text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Shaun R. DAVIS, Defendant-Appellee.
    Supreme Court Case No. 18SA267
    Supreme Court of Colorado.
    April 8, 2019
    Attorneys for Plaintiff-Appellant: George H. Brauchler, District Attorney, Eighteenth Judicial District, Susan J. Trout, Senior Deputy District Attorney, Centennial, Colorado
    Attorneys for Defendant-Appellee: Megan A. Ring, Public Defender, James Karbach, Deputy Public Defender, Anthony Falcone, Deputy Public Defender, Centennial, Colorado
    En Banc
   JUSTICE HOOD delivered the Opinion of the Court.

¶1 After suddenly finding himself in custody on an arrest warrant, the defendant Shaun Davis wanted someone to contact his girlfriend about retrieving the car he had with him. So, he invited a police officer to use Davis's cell phone to call her, and he gave his cell phone passcode to that officer. Following a station house interview, Davis repeated his request. Again, he asked the police to contact his girlfriend. And again, he offered up his passcode. The police later obtained a warrant to search the contents of Davis's cell phone. Without seeking Davis's or the court's specific consent, the police used the previously provided passcode to execute the search warrant.

¶2 Davis asked the trial court to suppress his statements about the passcode and any evidence from the phone. He argued that his statements about the passcode were involuntary and that they were taken in violation of his rights under Miranda v. Arizona . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also contended that the search warrant was overbroad and lacked probable cause.

¶3 The trial court rejected Davis's arguments. Even so, the court independently discerned a constitutional defect arising from the limited scope of Davis's consent to use of the passcode. Because the police may not have been able to access the phone without the passcode, the court reasoned that the search of the phone was a consent search, not a search pursuant to a warrant. The court found that Davis gave "very limited" consent for the police to use the passcode to search his phone for his girlfriend's phone number-not general consent to search everything in his phone. Because the trial court concluded that the search exceeded the scope of Davis's consent, it suppressed any evidence recovered from the phone.

¶4 We reverse. On the facts presented here, we conclude that the search of the phone was not a consent search, but rather a search pursuant to a valid warrant, and Davis did not manifest a legitimate expectation of privacy as to his passcode. Accordingly, law enforcement was at liberty to use the passcode to execute the search warrant.

I. Facts and Procedural History

¶5 Police took Davis into custody on an arrest warrant for first degree murder and other crimes. Shortly after his arrest at his place of employment, Davis asked Officer Aaron Woodbury to call Davis's girlfriend so that she could pick up her car, which Davis had driven to work. Davis encouraged Woodbury to go into Davis's phone to get her phone number. When Woodbury told Davis that Davis's iPhone was locked, Davis provided the passcode. Woodbury then used the passcode to get into the phone and find Davis's girlfriend's number, but Woodbury ultimately decided not to call her. Woodbury told Davis that he wasn't able to reach her.

¶6 Later, after an interview with detectives at the police station, Davis again asked Woodbury to contact Davis's girlfriend. Again, Davis suggested that Woodbury use the passcode to find his girlfriend's phone number. In neither this instance nor the first did Davis place any explicit limitation on law enforcement's use of his passcode.

¶7 The police eventually obtained a search warrant to search Davis's cell phone. They used the previously provided passcode to unlock the phone so they could conduct the search.

¶8 Davis moved to suppress his statements regarding the passcode. He argued that they were obtained involuntarily and taken in violation of Miranda . He also moved to suppress the fruits of the search of his phone, positing that the police lacked probable cause and that the warrant was constitutionally overbroad.

¶9 The trial court found that Davis's statements about the passcode were voluntary, and that there was no Miranda violation. The court also found that the search warrant was valid. However, the court suppressed the fruits of the search of the phone on different grounds. The court saw the passcode conundrum not "as a Fifth Amendment issue at all," but as a Fourth Amendment consent issue.

¶10 The trial court concluded that, in providing the passcode, Davis gave the police "very limited," voluntary consent to search his phone. The consent was limited to a specific item (his girlfriend's phone number), a specific area (his contacts folder), a specific purpose (to call his girlfriend), and a specific time (the time of the requests). Then, the court reasoned, the question becomes: "If the police have that pass[code], can they later use it if they have a valid search warrant?"

¶11 The trial court found that, without the voluntarily provided passcode, the police may not have been able to access Davis's cell phone. Thus, it reasoned, the only way the police could have gotten into the phone was by a search that went beyond the limited consent provided by Davis. Because the trial court concluded that the police had exceeded the scope of Davis's consent in searching the cell phone, it suppressed the fruits of the search.

¶12 The People filed this interlocutory appeal.

II. Analysis

¶13 After identifying the standard of review, we examine longstanding Fourth Amendment principles and evolving caselaw regarding cell phones. We then turn to the suppression order in this case. Because the search was conducted pursuant to a warrant and, at the time police executed the warrant, Davis didn't have a legitimate expectation of privacy in his passcode, we conclude that law enforcement's use of the passcode to execute the warrant didn't violate the Fourth Amendment.

A. Standard of Review

¶14 Because a suppression order presents a mixed question of law and fact, "[w]e accept the trial court's findings of historic fact if those findings are supported by competent evidence, but we assess the legal significance of the facts de novo." People v. Burnett , 2019 CO 2, ¶ 13, 432 P.3d 617, 620 (quoting People v. Chavez-Barragan , 2016 CO 16, ¶ 9, 365 P.3d 981, 983 ).

B. Searches and Cell Phones

¶15 The Fourth Amendment to the U.S. Constitution protects individuals from unreasonable government searches and seizures. U.S. Const. amend. IV. A search occurs when the government intrudes upon an individual's legitimate expectation of privacy. Kyllo v. United States , 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ; Katz v. United States , 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). When analyzing the legality of a search, the "ultimate touchstone" is reasonableness. See Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ; People v. Pappan , 2018 CO 71, ¶ 8, 425 P.3d 273, 276.

