text:
    HL, Petitioner-Appellee, v. NSL, Respondent-Appellee, and AL, Proposed Intervenor-Appellant
    HL, Petitioner-Appellant, v. NSL, Respondent-Appellee
    NO. CAAP-17-0000445 C/w No. CAAP-17-0000446
    Intermediate Court of Appeals of Hawai'i.
    July 10, 2019
    On the briefs:
    HL, Petitioner-Appellee/Appellant, Self-Represented.
    AL, Proposed Intervenor-Appellant in CAAP-17-0000445, Self-Represented.
    (By: Fujise, Presiding Judge, Chan and Hiraoka, JJ.)
   SUMMARY DISPOSITION ORDER

These consolidated appeals arise from a proceeding under the Uniform Child-Custody Jurisdiction and Enforcement Act, Hawaii Revised Statutes (HRS ) Chapter 583A (UCCJEA ). The opening briefs filed by Petitioner-Appellee/Appellant HL (Father ) and Proposed Intervenor-Appellant AL (Grandfather ) fail to comply with Hawai'i Rules of Appellate Procedure (HRAP ) Rule 28(b)(4) (eff. 2016), but it appears that Father and Grandfather are appealing from orders entered by the Family Court of the First Circuit (Family Court ) on November 10, 2016, January 18, 2017, and April 18, 2017. For the reasons explained below, we affirm all three orders.

I.

KL (Child ) is the child of Father and Respondent-Appellee NSL (Mother ). On January 7, 2003, the Family Court of the State of New York entered an order (New York Custody Order ) awarding Father sole legal and physical custody of Child. Mother - the respondent in the New York proceeding - was granted supervised visitation.

Father initiated this case on January 25, 2016, by registering the New York Custody Order with the Family Court. Mother was named as the respondent. At that time, Child was living in North Carolina with Father's mother, BL (Grandmother ), but Father had not named Grandmother as a respondent. On January 29, 2016, Father filed a motion seeking the immediate return of Child to O'ahu. Father's motion was set to be heard by the Family Court on February 22, 2016.

On February 5, 2016, the Family Court of the State of New York entered another order (New York Temporary Custody Order ) awarding temporary custody of Child to Grandmother and ordering Father and Mother to show cause why Grandmother should not be awarded sole legal and physical custody of Child. The return date was set for February 23, 2016, in New York.

On February 9, 2016, the Hawai'i Family Court received a copy of an order (North Carolina Temporary Custody Order ) that had been entered by the General Court of Justice of the State of North Carolina on January 27, 2016. The North Carolina Temporary Custody Order awarded temporary custody and control over Child to Grandmother "until an order is entered by the state with exclusive, continuing jurisdiction or until and through February 26, 2016, whichever comes first[.]"

On February 9, 2016, the North Carolina General Court of Justice informed the Hawai'i Family Court that North Carolina declined to exercise jurisdiction over the custody dispute and would leave the determination of jurisdiction to New York and Hawai'i.

On February 18, 2016, Grandmother filed a motion to dismiss Father's ex parte motion for immediate return of child to O'ahu. The motion was heard on February 22, 2016. The Family Court notified the parties that the New York Family Court was exercising jurisdiction because New York was the originating jurisdiction of the New York Custody Order and Mother still lived in New York. The Family Court continued the hearings on Father's motion for immediate return of Child and Grandmother's motion to dismiss until April 14, 2016.

On April 13, 2016, the New York Family Court entered a decision and order declining to exercise jurisdiction over the dispute concerning Child. Father failed to appear at the April 14, 2016 continued Family Court hearing. The Family Court entered an order denying Father's motion for immediate return of Child without prejudice, stating that Grandmother was an indispensable party pursuant to Hawai'i Family Court Rules (HFCR ) Rule 19 (eff. 2015) and that Father had failed to serve Mother with the motion.

On April 22, 2016, Father filed a motion (Father's Custody Motion ) seeking to name Grandmother as a respondent in the Hawai'i case, and for an order that Grandmother return Child to the custody of Father. Father's Custody Motion was set for hearing on May 12, 2016. On May 10, 2016, Grandfather filed a "Notice of Special Appearance and for Standing as Party[.]"

On May 12, 2016, the Family Court continued the hearing on Father's Custody Motion and ordered Grandmother to show cause why she should not be held in contempt for taking custody of Child (OSC ). The return was set for June 16, 2016. On May 26, 2016, Grandmother filed a motion (Grandmother's Custody Motion ) seeking custody of Child. On June 6, 2016, Grandmother filed a memorandum in opposition to Father's Custody Motion.

On June 16, 2016, Grandmother appeared at the continued hearing and OSC return date with counsel. The Family Court appointed Daisy Lynn B. Hartsfield as Child's guardian ad litem (GAL ) and continued the matter for trial on July 27, 2016. The GAL filed an initial report on July 20, 2016, and a supplemental report on July 27, 2016.

On July 27, 2016, the Family Court heard testimony from the parties and from the GAL. On August 1, 2016, the Family Court entered an order awarding interim temporary custody of Child to Grandmother and set a further hearing for December 21, 2016. On September 28, 2016, Grandfather - as attorney for Father - filed a motion to recuse family court judge Paul T. Murakami. An order denying the motion was entered on November 10, 2016.

On December 14, 2016, the GAL filed a third report. An addendum to the report was filed on December 21, 2016.

The Family Court conducted a trial on December 21, 2016. Mother, Grandmother, and GAL appeared for the trial, but neither Father nor Grandfather appeared. The Family Court orally denied Father's Custody Motion and granted Grandmother's Custody Motion. On January 18, 2017, the Family Court entered a written order denying Father's Custody Motion, granting Grandmother's Custody Motion, and awarding Grandmother fees, costs, and expenses she incurred to respond to Father's motion.

Between January 30 and March 31, 2017, Father and Grandfather filed six motions, which will collectively be referred to as the "Post-Trial Motions ." The Post-Trial Motions were heard on April 6, 2017. The Post-Trial Motions, the filing date, and the Family Court's oral disposition of each during the hearing on April 6, 2017, were:

1. Father's "Motion to Have Court Itself Get Out of the Case and Dismiss Guardian at [sic] Litem and Motion to Cancel December 21 Order of the Court Due to Fraud by Guardian Ad Litem Daisy Lynn Hartfield [sic] That She Had Mailed the Report," filed January 30, 2017, was denied.
2. Father's "Motion to Set Aside Default Judgment," filed on February 23, 2017, was denied.
3. "[Grandfather]'s Motion to Be Party in Above-Entitled Case," filed on March 15, 2017, was denied.
4. "[Grandfather's] Motion to Reconsider Order Awarding Custody to Parental [sic] Grandmother and Denying Return of Minor Child to Father," filed on March 15, 2017, was denied as moot.
5. "[Father's] Motion to File Joinder Pro Se with [Grandfather's] Motion to Reconsider Order Granting Custody to Parental [sic] Grandmother and Denying Return of My Daughter to Father," filed on March 15, 2017, was denied as moot.
6. Grandfather's "Ex-Parte Motion to Re-Schedule Hearing on Motion Scheduled to Be Heard on March 2, 2017," filed on March 31, 2017, was denied as moot.

The Family Court granted Grandmother's oral request to designate Father as a vexatious litigant.

On April 18, 2017, the Family Court entered a written order denying the Post-Trial Motions and awarding Grandmother reasonable attorneys' fees, costs, and expenses she incurred to respond to Father's motions. On May 24, 2017, the Family Court awarded $4,490.00 in reasonable attorneys' fees, costs, and expenses to Grandmother pursuant to the court's order of April 18, 2017. On June 2, 2017, the Family Court awarded $1,690.00 in reasonable attorneys' fees, costs, and expenses to Grandmother pursuant to the court's order of January 18, 2017. On June 21, 2017, the Family Court entered Findings of Fact and Conclusions of Law for its April 18, 2017 order. This appeal followed.

II.

Grandfather was never a party to the Family Court proceeding.

Generally, the requirements of standing to appeal are: (1) the person must first have been a party to the action; (2) the person seeking modification of the order or judgment must have had standing to oppose it in the trial court; and (3) such person must be aggrieved by the ruling, i.e., the person must be one who is affected or prejudiced by the appealable order.

Abaya v. Mantell, 112 Hawai'i 176, 181, 145 P.3d 719, 724 (2006) (citations omitted). However, "[Grandfather]'s Motion to Be Party in Above Entitled Case" was treated by the Family Court as an application for intervention under HFCR Rule 24. An order denying intervention under HFCR Rule 24 (eff. 2015) is appealable. Labayog v. Labayog, 83 Hawai'i 412, 419, 927 P.2d 420, 427 (App. 1996). Thus, the Family Court's order of April 18, 2017, to the extent it denied "[Grandfather]'s Motion to Be Party in Above-Entitled Case," is the only order that Grandfather has standing to appeal.

The Family Court ruled that Grandfather's motion to intervene was untimely because the trial on Father's Custody Motion and Grandmother's Custody Motion had been completed. The question of timeliness is a matter left to the sound discretion of the trial court. Ing v. Acceptance Ins. Co., 76 Hawai'i 266, 271, 874 P.2d 1091, 1096 (1994) (applying Hawai'i Rules of Civil Procedure (HRCP ) Rule 24 ). The Family Court did not abuse its discretion. Accordingly, the portion of the Family Court's order of April 18, 2017, denying "[Grandfather]'s Motion to Be Party in Above-Entitled Case" is affirmed.

The Family Court denied "[Grandfather's] Motion to Reconsider Order Awarding Custody to Parental Grandmother and Denying Return of Minor Child to Father" and "Ex-Parte Motion to Re-Schedule Hearing on Motion Scheduled to Be Heard on March 2, 2017" as being moot once Grandfather's motion to intervene was denied. Grandfather lacks standing to appeal those decisions. Abaya, 112 Hawai'i at 181, 145 P.3d at 724.

III.

