FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

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

ERIK WILLIS, Defendant-Appellant

NO. CAAP-22-0000464

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CR. NO. 1CPC-20-0000887)

APRIL 30, 2024

LEONARD, ACTING CHIEF JUDGE, AND HIRAOKA AND WADSWORTH, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

Defendant-Appellant Erik Willis (Willis) appeals from

the Amended Judgment of Conviction and Sentence (Amended

Judgment), entered on July 20, 2022, in the Circuit Court of the

First Circuit (Circuit Court).1/ After a jury trial, Willis was

convicted of Attempted Murder in the Second Degree, in violation

of Hawaii Revised Statutes (HRS) §§ 705-5002/ and 707-701.53/

1/ The Honorable Kevin A. Souza presided.

2/ HRS § 705-500 (2014) states, in pertinent part:

Criminal attempt. (1) A person is guilty of an

attempt to commit a crime if the person:

. . . .

(b) Intentionally engages in conduct which, under

the circumstances as the person believes them to

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-22-0000464

30-APR-2024

07:52 AM

Dkt. 88 OP
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On appeal, Willis contends that: (1) the Circuit Court

"erred in denying [Willis's] Motion to Dismiss the Indictment for

lack of probable cause"; (2) the Circuit Court "erred in denying

[Willis's] Motion to Suppress Identification of [Willis]"; (3)

"[t]he prosecutor committed multiple, continuing, and egregious

acts of misconduct throughout the course of the trial and

especially during closing arguments that violated [Willis's]

constitutional right to a fair trial"; (4) the Circuit Court

"erred in denying [Willis's] Motion for Judgment of Acquittal";

and (5) the Circuit Court "abused its discretion in denying

[Willis's] Motion for New Trial based on sufficiency of the

evidence and prosecutorial misconduct."

We hold that the Circuit Court did not err in denying

Willis's motion to dismiss the indictment for lack of probable

cause, and in denying Willis's motion to suppress the complaining

witness's (M.K.) identification of Willis as her assailant. In

denying the motion to suppress, the Circuit Court did not clearly

err in determining that M.K.'s identification was sufficiently

reliable for presentation to the jury under the totality of the

circumstances, based on the court's assessment of the factors

established in State v. Kaneaiakala, 145 Hawai#i 231, 450 P.3d

761 (2019), for evaluating an eyewitness identification obtained

through an impermissibly suggestive procedure.

We further hold, however, that the deputy prosecuting

attorney (DPA) committed prosecutorial misconduct4/ during his

closing argument, when he argued to the jury that Willis was

(...continued)

be, constitutes a substantial step in a course

of conduct intended to culminate in the person's

commission of the crime.

3/ HRS § 707-701.5 (Supp. 2018) states, in pertinent part:

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; provided that

this section shall not apply to actions taken under chapter

327L.

4/ "The term 'prosecutorial misconduct' is a legal term of art that

refers to any improper action committed by a prosecutor, however harmless or

unintentional." State v. Maluia, 107 Hawai#i 20, 25, 108 P.3d 974, 979

(2005). 

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depicted in a surveillance video after the attack leaving a work

sink, and "we know from [witness] Edward Leal [(Leal)] that

[Willis] washed his hands and his face because he had blood on

them." The DPA's statement referred to evidence of blood that

was not in the record and misrepresented the testimony of the

identified witness. Another statement by the DPA minutes later –

that "after he stabbed [M.K.], [Willis] got blood on [his tshirt]" – also introduced new evidence of blood in closing

argument and amounted to misconduct. Based on the serious nature

of the DPA's conduct, the lack of a curative instruction, and the

heavy dependence of the conviction on M.K.'s credibility, we

conclude that the DPA's improper statements about blood on Willis

and his shirt were not harmless beyond a reasonable doubt, and

his conviction must therefore be vacated. Relatedly, we hold

that the Circuit Court erred in denying Willis's motion for a new

trial based on prosecutorial misconduct in introducing this new

blood evidence in closing argument. 

Finally, we hold that the Circuit Court did not err in

denying Willis's motion for judgment of acquittal. Viewing the

evidence as we must in the light most favorable to the

prosecution, there was sufficient evidence to support a prima

facie case so that a reasonable mind might fairly conclude that

Willis was M.K.'s assailant and was guilty beyond a reasonable

doubt of attempted murder in the second degree. This evidence

included M.K.'s testimony regarding the attack and surveillance

videos that largely corroborated M.K.'s description of her

attacker. 