¶16 "[R]easonableness generally requires the obtaining of a judicial warrant." Vernonia School Dist. 47J v. Acton , 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) ; accord Riley v. California , 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). In the absence of a warrant, a search may be found reasonable if it falls into one of the settled exceptions to the warrant requirement. See Riley , 573 U.S. at 382, 134 S.Ct. 2473. One such exception exists for consent: If an individual consents to a search, the government need not obtain a warrant. See Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Still, consent may be limited to specific items, locations, purposes, or times. See People v. Torand , 622 P.2d 562, 565 (Colo. 1981).

¶17 While these longstanding principles of search and seizure jurisprudence endure, the quickly evolving technology of cell phones has complicated their application. As the trial court correctly observed, the general trend of caselaw provides cell phones with more protection, not less.

¶18 For example, in Riley v. California , the Supreme Court concluded that a warrant is required to search a cell phone seized incident to arrest, even though searches incident to arrest had been a well-settled exception to the warrant requirement. 573 U.S. at 382, 403, 134 S.Ct. 2473. The Court reached this conclusion due to the nature of cell phones. "Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person." Id. at 393, 134 S.Ct. 2473. Modern cell phones have an "immense storage capacity," "collect[ ] in one place many distinct types of information," and store information that can be used to reconstruct "[t]he sum of an individual's private life." Id. at 393-94, 134 S.Ct. 2473. "With all they contain and all they may reveal, [cell phones] hold for many Americans 'the privacies of life.' " Id. at 403, 134 S.Ct. 2473 (quoting Boyd v. United States , 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886) ). While the Court concluded that these special features necessitated special protections, it didn't hold "that the information on a cell phone is immune from search." Id. at 401, 134 S.Ct. 2473. It simply held "that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest." Id.

¶19 Shortly after Riley , we acknowledged the special protections applicable to cell phone searches. People v. Herrera, 2015 CO 60, ¶ 35, 357 P.3d 1227, 1233-34. Citing Riley 's recognition that the modern cell phones owned by many Americans hold "the privacies of life," we "proceed[ed] cautiously in applying the plain view doctrine to searches involving digital data." See id. at ¶ 35, 357 P.3d at 1233-34 (citing Riley , 573 U.S. at 403, 134 S.Ct. 2473 ).

¶20 Most recently, in Carpenter v. United States , the Supreme Court again recognized the distinctive nature of cell phones. --- U.S. ----, 138 S.Ct. 2206, 2217-19, 201 L.Ed.2d 507 (2018). It held that individuals have a legitimate expectation of privacy in the location information recorded by their wireless carriers and that the government generally must obtain a search warrant before acquiring such information. See id. at 2221.

¶21 Advances in the technology of encryption have further complicated the law surrounding cell phone searches. "Encryption is a security feature that some modern cell phones use in addition to password protection. When such phones lock, data becomes protected by sophisticated encryption that renders a phone all but 'unbreakable' unless police know the password." Riley , 573 U.S. at 389, 134 S.Ct. 2473. While the government is equipped with technology that allows it to bypass many cell phones' security measures, courts have started to grapple with what to do in the case of an unbreakable lock. Specifically, courts have begun considering whether the Fifth Amendment allows the government to compel an individual to provide it with his phone passcode or to use a biometric feature such as a fingerprint to unlock his phone. See, e.g. , In re Residence in Oakland, Cal. , 354 F.Supp.3d 1010, 1016 (N.D. Cal. 2019) (concluding that a person can't be compelled to provide a passcode or use a biometric feature to unlock an electronic device); In re Search of [Redacted] Wash., D.C. , 317 F.Supp.3d 523, 540 (D.D.C. 2018) (concluding that compelling an individual to use a biometric feature to unlock an electronic device doesn't violate the Fifth Amendment).

¶22 These rapidly developing areas of the law partially converge in the present case, where the trial court found that Davis voluntarily provided his cell phone passcode to the police for a limited purpose and the police later used that passcode to execute a warrant to search his cell phone. However, because this case is before us in an interlocutory appeal, only the validity of the putative consent search is at issue. The validity of the warrant and the manner in which the police obtained the passcode are not. Therefore, we accept, as we must in this context, the trial court's conclusions that the search warrant was valid and that the police constitutionally obtained Davis's passcode, and we review the trial court's ruling regarding the putative consent search of the phone.

C. Using the Passcode Didn't Violate the Fourth Amendment

¶23 The trial court found, and Davis now argues, that the search of Davis's phone was a consent search that exceeded the scope of Davis's limited consent. The People disagree, arguing that they conducted the search pursuant to the warrant.

¶24 To reach its conclusion, the trial court considered three ways in which the search of Davis's phone could have taken place:

(1) The police obtain a warrant to search the phone, but Davis never gives them his passcode. The police may not be able to get into the phone.
(2) Davis provides the police with consent to search his phone and the passcode to enable them to do so.
(3) A third party knows the passcode and provides it to the police. They use the passcode to enable them to search the phone pursuant to a warrant.

Because a third party didn't provide the passcode to the police, and the police may not have been able to access the phone without receiving the passcode from Davis, the court concluded that the only means of accessing the contents of the phone was by a search that went beyond Davis's original consent.

¶25 However, by considering the different ways the search of Davis's phone could have taken place, the court seemingly failed to heed the circumstances under which the search did take place. Here, the police had a valid search warrant and Davis's voluntarily given passcode. The passcode gave the police the ability to access the contents of Davis's phone, and the warrant gave them permission to do so.

¶26 Davis argues that, even if the search was conducted pursuant to a warrant, the Fourth Amendment prevents law enforcement from using a passcode to access a cell phone beyond the consent for which the passcode was given. We disagree.

¶27 In framing the issue, we focus first on whether the police conducted a search by using the passcode to unlock the phone. To answer that question, we examine whether, as to the passcode, the defendant exhibited a subjective expectation of privacy that society would recognize as reasonable. See Kyllo , 533 U.S. at 33, 121 S.Ct. 2038 (citing Katz , 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring)).