Father's opening brief does not specify which orders he is appealing or where in the record the orders and corresponding motions are located; it does not contain citations to the record on appeal in support of its factual allegations; it cites to no statutes, court rules, caselaw, or other authority to support its arguments. An appellate court is not obligated to speculate on the what and the why of the appeal, to do the work that should have been done by the appellant, or to sift through the record to determine the specific nature of the errors asserted but not documented. Omerod v. Heirs of Kaheananui, 116 Hawai'i 239, 263, 172 P.3d 983, 1007 (2007). We will address the Family Court orders we believe Father is challenging.

A.

The Family Court's "Order Denying [Father's] Motion to Recuse Judge Paul T. Murakami," entered on November 10, 2016, is reviewed for abuse of discretion. State v. Ross, 89 Hawai'i 371, 375, 974 P.2d 11, 15 (1998). A family court abuses its discretion where (1) the family court disregards rules or principles of law or practice to the substantial detriment of a party litigant, (2) the family court fails to exercise its equitable discretion, or (3) the family court's decision clearly exceeds the bounds of reason. Hamilton v. Hamilton, 138 Hawai'i 185, 197, 378 P.3d 901, 913 (2016).

"Hawai'i courts apply a two-part analysis in disqualification or recusal cases." Chen v. Hoeflinger, 127 Hawai'i 346, 361, 279 P.3d 11, 26 (App. 2012) (citing Ross, 89 Hawai'i at 377, 974 P.2d at 17 ). First, courts determine whether the alleged bias is covered by HRS § 601-7 (1993 & Supp. 2015), which pertains to cases of affinity or consanguinity, financial interest, prior participation, and actual judicial bias or prejudice. Id. This first step refers to judicial "disqualification." Id. In this case Father had not alleged, and the record does not establish, grounds for disqualification under HRS § 601-7.

Second, if HRS § 601-7 does not apply, courts "may then turn, if appropriate, to the notions of due process in conducting the broader inquiry of whether circumstances fairly give rise to an appearance of impropriety and reasonably cast suspicion on the judge's impartiality." Id. (cleaned up). A judge who ceases participating because of due process concerns is "recused." Id. The record in this case indicates that the Family Court did not disregard rules or principles of law or practice to Father's substantial detriment, or fail to exercise its equitable discretion, or clearly exceed the bounds of reason, in declining to recuse itself. The "Order Denying [Father's] Motion to Recuse Judge Paul T. Murakami," entered on November 10, 2016, is affirmed.

B.

The Family Court's "Order Denying [Father]'s Motion and Granting Paternal Grandmother's Motion for Custody," entered on January 18, 2017, contains seventeen findings of fact. A family court's findings of fact are reviewed under the "clearly erroneous" standard. Hamilton, 138 Hawai'i at 197, 378 P.3d at 913. A finding of fact is clearly erroneous when the record lacks substantial evidence to support the finding, or despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made. Id. " 'Substantial evidence' is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id. In this case each of the Family Court's findings of fact are supported by substantial evidence in the record, and we are not left with a definite or firm conviction that a mistake has been made. They are not clearly erroneous.

[T]he family court possesses wide discretion in making its decisions and those decisions will not be set aside unless there is a manifest abuse of discretion. Hamilton at 197, 378 P.3d at 913. Thus, we will not disturb the family court's decision on appeal unless the family court disregarded rules or principles of law or practice to the substantial detriment of a party litigant and its decision clearly exceeded the bounds of reason.

Id. at 197, 378 P.3d at 913 (citations omitted). Father has not shown that the Family Court disregarded rules or principles of law or practice to his substantial detriment, or that the Family Court's decisions denying Father's Custody Motion and granting Grandmother's Custody Motion clearly exceeded the bounds of reason. The Family Court's "Order Denying [Father]'s Motion and Granting Paternal Grandmother's Motion for Custody," entered on January 18, 2017, is affirmed.

C.

Three of the Post-Trial Motions denied by the Family Court's April 18, 2017 order were made by Father. Father's "Motion to Have Court Itself Get Out of the Case ..." argued that the GAL somehow lied because the report that she signed on December 21, 2016, (the date of the continued trial) was not mailed to Father until December 22, 2016, as shown by the postmark. Father appears to be referring to the addendum to the GAL's third report, which was filed on December 21, 2016. Had Father attended the December 21, 2016 trial, he could have received his copy of the addendum in person. He appears to argue that the Family Court judge who appointed the GAL should be disqualified or recused because of the GAL's conduct. Father's argument has no merit. The Family Court did not abuse its discretion in denying the motion.

Father's "Motion to Set Aside Default Judgment" argued that Father thought the December 21, 2016 trial date "had been changed" because the trial "could not have been done without the [GAL's] Report" and Father claimed to have never received a report from the GAL.

In general, a motion to set aside a default entry or a default judgment may and should be granted whenever the court finds (1) that the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that the default was not the result of inexcusable neglect or a wilful act.

BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 76, 549 P.2d 1147, 1150 (1976). A ruling on a motion to set aside a default is reviewed for abuse of discretion. Gonsalves v. Nissan Motor Corp. in Hawaii, 100 Hawai'i 149, 158, 58 P.3d 1196, 1205 (2002). The Family Court found that Father "had notice of the December 21, 2016 trial and failed to appear without any valid excuse." The record on appeal in this case indicates that the Family Court did not abuse its discretion in denying Father's motion to set aside his default.

"[Father's] Motion to File Joinder Pro Se with [Grandfather]'s Motion to Reconsider Order Granting Custody to Parental [sic] Grandmother and Denying Return of My Daughter to Father," if filed in support of Grandfather's motion for reconsideration, was properly denied when Grandfather's motion was denied. To the extent Father's motion sought independent relief for Father:

The purpose of a motion for reconsideration is to allow the parties to present new evidence and/or arguments that could not have been presented during the earlier adjudicated motion. Reconsideration is not a device to relitigate old matters or to raise arguments or evidence that could and should have been brought during the earlier proceeding.

Sousaris v. Miller, 92 Hawai'i 505, 513, 993 P.2d 539, 547 (2000) (cleaned up). Father's motion presented no evidence or argument that could not have been presented during the December 21, 2016 trial. The Family Court did not abuse its discretion when it denied Father's motion.

IV.

For the foregoing reasons, the Family Court's orders of November 10, 2016, January 18, 2017, and April 18, 2017, are affirmed.

      Grandfather's opening brief (JROA doc. 65, filed on March 29, 2018) and Father's opening brief (JROA doc. 93, filed on June 15, 2018) appear to be identical except for the unnumbered second page of Grandfather's brief (titled "Forward"), the handwriting on each brief, and the dates and signatures.

      On March 14, 2019, after the merit panel members were selected, this court issued an order striking Father's opening brief for failure to comply with HRAP Rule 28 and ordering that Father file an amended opening brief that fully complied with HRAP Rule 28 within thirty days from the date of the order. Father did not file an amended opening brief. This court sua sponte reinstates Father's opening brief in order to address the issues we believe the parties have tried to raise. See Schefke v. Reliable Collection Agency, Ltd., 96 Hawai'i 408, 420, 32 P.3d 52, 64 (2001) (noting that even though both sides' failure to comply with HRAP Rule 28(b)(4) warranted dismissal of appeal and cross-appeal, Hawaii's appellate courts have "consistently adhered to the policy of affording litigants the opportunity to have their cases heard on the merits, where possible").

      The Honorable Paul T. Murakami presided.

      The Honorable William J. Nagle, III signed the April 14, 2016 order.

      Grandmother's oral request for attorneys' fees and costs against Grandfather and to designate Grandfather as a vexatious litigant were also denied.


source: Caselaw Access Project

license: Public Domain

text:
    RH, Plaintiff-Appellant, v. MH, Defendant-Appellee
    NO. CAAP-16-0000445
    Intermediate Court of Appeals of Hawai'i.
    July 10, 2019
    On the briefs:
    RH, Self-represented Plaintiff-Appellant.
    Donald A. Ellison, for Defendant-Appellee.
    (By: Fujise, Presiding Judge, and Leonard and Reifurth, JJ.)
   SUMMARY DISPOSITION ORDER

This appeal arises out of post-judgment proceedings following the entry of a divorce decree. Plaintiff-Appellant RH ("Father") and Defendant-Appellee MH ("Mother") were divorced on August 25, 2015. Among other things, the divorce decree awarded Father and Mother with joint legal custody of the parties' two children ("Son" and "Daughter") born during the marriage, awarded Mother with physical custody of Son, and awarded Father with physical custody of Daughter.

On November 12, 2015, Father filed a Motion and Affidavit for Order to Show Cause and Relief After Order or Decree ("Motion"), asking the Family Court of the Third Circuit ("Family Court") to reduce his child support for Son and spousal support for Mother. On April 11, 2016, the Family Court held a hearing on Father's Motion, took the matter under advisement, and urged the parties to resolve the matter themselves. When the parties did not resolve the matter, the Family Court issued the May 23, 2016 Order Granting In Part and Denying In Part Motion and Affidavit for Order to Show Cause and Relief After Order or Decree Filed November 12, 2015 ("Order") , which provided the following relevant findings of fact ("FOF"):

3. At the hearing on this matter, petitioner testified that he never in fact received a salary of $6,000.00 per month but in fact his salary was $4,800 per month. However, the Business Agreement submitted by petitioner indicates that petitioner had agreed to take a pay cut from a gross of $6,000 to month to $4,000.00 per month "for the next year." This agreement was signed October 28th 2015 by the petitioner and October 30, 2015 by Mr. Booku.
4. Petitioner also testified that Hawaiian Walkways pays him $1,200 per month for rent for parking certain vehicles at his home.

