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NO. CAAP-19-0000670

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

RUBIN IKOA CASUGAY BADIANG, also known as

RUBIN CASUGAY, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CR. NO. 1CPC-18-0002010)

MEMORANDUM OPINION

(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Rubin Ikoa Casugay Badiang, aka

Rubin Casugay (Badiang), appeals from the "Judgment of Conviction

and Sentence" filed on September 9, 2019, by the Circuit Court of

the First Circuit (Circuit Court).1 On June 25, 2019, after a

three-day jury trial, the jury convicted Badiang of Robbery in

the First Degree pursuant to Hawaii Revised Statutes (HRS) § 708-

840(1)(b)(i) and/or (b)(ii) (2014) (Robbery First).2 On

1 The Honorable Paul B.K. Wong presided.

2 HRS § 708-840 provides, in relevant part:

§708-840 Robbery in the first degree. (1) A 

person commits the offense of robbery in the first

degree if, in the course of committing theft or

non-consensual taking of a motor vehicle:

. . . 

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000670

27-JUN-2022

07:58 AM

Dkt. 85 MO
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September 9, 2019, Badiang was sentenced to an indeterminate term

of imprisonment of twenty years with credit for time served. 

On appeal, Badiang asserts two points of error: (1) the

Circuit Court erred in failing to instruct the jury on eyewitness

identification; and (2) defense trial counsel failed to provide

effective assistance which resulted in a withdrawal and

substantial impairment of a potentially meritorious defense. 

Specifically, Badiang contends his trial counsel failed to

provide effective assistance by (a) admitting that Badiang is

depicted in Walmart surveillance photographs; (b) failing to

object to Plaintiff-Appellee State of Hawai#i's (State) request

to admit into evidence still photographs taken from surveillance

videos from Paalaa Kai Bakery, Jack in the Box, and Walmart; and

(c) failing to object to Honolulu Police Department (HPD) Officer

Bryce Kim's (Officer Kim) testimony as to what he saw in the Jack

in the Box surveillance video. 

For the reasons discussed below, we affirm. 

I. Background

This case arises from an incident which took place in

the early morning of April 10, 2017. Edward Tamayo (Tamayo) and

Eljoe Agnes (Agnes) were employees at Paalaa Kai Bakery in

Waialua on the North Shore of O#ahu. Agnes and Tamayo were on

break at 3:30 a.m., when a female approached and asked them for

the time. After they told her it was 3:30 in the morning, a male

"wearing a mask, like a t-shirt" approached them from behind the

(...continued)

(b) The person is armed with a dangerous

instrument or a simulated firearm and:

(i) The person uses force against the

person of anyone present with intent

to overcome that person's physical

resistance or physical power of

resistance; or

(ii) The person threatens the imminent

use of force against the person of

anyone present with intent to compel

acquiescence to the taking of or

escaping with the property[.]

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female. Agnes testified some guy came at them and said "don't

move[,]" but Agnes could not say from how far away because Agnes

was facing Tamayo and the guy approached Agnes from behind. The

masked male then grabbed the back neckline of Agnes' t-shirt, and

pointed a gun into Agnes' back. The female took Agnes' cell

phone, vape, and cigarettes, and Tamayo's cell phone and wallet.

The female also saw Tamayo's vehicle, had him open it, took

Tamayo's car keys, and drove away in the vehicle. The male

walked away from Agnes and Tamayo to the side of the mini-mart

adjacent to the Paalaa Kai Bakery and left separately. 

On December 27, 2018, Badiang was charged with

committing Robbery First against Tamayo and/or Agnes on April 10,

2017, in the City and County of Honolulu.

During opening statements, the State informed the jury

that although the male wore a mask at the robbery, there is

visual evidence showing Badiang at Walmart after the robbery

wearing the same shoes, shorts, and wearing the t-shirt the male

robber used as a mask. During his opening statement, Badiang

asserted that this case is about the deal the female robber,

Tonygirl Cataluna (Cataluna or Tonygirl) made in exchange for her

statement and drew the jury's attention to Cataluna's motive in

identifying Badiang as the male robber which no one else could

corroborate. Badiang's counsel stated: 

It's all about motive. It's all about interest. It's all

about looking in the mirror and telling yourself how the

heck am I going to get out of this thing? How the heck will

I get out? It's all about self-preservation. The evidence

will show you there was a deal in place. She was looking at

20 years. She got probation. She was in custody. As soon

as the deal got in place, she was released.