¶28 While we have found no cases factually identical to Davis's, those that address the privacy issue are less scarce. For example, in People v. Carper , we considered a case in which a defendant voluntarily disclosed to an officer that he had cocaine in a bindle in his pocket. 876 P.2d 582, 585 (Colo. 1994). The officer removed the bindle from the defendant's pocket and opened it, uncovering the cocaine. Id. at 583. We concluded that, because the defendant had voluntarily disclosed to the officer that he had cocaine in his pocket and, later, that the bindle contained the cocaine, the defendant "did not manifest a subjective privacy interest in the contents of his pocket or of the bindle." Id. at 585. Further, we reasoned, even if the defendant did have a subjective expectation of privacy in the contents of his pocket or the bindle, "it could not be deemed reasonable." Id. Therefore, no search occurred for purposes of the Fourth Amendment. Id. ; see also United States v. Monghur , 588 F.3d 975, 980 (9th Cir. 2009) ("When made to a law enforcement officer, an unequivocal, contemporaneous, and voluntary disclosure that a package or container contains contraband waives any reasonable expectation of privacy in the contents.").

¶29 Courts have also considered the voluntary disclosure of information. For example, individuals don't have a protected privacy interest in information voluntarily disclosed to an informant. See United States v. White , 401 U.S. 745, 749, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) ; Hoffa v. United States , 385 U.S. 293, 302, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) ; United States v. Thompson , 811 F.3d 944, 949 (7th Cir. 2016). The Supreme Court explained in White : "[H]owever strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities." 401 U.S. at 749, 91 S.Ct. 1122.

¶30 Here, Davis voluntarily disclosed his passcode, not to an "apparent colleague," but directly to an officer after his arrest. In doing so, he, like the defendant in Carper , failed to manifest a subjective expectation of privacy in the passcode. And, even if he had a subjective expectation of privacy in the passcode, we conclude that society would not deem it reasonable, given his willingness to share that information with an officer in these circumstances. Objectively, one should expect that an investigating officer might seek to use such information for investigative purposes.

¶31 The limited scope of Davis's consent to use the passcode does not alter this analysis. In general, an individual does not retain an expectation of privacy in "information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose ." See United States v. Miller , 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (emphasis added); see also People v. Gutierrez , 222 P.3d 925, 935 (Colo. 2009) (recognizing this principle as generally true). Here, where Davis voluntarily disclosed his passcode directly to law enforcement, this principle holds especially true. Once an individual discloses the digits of his passcode to law enforcement, we conclude that it is unreasonable to expect those digits to be private from the very party to whom he disclosed them, regardless of any limitations he might be said to have implicitly placed upon the disclosure.

¶32 Because Davis had no legitimate expectation of privacy in the digits of his passcode after providing them to Officer Woodbury, law enforcement's use of that passcode was not a search protected by the Fourth Amendment.

¶33 Davis urges that the distinctive nature of cell phones recognized in Riley , Herrera , and Carpenter necessitates special protections on facts like these. However, those cases all created greater protection by limiting law enforcement's ability to conduct warrantless searches. See Carpenter , 138 S.Ct. at 2221 (holding that the government must generally obtain a search warrant before acquiring location information recorded by their wireless carriers); Riley , 573 U.S. at 401, 134 S.Ct. 2473 ("Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest."); Herrera, ¶ 35, 357 P.3d at 1233-34 (holding that the plain view exception to the warrant requirement must be applied cautiously in situations involving digital data). Here, the police did exactly what the law required. They obtained a warrant before searching Davis's cell phone. Thus, we conclude that the existence of a valid search warrant addresses any concern posed by the distinctive nature of cell phones as repositories of highly personal information.

¶34 Because the police had both a valid warrant to search Davis's cell phone and his voluntarily provided passcode to enable them to access the contents of the phone, we conclude that the police did not violate the Fourth Amendment by using the passcode to execute the search warrant.

III. Conclusion

¶35 On the facts presented here, we conclude that the defendant waived his expectation of privacy as to his passcode. Accordingly, law enforcement was at liberty to use the passcode to execute the search warrant.

¶36 Thus, we reverse the trial court's order suppressing the fruits of the search of Davis's cell phone and remand for further proceedings consistent with this opinion.

      This recitation is based on undisputed facts regarding the contents of certain documents from the trial court file, as well as findings of fact made by the trial court at the suppression hearing. In making those findings, the trial court relied on Officer Woodbury's testimony, which the court found credible.

      Article II, section 7 of the Colorado Constitution provides similar protections. Davis rests his arguments on both the U.S. and Colorado Constitutions. However, the trial court didn't explicitly rely on the Colorado Constitution in suppressing the search. "In the absence of a clear statement that a suppression ruling is grounded on state as opposed to federal constitutional law, we will presume that a court relied on federal law in reaching its decision." People v. McKinstrey , 852 P.2d 467, 469 (Colo. 1993). Thus, we confine our analysis to the Fourth Amendment of the U.S. Constitution.

      This follows from the nature of interlocutory appeals in Colorado criminal actions. By rule, a defendant may not bring an interlocutory appeal to challenge a trial court's refusal to suppress evidence. See C.A.R. 4.1(a) ; People v. Reyes , 956 P.2d 1254, 1256 (Colo. 1998), abrogated on other grounds by People v. Esparza , 2012 CO 22, 272 P.3d 367. Any challenge to the warrant and the defendant's statements regarding the passcode must await direct appeal, if the defendant suffers a conviction.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Ronald S. FUJIYOSHI, Petitioner/Defendant-Appellant.
    SCWC-15-0000916
    Supreme Court of Hawai'i.
    April 11, 2019
    SUMMARY DISPOSITION ORDER
    Vacate. Remand.


text:
    STATE of Hawai'i, Respondent/Plaintiff-Appellee, v. Michael L. ARKIN, Petitioner/Defendant-Appellant.
    SCWC-14-0000517
    Supreme Court of Hawai'i.
    April 8, 2019
    SUMMARY DISPOSITION ORDER
    Affirmed.


text:
    STATE of Hawai'i, Plaintiff-Appellee, v. Michael Limjuco ABELLA, Defendant-Appellant
    NO. CAAP-16-0000004
    Intermediate Court of Appeals of Hawai'i.
    MARCH 22, 2019
    On the briefs:
    Dana S. Ishibashi, Honolulu, for Defendant-Appellant.
    Brandon H. Ito, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
   GINOZA, CHIEF JUDGE, FUJISE AND REIFURTH, JJ.