The Order also provided the following relevant conclusions of law ("COL"):

1. The evidence on Petitioner's income comes from his testimony and the business agreement with no check stubs, pay slips or other documentation to support the testimony. The testimony itself is highly contradictory. During his divorce he claimed to make, $6,000.00 per month. A[t] the hearing he testified that he never made $6,000 per month but only $4,800 per month. Yet the Business Agreement indicates that his salary was being reduced for $6,000.00 per month to $4,000.00 per month. No explanation was given as to why a writing was needed to reduce Petitioner's salary for $6,000.00 per month to $4,000.00 per month if in fact he was only being paid $4,800 per month, or why the writing did not reduce his salary for $4,800 to $4,000. Even if the original $6,000 per month income was the total of a $4,800 salary and $1,200 rent, the reduction of income to $4,000 does not make sense as Petitioner claims to presently have a $4,000 salary plus a rental income of $1,200. Given the contradictory evidence and the lack of supporting documentation, the court can not find by a preponderance of the evidence that the Petitioner's income has changed. While Respondent's income has changed, some change was contemplated in that alimony was to continue even if Respondent remarried. Given both of these factors, the court does not find a change in circumstances to justify a modification of alimony.
....
[3]. Petitioner has a gross income of $6,000.00 per month less $2,284 in alimony leaving $3716. ($6000 - $2284 = $3716.) The court finds respondents gross income to be $1,500 + $2,284 (alimony) = $3,784. Given these figures and each having one child, the child support obligations of each party are the same and neither party will pay child support to the other.

Father timely appealed.

On appeal, we construe Father's points of error as follows:

(1) The Circuit Court erred in its FOF 3 and COL 1 because it incorrectly found and concluded that Father had not provided enough explanation as to why the claim of $6,000 was reduced to $4,000;
(2) The Circuit Court erred in its COL 1 because it incorrectly concluded that Father provided no check stubs in his evidence at trial;
(3) The Circuit Court erred in its FOF 4 because it incorrectly found that Father received a rental income of $1,200; and
(4) The Circuit Court erred in its COL 3 because it incorrectly stated that Father had only one child.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we resolve Father's points of error as follows and affirm.

As a preliminary matter, Father's opening brief fails to adhere to the requirements of Hawai'i Rules of Appellate Procedure ("HRAP") Rule 28(b). The opening brief does not contain the required concise statement of the case, or any references to the record. Haw. R. App. P. 28(b)(3) ; Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai'i 92, 114 n.23, 176 P.3d 91, 113 n.23 (2008). It also does not have properly asserted points of error, citation to legal authority, or cogent arguments. Haw. R. App. P. 28(b)(4),(7). Further, in contravention of HRAP Rule 28(b)(10), Father attached documents to his opening brief that are not part of the record on appeal, which we must disregard unless otherwise specified by HRAP. See Orso v. City & Cty. of Honolulu, 55 Hawai'i 37, 38, 514 P.2d 859, 860 (1973). The failure to conform to HRAP 28(b) itself is an adequate basis to affirm the judgment of the trial court. Bettencourt, 80 Hawai'i at 228, 909 P.2d at 556. Nevertheless, we "consistently adhere[ ] to the policy of affording litigants the opportunity 'to have their cases heard on the merits, where possible' " despite noncompliance with HRAP Rule 28. Morgan v. Planning Dep't, 104 Hawai'i 173, 180-81, 86 P.3d 982, 989-90 (2004) (quoting O'Connor v. Diocesce of Honolulu, 77 Hawai'i at 383, 386, 885 P.2d at 361, 364 (1994) ).

(1 & 2) In his first and second points of error, Father asserts that the Family Court erred in its COL 1 when it found that he did not submit "check stubs, pay slips or other documentation to support [his] testimony[,]" and concluded that he had failed to sufficiently explain his contention that his pay had been reduced. We agree with Father that the Family Court erred when it found that Father did not submit "check stubs, pay slips or other documentation to support the testimony". Though this statement was included in COL 1, the statement itself was a finding of fact and not a conclusion of law. Findings of fact are reviewable under the clearly erroneous standard, and are erroneous when the record lacks substantial evidence to support them. Chen v. Hoeflinger, 127 Hawai'i 346, 354, 279 P.3d 11, 19 (App. 2012) (citing and quoting Inoue v. Inoue, 118 Hawai'i 86, 92-93, 185 P.3d 834, 840-41 (App. 2008) ). Contrary to the finding, Father submitted two check stubs that showed that he was paid $4,000 for the month of February. Thus, the Family Court erred when it found that Father failed to provide pay stubs. The error was harmless, however, when it had no apparent bearing on the court's subsequent conclusions, which, as discussed below, we conclude were correct. See DL v. CL, No. CAAP-18-0000211, 2019 WL 968052 at *6 (Haw. Ct. App. Feb. 28, 2019) (holding in a custody proceeding that minor errors in a court's findings that are harmless do not warrant relief (citing Dupree v. Hiraga, 121 Hawai'i 297, 320 n.28, 219 P.3d 1084, 1107 n.28 (2009) ; Kahawaiolaa v. United Airlines, Inc., No. 30580, 2012 WL 54497 at *2 (Haw. Ct. App. Jan. 9, 2012) ("Regardless of whether LIRAB's FOFs 14 and 15 are clearly erroneous, any error was harmless"); Kawamoto v. NHC, Inc., No. 29295, 2009 WL 3350309 at *5 (Haw. Ct. App. Oct. 19, 2009) (stating that a challenged LIRAB finding played no "meaningful role" in LIRAB's determination regarding claimant's injury and thus any potential error was harmless))).

The Family Court did not err when it concluded in COL 1 that the evidence at the hearing on the subject was contradictory, and that there was no demonstrated change in circumstances to justify a modification of alimony. We review COL 1 de novo, under the right/wrong standard. Fisher v. Fisher, 111 Hawai'i 41, 46, 137 P.3d 355, 360 (2006) (quoting In re Doe, 95 Hawai'i 183, 190, 20 P.3d 616, 623 (2001) ). "[A] COL that is supported by the trial court's FOFs and that reflects an application of the correct rule of law will not be overturned." Schiller v. Schiller, 120 Hawai'i 283, 288, 205 P.3d 548, 553 (App. 2009) (quoting Chun v. Bd. of Trs. of the Employees' Ret. Sys. of the State of Hawai'i, 106 Hawai'i 416, 430, 106 P.3d 339, 353 (2005) ). As the moving party, Father had the burden of proving that he was entitled to a modification in spousal support. Saromines v. Saromines, 3 Hawai'i App. 20, 28, 641 P.2d 1342, 1348 (1982). Father had to show that the "relevant circumstances that are proven to exist at the time of the modification hearing are materially different from [his] relevant circumstances that were proven to exist when the family court entered its spousal support order." Vorfeld v. Vorfeld, 8 Haw. App. 391, 402, 804 P.2d 891, 897 (1991).

In this case, there were sufficient findings of fact to support COL 1, namely that: (1) Father's evidence of change in income was contradictory; and, (2) the alimony that was originally granted contemplated subsequent change as it was to continue even if Mother got remarried. Thus, we do not find that the Family Court erred when it concluded that there was no material change in circumstances that justified a modification in alimony.

(3) Father argues that the Family Court erred when it found that he receives a rental income of $1,200 from Hawaiian Walkways for allowing vehicles to be parked at his home because he receives only $1,000 in rental income, which partly offsets the $2,200 per month in rent that he owes. We cannot consider the rental lease attached to Father's opening brief as an exhibit because it is not part of the record on appeal. See Orso, 55 Hawai'i at 38, 514 P.2d at 860. Father failed to meet his burden of providing an adequate record to show error because there is no evidence in the record to show that Father receives a rental income of $1,000 and not $1,200 as per FOF 4. Without any contrary proof in the record, we cannot find that the Family Court erred when it found that Father receives $1,200 monthly in rental income.

(4) Father asserts that the Family Court erred when it stated in COL 3 that each party has one child. In COL 3, however, the Family Court was discussing the physical custody arrangement, which gave physical custody of Daughter to Father and of Son to Mother. Thus, the Family Court did not err.

Therefore, the May 23, 2016 Order is affirmed.

      The Honorable Peter Bresciani presided.

      The Honorable Henry T. Nakamoto presided at the May 23, 2016 hearing, but read the findings of fact, conclusions of law, and order written by Judge Bresciani.

      Some of the COLs are a combination of FOF and COL. Also, COL 3 was mislabeled as a second COL 2 in the Order.

      Furthermore, Father did not order transcripts as required by HRAP 10(b). "The burden is upon appellant in an appeal to show error by reference to matters in the record, and he or she has the responsibility of providing an adequate transcript." Bettencourt v. Bettencourt, 80 Hawai'i 225, 230, 909 P.2d 553, 558 (1995) (brackets omitted). The transcript of trial proceedings are not always necessary, however, if it is "possible to determine that the court erred without recourse to the transcript." Thomas-Yukimura v. Yukimura, 130 Hawai'i 1, 10 n.19, 304 P.3d 1182, 1191 n.19 (2013).

      In FOF 1, the Family Court found that at the time of the divorce, Father claimed he made $6,000 per month. This amount was also reflected in the Income and Expense Statement filed on May 19, 2015. Father does not challenge FOF 1.
      In FOF 3, the Family Court found that Father testified at the April 11, 2016 hearing on his Motion that he was making $4,800 per month and not $6,000 per month. In his opening brief, Father attempts to explain this by stating that he was supposed to be making $6,000 per month from April 2013 onwards but was being paid only $4,800, which he claims is the net amount he would be paid if taxes were taken out of his full $6,000 per month salary. He states that he said he made $6,000 per month because that is what he was supposed to be paid. Father does not challenge the part of FOF 3 finding that he testified that he made only $4,800.
      Father then signed the Business Agreement, which states that his pay would be reduced from $6,000 per month, which he allegedly was never paid, to $4,000 per month for the next year. The Family Court noted this in COL 1 and stated that "[n]o explanation was given as to why a writing was needed to reduce" Father's salary from $6,000 or why the agreement did not state that his pay was being reduced from $4,800.
      The minutes of the hearing on April 11, 2016 indicate that the Family Court ruled that "any adjustment the court would make in the alimony is going to be based on the difference between $4,800 to $4,000." As noted in FOF 4, Father was also receiving rental income of $1,200 per month. Though this FOF is challenged by Father in this appeal, there is nothing in the record that proves that he was not receiving this income, and we conclude that the court did not err in using $1,200 as Father's rental income under the circumstances presented.