Tamayo testified that the male used what looked like a

t-shirt to cover his head and Tamayo could "not really" see the

male's eyes. Tamayo described the male as "skinny." Tamayo

testified that he saw the male walk to the side of the mini-mart

after the female drove away in Tamayo's vehicle and heard an

engine start but Tamayo did not see the male drive away. 

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Agnes testified that he was facing Tamayo when the male

walked up from behind him so Agnes did not really see the male or

the mask. Agnes also testified the male's body type was similar

to his own but described the male as "more taller" and "more

skinny." Agnes testified that he was scared during the robbery

because the male had a gun, and that Agnes had four or five

seconds to observe the male.

Cataluna testified that she formally met Badiang

towards the end of 2016, about four months before the robbery and

that Cataluna was with Badiang's cousin the first time they met. 

Cataluna also testified she met Badiang four times prior to their

fifth meeting on April 10, 2017, and described the prior

meetings. Cataluna stated her fourth meeting with Badiang was

about two weeks prior to April 10, 2017. 

Cataluna testified that Badiang picked her up in a

white truck around midnight going into April 10, 2017, Badiang

asked if she wanted to make money, and that she got into

Badiang's truck because she was homeless and thought they were

going to break into cars to make money. Cataluna also testified

that she and Badiang first went to his grandmother's house where

they took a shower, ate, and left about thirty minutes later. 

She and Badiang then drove around for about thirty minutes and

stopped at a red light a little bit after the bakery on their way

back to Wahiawa. Cataluna testified Badiang turned to her while

they were stopped and asked her "if [she] was down." She asked

him what he meant and Badiang said "it's a yes or no question, if

[she] was down or no, and [she] told him yes." Badiang then made

a U-turn, did not pull into the bakery parking lot, and instead

parked on the side of the building. 

Cataluna testified Badiang told her to distract the two

guys who were sitting in front of the bakery, that Badiang

reached into a backpack behind Cataluna and pulled out a gun, and

that it was the first time Cataluna saw a gun. 

Cataluna identified Badiang at trial, in the bakery

surveillance photograph as the male who had a shirt over his face

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as he walked behind her with the gun, in Mililani Jack in the Box

drive-through surveillance photographs as the male driving a

white truck with Cataluna and a male as passengers, and in

Mililani Walmart surveillance photographs as the male leaving

with her.

Cataluna testified she was arrested and questioned on

April 15, 2017, she was asked if she wanted to make a statement

about the robbery, and Cataluna agreed to make a statement. 

Cataluna also testified she did not want an attorney for the

interview because she "was willing to tell them what happened

because I don't -- I didn't want to get in trouble for something

I didn't know what was going on, meaning the gun." At this

interview, no "deals" were offered by the detective and Cataluna

did not ask for a deal.

Cataluna further testified that, in June 2017, she met

with a public defender, who recommended making a deal. About one

year later, on July 5, 2018, Cataluna gave a second statement as

part of a Cooperation Agreement she entered into on July 26,

2018, with the prosecuting attorney. In exchange for testifying

against Badiang, Cataluna's Robbery First charge would be reduced

to Theft in the Second Degree, and she would receive probation

and time served in lieu of incarceration.

On cross-examination, Cataluna testified that during

the second interview she told the detective that she had known

Badiang for "[p]robably a year." Cataluna also testified that

when she was arrested, the detectives told her "your partner

already told us what happened." Cataluna testified that in the

first interview, the detective asked if she had any kind of hate

or dislike for Badiang and Cataluna responded "[k]ind of at the

moment," and "he putting it all on me[,]" and when the detective

in the second interview asked if she was upset with Badiang,

Cataluna responded that she "was kind of upset at him."

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II. Discussion

A. The Circuit Court did not err in withdrawing an

instruction on eyewitness identification

In his first assertion of error, Badiang argues the

Circuit Court erroneously failed to instruct the jury on

eyewitness identification because identification was the sole

issue at trial. Badiang contends that without the instruction on

eyewitness testimony, set out in Hawaii Criminal Jury Instruction

(HAWJIC) 3.19 (2014),3 there is a reasonable probability that the

error contributed to Badiang's conviction. Badiang also asserts

3 HAWJIC 3.19 Eyewitness Testimony provides: 

The burden of proof is on the prosecution with 

reference to every element of a crime charged, and

this burden includes the burden of proving beyond a

reasonable doubt the identity of the defendant as the

person responsible for the crime charged.

