NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

NO. CAAP-23-0000223 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

STATE OF HAWAI‘I, Plaintiff-Appellee, 

v. 

JOSHUA LAGRANGE, Defendant-Appellant 

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT 

(CASE NO. 1PC141001041) 

SUMMARY DISPOSITION ORDER 

(By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.) 

 Defendant-Appellant Joshua LaGrange (LaGrange) appeals 

from the March 6, 2023 Order Revoking Conditional Release (Order 

Revoking CR) entered by the Circuit Court of the First Circuit 

(Circuit Court).1 Following a March 6, 2023 hearing on 

Plaintiff-Appellee State of Hawai‘i's (State) February 17, 2022 

"Motion to Revoke Order Granting Conditional Release [(CR)] and 

Issuance of Bench Warrant" (Motion to Revoke CR), the Circuit 

Court granted the motion, revoked CR, and ordered LaGrange be 

1 The Honorable Christine E. Kuriyama presided. 

Electronically Filed

Intermediate Court of Appeals

CAAP-23-0000223

20-FEB-2024

09:09 AM

Dkt. 62 SO
 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

2 

committed to the custody of the Department of Health (DOH).2 The 

Motion to Revoke CR alleged that LaGrange violated the terms of 

his conditional release by leaving his court-approved residence, 

failing to notify his probation officer of his new address, and 

causing his whereabouts to become unknown. At the hearing, 

LaGrange did not contest the violation, but argued that the 

State had failed to adduce evidence that LaGrange was "still 

affected by a . . . mental disease, disorder, or defect[,]" 

which was required under HRS § 704-413(4)(a).3

 On appeal, LaGrange challenges the revocation of his 

CR, contending that the Circuit Court erroneously took judicial 

notice4 of a February 22, 2023 letter from Hawai‘i State Hospital 

2 LaGrange had been placed on CR on March 31, 2016 following entry 

of a judgment of acquittal and commitment to DOH custody on the basis of a 

mental disease, disorder, or defect excluding penal responsibility under 

Hawaii Revised Statutes (HRS) § 704-404, for a second-degree assault charge. 

3 HRS § 704-413(4)(a)(2014) provides in pertinent part: 

(4) If, at any time after the order pursuant to this 

chapter granting conditional release, the court determines, 

after hearing evidence, that: 

(a) The person is still affected by a physical or 

mental disease, disorder, or defect, and the 

conditions of release have not been fulfilled[,] . . 

. 

the court may forthwith modify the conditions of release or 

order the person to be committed to the custody of the 

director of health, subject to discharge or release in 

accordance with the procedure prescribed in section 704-

412[.] 

(Emphases added.) 

4 Hawai‘i Rules of Evidence (HRE) Rule 201(b) provides: 

 A judicially noticed fact must be one not subject to 

reasonable dispute in that it is either (1) generally known 

within the territorial jurisdiction of the trial court, or 

(2) capable of accurate and ready determination by resort 

to sources whose accuracy cannot reasonably be questioned. 

 We do not agree with the State's assertion on appeal that the HRE do 

not apply to a CR revocation hearing, citing HRS § 704-415(2) (application 

for CR or discharge from CR) and HRS § 706-625(2) (revocation of probation). 
 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

3 

psychiatrist, Kent Booher, M.D. (Dr. Booher) as evidence that 

LaGrange was "still affected by a . . . mental disease, 

disorder, or defect" under HRS § 704-413(4)(a) ("still affected" 

finding). 

 Upon careful review of the record and the briefs 

submitted by the parties, and having given due consideration to 

the arguments advanced and the issues raised, we resolve 

LaGrange's point of error as follows, and vacate and remand. 

 "[W]hether a particular fact is a proper subject for 

judicial notice is a question of law" reviewed de novo under the 

right/wrong standard of review. Ditto v. McCurdy, 98 Hawai‘i 

123, 128, 44 P.3d 274, 279 (2002) (citation omitted). 

 In granting the State's Motion to Revoke CR, the 

Circuit Court took judicial notice of Dr. Booher's February 22, 

2023 letter over defense objection, and made the "still 

affected" finding under HRS § 704-413(4)(a).5 

HRS § 706-625(2) pertains to revocation of probation and is inapposite. HRS 

§ 704-415(2), pertaining to application for CR on discharge from CR, states: 

"such hearing shall be deemed a civil proceeding . . . ." We conclude that 

the statute here, HRS § 704-413(4), pertaining to the modification or 

revocation of CR, is also a "civil proceeding." HRE Rule 1101(b) provides 

that the rules "apply generally to civil and criminal proceedings[,]" and 

subsection (d)(3) lists specific types of "[m]iscellaneous proceedings" where 

the HRE are inapplicable. Among the list of HRE-inapplicable proceedings are 

proceedings "granting or revoking probation[.]" CR proceedings are not 

listed among the exclusions. Thus, the HRE apply here. 

5 Regarding Dr. Booher's letter, the Circuit Court stated: "The 

Court has taken judicial notice of the record and file, which would include 

the February 22, '23 letter from Dr. Booher, staff psychiatrist at the Hawaii 

State Hospital." 