      Father had previously agreed to be bound to pay spousal support for 129 months with the last payment on May 30, 2026, after Son turned 18, irrespective of Mother's marital status.

      As with Father's first and second points of error above, the point here is directed to a finding of fact which the Family Court included within its conclusion of law. In this instance, however, the court did not err with regard to either the finding or the conclusion.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. HAU PHAN, also known as Hau Pham, Defendant-Appellant
    NO. CAAP-17-0000542
    Intermediate Court of Appeals of Hawai'i.
    June 27, 2019
    On the briefs:
    Hayden Aluli, for Defendant-Appellant.
    Renee Ishikawa Delizo, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
    (By: Ginoza, Chief Judge, Reifurth and Chan, JJ.)
   SUMMARY DISPOSITION ORDER

Defendant-Appellant Hau Phan, also known as Hau Pham (Phan) appeals from the Judgment Conviction and Sentence (Judgment) entered by the Family Court of the Second Circuit (family court) on June 15, 2017. Plaintiff-Appellee State of Hawai'i (State) charged Phan with Abuse of Family or Household Member, in violation of Hawaii Revised Statutes (HRS) § 709-906 (Supp. 2016), for an incident that occurred on August 11, 2016. After a jury trial, Phan was found guilty as charged.

On appeal, Phan argues the family court erred by: (1) failing to obtain a knowing, intelligent, and voluntary waiver of Phan's constitutional right not to testify; (2) admitting into evidence State's Exhibit 8 because it constituted double hearsay; (3) admitting into evidence State's Exhibit 9 because its probative value was outweighed by its prejudicial effect; (4) instructing the jury as to jury instructions numbers 13 and 27 because they were prejudicially insufficient, erroneous, inconsistent, or misleading; (5) sentencing Phan to the maximum one-year jail term; and (6) setting Phan's bail pending appeal of his misdemeanor conviction at $50,000. In addition, Phan contends that trial counsel provided ineffective assistance of counsel and that his due process right to a fair trial was violated.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments they advance and the issues they raise, as well as the relevant statutory and case law, we resolve Phan's points of error as follows.

A. Pre-Trial Advisement and Ultimate Tachibana Colloquy

Phan argues that the family court's advisements as to Phan's rights to and not to testify were defective for two reasons: (1) the pre-trial advisement was premature and untimely; and (2) both the pre-trial advisement and the ultimate Tachibana advisement were deficient because the family court failed to engage in a "true colloquy" and instead merely recited a litany of rights.

On March 9, 2017, at a hearing on various motions in limine and a motion to admit evidence, the family court administered its pre-trial advisement of Phan's rights to and not to testify:

THE COURT: I want you to know that you have a constitutional right to testify in your own defense. You should consult with your lawyer regarding the decision to testify. However, it is ultimately your decision and no one can prevent you from testifying should you choose to do so. If you decide to testify, the prosecutor will be allowed to cross-examine you.
You also have a constitutional right not to testify and to remain silent. If you choose not to testify, the jury will be instructed that it cannot hold your silence against you in deciding your case.
If you have not testified by the end of the trial, I will question you to ensure that it was your decision not to testify.
Do you have any questions about what I've just explained?
THE DEFENDANT: No, your Honor.
THE COURT: All right. Thank you.

The jury trial began the following Monday, on March 13, 2017.

Following the State's case-in-chief, the defense indicated that Phan would be testifying. Prior to Phan testifying, the family court administered the ultimate Tachibana colloquy, stating:

THE COURT: All right. Mr. Phan, as I discussed with you before the start of trial, you have a constitutional right to testify in your own defense. Although you should consult with your lawyer regarding the decision to testify, it is your decision, and no one can prevent you from testifying should you choose to do so. If you decide to testify, the prosecutor will be allowed to cross-examine you.
You also have a constitutional right not to testify and to remain silent. If you choose not to testify, the jury will be instructed that it cannot hold your silence against you in deciding your case.
You understand that, sir?
THE DEFENDANT: Yes, your Honor.
THE COURT: And it's your decision to testify in this case?
THE DEFENDANT: Yes, your Honor.
THE COURT: Very good. Let's call in the jury.

Phan first contends that the family court's pre-trial advisement, as required by State v. Lewis, 94 Hawai'i 292, 12 P.3d 1233 (2000), was untimely and premature as it "was provided to Phan four days before trial actually commenced" and therefore "the court cannot be assured that Phan actually had an understanding of his constitutional right not to testify at his trial." To the extent Phan is arguing on appeal that the court is required to conduct the pre-trial advisement within a certain period of time before trial, he cites no authority for that proposition and we find none. Lewis merely requires that the advisement occur prior to trial. Id. at 297, 12 P.3d at 1238. Given the record in this case, the timing involved, and that the defense expressly did not object to the timing of the pre-trial advisement, Phan's argument regarding the timeliness of the court's pre-trial advisement is without merit.

Phan next contends that the family court's pre-trial Lewis advisement and ultimate Tachibana colloquy were not true colloquys but were instead mere recitals of a litany of rights without an ascertainment that Phan actually understood each of his rights.

Regarding the pre-trial advisement, the supreme court in Lewis established that trial courts, prior to the start of trial, shall

(1) inform the defendant of his or her personal right to testify or not to testify and (2) alert the defendant that, if he or she has not testified by the end of the trial, the court will briefly question him or her to ensure that the decision not to testify is the defendant's own decision.

Id. at 297, 12 P.3d at 1238 (emphasis added) (internal quotation marks and citation omitted). Here, in the pre-trial advisement, the family court fully informed Phan of his rights to and not to testify and alerted Phan that, if he had not testified by the end of the trial, the court would question him to ensure that it was Phan's own decision not to testify. The pre-trial advisement thus met the requirements established in Lewis. We therefore conclude that the family court properly conducted the pre-trial advisement under Lewis.

Regarding the ultimate Tachibana colloquy, in Lewis, the Hawai'i Supreme Court also held that an ultimate Tachibana colloquy is not required in cases where a defendant has indicated that he or she does intend to testify. Lewis, 94 Hawai'i at 296-97, 12 P.3d at 1237-38. In this case, the defense indicated that Phan would be testifying and Phan did actually testify. Therefore the family court was not required to conduct the ultimate Tachibana colloquy at all and any alleged error associated with the court's colloquy is without merit.

The family court did not err in its pre-trial advisement or the ultimate Tachibana colloquy. There is nothing in the record-to indicate that Phan's decision to testify was anything other than voluntarily, knowingly, and intelligently made.

B. Admission of Evidence

Phan challenges the family court's admission of the Abuse of Family or Household Members Victim Voluntary Statement Form (Victim Statement Form) completed by the complaining witness, Ngoc Vu (Vu), during her statement to police (State's Exhibit 8). On appeal, Phan argues that the Victim Statement Form constituted inadmissible double hearsay because Vu's employer, Minh Nguyen (Nguyen), assisted Vu by translating between English and Vietnamese. However, Phan's objection at trial was to the admission of the Victim Statement Form to refresh Vu's memory during her testimony; Phan's objection was not regarding double hearsay. Therefore, we review the admission of the Victim Statement Form for plain error. See Hawai'i Rules of Penal Procedure (HRPP) Rule 52(b) (1977) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."); Hawai'i Rules of Evidence (HRE) Rule 103(d) (2016) ("Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.").

The State offered the Victim Statement Form into evidence under HRE Rule 802.1 (1) (B) (2016), which "provides for substantive use of most prior inconsistent witness statements" as an exception to the hearsay rule. Commentary to HRE Rule 613 (2016); see also State v. Canady, 80 Hawai'i 469, 480, 911 P.2d 104, 115 (App. 1996) (stating that HRE Rule 802.1 adopted the federal exception to common law allowing "prior inconsistent statements to be used as substantive proof of the matters asserted in the statement" if the statement's trustworthiness is assured).

In State v. Eastman, 81 Hawai'i 131, 137, 913 P.2d 57, 63 (1996), the Hawai'i Supreme Court outlined the foundational requirements for evidence admitted pursuant to HRE Rule 802.1(1)(B) :

(1) a witness must testify about the subject matter of his or her prior statements so that the witness is subject to cross-examination concerning the subject matter of those prior statements; (2) the witness's prior statements must be inconsistent with his or her testimony; (3) the prior inconsistent statements must be reduced to writing and signed or otherwise adopted or approved by the witness; (4) the prior inconsistent statements must be offered in compliance with HRE Rule 613(b) (1993), which requires that, on direct or cross-examination, the circumstances of the prior inconsistent statements have been brought to the attention of the witness, and the witness has been asked whether he or she made the prior inconsistent statements.

(Footnote omitted.)

Here, Vu's statements in the Victim Statement Form met all the requirements for admissibility as substantive evidence of a prior inconsistent statement:

(1) At trial, the State directly examined Vu as a witness and elicited testimony from her regarding the night of the incident, the events that led to her injuries on that night, as well as the statements she made in the Victim Statement Form alleging that Phan injured her. On cross-examination, Vu testified that her injuries were caused by her own actions in pulling away from Phan. Thus, the State made Vu subject to cross-examination by defense counsel regarding the subject matter of Vu's prior statements in the Victim Statement Form. See Canady, 80 Hawai'i at 480-81, 911 P.2d at 115-16 (holding that HRE Rule 802.1(1) requires, "as a guarantee of the trustworthiness of a prior inconsistent statement, ... that the witness be capable of testifying substantively about the event, allowing the trier of fact to meaningfully compare the prior version of the event with the version recounted at trial").