You must decide whether an eyewitness gave

accurate testimony regarding identification.

In evaluating identification testimony, you may

consider the following factors:

The opportunity of the witness to observe the

person involved in the alleged criminal act;

The stress, if any, to which the witness was

subject at the time of the observation;

The witness's ability, following the

observation, to provide a description of the

person;

The extent to which the defendant fits or does

not fit the description of the person previously given

by the witness;

The cross-racial or ethnic nature of the

identification;

The witness's capacity to make an

identification;

Evidence relating to the witness's ability to

identify other participants in the alleged criminal

act;

Whether the witness was able to identify the

person in a photographic or physical lineup;

The period of time between the alleged criminal

act and the witness's identification;

Whether the witness had prior contacts with the

person;

The extent to which the witness is either

certain or uncertain of the identification and whether

the witness's assertions concerning certainty or

uncertainty are well-founded;

Whether the witness's identification is in fact

the product of his/her own recollection; and

Any other evidence relating to the witness's

ability to make an identification.

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that Defendant's Supplemental Instruction #1 (Identification)4

should also have been given, but the Circuit Court refused it

because the court believed the remaining instructions were

adequate. We conclude the circuit court did not err in its

decision not to instruct the jury with HAWJIC 3.19 and

Defendant's Supplemental Instruction #1.

"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." Stanley v.

State, 148 Hawai#i 489, 500, 479 P.3d 107, 118 (2021) (emphasis

omitted). 

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. 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.

Id. at 500-01, 479 P.3d at 118-19 (citing State v. Holbron, 80

Hawai#i 27, 32, 904 P.2d 912, 917 (1995)). 

4 Defendant's Supplemental Instruction #1 states:

DEFENDANT'S SUPPLEMENTAL INSTRUCTION #1

(Identification)

The Defendant has pled "Not Guilty" to the charge

against him. The burden of proving the identity of the

person who committed the offenses is upon the State. The

State must prove beyond a reasonable doubt that this

defendant is the person who committed the offense. The

defendant has neither the burden nor the duty to show that

the offenses, if committed, were committed by someone else,

or to prove the identity of that other person. You must

determine, therefore, not only whether the State has proved

each and every element of the offenses charged beyond a

reasonable doubt, but also whether the State has proved

beyond a reasonable doubt that this defendant is the person

who committed them.

State v. Cabinatan, 132 Haw. 63, 319 P.3d 1071 (Haw., 2014). 

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Badiang relies on State v. Cabagbag, 127 Hawai#i 302,

277 P.3d 1027 (2012), for the Hawai#i Supreme Court's holding

that:

(1) in criminal cases, the circuit courts must give the jury

a specific eyewitness identification instruction whenever

identification evidence is a central issue in the case, and

it is requested by the defendant, (2) a circuit court may,

in the exercise of its discretion, give the instruction if

it believes the instruction is otherwise warranted in a

particular case[.]

Id. at 304, 277 P.3d at 1029 (emphases added, footnote omitted).

In Cabagbag, the Hawai#i Supreme Court considered the challenges

associated with unreliable eyewitness identification testimony

resulting in misidentification and the concern that "exclusion of

'reliable' eyewitness testimony might result in the 'guilty going

free.'" 127 Hawai#i at 309-10, 277 P.3d at 1034-35 (quoting

Manson v. Brathwaite, 432 U.S. 98, 112 (1977)). The supreme

court referred to researched findings of variables that affect

the accuracy and, hence, reliability,5 of eyewitness

identification, such as "passage of time, witness stress,

duration of exposure, distance, 'weapon focus' (visual attention

eyewitnesses give to a perpetrator's weapon during crime), and

cross-race bias (eyewitness more accurate at identifying persons

of their own race)." Id. at 310-11, 277 P.3d at 1035-36

(footnotes omitted). 

Badiang's reliance on Cabagbag is misplaced. Tamayo

and Agnes testified they could not identify Badiang as the masked

robber. Therefore, instruction on whether an eyewitness gave

accurate testimony regarding identification is unnecessary in

this case where identification was not made by an eyewitness. 