OPINION OF THE COURT BY GINZA, C.J.

Defendant-Appellant Michael Limjuco Abella (Abella ) appeals from the "Judgment Guilty Conviction and Sentence" entered on December 16, 2015 by the Circuit Court of the First Circuit (Circuit Court ). Plaintiff-Appellee State of Hawai'i (the State ) charged Abella with one count of Murder in the Second Degree pursuant to Hawaii Revised Statutes (HRS ) § 707-701.5 (2014). After a jury trial, Abella was convicted of Manslaughter in violation of HRS § 707-702(1)(a) (2014). The Circuit Court sentenced Abella to a term of imprisonment for twenty years.

On appeal, Abella argues that the Circuit Court: (1) plainly erred by not instructing the jury regarding the causal connection or lack thereof between Abella's conduct and the death of victim Shelton Higa (Higa ); (2)

erred by not applying HRS § 327E-13 (2010) to his case; and (3) erred by "not granting a mistrial upon the prosecution's misconduct of attempting to elicit testimony of why Abella did not go or report to police of what occurred between himself and Higa."

For the reasons discussed below, we affirm.

I. Background

A. The State's Case

The State's witnesses testified as follows, in pertinent part:

Ronald Landrio (Landrio ), a witness at the crime scene, testified that on July 17, 2014, at approximately 8:45 p.m., at the intersection of Smith and Pauahi Streets in Honolulu, Hawai'i, he looked in the direction of the sound of a glass bottle breaking and saw Higa falling to the ground. Donald King (King ), another witness at the scene, testified to the same. Landrio and King further testified that they saw Abella next to Higa, and that Abella was kicking and/or hitting Higa while Higa was on the ground. King also testified that Higa was being hit on the head by Abella, and that Higa was trying to cover his face and his head. Landrio testified that as Higa was being attacked, a group of people approached Higa and Abella, at which point Abella left the scene.

Officer Celestino Herana (Officer Herana ), a police officer for the Honolulu Police Department, testified that he was called to the scene at approximately 8:54 p.m. Officer Herana conversed with Higa who seemed "coherent," took photographs at the scene, and departed.

Kell Tanabe, Jr. (Tanabe ), a paramedic for the City and County of Honolulu, testified that he was part of an ambulance crew called to the scene at 9:04 p.m. Tanabe testified that Higa was not taken to the hospital because he refused to go.

Antoinette Tuituu (Tuituu ), also a witness at the scene, testified that she arrived before the ambulance departed, saw Higa trying to get up on his hands and knees, and was asked by Higa to call the ambulance again because he felt dizzy.

At that point, however, Landrio and Tuituu testified that Abella returned and started to hit Higa on the head again. King also testified that Abella repeatedly kicked Higa's head upon returning. Tuituu testified that she ran to a nearby police station to call for help, and upon her return, she saw Abella walking away. King and Tuituu further testified that they followed Abella away from the scene and eventually caught up with, him.

Officer Herana testified that at approximately 9:42 p.m., he was responding to another assault call and was dispatched to the same intersection. However, as he was responding to that call, his Sergeant contacted him regarding a possible witness to the assault case. At approximately 10:08 p.m., Officer Herana went to the area of Beretania and Bishop Streets, where he arrested Abella.

Ashley Hashimoto (Hashimoto ), a student intern paramedic at the time of the offense, testified that at approximately 9:52 p.m., she responded to an assault call and helped transport Higa to Queen's Hospital in Honolulu (Queen's ).

Susan Steinemann, M.D. (Dr. Steinemann ), a trauma and general surgeon, testified that she saw Higa on July 17, 2014, after he was treated by the emergency room doctor and had had a CT scan of his brain. Higa was comatose by the time Dr. Steinemann examined him. Dr. Steinemann testified that Higa had a large subdural hematoma, which she described as "deadly" bleeding inside the skull. Dr. Steinemann recommended emergency surgery.

Eric Oshiro, M.D. (Dr. Oshiro ), a neurosurgeon, testified to the following: on July 17, 2014, Higa was sedated prior to his CT scan, after which he never regained consciousness, and required the use of a ventilator. After reviewing Higa's CT scan, Dr. Oshiro determined that Higa had a "life-threatening" blood clot on the surface of his brain and a "dilated pupil" which was indicative of brainstem compression. Also on July 17, 2014, Dr. Oshiro performed a craniotomy on Higa, which Dr. Oshiro described as "removing a portion of the skull bone to gain access to the brain" in order to "remove the pressure on the brain by removing the space-occupying blood clot that's sitting underneath the skull." Dr. Oshiro testified to "satisfactory results" and that Higa continued to be on a ventilator after surgery.

On cross-examination, defense counsel asked Dr. Oshiro questions regarding Higa's health between the craniotomy and his death twelve days later, based on Higa's medical chart. According to the chart, on July 21, Higa opened his eyes slightly, which Dr. Oshiro said "indicates a slight bit of consciousness." On July 22, Higa blinked to a threat, which Dr. Oshiro said "shows a slight improvement in consciousness.... More so than previous." On July 25, Higa was "clearly localizing with his left arm" which Dr. Oshiro said is "somewhat of an improvement[.]" On July 28, Higa's "eyes open[ed] to voice" which Dr. Oshiro said was a "slight improvement in consciousness." On the same day, Higa's chart said "stable neurological exam" which Dr. Oshiro said means "not worsening." Dr. Oshiro could not recall whether he was physically present when the decision was made to take Higa off life support. On re-cross, Dr. Oshiro agreed that Higa could have survived a little longer beyond the date of his death occasioned by removal of life support.