(2) During Vu's direct examination by the State, Vu testified that Phan did not punch her on the night of the incident. On the Victim Statement Form completed on the night of the incident, however, Vu stated that she was punched. Thus, Vu's prior statements in the Victim Statement Form were inconsistent with her testimony at trial.

(3) The record indicates that Vu's prior statements were reduced to writing in the Victim Statement Form, which she signed. Vu testified at trial that the responses on the form were in her own handwriting and that the initials and the signature were her own.

(4) The circumstances of Vu's prior inconsistent statements were brought to Vu's attention when the State asked her whether she remembered filling out the Victim Statement Form with the police on the night of the incident and whether she made the statements in the Victim Statement Form. Vu answered affirmatively. Thus, the prior inconsistent statements in the Victim Statement Form were offered in compliance with HRE Rule 613(b).

Nguyen's assistance in translating the Victim Statement Form for Vu did not create a layer of hearsay rendering the Victim Statement Form inadmissible as evidence. Although it is clear from the record that Nguyen translated the contents of the form for Vu from English to Vietnamese, Nguyen's translation of the form to Vu was not an out-of-court statement offered for the truth of the matter asserted and therefore does not constitute hearsay.

It appears from the record before us that the statements in the Victim Statement Form were made by Vu herself. Both Nguyen and Vu herself testified that the form was completed in Vu's handwriting. Vu also testified that in completing the form, "I just saw the words [on the form], so I copied them." To clarify Vu's response, the State asked Vu whether Nguyen had translated the form for her, and Vu responded affirmatively. The State then confirmed whether Vu understood the form in light of Nguyen's translation, and Vu again responded affirmatively. Therefore, it appears that Vu's statements on the Victim Statement Form were hers and hers alone, based on her understanding of the form. It appears Vu's statements on the Victim Statement Form were not translated by Nguyen and therefore do not constitute double hearsay. Thus, we conclude that the family court did not plainly err in admitting the Victim Statement Form into evidence.

Phan also challenges the family court's admission into evidence of the August 12, 2016 Ex-Parte Petition for an HRS 586 Temporary Restraining Order (TRO Petition) filed by Vu (State's Exhibit 9). The family court admitted the TRO Petition into evidence without any objection from the defense. We therefore review the issue for plain error. See HRPP Rule 52 (b).

Under HRE Rule 404(b) (2016), "bad act" evidence is admissible when it is relevant for some purpose other than to show action in conformity therewith. See State v. Renon, 73 Haw. 23, 31-32, 828 P.2d 1266, 1270 (1992). Once relevance is established, the court must then determine whether the probative value is substantially outweighed by the danger of unfair prejudice. HRE Rule 403 (2016). On appeal, Phan contends that the probative value of the prior acts of domestic abuse alleged by Vu in the TRO Petition were substantially outweighed by the danger of unfair prejudice.

In State v. Clark, 83 Hawai'i 289, 302, 926 P.2d 194, 207 (1996), the Hawai'i Supreme Court held that,

where a victim recants allegations of abuse, evidence of prior incidents of violence between the victim and the defendant are relevant to show the trier of fact the context of the relationship between the victim and the defendant, where[ ] ... that relationship is offered as a possible explanation for the victim's recantation.

Here, Vu recanted her allegations that Phan injured her on the night of the incident. On the night of the incident, Vu reported to the police that Phan "physically hurt, harmed or injured" her, causing injury to her forehead, nose, chin, hand, and knees. At trial, however, Vu testified that her injuries were a result of her accidental fall, that Phan did not punch her, and that she "exaggerated a little bit just to scare [Phan] a little" because she was "partly afraid, partly angry[.]" The prior incidents of domestic violence between Phan and Vu were used by the State to show the jury the context of Vu's relationship with Phan, which was relevant because the relationship was offered as the basis for Vu's recantation at trial.

We next determine whether the probative value of the prior bad acts evidence was outweighed by the prejudicial effect. When weighing probative value against prejudicial effect in the context of an HRE Rule 403 analysis, a court must consider a variety of factors, including:

the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.

State v. Behrendt, 124 Hawai'i 90, 106, 237 P.3d 1156, 1172 (2010) (citation omitted).

The incidents of Phan's prior violence and Vu's behavior were admissible as probative evidence to show the jury Vu's relationship with Phan, which was offered to explain Vu's recantation of the abuse that was the subject of the charged offense against Phan at trial. Further, the State emphasized the fact that the February 14, 2016 and July 24, 2016 incidents were unreported. Thus, the need for the evidence warrants the admission of the prior bad acts evidence and, in light of Vu's inconsistent testimony, the admission of the TRO Petition itself. As to the prejudicial impact of the evidence in the TRO Petition, the family court instructed the jury in Jury Instruction 24:

You have heard evidence that the Defendant at another time, may have engaged in other acts. You must not use this evidence to conclude that the Defendant is a person of bad character and therefore must have committed the offenses [sic] charged in this case. The evidence is being allowed to provide you with the context of the relationship between the complaining witness and the defendant and to give you a possible explanation for the complaining witness's differing testimony in court and for no other purpose.

This instruction alleviated any risk of prejudice potentially caused by the admission of the TRO Petition. See State v. Asuncion, 110 Hawai'i 154, 166-67, 129 P.3d 1182, 1194-95 (App. 2006). Thus, the probative value outweighed any prejudicial effect and the family court did not plainly err in admitting the TRO Petition into evidence and in further allowing the State to cross-examine Vu and Phan as to the prior incidents of violence that were the subject of the TRO Petition.

C. Jury Instructions

Phan next argues that Jury Instructions 13 and 27 were prejudicially insufficient. No objection was made to either of these jury instructions below.

When 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 misleading. Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial. [However, e]rror is not to be viewed in isolation and considered purely in the abstract. It must be examined in the light of the entire proceedings and given the effect which the whole record shows it to be entitled. In that context, the real question becomes whether there is a reasonable possibility that error might have contributed to conviction. If there is such a reasonable possibility in a criminal case, then the error is not harmless beyond a reasonable doubt, and the judgment of conviction on which it may have been based must be set aside.

State v. Nichols, 111 Hawai'i 327, 334, 141 P.3d 974, 981 (2006) (brackets in original) (quoting State v. Gonsalves, 108 Hawai'i 289, 292-93, 119 P.3d 597, 600-01 (2005) (internal citations, quotation marks, indentations, and paragraphing omitted; bracketed material added)).

Jury Instruction 13 provided as follows:

Several times in the trial, I have told you that certain evidence was allowed into this trial for a particular and limited purpose. When you consider that evidence, you must limit your consideration to that purpose.

Phan contends that Jury Instruction 13 was prejudicially insufficient because "it failed to clearly instruct the jury that the extrinsic evidence concerning the complainant's inconsistent statements was admissible only for purposes of impeachment and not substantive evidence of Phan's guilt." Phan further contends that the family court also failed to give any other separate instruction clarifying this point for the jury.

Contrary to Phan's contention, we find that the family court sufficiently provided a limiting instruction to the jury regarding the prior bad acts evidence. As discussed supra , the family court read Jury Instruction 24, which clearly instructed the jury of the limited purpose for the extrinsic evidence and that it was not to be used as substantive evidence of Phan's guilt in this case. We conclude that, in light of the family court giving Jury Instruction 24, Jury Instruction 13 was not prejudicially insufficient. See State v. Gomes, 93 Hawai'i 13, 18, 995 P.2d 314, 319 (2000) ("When 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 misleading[.]" (citation and quotation marks omitted)).

Jury Instruction 27 was the general unanimity instruction and provided as follows:

The law allows the introduction of evidence for the purpose of showing that there is more than one act upon which proof of an element of an offense may be based. In order for the prosecution to prove an element, all twelve jurors must unanimously agree that the same act has been proved beyond a reasonable doubt.

Phan contends that Jury Instruction 27 was prejudicially insufficient and misleading because "it failed to clearly instruct the jury that it must be unanimous with respect to both the specific conduct that caused the physical abuse and the specific bodily injury." Phan further contends that the State alleged multiple acts undertaken by and injuries caused by Phan to Vu, and the State failed to specify: (1) which act constituted the "conduct" element of the charged offense; and (2) which injury constituted the "result of conduct" element of the charged offense.

In support of his argument, Phan relies on State v. Arceo, 84 Hawai'i 1, 32-33, 928 P.2d 843, 874-75 (1996), where the Hawai'i Supreme Court established that

when separate and distinct culpable acts are subsumed within a single count charging a sexual assault-any one of which could support a conviction thereunder-and the defendant is ultimately convicted by a jury of the charged offense, the defendant's constitutional right to a unanimous verdict is violated unless one or both of the following occurs: (1) at or before the close of its case-in-chief, the prosecution is required to elect the specific act upon which it is relying to establish the "conduct" element of the charged offense; or (2) the trial court gives the jury a specific unanimity instruction, i.e., an instruction that advises the jury that all twelve of its members must agree that the same underlying criminal act has been proved beyond a reasonable doubt.

Arceo does not support Phan's argument. Arceo does not require a unanimity instruction regarding a specific bodily injury or which injury resulted from certain conduct. Moreover, in State v. Aki, 102 Hawai'i 457, 77 P.3d 948 (App. 2003), cert. denied, 102 Hawai'i 526, 78 P.3d 339 (2003), we addressed a similar issue where the defendant was charged with one count of Abuse of Family or Household Members but there were separate and distinct acts upon which the charge was brought. In Aki, there were two acts: "(1) Aki, with an open hand, pushed Clark in the mouth, and (2) Aki grabbed and pulled Clark's hair." Id. We held that "[i]n a case like this involving an offense like this, the focus is on the single incident of culpable conduct, and not on its component acts, and the Arceo doctrine simply does not apply." Id.