Instead, the only person who identified Badiang as the masked

male and in the security photographs was the female robber,

Cataluna, who based her identification on their prior

acquaintance and her testimony that Badiang picked her up in the

5 But see Cabagbag, 127 Hawai#i at 322, 277 P.3d at 1047 (noting in

dissent that "credibility is different from reliability.") (Acoba, J.,

dissenting in part).

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early morning of April 10, 2017, and that after they robbed the

men at Paalaa Kai Bakery, they picked up another person, went to

the Mililani Jack in the Box drive-through and Mililani Walmart. 

Moreover, the reliability of the identification was not

Badiang's "sole defense" or "the sole issue" at trial, as urged

in the opening brief. Rather, the primary issue was Cataluna's

credibility and motive in identifying Badiang, not the

reliability or accuracy of her identification of Badiang. In its

opening statement, the defense declared: "What this case is all

about is what we talked about earlier: motive, interest, selfpreservation" and, "[t]his is not about who you're going to

believe, this is about whether Tonygirl can be believed and

whether her statements that she makes is free and clear or with a

legit purpose or legitimate purpose." 

In Cataluna's cross-examination, Badiang established

that when Cataluna was arrested on April 15, 2017, Cataluna was

not informed as to what she was being arrested for, and was told

"[she] should know what [she] did." Badiang also established

that at some point upon Cataluna's arrest, she was told "your

partner already told us what happened[,]" that during her two

interviews, Cataluna expressed animus towards Badiang, and told

the detective that "[t]he only thing that I'm mad about is that

I'm sitting in jail for him, you know what I mean." The

pertinent issue in this case was whether Cataluna was a credible

witness given her implication in the incident, and not whether

she was a reliable eyewitness in identifying Badiang given the

concerns expressed in Cabagbag.

Finally, Badiang does not provide any specific argument

regarding the Circuit Court's decision not to instruct the jury

with Defendant's Supplemental Instruction #1. Rather, he argues

generally that the jury should have been instructed on Cataluna's

ability to identify Badiang because considering the instructions

as a whole, "the jury could come to only one conclusion: there is

no doubt at all that Cataluna could identify Mr. Badiang in the

photos" which "improperly bolstered Cataluna's credibility[,]

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[a]nd relying on Cataluna's credibility was problematic because

her version of the events was disputed by the evidence." To the

contrary, we conclude that considering the jury instructions as a

whole, the Circuit Court properly instructed the jury, including

with regard to its role in assessing the evidence and the

credibility of the witnesses.

With regard to the weight of evidence and the

credibility of witnesses, the Circuit Court instructed the jury

as follows:

While you must consider all of the evidence in determining

the facts in this case, this does not mean that you are

bound to give every bit of evidence the same weight. You are

the sole and exclusive judges of the effect and value of the

evidence and of the credibility of the witnesses.

It is your exclusive right to determine whether and to what

extent a witness should be believed and to give weight to

his or her testimony accordingly. In evaluating the weight

and credibility of a witness's testimony, you may consider

the witness's appearance and demeanor; the witness's manner

of testifying; the witness's intelligence; the witness's

candor or frankness, or lack thereof; the witness's

interest, if any, in the result of this case; the witness's

relation, if any, to a party; the witness's temper, feeling

or bias, if any has been shown; the witness's means and

opportunity of acquiring information; the probability or

improbability of the witness's testimony; the extent to

which the witness is supported or contradicted by other

evidence; the extent to which the witness has made

contradictory statements, whether in trial or at other

times; and all other circumstances surrounding the witness

and bearing upon his or her credibility.

Inconsistencies or discrepancies in the testimony of a

witness, or between the testimony of different witnesses,

may or may not cause you to discredit such testimony. In

weighing the effect of inconsistencies or discrepancies,

whether they occur within one witness's testimony or as

between different witnesses, consider whether they concern

matters of importance or only matters of unimportant detail,

and whether they result from innocent error or deliberate

falsehood. 

(Emphases added.)

The Circuit Court also instructed:

If you find that a witness has deliberately testified

falsely to any important fact or deliberately exaggerated or

suppressed any important fact, then you may reject the

testimony of that witness except for those parts which you

nevertheless believe to be true.

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The Circuit Court gave further instructions regarding

the testimony of an alleged accomplice as follows: 

The testimony of an alleged accomplice should be examined

and weighed by you with greater care and caution than the

testimony of ordinary witnesses. You should decide whether

the witness's testimony has been affected by the witness's

interest in the outcome of the case, or by prejudice against

the defendant, or by the benefits that the witness stands to

receive because of his/her testimony, or by the witness's

fear of retaliation from the government.