Accordingly, we vacate the Amended Judgment based on

prosecutorial misconduct and remand the case for a new trial.

I. Background

On July 8, 2020, at about 1:45 p.m., M.K., then aged

17, was stabbed while lying on her stomach on the beach in Kahala

near 4671 Kahala Avenue. M.K. sustained life-threatening

injuries, lost a significant amount of blood, and was rushed to

the hospital for emergency medical treatment. Fortunately, she

survived the stabbing. 

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During the course of their investigation, Honolulu

Police Department (HPD) officers recovered surveillance video

footage from 5605 Haleola Street, Bus No. 532, 4671 Kahala

Avenue, 4635 Kahala Avenue, and 948 Pueo Street. The recovered

video footage depicts events recorded on July 8, 2020, at the

following times:5/

 • 12:29 p.m.: The video footage from 5605 Haleola

Street shows "a fair[-]skinned man, with dark

curly hair, a blue disposable face mask, a clean

white t-shirt, tan pants, and dark colored shoes

with white striping on the side." HPD Corporal

Matthew Motas (Corporal Motas), who had mentored

Willis during the period from September 2015 to

January 2016, positively identified the man in the

video footage as Willis. 

 • 1:11 to 1:25 p.m.: Bus 532's video footage shows

"a fair[-]skinned man, with dark curly hair, a

blue disposable face mask, a clean white t-shirt,

tan pants, and dark colored shoes. Bus 532 picks

up the man at about 1:11 p.m. at the bus stop

located at the intersection of Kalanianaole

Highway and Halemaumau Street [and] travels to

Kahala Avenue [before] the man exits the bus at

about 1:25 p.m. at a bus stop located near 4671

Kahala Avenue." Corporal Motas positively

identified the man in the video footage as Willis.

 • 1:26 p.m.: The video footage from 4671 Kahala

Avenue shows "a man with dark curly hair, a white

t-shirt, tan pants, and dark shoes with white

marking on the side. The man is walking on a

beach access walkway from Kahala Avenue towards

the beach." 

• 1:46 p.m.: The video footage from 4635 Kahala

5/ The corresponding descriptions of the video footage are drawn

primarily from the uncontested findings of fact in the Circuit Court's

March 22, 2021 "Findings of Facts, Conclusions of Law and Order Denying

[Willis's] Motion to Dismiss the Indictment With Prejudice Filed on

November 16, 2020." See State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d

428, 435 (2019) (unchallenged findings of fact are binding on appeal).

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Avenue shows "a person with dark curly hair, no

shirt, tan pants, and dark shoes run across a

construction site immediately adjacent to the

property. The man comes running from the

direction of the beach[,] runs to a sink[,] and

appears to wash himself off." 

• 3:56 p.m. to 4:00 p.m.: The video footage from

948 Pueo Street shows "a fair[-]skinned man, with

dark curly hair, a blue disposable face mask, a

soiled white t-shirt, tan pants, and dark colored

shoes with white striping on the side." Corporal

Motas positively identified the man in the video

footage as Willis. 

• 4:15 p.m. to 4:26 p.m.: Bus 532's video footage

shows "a fair[-]skinned man, with dark curly hair,

a blue disposable face mask, a soiled white tshirt, tan pants, and dark colored shoes. Bus 532

picks up the man at about 4:15 p.m. at a bus stop

located on Pueo Street. Bus 532 travels to

Kalanianaole Highway and the man exits the bus at

about 4:26 p.m. at a bus stop located at the

intersection of Kalanianaole Highway and

Halemaumau Street." Corporal Motas positively

identified the man in the video footage as Willis.

• 4:35 p.m.: The video footage from 5605 Haleola

Street shows "a fair[-]skinned man, with dark

curly hair, a blue disposable face mask, a soiled

white t-shirt, tan pants, and dark colored shoes

with white striping on the side." Corporal Motas

positively identified the man in the surveillance

video footage as Willis, who "is depicted walking

toward his grandparents' house." 

(Record citations omitted.)