The facts of this case are similar to those in Aki. The State charged Phan as follows:

That on or about the 11th day of August, 2016, in the County of Maui, State of Hawaii, HAU PHAN, also known as HAU PHAM did intentionally, knowingly or recklessly engage in and cause physical abuse of a family or household member, to wit, Ngoc Vu, thereby committing the offense of Abuse of Family or Household Member in violation of Section 709-906 of the Hawaii Revised Statutes.

The State asserted during trial that Vu "struck her head on the ground when [Phan] pulled her back towards the car" and Phan "dragged [Vu] on the ground, scraping her knees." Although these are two separate acts, the focus of the offense of Abuse of Family or Household Members is on the single incident of culpable conduct and the Arceo doctrine is not applicable. Id. Accordingly, the general unanimity instruction was sufficient, and the family court did not plainly err in failing to give the jury a specific unanimity instruction explaining that all twelve members had to agree that the same underlying criminal act and the same corresponding injury had been proved beyond a reasonable doubt.

D. Sentencing

Phan argues that the family court abused its discretion in imposing the maximum one-year jail term despite Vu's position in favor of leniency for Phan.

A sentencing judge generally has broad discretion in imposing a sentence. The applicable standard of review for sentencing or resentencing matters is whether the court committed plain and manifest abuse of discretion in its decision. Factors which indicate a plain and manifest abuse of discretion are arbitrary or capricious action by the judge and a rigid refusal to consider the defendant's contentions. And, generally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.

State v. Mundon, 121 Hawai'i 339, 349, 219 P.3d 1126, 1136 (2009) (citations omitted).

We find no plain and manifest abuse of discretion in the family court's decision to sentence Phan to the maximum one-year jail term. In sentencing Phan, the family court considered the sentencing factors set forth in HRS § 706-606 (2014). After considering these factors, the family court determined that the one-year term was the appropriate sentence. The only argument that Phan raises on appeal is essentially that Vu implored the family court to be lenient. Although Vu's letter may be relevant to a determination of the factors, no single factor is dispositive and the trial court is given broad discretion in affording weight to the various factors. See, e.g., State v. Kong, 131 Hawai'i 94, 101, 315 P.3d 720, 727 (2013) (weight afforded to sentencing factors is generally left to the discretion of sentencing court); State v. Rauch, 94 Hawai'i 315, 328, 13 P.3d 324, 337 (2000) ( HRS § 706-606 requires the sentencing court to weigh and balance various factors and does not indicate that any given factor is dispositive). Accordingly, the family court did not abuse its discretion in sentencing Phan to a one-year sentence.

E. Bail

Phan argues that the family court's refusal to continue Phan's $2,000 bail pending appeal and decision to instead increase the bail amount to $50,000 violated HRS § 804-4 (2014) and the holding in State v. Kiese, 126 Hawai'i 494, 273 P.3d 1180 (2012).

HRS § 804-9 (2014) provides that "[t]he amount of bail rests in the discretion of the justice or judge[.]" The sentencing judge therefore has clear authority to increase a defendant's bail pending appeal. The determination of bail under HRS § 804-9 must be made "on an individualized basis[,]" Pelekai v. White, 75 Haw. 357, 366, 861 P.2d 1205, 1210 (1993), and bail is to be fixed in a reasonable amount, considering the financial status of the defendant and the punishment to be imposed upon him on conviction, Sakamoto v. Won Bae Chang, 56 Haw. 447, 451, 539 P.2d 1197, 1200 (1975). See also HRS § 804-9 ("In all cases, the officer letting to bail should consider the punishment to be inflicted on conviction, and the pecuniary circumstances of the party accused.").

In State v. Henley, 136 Hawai'i 471, 481, 363 P.3d 319, 329 (2015), the Hawai'i Supreme Court held that the trial court abused its discretion when it increased Henley's bail pending appeal from $200 to $2,000 without tailoring the amount to Henley's individual circumstances. The supreme court noted that

[a]lthough Henley's right to bail continued post-conviction, the circuit court had the authority to change the amount of bail post-conviction pursuant to its discretionary authority under HRS § 804-9. In exercising its discretion, it was required by HRS § 804-9, governing the amount of bail, to "consider the punishment to be inflicted on conviction, and the pecuniary circumstances of the party accused."

Id. at 480-81, 363 P.3d at 328-29. Regarding the punishment to be imposed upon Henley on conviction, the trial court initially set bail at $200 when Henley was facing the possibility of one year in jail. Id. at 481, 363 P.3d at 329. The trial court ultimately sentenced Henley to 30 days' imprisonment but increased bail to $2,000, to be paid in cash only. Id. Regarding Henley's pecuniary circumstances, Henley was nineteen years old and was determined to be indigent. Id. The supreme court ultimately held that the trial court did not make any findings about Henley's individual circumstances that would have justified an increase in bail and instead, "at its core, the bail increase was based simply on the fact that defendant had been convicted, sentenced to jail, and had allegedly 'recently' arrived in Hawai'i, despite his family having settled here." Id.

In State v. Gishi, No. CAAP-13-0003756, 2016 WL 1601041, at *3 (Haw. App. March 31, 2016) (SDO), Gishi was found guilty of felony assault. We held that the trial court did not abuse its discretion when it raised Gishi's bail based on the "egregious nature of his offense" and the trial court's findings that Gishi "not only poses a flight risk but he poses more so a danger to the community...." Id.

In this case, the family court reasoned that Phan posed a high flight risk and risk of danger to the community based on several factors: (1) Phan's extensive criminal record in several states, which he failed to disclose during his pre-sentence investigation and report interview; (2) Phan had a pending extradition warrant from the State of Washington; (3) the U.S. Department of Homeland Security, Immigration and Customs Enforcement had a pending warrant of removal against Phan; (4) Phan had previously failed to appear at a pretrial/trial setting conference in this case, where his $1,000 bail was forfeited and his bail increased to $2,000. As to Phan's pecuniary circumstances, the family court considered the fact that Phan was gainfully employed.

Furthermore, defense counsel requested that bail be set at $10,000 while the State requested that bail be set at $100,000. The family court ultimately set bail pending appeal at $50,000, to assure that Phan "will surrender and serve his one-year jail should his conviction and sentence be affirmed on appeal."

Based on this record, we conclude that the family court did not abuse its discretion in considering the factors under HRS § 804-9 and deciding to increase the amount of Phan's bail pending appeal to $50,000.

F. Ineffective Assistance of Counsel

Phan bases his claim of ineffective assistance of counsel only on trial counsel's failure to object to the admission of the TRO Petition under HRE Rule 403. In light of our disposition of Phan's point of error regarding the family court's admission of the TRO Petition, we need not address Phan's contention of ineffective assistance of counsel.

G. Right to a Fair Trial

Phan argues that the cumulative effect of the errors discussed supra deprived him of a fair trial. However, in light of our disposition of Phan's alleged errors, we conclude that Phan was not deprived of a fair trial.

Based on the foregoing, we affirm the Judgment Conviction and Sentence entered by the Family Court of the Second Circuit on June 15, 2017.

      The Honorable Richard T. Bissen, Jr. presided.

      HRS § 709-906 provides, in relevant part:
      § 709-906 Abuse of family or household members; penalty. (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter.
      For the purposes of this section:
      ....
      "Family or household member":
      (a) Means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons in a dating relationship as defined under section 586-1, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit[.]

      Tachibana v. State, 79 Hawai'i 226, 900 P.2d 1293 (1995).

      The family court asked the parties if there was any objection to administering the pre-trial advisement on this date, rather than administering it on the first day of trial. Defense counsel stated that it did not object.

      We note that the Hawai'i Supreme Court recently held in State v. Torres, 144 Hawai'i 282, 292-95, 439 P.3d 234, 244-47 (2019), that a Tachibana colloquy must be given in all trials, including those where the defendant elects to take the stand. The supreme court expressly stated, however, that this requirement is to be given prospective application "in trials beginning after the filing date of [Torres ]." Id. at 295, 439 P.3d at 247. Phan's trial occurred prior to the Torres decision and is thus not subject to this requirement.

      HRE Rule 802.1 provides, in relevant part:
      Rule 802.1 Hearsay exception; prior statements by witnesses. 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:
      ...
      (B) Reduced to writing and signed or otherwise adopted or approved by the declarant[.]

      During direct examination, Nguyen was questioned about the Victim Statement Form as follows:
      Q. And you helped translate for [Vu] during her written statement [to the police]?
      A. Yes.
      ....
      Q. Mr. Nguyen, if you could take a look. I'm showing you what has been admitted into evidence as State's Exhibit 8 [Victim Statement Form]. Do you recognize that?
      A. Yeah.
      Q. And is that the written statement that you helped translate for Ngoc Vu that night?
      A. Yeah.
      Q. And is that Ngoc Vu's handwriting?
      A. Yeah.
      Q. And do you remember her reporting that to police?
      A. Yeah.

      At trial, the family court confirmed that the State could question Vu as to the prior incidents of violence and the State clarified that it would only bring in the TRO Petition itself if Vu's responses to the State's questioning was inconsistent with what she had reported in the TRO Petition. With regard to the admission of the TRO Petition itself, the family court properly admitted the document as a prior inconsistent statement under HRE Rule 802.1. Vu testified that on February 14, 2016, Phan threw a vase in her direction but it did not hit her. Vu also testified that on July 24, 2016, Phan did not slap her face nor did he punch her in the chest. The TRO Petition was admitted to show that Vu had previously reported that on February 14, 2016, Phan threw a flower vase at her face and left a bump and a bruise, and on July 24, 2016, Phan slapped her face and punched her in the chest.

      We note that the family court did not conduct an HRE Rule 403 analysis on the record. However, that is not to say that the family court failed to engage in such analysis. State v. Bates, 84 Hawai'i 211, 228, 933 P.2d 48, 65 (1997) ("[W]e are unaware of any precedent[ ] ... requiring a trial court to state for purposes of the record, the balancing of competing interests under HRE Rule 403. In the absence of this requirement, it cannot be inferred that by reason of this 'on the record' omission, the court failed to engage in the requisite balancing.").