 Defense counsel objected to the Circuit Court's "still-affected" 

finding as follows: 

 [DEFENSE COUNSEL]: So is the Court finding that 

[LaGrange] is still affected by a physical or mental 

disease, disorder, or defect? And if the Court is making 

that finding, I am objecting. I believe you can only make 

that finding based on reviewing letters that have been 

submitted over the last year, and in so doing, as I said, 

that is not evidence presented, and you are violating my 

client's due process rights . . . . That can't be taken 

away without due process of law. Those rights apply right 
 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

4 

 LaGrange argues that the Circuit Court "exceeded the 

permissible scope of judicial notice when it noticed the alleged 

facts set forth in the letter and used Dr. Booher's statements 

as evidence to support a finding that Lagrange was still 

affected by a physical or mental disease, disorder or defect." 

The State counters that "although the statute specifies that the 

court must determine at a hearing that a person is still 

now, regardless of the--the rules of evidence. He has not 

had an opportunity to confront anybody who said--presented 

evidence that he is currently suffering from a mental 

disease, disorder, or defect. That is our position. 

 THE COURT: Okay. Thank you. 

 [DEFENSE COUNSEL]: So I'm asking the Court to make a 

clear determination. Are you--are you making that 

determination today that he is still affected or not? 

'Cause [sic] that--that was not in the recitation of the 

Court's ruling. 

 (Pause in proceedings.) 

 THE COURT: Let's go off record briefly. 

 (Recess taken.) 

 THE CLERK: Back on record. 

 THE COURT: All right. Counsel, having reviewed 

Section 704-413, subsection (4), the Court is, based on the 

record and the arguments made by the State, and the record 

would include the record in file and the credible and 

reliable evidence, the Court's making the finding that Mr. 

Lagrange is still affected by a physical or mental disease, 

disorder, or defect, and the conditions of release have not 

been fulfilled. And this is over your objection, correct? 

 [DEFENSE COUNSEL]: Yes, Your Honor. And--and I think 

I made most of it on the record, but just so it's very 

clear, my objection to the Court making that specific 

finding that he's still suffering a mental illness is that 

there has not been evidence put before the Court today. 

And merely going and looking at old letters does not say 

that he is still in that mental position. And of course 

looking at those old letters to make a factual 

determination that today he still has a mental illness I 

would argue is a big-time due process violation when you 

are depriving him of liberty indefinitely. 

 . . . . 

(Emphases added.)
 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

5 

affected by a physical or mental disease, disorder, or defect, 

this does not require a full-blown evidentiary hearing with live 

testimony." The State maintains that "[i]t is sufficient for a 

court to rely on a prior finding of physical or mental disease, 

disorder, or defect, especially when no showing has been made of 

any change of condition." In this case, however, the record 

reflects the Circuit Court did not rely on a prior finding of 

mental disease, disorder, or defect and instead took judicial 

notice of Dr. Booher's letter. 

 "'[A] distinction must be carefully drawn between 

taking judicial notice of the existence of documents in the 

Court file as opposed to the truth of the facts asserted in 

those documents.'" Uyeda v. Schermer, 144 Hawai‘i 163, 172, 439 

P.3d 115, 124 (2019) (emphases in original) (citation omitted). 

In State v. Akana, 68 Haw. 164, 706 P.2d 1300 (1985), the 

supreme court drew a distinction between "[t]he existence of a 

conviction properly recorded in court records" as "an 

adjudicative fact 'capable of accurate and ready 

determination,'" and the "facts underlying the conviction," 

which cannot be "the proper subject of judicial notice." Uyeda, 

144 Hawai‘i at 172-73, 439 P.3d at 124-25. 

 Here, although the Circuit Court could take judicial 

notice of the existence of Dr. Booher's letter, the Circuit 

Court erred when it relied on the contents of Dr. Booher's 

letter to make its "still-affected" finding under HRS § 704-

413(4)(a). See id. at 172, 439 P.3d at 124; Ditto, 98 Hawai‘i at 

128, 44 P.3d at 279. Assuming arguendo the "truth of the facts 

asserted" in Dr. Booher's letter could be considered, the letter 

contains no statement that LaGrange was "still affected" by a 

mental disease, disorder, or defect at the time the letter was 
 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

6 

written, six days before the hearing.6 See Uyeda, 144 Hawai‘i at 

172, 439 P.3d at 124. 

 Under HRS § 704-413(4)(a), the Circuit Court cannot 

modify CR unless the court determines that "[t]he person is 

still affected by a physical or mental disease, disorder, or 

defect and the conditions of release have not been fulfilled[.]" 

Because the record lacks evidence regarding the "still-affected" 

finding, the Motion to Revoke CR was erroneously granted. 

 For the foregoing reasons, the Order Revoking 

Conditional Release filed on March 6, 2023 by the Circuit Court 

of the First Circuit is vacated, and we remand for a new hearing 

or further proceedings consistent with this order. 

 DATED: Honolulu, Hawai‘i, February 20, 2024. 

On the briefs: 

Jon N. Ikenaga, 

Deputy Public Defender 

for Defendant-Appellant. 

Brian R. Vincent, 

Deputy Prosecuting Attorney 

for Plaintiff-Appellee. 

/s/ Katherine G. Leonard 

Acting Chief Judge 

/s/ Clyde J. Wadsworth 

Associate Judge 

/s/ Karen T. Nakasone 

Associate Judge 

 

6 Dr. Booher's letter contains only implicit references to 

LaGrange's mental disease, disorder, or defect, that "Mr. Lagrange remains 

stable at his medicated baseline" and that LaGrange was "well down the path 

of becoming permanently institutionalized."