State's Exhibit Number 12. That's the second
video. The pixelation is smaller, the images clearer. And
what that shows is that it's Kaulu throwing the chair at the
officers.
. . . .
. . . [I]t's as simple as this: Take a close look at
the video, State's Exhibit Number 12. Please take a close
look at the video using not the huge screen, but the laptop,
and look at the first second or two of that video. You'll
see that it's Kaulu that threw -- Kaulu, excuse me, that
threw the chair. Not Kahamai.
(Emphasis added.) During deliberations, the jury had the
opportunity to actually view State's Exhibit 12 on "a smaller
screen on a computer[,]" to determine for itself what the Taser
video showed. There was no evidentiary error.
2. The circuit court did not err by denying
Ahsing's motion for judgment of
acquittal.
"On appeal the test for the denial of a motion for
judgment of acquittal is that applied to determine sufficiency of
the evidence to support the conviction." State v. Davalos, 113
Hawai#i 385, 389, 153 P.3d 456, 460 (2007) (citation omitted).
When reviewing the sufficiency of the evidence to support a
conviction:
Evidence 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
12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
whether guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.
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.
State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)
(cleaned up).
The jury acquitted Ahsing on Count 1 (assault on
Officer Smith). As to Counts 2 (assault on Officer Cruz) and 3
(damage to Officer Juarez's property), there was substantial
evidence to support the jury's findings of guilty as charged on
Count 2 and guilty of the included offense of criminal property
damage in the fourth degree on Count 3. The circuit court did
not err by denying Ahsing's motion for judgment of acquittal on
those counts.
CONCLUSION
For the foregoing reasons, the Amended Judgment entered
by the circuit court on September 26, 2018, is affirmed.
DATED: Honolulu, Hawai#i, July 7, 2021.
On the briefs:
/s/ Katherine G. Leonard
Brian R. Vincent, Presiding Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Keith K. Hiraoka
for Plaintiff-Appellee. Associate Judge
Walter J. Rodby, /s/ Karen T. Nakasone
for Defendant-Appellant. Associate Judge
13