      Prior to trial, Vu had submitted a request to withdraw the prosecution. After the jury verdict, Vu submitted a letter of support on behalf of Phan for the court's consideration in sentencing, asking the court to be lenient and to "give him a second chance[.]"

      HRS § 706-606 provides:
      § 706-606 Factors to be considered in imposing a sentence. The court, in determining the particular sentence to be imposed, shall consider:
      (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.

      In Kiese, the Hawai'i Supreme Court held:
      Although stays are discretionary under HRS § 641-14, HRS § 804-4(a) provides, "The right to bail shall continue after conviction of a ... petty misdemeanor[.]" See also HRS § 804-4(b) ("No defendant entitled to bail, ... shall be subject, without the defendant's written consent, to the operation of any sentence passed upon the defendant, while any proceedings to procure a review of any action of the trial court ... are pending and undetermined, except as provided in section 641-14(a) [.]"). In State v. Ortiz, we held, "An accused misdemeanant, petty misdemeanant, or law violator on bail is entitled to bail as a matter of right after conviction and pending appellate review." 74 Haw. 343, 356, 845 P.2d 547, 553 (1993). Furthermore, pursuant to State v. Miller, 79 Hawai'i 194, 200-01, 900 P.2d 770, 776-77 (1995), once release on bail pending appeal is secured, a trial court is without jurisdiction under the sentence of probation that is the subject of the defendant's appeal.
      126 Hawai'i at 510, 273 P.3d at 1196.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Benito MARROQUIN, III aka Benny Marroquin, Defendant-Appellant
    NO. CAAP-18-0000505
    Intermediate Court of Appeals of Hawai'i.
    July 15, 2019
    On the briefs:
    Victor M. Cox, for Defendant-Appellant.
    Charles E. Murray, III, Deputy Prosecuting Attorney, for Plaintiff-Appellee.
    (By: Ginoza, Chief Judge, Fujise and Hiraoka, JJ.)
   MEMORANDUM OPINION

Defendant-Appellant Benito Marroquin III (Marroquin ) appeals from the Judgment of Conviction and Sentence (Judgment ) entered by the Circuit Court of the Third Circuit (trial court ) on April 24, 2018. A jury found Marroquin guilty of second degree assault. He contends that the trial court erred by denying his Third Motion in Limine (3rd MIL ) and his Amended Fourth Motion in Limine (4th MIL ) without making specific findings or conclusions about whether the hearsay statements at issue were trustworthy. For the reasons explained below, we affirm the Judgment.

I.

Marroquin and James Nichols (Nichols ) were involved in a physical altercation on January 13, 2016, while both were working on the construction of a house. Marroquin was arrested and charged by complaint with assaulting Nichols in violation of Hawaii Revised Statutes (HRS ) § 707-711(1) (a) and/or (b) (2014). Marroquin claimed that Nichols was the aggressor and that he (Marroquin) acted in self-defense.

Trial was set for June 14, 2016. On June 3, 2016, Marroquin filed the pretrial motions that are the subjects of this appeal. The 3rd MIL sought a ruling that Hawai'i County Police Department officer Scott Aloy (Officer Aloy ) would be allowed to testify that Raeven Aquino (Aquino ) told Officer Aloy he saw Nichols put his hands around Marroquin's neck. Marroquin's 4th MIL sought rulings that (1) Hawai'i County Prosecuting Attorney's investigator Daniel Pang (Investigator Pang ) would be allowed to testify that Tommy Hagadone (Hagadone ) told Investigator Pang that Nichols was angry at Marroquin and "said he wasn't going to take that from a punk like [Marroquin] and that he was going to call him out on it[,]" (2) an email to that effect from Hagadone to Investigator Pang would be admitted into evidence, and (3) witness Shelly Cunningham (Cunningham ) (who was the project manager but did not see the altercation) would be allowed to testify that Hagadone told Cunningham that Nichols told Hagadone, "I'm going to get him[,]" referring to Marroquin.

The motions in limine were heard on June 9, 2016. The trial court orally denied the 3rd MIL and entered a written order on June 24, 2016. The trial court also orally denied the 4th MIL, but continued the trial date to June 28, 2016, to allow Marroquin time to procure Hagadone's attendance at the trial. A written order was entered on June 27, 2016. On June 16, 2016, Marroquin filed a second motion to continue the trial based upon Hagadone having obligations in North Carolina on June 28, 2016. The motion was heard on June 20, 2016. The State did not oppose the requested continuance. After conducting a colloquy to determine that Marroquin was validly waiving his right to a speedy trial, the trial court continued the trial to September 20, 2016.

Trial began on September 22, 2016. Marroquin renewed his 3rd MIL and 4th MIL, representing that Hagadone had been subpoenaed for trial but did not show up and Aquino could not be found. The trial court denied both renewed motions. On September 27, 2016, the jury found Marroquin guilty as charged of reckless second degree assault. This appeal followed.

II.

Before we address the trial court's rulings on the motions in limine, we must address a preliminary issue raised by Marroquin. Marroquin contends that the trial court committed reversible error by denying his motions in limine without making findings or conclusions on the record as required by State v. Hutch, 75 Haw. 307, 329, 861 P.2d 11, 22 (1993). Hutch involved a Hawai'i Rules of Penal Procedure (HRPP ) Rule 48(b)(1) (eff. 2000) motion to dismiss. "An HRPP 48(b) motion to dismiss, by its very nature, involves factual issues." Id. at 330, 861 P.2d at 23. This case does not involve a Rule 48(b) motion to dismiss. Marroquin's motions in limine involved the admissibility of evidence. HRE Rule 104(a) (1993) provides: "Preliminary questions concerning the ... admissibility of evidence shall be determined by the court[.]" In a case involving the admissibility of hearsay, we have stated:

[W]hen a court relies on Rule 803(b) (24), sua sponte or at the urging of counsel, for admission of hearsay evidence not coming within the other exceptions of Rule 803 (b), the court should state on the record the basis for its determination of trustworthiness, probative value, and necessity.

State v. Durry, 4 Haw. App. 222, 235, 665 P.2d 165, 175 (1983), overruling on other grounds recognized by State v. Garcia, 96 Hawai'i 200, 213, 29 P.3d 919, 932 (2001) (underscoring added). The trial court's failure to state on the record the basis for its determination of admissibility, however, does not automatically require remand. In Durry we analyzed the trustworthiness of the proffered hearsay statement and held that it was properly admitted into evidence notwithstanding the trial court's failure to place its findings in the record. Id.

III.

Marroquin's motions in limine required that the trial court rule on the admissibility of hearsay under HRE Rule 804(b)(5) and (8). HRE Rule 804 (1993 & Supp. 2015) provides, in relevant part:

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
....
(5) Statement of recent perception. A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant's recollection was clear;
....
(8) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (B) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

(Underscoring added.)

Hearsay evidence must meet one of the following two requirements in order to be admissible pursuant to HRE Rule 804(b) (declarant unavailable): (1) the statement must fall within a firmly rooted hearsay exception; or (2) the statement must show particularized guarantees of trustworthiness. Whether a statement falls within a firmly rooted hearsay exception is a question of law reviewed de novo. Whether a statement has particular guarantees of trustworthiness is reviewed for an abuse of discretion.

State v. Haili, 103 Hawai'i 89, 100, 79 P.3d 1263, 1274 (2003) (cleaned up).

A. 3rd MIL

The subject of the 3rd MIL was Aquino's statement to Officer Aloy. Officer Aloy's report stated:

Upon contacting AQUINO, I asked him if he saw what happened. He stated, "Yes," that he saw the two guys arguing at which point he stated that he saw the guy dressed in the tank top swing at the other guy. He stated that the haole guy put his hands around the neck of the guy with the tank top and at that time, he stated that he just saw the guy in the tank top keep punching the other guy in the face. He then stated that the haole guy was then stuck in the corner and the guy in the tank top kept punching him while he was on the ground at which point I asked him which party swung first. He stated that the guy in the tank top swung first and that he seemed to be the aggressor in this situation.

Officer Aloy's report also stated that Marroquin was wearing a tank top and that Aquino identified Marroquin "as the responsible party involved in this incident." Marroquin contends that Aquino's statement to Officer Aloy was admissible as a statement of recent perception under HRE Rule 804(b)(5) because Officer Aloy was dispatched to the scene at 9:24 a.m. and interviewed Aquino forty-one minutes later, at 10:05 a.m. The trial court ruled:

THE COURT: Okay. So as to defendant's third motion in limine motion is denied.
This is a statement given to a police officer -- well, not even a verbatim statement taken by the police officer. Like, uh, this scenario's more akin to State v. Jhun. So the motion is denied.

In State v. Jhun, 83 Hawai'i 472, 927 P.2d 1355 (1996), a police officer (Officer Cravalho ) investigating an assault interviewed a witness (Michael ). Officer Cravalho transcribed Michael's statement by hand onto three pages of HPD-252 forms. Michael signed an attestation that the statement was true and correct. At trial, the defendant attempted to elicit testimony from Officer Cravalho about what Michael said. The trial court sustained the State's objection to hearsay. The defendant appealed. The supreme court held:

[T]he HPD-252 forms did not contain "factual findings" that Officer Cravalho based on his own investigation. Officer Cravalho did not record any of his own independent conclusions or opinions about his interview with Michael. Rather, the HPD-252 forms merely contained out-of-court statements that Michael had made to Officer Cravalho approximately one hour and forty-five minutes after the events that had culminated in Jhun's arrest. As a result, the HPD-252 forms lacked the typical characteristics of factual findings. Like the police reports at issue in Miller, the HPD-252 forms were merely a recitation of a third-party's out-of-court statements that fell under no other exception to the hearsay rule, and thus, the HPD-252 forms were not admissible under HRE Rule 803(b)(8)(C).