Stephanie Higa (Stephanie ), a nurse and Higa's daughter, testified that on July 27, 2014, she made the decision to remove her father from life support pursuant to his previously expressed wishes. Stephanie additionally testified on cross-examination that although she was not informed of improvements to Higa's condition regarding his neural exams throughout the previous ten days, she had never in her capacity as a nurse seen other people in states similar to her father's regain their faculties.

Dr. Steinemann testified that Higa was pronounced dead on July 29, 2014. Dr. Oshiro testified that the subdural hematoma was the cause of Higa's death.

Christopher Happy, M.D. (Dr. Happy ), the chief medical examiner for the City and County of Honolulu, testified that on July 30, 2014, he performed an autopsy on Higa. Dr. Happy testified that he determined the cause of Higa's death was "[c]omplications from blunt force head injury with subdural hemorrhage." Dr. Happy further testified that there were no other contributing causes to Higa's death, such as Higa's pre-existing kidney disease or other natural causes. Dr. Happy also testified that the toxicology report revealed morphine, administered at the hospital for pain control, and acetone, "which is sometimes formed after a prolonged period of a person being essentially brain dead." Dr. Happy testified that no illegal drugs presented in the report. On cross-examination, Dr. Happy repeated that "there were no other causes contributing to his condition" and that Higa's kidney disease did not contribute to his death.

B. The Defense's Case

Abella elected to testify at trial. On direct examination, Abella testified that on July 17, 2014, at approximately 8:45 p.m., he was walking near the intersection of Smith and Pauahi Streets when a man approached him. The man asked Abella if he had a problem, and then hit Abella. Abella further testified that he hit back in self-defense before three additional men joined the fray. After the fight, Abella walked away. Abella denied being the source of the bottle, and denied knowing Higa before the incident.

On cross-examination, Abella identified Higa from a photograph as the person who asked him if he had a problem. Abella further testified that he hit Higa in the head three times with a closed fist in self-defense. Abella testified, "I was just swinging wild."

C. Verdict and Sentence

The jury convicted Abella of Manslaughter. Abella was sentenced to twenty years imprisonment with credit for time served, to run concurrent with any other term of imprisonment.

II. Standard of Review

A. Jury instructions

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, error 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 and citations omitted).

B. Statutory interpretation

The interpretation of a statute is a question of law reviewable de novo . State v. Arceo, 84 Hawai'i 1, 10, 928 P.2d 843, 852 (1996) (citations and internal quotation marks omitted).

When construing a statute, the fundamental starting point is the language of the statute itself ... and where the statutory language is plain and unambiguous, [the appellate courts'] sole duty is to give effect to its plain and obvious meaning. However, even when a statute is unambiguous, the legislative history may be consulted to confirm our interpretation.

State v. Reis, 115 Hawai'i 79, 100 n.1, 165 P.3d 980, 1001 n.1 (2007) (citations and internal quotation marks omitted).

C. Mistrial

The denial of a motion for mistrial is within the sound discretion of the trial court and will not be upset absent a clear abuse of discretion. State v. Loa, 83 Hawai'i 335, 349, 926 P.2d 1258, 1272 ... (1996) (citations omitted). " 'The trial court abuses its discretion when it clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant.' " State v. Ganal, 81 Hawai'i 358, 373, 917 P.2d 370, 385 (1996) (quoting State v. Furutani, 76 Hawai'i 172, 178-79, 873 P.2d 51, 57-58 (1994) ).

State v. Plichta, 116 Hawai'i 200, 214, 172 P.3d 512, 526 (2007) (quoting State v. Rogan, 91 Hawai'i 405, 411, 984 P.2d 1231, 1237 (1999) ).

D. Prosecutorial misconduct

"Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. Austin, 143 Hawai'i 18, 28, 422 P.3d 18, 28 (2018) (citations and internal quotation marks omitted). "Factors considered are: (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant." State v. Sawyer, 88 Hawai'i 325, 329 n.6, 966 P.2d 637, 641 n.6 (1998) (citation omitted).

III. Discussion

A. Jury instruction

In his first assignment of error, Abella argues:

Here, there was an intervening act by numerous persons, other than Abella, i.e. , medical treatment, and a decision made that terminated Higa's life. In other words, the result caused was "too remote" or "too dependent on another's volitional conduct to have a bearing on the defendant's liability or on the gravity of the defendant's offense." § 702-215(2), HRS [2014];[ ]see also § 702-216(2), HRS [2014] (reckless or negligent causation).[ ]
"[W]hen read and considered as a whole, the instructions given [were] prejudicially insufficient, erroneous, inconsistent, [and] misleading", State v. Nichols, [111 Hawai'i at 334,] 141 P.3d at 981 [citations omitted], because the jury was not guided in determining whether Higa's death was "too dependent on another's volitional conduct." § 702-215(2), HRS ; see also § 702-216 (2), HRS (reckless or negligent causation).

(Record citation omitted). Abella acknowledges that no error was brought to the attention of the Circuit Court for either the giving or refusal to give a jury instruction in this regard. Instead, Abella asks this court to recognize plain error.

HRS § 702-216 differs from the Model Penal Code section from which it was adopted by, inter alia , adding the words "or too dependent on another's volitional conduct[.]" Compare HRS § 702-216, with Model Penal Code § 2.03(3)(b). The commentary to HRS § 702-215 provides, in relevant part:

The Code follows the Model Penal Code as supplemented by the suggestion of Hart and Honore that provisions regarding liability for unintended or uncontemplated results must be separately stated for those instances when the difference in result is due to natural events and those instances when it is due to the volitional conduct of another.