The jury is presumed to have followed the circuit

court's instructions. State v. Cordeiro, 99 Hawai#i 390, 413, 56

P.3d 692, 715 (2002). Badiang's concern that Cataluna's

credibility was improperly bolstered was addressed by the Circuit

Court's instructions to the jury that the testimony of an alleged

accomplice should be examined and weighed with greater care and

caution than that of ordinary witnesses. 

The jury instruction on the variables addressed in

Cabagbag and HAWJIC 3.19 is not applicable to Tamayo and Agnes'

inability to identify Badiang, and Cataluna's identification of

Badiang in this case instead raised issues about the credibility

and motive of an accomplice who had prior dealings with the

defendant and was also facing criminal charges. Further, the

Circuit Court properly instructed the jury on its role in

assessing the evidence and credibility of witnesses. 

Accordingly, the Circuit Court did not err in withdrawing HAWJIC

3.19 and not instructing on Defendant's Supplemental Instruction

#1. 

B. Defense counsel did not provide ineffective assistance

at trial

In his second point of error, Badiang asserts that his

defense counsel essentially admitted to the jury that Badiang

committed the robbery and failed to object to the admission of

hearsay and other evidence, thus providing Badiang ineffective

assistance at trial.6

6 We note the State argues that a Hawai#i Rules of Penal Procedure

(HRPP) Rule 40 hearing is the proper method to address ineffective assistance

(continued...)

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"The standard for determining the adequacy of counsel's

representation is whether, when viewed as a whole, the assistance

provided is 'within the range of competence demanded of attorneys

in criminal cases.'" State v. Salavea, 147 Hawai#i 564, 576, 465

P.3d 1011, 1023 (2020) (quoting Cordeiro, 99 Hawai#i at 405, 56

P.3d at 707). 

First, a defendant must show that there were specific errors

or omissions reflecting counsel's lack of skill, judgment,

or diligence. [State v. ]Antone, 62 Haw. [346,] 348, 615

P.2d [101,] 104 [(1980)]. Second, the defendant must

establish that these errors or omissions resulted in either

the withdrawal or substantial impairment of a potentially

meritorious defense. Id. at 348-49, 615 P.2d at 104; State

v. DeLeon, 131 Hawai#i 463, 478-79, 319 P.3d 382, 397-98

(2014).

Id. 

The second prong is satisfied if the defendant shows a

possible impairment of a potentially meritorious defense and the

defendant need not show the impairment was probable nor prove

that the defendant suffered actual prejudice. Id. (citing

DeLeon, 131 Hawai#i at 479, 319 P.3d at 398). "Specific actions

or omissions that are alleged to be erroneous but that had an

obvious tactical basis for benefitting the defendant's case will

not be subject to further scrutiny." Id. (citing State v.

Pacheco, 96 Hawai#i 83, 93, 26 P.3d 572, 582 (2001)). "If,

however, the alleged error or omission had no obvious basis for

benefitting the case and resulted in the withdrawal or impairment

of a potentially meritorious defense, then the assistance of

defendant's counsel was constitutionally inadequate." Id. (citing 

State v. Smith, 68 Haw. 304, 309-11, 712 P.2d 496, 500-01

(1986)).

Badiang contends that defense counsel's first mistake

was in admitting that Badiang was the robber and in making

6(...continued)

of counsel claims and because no hearing was conducted, the record is void as

to the basis of defense counsel's actions. We disagree as the record is

sufficient to address Badiang's argument. See State v. Silva, 75 Haw. 419,

439, 864 P.2d 583, 592 (1993) (refusing to adopt general rule that ineffective

assistance of counsel claims cannot be raised for the first time on appeal

when there is a sufficiently developed trial record).

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irreconcilable arguments in opening and closing statements. In

his opening statements, defense counsel admits to Badiang being

in videos taken from Jack in the Box and Walmart, but not to

being the robber at the bakery:

Yes, Jack in the Box you'll see the video that the

driver was Mr. -- was Rubin. He was driving, that was

his -- he was driving, there's no dispute to that. At

4:38 -- 4:18 in the morning, that was him. Sometime

thereafter they go to Wal-Mart and, yes, that is him.