On July 11, 2020, HPD officers arrested Willis at his

grandparents' home in Niu Valley. They did not have permission

or a warrant to enter the home. Once inside, the police came

across shoes and a shirt that matched the suspect's clothing. 

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Nearly two hours after arresting Willis, the police seized the

shoes and the shirt from the home. 

On July 24, 2020, a grand jury indicted Willis for

attempted murder in the second degree. 

On November 16, 2020, Willis filed a motion to dismiss

the indictment with prejudice, a motion to suppress evidence and

statements obtained pursuant to the warrantless entry and search,

and a motion to suppress the identification of Willis as M.K.'s

assailant. The Circuit Court heard the motion to dismiss the

indictment on January 28, 2021, and the motions to suppress on

January 28 and February 23, 2021. 

The Circuit Court denied the motion to dismiss the

indictment and the motion to suppress the identification of

Willis, but granted the motion to suppress the shoes, the shirt

and the statements Willis made when he was arrested. The State

appealed from the order granting Willis's motion to suppress. 

The Hawai#i Supreme Court accepted the State's application for

transfer and affirmed the order granting the motion to suppress. 

State v. Willis, 150 Hawai#i 235, 238, 241, 500 P.3d 420, 423,

426 (2021).

A jury trial began on March 29, 2022. Numerous

witnesses, including M.K. and Corporal Motas, testified for the

State. In her testimony, M.K. recounted the stabbing attack,

described her identification of Willis as her assailant three

days after the attack, and identified Willis in the courtroom as

her assailant. After the State rested, Willis made an oral

motion for a judgment of acquittal, arguing that the evidence was

insufficient to support a prima facie case such that a reasonable

jury could find guilt beyond a reasonable doubt. The Circuit

Court denied the motion. 

On April 7, 2022, the jury found Willis guilty as

charged of attempted murder in the second degree. 

On April 18, 2022, Willis filed a renewed motion for

entry of a judgment of acquittal or, in the alternative, for a

new trial. He argued that the jury's verdict was not supported

by substantial evidence and that the DPA committed prosecutorial

misconduct by, among other things, arguing from evidence not in

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the record and making arguments that had no factual support in

the record. Following a June 6, 2022 hearing, the Circuit Court

denied the motion. 

The Circuit Court entered a Judgment of Conviction and

Sentence on July 14, 2022, and the Amended Judgment on July 20,

2022. 

Willis filed a timely notice of appeal.

II. Discussion

A. Motion to Dismiss the Indictment

Willis contends that the Circuit Court erred in denying

his motion to dismiss the indictment, because the evidence was

insufficient to establish probable cause as to the elements of

the charged offense. We review de novo a circuit court's order

denying a motion to dismiss an indictment based on sufficiency of

the evidence to support the indictment. State v. Taylor, 126

Hawai#i 205, 215, 269 P.3d 740, 750 (2011). 

We have found that similar challenges were rendered

moot by the defendant's subsequent conviction after trial, based

on the supreme court's ruling in In re Doe, 102 Hawai#i 75, 78, 73

P.3d 29, 32 (2003). See, e.g., State v. Torres, 122 Hawai#i 2, 14

n.7, 222 P.3d 409, 421 n.7 (App. 2009), aff'd and corrected on

other grounds, 125 Hawai#i 382, 262 P.3d 1006 (2011). In any

event, based on our review of the record, we reject Willis's

contention that there was insufficient evidence to support the

indictment. 

B. Motion to Suppress M.K.'s Identification of Willis

Willis contends that the Circuit Court erred in denying

his motion to suppress identification. Specifically, he argues

that based on the factors set forth in Kaneaiakala, 145 Hawai#i at

242-44, 450 P.3d at 772-74, the eyewitness identification of

Willis by M.K. was unreliable and should have been suppressed.6/

On March 22, 2021, the Circuit Court entered its

"Findings of Facts, Conclusions of Law and Order Denying

6/ Willis does not challenge the denial of his motion to suppress the

identification made by Corporal Motas.

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[Willis's] Motion to Suppress Identification of [Willis] Filed on

November 16, 2020" (FOFs/COLs). The following FOFs are

uncontested and thus binding on appeal,7/ see Rodrigues, 145

Hawai#i at 494, 454 P.3d at 435:

1. On July 8, 2020 at about 1:20 p.m., M.K. went to

the beach fronting 4663 Kahala Avenue by herself . . . . 