(Footnotes omitted) (citing H.L.A. Hart & A.M. Honore, Causation in the Law (1959) (Hart & Honore )); see also HRS § 702-216 cmt. ("Much of what has been said in the commentary on [HRS] §§ 702-214 and 215 applies with equal force to this section. The only difference is that this section deals with reckless and negligent causation.") According to Hart & Honore:

The free, deliberate, and informed intervention of a second person, not acting in concert with the first, and intending to bring about the harm which in fact occurs or recklessly courting it, is normally held to relieve the first actor of criminal responsibility. One must distinguish, however, the situation where the first actor's conduct was sufficient in the existing circumstances to bring about the harm (e.g. a mortal wound...) from that where it was not sufficient without the intervention of the second actor.

Hart & Honore, at 292 (footnote omitted). In this sense, a volitional act of a third person is understood to mean one that is undertaken freely and with full awareness of the significance of one's actions. In turn, human intervention should not be considered to have an exonerating force if the intervenor was responding to a threat created by the original actor. See also 78 Colum. L. Rev. 1249, 1274, 1274 n.76 (1978) (citing Hart & Honore at 104-105, 130-31, 134-51, 292-94).

1. Medical treatment

At trial, Dr. Happy testified on direct examination that the subdural hematoma caused Higa's death, not any other disease or natural cause. During cross-examination, Dr. Happy repeated that there were no other contributing causes, and that any improvements in alertness following the craniotomy would not have made a difference in his final report.

Dr. Oshiro similarly testified on re-direct-examination by the State that the subdural hematoma killed Higa, not the sedation administered at the hospital or Higa's pre-existing renal disease.

Finally, Dr. Steinemann testified on direct examination that Higa's head injury would be "deadly" without emergency surgery. On re-direct, Dr. Steinemann testified that Higa's comatose state was due to his injury, not the sedation or anesthesia administered prior to the CT scan or craniotomy.

Abella's opening brief generally discusses testimony regarding Higa's medical treatment, but there is no argument about how such medical treatment was an intervening cause that contributed to Higa's death. See Hawai'i Rules of Appellate. Procedure Rule 28(b)(7) ("[T]he appellant shall file an opening brief, containing[:] The argument, containing the contentions of the appellant on the points presented and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.... Points not argued may be deemed waived."). We conclude Abella has not demonstrated plain error in the jury instructions related to his apparent contention that the medical treatment was an intervening cause of Higa's death.

2. Removal of life support

Decisions from other jurisdictions have held that removal of life support is not an independent intervening cause in settings similar to the instant case. We agree.

In People v. Bowles, 461 Mich. 555, 607 N.W.2d 715 (2000), the defendant contended on appeal that the State's evidence on causation was insufficient because "the victim's death was caused by the intervening cause of removal from life support systems, which were required to sustain the life of the victim[.]" Id. at 717. In affirming the defendant's conviction, the Supreme Court of Michigan observed that "the implementation of a decision to terminate life-support treatment is not the cause of the patient's subsequent death. Instead, the discontinuance of life-support measures merely allows the patient's injury or illness to take its natural and inevitable course." Id. (citation omitted). The court concluded that the case involved "no separate intervening cause. Rather, we find in these facts only the unsuccessful efforts of the medical community to overcome the harm inflicted by the defendant, and the acceptance by the victim's family of the reality of [the] fatal injuries." Id. at 718.

In State v. Yates, 64 Wash.App. 345, 824 P.2d 519 (1992), rev. denied, 119 Wash.2d 1017, 833 P.2d 1390 (1992), the Court of Appeals of Washington denied the defendant's, request for a jury instruction essentially charging that a victim's removal from life support could constitute an independent intervening cause sufficient to relieve the defendant of criminal liability. Because life support had been removed from one of the defendant's victims who had been in a persistent vegetative state following a gunshot wound to her head, the defendant argued that the jury should have been given the following instruction: "[i]n determining whether or not [the victim] died as a result of the defendant's acts, the State has the burden of proving beyond a reasonable doubt that the removal of food and water was not a new independent cause of death." Id. at 523. The court agreed with the trial court's rejection of the requested instruction, stating:

[w]hen life support is removed, the cause of death is not the removal, but whatever agency generated the need for the life support in the first instance. Here, then, the removal of food and water could not have been a legally cognizable cause of death, and the court properly refused the proposed instruction.

Id. (citation omitted).

The California Court of Appeal used similar reasoning in People v. Funes, 23 Cal.App.4th 1506, 28 Cal.Rptr.2d 758 (1994), holding that the defendant was not entitled to an instruction on intervening causes because "as a matter of law, the decision to withhold antibiotics was not an independent intervening cause. Consequently, the court was not required to instruct on [that] issue." Id. at 768. The court noted that a trial court need not instruct on a theory which is not supported by the evidence. Id.; see also State v. Taylor, 130 Hawai'i 196, 206-07, 307 P.3d 1142, 1152-53 (2013) (similarly distinguishing when a defendant has or has not satisfied his burden to produce credible evidence to trigger the court's duty to instruct the jury on a particular defense). Because an independent intervening cause absolving the defendant from criminal liability must be "unforeseeable" or an "extraordinary and abnormal occurrence," the court in Funes concluded that on the facts of the case before it "the decision to withhold antibiotics was, as a matter of law, not an independent intervening cause. Instead, it was a normal and reasonably foreseeable result of defendant's original act." Funes, 28 Cal.Rptr.2d at 769 (footnote omitted).

In State v. Pelham, 176 N.J. 448, 824 A.2d 1082 (2003), the Supreme Court of New Jersey held that there was no error in instructing the jury that a victim's decision to invoke his right to terminate life support may not, as a matter of law, be considered an independent intervening cause capable of breaking the chain of causation triggered by defendant's wrongful actions. Id. at 1094. To support its holding, the Pelham court favorably cited, inter alia , Bowles, Yates and Funes. Id. at 1091-92. The Pelham court held that it agreed with "the widely recognized principle that removal of life support, as a matter of law, may not constitute an independent intervening cause for purposes of lessening a criminal defendant's liability." Id. at 1092. The Pelham court further noted that "the defendant's desire to mitigate his liability may never legally override, in whole, or in part, the decisions of the physicians and the family regarding the treatment of the victim." Id. (brackets omitted) (citing In re J.N., 406 A.2d 1275, 1282 (D.C. 1979) ). The court also recognized that because removal of life-sustaining treatment is a victim's right, it is thus foreseeable, and in turn does not break in any unexpected or extraordinary way the chain of causation that a defendant initiated and that led to the need for life support. Id. at 1093. Thus, the court held, removal of life support is not an intervening cause that may be advanced by the defendant. Id.