The video shows him. Doesn't lie. Pictures don't

lie. They may be a different interpretation, but it

doesn't lie. It's there. It cannot be altered. It

cannot -- it cannot change.

In closing argument, Defense counsel responded to the

State's closing argument that the male in the bakery surveillance

photographs is the same person at Walmart with Cataluna as

follows: 

The issue is not the time as to where Tony Cataluna was. The

issue is where was Rubin? Rubin was not in the photographs.

That's not Rubin in the photographs. I was going to show it

to you, but you know what, I'm not going to, because you'll

see it again. You've seen it already. Person is tall and

skinny. Not only by Eljoe, Tamayo, the detectives, the

officers, person was tall and skinny. Only person who said

that person, that unknown person, the only person who said

that that's Rubin is Tonygirl.

. . . . We're not disputing that the person at the bakery

appears to be the same person at Wal-Mart. When we look at

it, although it's very grainy, they appear to be one in the

same.

But that's not the issue. The issue is who is that person? What

evidence have they presented? What evidence have they presented to

say that that is, beyond a reasonable doubt, that that was Rubin?

Nothing. The only thing they presented was Tonygirl, Tonygirl said

that was Rubin.

. . . .

But they're trying to tell you, the government is trying to

tell you look at the robbery photograph, look at the Jack in

the Box photograph, and look at the Wal-Mart photograph.

Rubin had a white shirt, therefore it has to be him, because

that person on the video – the snapshot and the bakery and

Wal-Mart, that person had a white shirt.

That person is someone else. It's clear because the only

person that tells you who that person is, that guy, Tony

Cataluna's friend, the only person that tells you that this

person with the hood, with a white shirt, the only person

that tells you who this is is Tonygirl.

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At Wal-Mart, you know, I looked at it myself, I think you

all did too, the police did too. Everyone here does. Person

in Wal-Mart appears to be the same person in the bakery. But

that's not the issue. The issue is how does it become --

where is the evidence showing that it's Rubin? It's the

source again, and she -- the source simply has too many. She

has motive, which is self-interest. She's clearly biased

because she was turned in, not by the people -- and that's

her bad luck. She wasn't even turned in by the people she

robbed, she was turned in by someone else, a friend. She was

turned in by Rubin, and she knows it.

(Emphases added.) 

Contrary to Badiang's arguments, his trial counsel did

not admit that the person in the Jack in the Box and Walmart

photos is the robber. Instead, trial counsel argued the person

at the bakery was someone else; that the prosecution is arguing

it must be the same person in the robbery photo, the Jack in the

Box photo and the Walmart photo because the person in the photos

wore a white shirt; but that the only person to actually identify

the person at the bakery was Cataluna, who was not credible. 

Trial counsel maintained throughout his opening and closing

arguments that, although Badiang is depicted at Jack in the Box

and Walmart, Cataluna's testimony is the only evidence presented

by the State tying Badiang to the robbery, and trial counsel

continued to direct the jury's attention to Cataluna's motive in

identifying Badiang as the male robber. Therefore, we do not

consider trial counsel's arguments irreconcilable.

Badiang contends that his trial counsel's second

purported mistake was in failing to object to the admission of

still photos of surveillance videos at the bakery, Jack in the

Box, and Walmart, where the State had possession of the

surveillance videos, in violation of Hawaii Rules of Evidence

(HRE) Rule 1002 (2016).7 However, still photographs of

surveillance videos are admissible as duplicates under HRE Rule

7

Rule 1002 Requirement of original. To prove

the content of a writing, recording, or photograph,

the original writing, recording, or photograph is

required, except as otherwise provided in these rules

or by statute.

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1003 (2016).8 See U.S. v. Perry, 925 F.2d 1077, 1082 (8th Cir.

1991) (holding a still photographic image made from a video

recording is a duplicate and thus admissible); see also, State v.

Kaoihana, No. CAAP-10-0000042, 2012 WL 171615, at *2 (Haw. App.

Jan. 20, 2012) (holding a duplicate of original surveillance

video and still photographs therefrom are admissible under HRE

Rule 1003). Furthermore, the State adduced sufficient evidence

from its witnesses to support the Circuit Court's finding that

the contents therein are what the State claims. See HRE Rule

901(a), (b)(1), (b)(9) (2016).9 Tamayo testified as to the

contents of the photographs from the bakery surveillance video;

On Ting Wong (Wong), an IT technician employed by Blue Pacific

Management, which operates all Hawai#i Jack in the Boxes,

testified as to the photographs from the Mililani Jack in the Box

drive-through surveillance system; and Cataluna testified as to

8

Rule 1003 Admissibility of duplicates. A

duplicate is admissible to the same extent as an

original unless (1) a genuine question is raised as to

the authenticity of the original, or (2) in the

circumstances it would be unfair to admit the

duplicate in lieu of the original.