Id. at 481, 927 P.2d at 1364 (citing Miller v. Field, 35 F.3d 1088, 1091 (6th Cir. 1994) ). Had Marroquin offered Officer Aloy's testimony about Aquino's statement pursuant to the HRE Rule 803(b)(8)(C) (1993) exception for public records, the trial court would have correctly denied the motion under Jhun. But Marroquin's proffer was based upon HRE Rule 804(b)(5) and (8). We need not decide whether Officer Aloy's testimony about Aquino's statement should have been admitted based upon HRE Rule 804 (b) (5) and (8) because even if the trial court had erroneously denied the 3rd MIL, the error would have been harmless.

"Where there is a wealth of overwhelming and compelling evidence tending to show the defendant guilty beyond a reasonable doubt, errors in the admission or exclusion of evidence are deemed harmless." State v. Toyomura, 80 Hawai'i 8, 27, 904 P.2d 893, 912 (1995) (citation omitted). Marroquin offered Aquino's statement that Nichols had his hands around Marroquin's neck to support his defense of self-defense. But Aquino also told Officer Aloy that Marroquin took the first swing at Nichols, that Marroquin kept punching Nichols even after Nichols was "stuck in the corner" and "on the ground[,]" and that Marroquin seemed to be the aggressor.

Aquino's observations were consistent with those of Job Bennett (Bennett ), a carpenter who was also working on the house. At trial, Bennett testified that he heard Marroquin say "I'm going to punch you[.]" Bennett turned upon hearing the scuffle, and saw Marroquin turning Nichols around against the wall. As the two men turned, Nichols lost his footing and Marroquin put his left hand on Nichols's right shoulder and pushed Nichols down. As Nichols was falling down, he "gets a right hand to the right eye area from [Marroquin]." While Nichols was on the ground, Marroquin was "[h]olding him down with his ... left hand on [Nichols's] right shoulder." Bennett then testified that Marroquin

punched [Nichols] three more times with the right hand to the right side of the face.
Q. From your position did it look like [Marroquin] was punching Mr. Nichols in the same place over and over?
A. Yes, approximately.
Q. It was - it was sort of focused in one area?
A. Yes.
Q. And you said that you saw three more punches while Mr. Nichols was on the ground?
A. Yes.
Q. Okay. Again while Mr. Nichols is on the ground you said he's doing nothing so is he at least blocking?
A. No.
Q. Is he trying to get away?
A. No.
Q. Where are his hands?
A. I think his left arm was trapped under his body, and the right arm was just -- just around -- around the chest area.
....
[DEPUTY PROSECUTING ATTORNEY]: ... About how much time is this taking?
A. Um, from beginning -- the beginning to?
Q. From the falling to when it stopped.
A. Oh, fifteen seconds about outside.
Q. Okay. So it's not a particularly long period of time?
A. No.
Q. Okay. So, um, while Mr. Nichols is on the ground as you observed how responsive is he?
A. Unresponsive.
Q. What do you mean by "unresponsive"?
A. I would say unconscious.

Bennett testified that Marroquin's demeanor while punching Nichols was aggressive. After Marroquin stopped punching Nichols, Bennett moved towards Nichols to "make sure he was breathing and render what aid I could until someone got there to take better care of him." Bennett testified that the right cheek area of Nichols's "face was pretty caved in." It took Nichols "a full 40 seconds" to regain consciousness.

Officer Aloy testified that he did not see any injuries on Marroquin, any obvious signs of pain or discomfort, or anything about his movement that would indicate any impairment or injury. Marroquin told Officer Aloy that his neck and back by his shoulder blade area were hurt, but Officer Aloy did not see any injury, redness, abrasion, or bruising to those areas. Another police officer (Officer Thompson ) testified that he had contact with Marroquin at the scene for 25 to 30 minutes. Marroquin did not complain of any pain or injury. Officer Thompson testified that he did not observe any injury on Marroquin and that Marroquin did not seek medical attention or treatment from the ambulance or medics on scene. In light of all the evidence, the trial court's exclusion of Aquino's statements to Officer Aloy was harmless beyond a reasonable doubt.

B. 4th MIL

Marroquin argued in his 4th MIL that (1) Investigator Pang should be allowed to testify that Hagadone told Investigator Pang that Nichols "said [Nichols] wasn't going to take that from a punk like [Marroquin] and that [Nichols] was going to call [Marroquin] out on it[,]" (2) an email to that effect from Hagadone to Investigator Pang would be admitted into evidence, and (3) Cunningham should be allowed to testify that Hagadone told Cunningham that Nichols told Hagadone, "I'm going to get [Marroquin]."

The State argues that Marroquin failed to establish that Hagadone was unavailable. On the first day of trial, Marroquin's counsel reported that Hagadone had been subpoenaed but did not appear, and could not be located. This was sufficient for Marroquin as the defendant in a criminal case to establish unavailability for purposes of HRE Rule 804(b)(5).

Marroquin argued that the first level hearsay statements - Nichols's statements to Hagadone (that he wasn't going to take that from a punk like Marroquin and that he was going to call Marroquin out on it, and that he was "going to get" Marroquin) - are not hearsay because they establish the state of mind of Nichols, the complaining witness. HRE Rule 803(b)(3). The trial court reserved ruling on that issue because Marroquin was attempting to procure Hagadone's presence for trial, and Hagadone was being cooperative and had agreed to return to Hawai'i from North Carolina in September.

However, Hagadone's statement to Investigator Pang about what Nichols said, and Hagadone's statement to Cunningham about what Nichols said, are second-level hearsay. The trial court was concerned about the trustworthiness of Hagadone's statements because Hagadone was Marroquin's co-worker:

THE COURT: And what does -- what is Hagadone's relationship to the defendant?
[DEFENSE COUNSEL]: Hagadone was a co-worker.
THE COURT: Of the defendant?
[DEFENSE COUNSEL]: Yes.
THE COURT: So there's gonna be some question of, uh, reliability, trustworthiness?
[DEFENSE COUNSEL]: There is and we're still trying to get Hagadone here. I -- I have been talking to him.
THE COURT: Yeah, so -- so where's the reliability? He's a co-worker. He's gonna say --
[DEFENSE COUNSEL]: He's a co-worker but he's a co-worker of the victim as well.
THE COURT: Who was he friendlier to?
[DEFENSE COUNSEL]: Well, uh, the defendant had been working there longer.

The trial court denied the 4th MIL with respect to the second-level hearsay (Investigator Pang's testimony about Hagadone's oral statement and email concerning Nichols's statements to Hagadone, and Cunningham's testimony about Hagadone's oral statement to Cunningham about Nichols's statement to Hagadone).

Marroquin's counsel represented that Hagadone had been subpoenaed for trial but did not appear and could not be located. A similar situation was at issue in State v. Swier, 66 Haw. 448, 666 P.2d 169 (1983). In that case the State sought to introduce a statement made by a witness to a police officer two days after an accident. When the witness left Hawai'i after the accident, he initially stated that he would return and testify, but later refused to do so. The trial court excluded the statement and the State appealed, arguing that it should have been admitted under the catch-all exception, then codified as HRE Rule 804(b)(6) and currently as Rule 804(b)(8). The supreme court held:

The problem with the State's contention is that the trial court was not satisfied that [the witness's] statement had circumstantial guarantees of trustworthiness equivalent to those which have long been recognized in the case of the exceptions set forth in Rules 804(b)(1) through (5).
In ruling on the motion, the trial court correctly pointed out that [the witness's] demonstrated equivocation with respect to returning to [Hawai'i] to testify cast some doubt on the trustworthiness of his statement. We cannot say that the trial court abused its discretion in rejecting the statement. We therefore affirm the trial court's ruling excluding [the witness's] statement without reaching the constitutional issue of the right to confrontation.

Id. at 450, 666 P.2d at 170. Similarly, in this case we cannot say that the trial court abused its discretion by not allowing Marroquin to elicit double hearsay testimony from Investigator Pang and from Shelly Cunningham about what Hagadone told them Nichols told Hagadone.

For the foregoing reasons, the Judgment of Conviction and Sentence entered by the Circuit Court of the Third Circuit on April 24, 2018, is affirmed.

      "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hawaii Rules of Evidence (HRE ), Rule 801 (Supp. 2015).

      HRS § 707-711 provided, in relevant part:
      (1) A person commits the offense of assault in the second degree if:
      (a) The person intentionally or knowingly causes substantial bodily injury to another; [or]
      (b) The person recklessly causes serious or substantial bodily injury to another[.]

      Hagadone's email to Investigator Pang stated:
      On January 13th of this year I showed up for work at the Douglas residence. I was talking with Benito [Marroquin] around 8 am and Jim [Nichols] came over to ask a question. Benito gave him a sarcastic answer and jim walked away angry. I went over to check and see if jim needed anything 10 minutes later and jim was still upset and said he wasn't going to take that from a punk like benito. He said he was going to call him out on it. I walked away and started working on what I was supposed to be doing that day and didn't think much of it until 20 minutes later when benito came over to where i was working and said jim grabbed him by the throat so he hit him. I didn't see the altercation.
      (Lower case first names in original.)

      The Honorable Ronald Ibarra presided over the hearing.

      Hagadone was living in North Carolina at the time.

      The Honorable Ronald Ibarra presided over the trial.

      HRPP Rule 48 provides, in relevant part:
      (b) By court. Except in the case of traffic offenses that are not punishable by imprisonment, the court shall, on motion of the defendant, dismiss the charge, with or without prejudice in its discretion, if trial is not commenced within 6 months:
      (1) from the date of arrest if bail is set or from the filing of the charge, whichever is sooner, on any offense based on the same conduct or arising from the same criminal episode for which the arrest or charge was made[.]

      "Cleaned up" is a parenthetical designed to tell readers that extraneous material (e.g., internal brackets, ellipses, quotation marks, citations, footnote reference numbers, and changes in capitalization) has been removed from a quotation for readability, and that none of it matters for understanding the quotation or evaluating its weight. See Metzler, Jack, Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 147, 154 (2017).