In the instant case, the Circuit Court's instructions to the jury included the following:

A person commits the offense of Manslaughter based upon reckless conduct if he recklessly causes the death of another person.
There are two material elements of this offense, each of which the prosecution must prove beyond a reasonable doubt.
These two elements are:
1. That on or about July 17, 2014, to and including July 29, 2014, in the City and County of Honolulu, State of Hawaii, the Defendant caused the death of Shelton Higa; and
2. That Defendant did so recklessly.

(Emphasis added). Further, the Circuit Court instructed the jury that: "[c]onduct is the cause of a result when it is an antecedent but for which the result in question would not have occurred." (Emphasis added).

We conclude there was no plain error based on the lack of a jury instruction regarding intervening acts by persons terminating Higa's medical treatment. Rather, considering the jury instructions as a whole, we conclude they were not prejudicially insufficient or erroneous. Nichols, 111 Hawai'i at 334, 141 P.3d at 981.

B. HRS § 327E-13

Abella also argues that he should be acquitted because the Circuit Court failed to apply HRS § 327E-13(b) to his case.

HRS § 327E-13 provides, in relevant part:

§ 327E-13 Effect of this chapter. (a) This chapter shall not create a presumption concerning the intention of an individual who has not made or who has revoked an advance health-care directive.
(b) Death resulting from the withholding or withdrawal of health care in accordance with this chapter shall not for any purpose constitute a suicide or homicide or legally impair or invalidate a policy of insurance or an annuity providing a death benefit, notwithstanding any term of the policy or annuity to the contrary.

(Emphasis added).

The phrase "in accordance with this chapter" unambiguously refers to HRS chapter 327E, titled "Uniform Health-Care Decisions Act (Modified)." Chapter 327E pertains to health-care decisions and the duties of those tasked with their effectuation. See HRS §§ 327E-3 (2010) (titled, "Advanced health-care directives" and describing who may and how to create such a directive); 327E-5 (2010) (titled, "Health-care decisions; surrogates" and describing who may make health-care decisions for a patient); 327E-9 (2010) (titled, "Immunities" and providing civil, criminal and disciplinary immunity to health-care providers or institutions for, inter alia , "[c]omplying with a health-care decision of a person apparently having authority to make a health-care decision for a patient, including a decision to withhold or withdraw health care"); 327E-14 (2010) (titled "Judicial relief" and providing that, "[o]n petition of a patient, the patient's agent, guardian, or surrogate, or a health-care provider or institution involved with the patient's care, any court of competent jurisdiction may enjoin or direct a health-care decision or order other equitable relief.").

Contrary to Abella's argument, HRS § 327E-13(b) applies to advance health-care directives and other health-care decision-making procedures and the persons involved. It does not apply to criminal conduct which leads to the need for health-care.

Furthermore, although we ground our holding in the statute's plain language, we note that the legislative history of HRS § 327E-13 confirms our view. See Steigman v. Outrigger Enters., Inc., 126 Hawai'i 133, 148-49, 267 P.3d 1238, 1253-54 (2011) (noting that although statutory language was plain and unambiguous, the court could resort to legislative history to confirm its interpretation).

HRS § 327E-13 was enacted in 1999. 1999 Haw. Sess. Laws Act 169, § 1 at 565, 571. The Legislature's Conference Committee Report states, in relevant part, that "[t]he purpose of this bill is to replace chapter 327D, Hawaii Revised Statutes, by enacting the Uniform Health Care Decisions Act." Conf. Comm. Rep. No. 80, in 1999 House Journal, at 945, 1999 Senate Journal, at 874. Standing Committee Report No. 1102 from the Senate Committee on Health and Human Services also states:

[t]his measure is intended to replace chapter 327D, Hawaii Revised Statutes, relating to medical treatment decisions which was first enacted in 1986 and has not been revised since 1992. In the intervening years, medical science has advanced tremendously and medical ethics has developed correspondingly. This measure brings medical treatment decisions into today's world of advances in medicine, patient rights, and attitudes towards dying.

S. Stand. Comm. Rep. No. 1102, in 1999 Senate Journal, at 1420 (emphasis added).

There is nothing in the legislative history to suggest that HRS § 327E-13(b) was intended to absolve defendants of alleged criminal conduct which necessitated that a victim receive medical treatment in the first place.

Based on the foregoing, we reject Abella's argument based on HRS § 327E-13(b).

C. Mistrial

Abella's last point of error is that his motion for mistrial should have been granted due to prosecutorial misconduct. Abella cites the State's attempts on cross-examination to have him comment on why he did not report the first fight with Higa to the police. The following transpired at trial:

[THE STATE] So when you go towards Fort Street Mall, you didn't go -- you didn't go up Smith? All the places to go, you didn't go up Smith; right?
[ABELLA] No.
[THE STATE] You didn't go down Smith?
[ABELLA] No.
[THE STATE] You didn't go westbound or to the left toward -- back towards River of Life?
[ABELLA] No.
[THE STATE] Did you know there's a police station there?
[ABELLA] Yes.
[THE STATE] Okay. You didn't go to the police station?
[ABELLA] No.
[THE STATE] You could have gone to the police station; right?
[DEFENSE COUNSEL] Objection. That's argumentative.
THE COURT; Sustained. The jury is to disregard the question.
[THE STATE] You could have reported to the police that this 57-year-old guy threatened you?
[DEFENSE COUNSEL] Your Honor, I'm going to object again. Argumentative.
THE COURT: Form of the question. It's sustained.
[THE STATE] Did you report to the police that night that this 57-year-old man had threatened you?
[ABELLA] Yeah, when they arrested me. I said - I told them that I got assaulted first.
[THE STATE] Did you on your own make a report?
[ABELLA] No.
[THE STATE] Did you make a report that this 57-year-old man had thrown two punches so fast that you couldn't respond in time, that you --
[ABELLA] That's what --
[DEFENSE COUNSEL] Your Honor, I'm going to object. Can we approach the bench?
THE COURT: Okay. You may approach.
(Bench conference.)
[DEFENSE COUNSEL] I'm going to move for a mistrial. He's commenting on his right to remain silent. That's basically what he's doing, you never talked to the police, you never filed a report.
THE COURT: [The State].
[THE STATE] I will -- I will withdraw the question. Ask the Court to strike the answers.
THE COURT: Okay. Also --
[THE STATE] And instruct the jury to disregard.
THE COURT: Okay. All right. Motion for mistrial is denied at this time. I'll ask -- I'll order them to disregard the questions relating to whether he reported --
[THE STATE] And I'll move on.
THE COURT: -- his interaction with Mr. Higa.
(Bench conference concluded.)
THE COURT: Members of the jury, you are to disregard the questions related to whether Mr. Abella reported any incident to the police and any responses that he made in relation to those questions. You may move on.

Abella's appellate briefs do not point to any cases supporting a mistrial in similar circumstances. We note that the instant case is distinguishable from State v. Tsujimura, 140 Hawai'i 299, 400 P.3d 500 (2017). In Tsujimura, the Hawai'i Supreme Court held that it is unconstitutional to use prearrest silence as substantive evidence of a defendant's guilt. Id. at 312, 400 P.3d at 513. Specifically, "[p]roscribing the use of prearrest silence that occurs at least as of the time that a person has been detained is ... consistent with the well-established tenet that a person being questioned by a law enforcement officer during an investigatory stop is not obliged to respond." Id. at 313, 400 P.3d at 514 (internal quotation marks omitted) (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) ).

Here, the State's cross-examination of Abella pertained to his actions prior to being detained by police. It addressed Abella's testimony that he had been hit first and whether he had sought to report the matter to the police. The State's questions sought to impeach Abella's self-defense argument, rather than provide substantive evidence of his guilt.

Even if the State's questioning was improper, the Circuit Court took immediate action by instructing the jury to disregard the questions about whether Abella reported any incident to the police and any of his responses to those questions. In short, the Circuit Court provided a prompt curative instruction. Sawyer, 88 Hawai'i at 329 n.6, 966 P.2d at 641 n.6. "A jury is presumed to follow a court's instructions precisely because a jury is likely to perceive a court's statements of the law as the accurate law to apply." State v. Souza, 142 Hawai'i 390, 404, 420 P.3d 321, 335 (2018).

Finally, we consider the strength or the weakness of the evidence against Abella. Sawyer, 88 Hawai'i at 329 n.6, 966 P.2d at 641 n.6. In this case, three witnesses testified that they saw Abella hitting Riga on the head, Dr. Steinemann testified that Higa's hematoma was "deadly" without emergency surgery, and Drs. Oshiro and Happy testified that the cause of Higa's death was his hematoma, not other causes. Abella himself testified, pursuant to his self-defense argument, that he was "swinging wild" at Higa and hit Higa's head three times.

Given these circumstances, the Circuit Court did not abuse its discretion by denying Abella's motion for a mistrial.

IV. Conclusion

For the reasons discussed above, we affirm the Judgment Guilty Conviction and Sentence entered by the Circuit Court of the First Circuit.

      The Honorable Colette Y. Garibaldi presided.

      At the time of the offense, HRS § 707-701.5 provided:
      [§ 707-701.5 ] Murder in the second degree. (1) Except as provided in section 707-701, a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person.
      (2) Murder in the second degree is a felony for which the defendant shall be sentenced to imprisonment as provided in section 706-656.

      HRS § 707-702(1) (a) provides: "(1) A person commits the offense of manslaughter if: (a) The person recklessly causes the death of another person[.]"

      The relevant text of HRS § 327E-13 is provided, infra.

      It is not clear from the record to which assault case the witness pertained.

      As an initial matter, we note that although Abella was charged with Murder in the Second Degree which requires an intentional or knowing state of mind, Abella was convicted of Manslaughter, which, in this context, instead requires a reckless state of mind. See HRS §§ 707-701.5 ; 707-702(1)(a). Therefore, the Circuit Court's failure to give a jury instruction pursuant to HRS § 702-215(2), regarding intentional or knowing causation, was harmless because said omission did not contribute to Abella's Manslaughter conviction. See Nichols, 111 Hawai'i at 337, 141 P.3d at 984 (holding that "once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant's conviction, i.e. , that the erroneous jury instruction was not harmless beyond a reasonable doubt." (emphasis added) (footnote omitted)).

      HRS § 702-215 (2) provides:
      § 702-215 Intentional or knowing causation; different result from that intended or contemplated. In the following instances intentionally or knowingly causing a particular result shall be deemed to be established even though the actual result caused by the defendant may not have been within the defendant's intention or contemplation:
      ....
      (2) The actual result involves the same kind of injury or harm as the intended or contemplated result and is not too remote or accidental in its occurrence or too dependent on another's volitional conduct to have a bearing on the defendant's liability or on the gravity of the defendant's offense.

      HRS § 702-216 (2) provides:
      § 702-216 Reckless or negligent causation; different result from that within the risk. In the following instances, recklessly or negligently causing a particular result shall be deemed to be established even though the actual result caused by the defendant may not have been within the risk of which the defendant was or, in the case of negligence, should have been aware:
      ....
      (2) The actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence or too dependent on another's volitional conduct to have a bearing on the defendant's liability or on the gravity of the defendant's offense.
      (Emphasis added).


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