9 HRE Rule 901 provides, in pertinent part:

Rule 901 Requirement of authentication or

identification. (a) General provision. The

requirement of authentication or identification as a

condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the

matter in question is what its proponent claims.

(b) Illustrations. By way of illustration only,

and not by way of limitation, the following are

examples of authentication or identification

conforming with the requirements of this rule:

(1) Testimony of witness with knowledge.

Testimony that a matter is what it

is claimed to be.

. . . . 

(9) Process or system. Evidence

describing a process or system used

to produce a result and showing that

the process or system produces an

accurate result. 

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the still photographs from the Mililani Walmart. There is no

genuine question raised as to the authenticity of the

surveillance videos themselves and Badiang has not shown that it

was unfair to admit the photographs as duplicates in lieu of the

original videos. See HRE Rule 1003.

Further, although Badiang contends the entry of these

photographs was detrimental to his defense because the time

stamps on the photographs were used by the State to corroborate

Cataluna's testimony, Badiang's trial counsel sought to use the

time stamps to argue Badiang was not with Cataluna and to

challenge Cataluna's credibility. In particular, in closing

argument, Badiang's trial counsel argued that photographs from

Jack in the Box show Badiang going through the drive through at

4:01 a.m., that the photos do not show a girl in the vehicle with

Badiang, and that Cataluna was at Jack in the Box at 4:18 a.m.,

as reflected on a receipt from Jack in the Box that she testified

about. Badiang's trial counsel thus used the timing on the

photos to assert discrepancies that undermine Cataluna's timeline

of events. In the context of an ineffective assistance of

counsel claim, "[m]atters presumably within the judgment of

counsel, like trial strategy, will rarely be second-guessed by

judicial hindsight." DeLeon, 131 Hawai#i at 479, 319 P.3d at 398

(quoting State v. Richie, 88 Hawai#i 19, 39-40, 960 P.2d 1227,

1247-48 (1998)).

Finally, Badiang asserts that his trial counsel's third

purported mistake was in failing to object under HRE Rule 1002 to

Officer Kim's description of what he saw in the Jack in the Box

surveillance video (not the photographs thereof), when the videos

were not admitted into evidence by the State, thus rendering

Officer Kim's testimony inadmissible hearsay. Badiang argues

that through this inadmissible testimony, the State was able to

establish that the white truck Officer Kim observed in the Jack

in the box surveillance video was the same white truck Tamayo and

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Agnes saw near the mini-mart prior to the robbery.10 Badiang

argues Officer Kim's testimony was then used to corroborate

Cataluna's testimony that prior to the robbery, Badiang picked

her up in a white truck. 

Even if we assume, without deciding, that Badiang's

counsel improperly failed to object to Officer Kim's testimony,

evidence about the white truck was presented to the jury by other

proper means. The still photographs from the surveillance video

at Jack in the Box were subsequently entered into evidence during

the State's direct examination of Wong, showing a white pickup

truck at a drive-through. Cataluna also testified about the

images from the Jack in the Box drive-through. Thus, Badiang's

challenge regarding his trial counsel's lack of objection to

Officer Kim's testimony does not demonstrate the possible

withdrawal or substantial impairment of a potentially meritorious

defense.

We thus conclude that, viewed as a whole, Badiang's

trial counsel did not provide ineffective assistance at trial.

III. Conclusion

Based on the foregoing, we affirm the Judgment of

Conviction and Sentence entered on September 9, 2019, by the

Circuit Court of the First Circuit.

DATED: Honolulu, Hawai#i, June 27, 2022. 

On the briefs:

Megan K. Kau,

Jessica A. Szemkow,

for Defendant-Appellant

Stephen K. Tsushima,

Deputy Prosecuting Attorney,

for Plaintiff-Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

10 Tamayo testified that while he and Agnes were eating in front of the

bakery, a white pickup truck arrived at the mini-mart, and Agnes testified he

saw a white truck parked by the mini-mart prior to the female walking up to

them.

17