M.K. sat about two or three car lengths from the girl with

the computer. When M.K. found her spot on the beach, she

laid her pareo on the sand next to a wall and placed her bag

down. After that, she was standing up, using her phone,

looking towards the beach, and just kind of looking around. 

While she was looking around, M.K. saw a guy in a t-shirt

and jeans with a blue clinical face mask on, walking down

the beach. M.K. thought the guy's jeans were either a light

gray or a light blue. He was playing with his hands and

putting them in his hair, and rubbing his hands, and putting

them in his pockets. The guy was wearing shoes on the beach.

His skin tone was a whiter tone, a bit pale. M.K. might

have seen the guy at the beach before, but she was unsure. 

She had never talked to the guy. The guy stared at the girl

on the computer but then looked in M.K.'s direction. The

guy kept walking towards M.K.'s area and sat down by a bush

about a car length and a half from M.K. At some point, M.K.

turned over and laid on her belly. As soon as M.K. turned

over, she felt a hand cover her mouth and pull her head up. 

That's when M.K. saw a knife and it started stabbing her

neck. M.K. tried to block with her left hand and tried to

grab the knife with her right hand. There was a lot of

pressure on her lower back, so when M.K. was squirming she

could not get up. M.K. felt like she was stabbed about 15

times. The last stab, the guy held the knife in M.K.'s neck

longer before pulling it out. Then the guy pushed her head

back down into the sand and M.K. felt the pressure get off

her back. M.K. stood up holding her neck. M.K. looked to

the right and saw the person who stabbed her running away;

he had brown poufy curly hair, white skin, a white t-shirt

and jeans. M.K. remembered the guy was wearing a t-shirt

and jeans because she found it odd he was wearing that

clothing at the beach. She remembered his dark poufy hair

and his really thick eyebrows. M.K. went back to the left

where the girl with computer was and asked for help.

2. [Describing mentoring of Willis by Corporal

Motas]

3. On July 9, 2020, the day following M.K.'s

attack, police recovered surveillance video footage from

4671 Kahala Avenue, which was in close proximity to the

location of M.K.'s stabbing. That surveillance video

captured events at an adjacent beach right-of-way on July 8,

2020 at about 1:26 p.m. That surveillance video depicted a

person of interest with medium length dark hair, a white tshirt, tan pants, and dark shoes with markings on the side

walking from Kahala Avenue towards Kahala beach . . . .

7/ We reject Willis's contention in his Reply Brief that by

challenging the Circuit Court's evaluation of Kaneaiakala factors 2, 4, 6, 8,

10, and 11, which the Circuit Court addressed in COLs 13, 17, 21, 23, 27, and

29, respectively, Willis challenged the Circuit Court's FOFs. See Hawai #i

Rules of Appellate Procedure (HRAP) Rule 28(b)(4). Additionally, Willis makes

no argument that any specific FOF is clearly erroneous. See HRAP Rule

28(b)(7) ("Points not argued may be deemed waived.").

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4.[-6. Describing, among other things, additional

surveillance video footage recovered by the police]

7. On July 10, 2020 at about 8:47 p.m., Todd

Kalahiki ("Todd") was with M.K. at the Queen's Medical

Center's Intensive Care Unit. Todd is M.K.'s father. M.K.

was unable to speak and unable to use her hands due to the

injuries that she sustained in the stabbing. Todd received

a text message on his cellular phone from an auntie that

contained a surveillance video obtained through social media

of a possible suspect. Todd showed M.K. the video on his

phone. When Todd showed M.K. the video of the stabbing

suspect, she mouthed the word "maybe." The video that Todd

showed M.K. was the surveillance video footage from 4671

Kahala Avenue. Todd's auntie is not a police officer or a

law enforcement officer. The police never directed Todd to

show that video to M.K.

8. [Describing, among other things, additional

surveillance video footage recovered by the police]

9. On July 11, 2020 at about 2:30 p.m. HPD

Detective Neil Pang and two other detectives met with M.K.

and conducted a blind sequential photographic lineup at the

Queen's Medical Center's Intensive Care Unit. M.K. could

not talk. She wiggled her right foot to answer "yes," she

wiggled her left foot to answer "no," and she blinked to

answer "maybe." M.K. could not positively identify anyone

in the blind sequential photographic lineup.

10. After the sequential photographic lineup,

Detective Pang conducted an interview with M.K. M.K.

indicated that on July 8, 2020 at 1:45 p.m. she was at the

beach. M.K. further indicated that she had been at that

beach more than twenty times. M.K. indicated that she was

laying on her stomach with her feet facing the ocean and her

head facing a wall. M.K. related she had seen the man that

attacked her three or four times in the area but had never

spoken to the man or had any contact with the man. She

related that the man had a white short sleeve t-shirt on and

that he was wearing pants. She believed his pants were

light blue. She related that the man sat down about ten feet

away and was to her left as she was laying down. M.K.

related that as she was laying on her stomach looking at her

phone, the man jumped on her back and stabbed her. She

related that the man covered her mouth with one hand and

stabbed her neck maybe five times, maybe more.

11. At the conclusion of that approximately thirty

minute long interview, M.K. asked Todd, her father, to come

into her hospital room and show the police the video that

Todd showed M.K. the day before (July 10, 2020). At that

time, M.K. communicated to the police that the man with

medium dark hair, a white t-shirt, tan pants, and dark shoes

depicted in the video was the person that stabbed her. The

police never instructed Todd to show M.K. any surveillance

video or conduct any investigation related to M.K.'s

stabbing.

12. [Describing, among other things, additional

surveillance video footage obtained by the police]

 

(Record citations omitted; emphasis added.) 

Based on these FOFs, the Circuit Court concluded that

constitutional due process guarantees were not implicated by

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M.K.'s identification of Willis as her assailant, because the

identification did not result from any improper or suggestive

conduct by the police, i.e., from any "state action." The

Circuit Court also concluded that even if a pretrial review of

reliability and admissibility were required, the procedure by

which M.K. identified Willis was reliable and not the product of

an improperly suggestive procedure. Finally, the Circuit Court

concluded that even if the identification was the result of an

impermissibly suggestive procedure, the identification was still

sufficiently reliable for presentation to the jury under the

totality of the circumstances, based on the court's assessment

of: (1) the thirteen factors set forth in Kaneaiakala and Hawai#i

Standard Jury Instruction 3.19 regarding show-up identifications;

and (2) the effect of the suggestiveness of the identification

procedure on the reliability of the identification. 

Willis does not dispute the Circuit Court's findings

that the police did not direct Todd to show M.K. the video at

issue and that Todd's auntie, who supplied Todd with the video,

is not a police officer. Nevertheless, Willis contends that

M.K.'s identification of Willis arose from the functional

equivalent of a police show-up because only one person was

depicted in the video, it contains a date and time stamp

immediately preceding the attack, and the State adopted M.K.'s

identification from the video after she could not make an

identification from the blind sequential photographic lineup that

police showed her. 

We assume without deciding the "state action" issue

that M.K.'s identification of Willis was obtained through an

impermissibly suggestive procedure that was subject to the

admissibility requirements established in Kaneaiakala. We

therefore review the Circuit Court's evaluation of the

Kaneaiakala factors, applying the clearly erroneous standard to

related factual determinations made by the Circuit Court and the

right/wrong standard to the court's conclusions of law. See 145

Hawai#i at 240, 450 P.3d 770. 

Willis challenges the Circuit Court's evaluation of

Kaneaiakala factors 2, 4, 6, 8, 10, and 11 as to M.K.'s

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identification, which correspond to COLs 13, 17, 21, 23, 27, and

29, respectively. We address each of the Kaneaiakala factors

below, as Willis appears to argue that the Circuit Court

discounted or disregarded the challenged factors in relation to

others in making its totality-of-the-circumstances determination.

1. Opportunity to Observe (COLs 11 and 38)

The Circuit Court found that M.K. had an opportunity to

observe her assailant both before and after the attack, and set

forth the details of M.K.'s observations at those times. In sum,

"M.K. saw the guy that stabbed her both before and after the

stabbing; she clearly remembered aspects of the guy's attire, his

distinctive hairstyle, and his skin tone. She saw the guy from a

relatively close distance in an area with ample lighting; it was

the middle of the day." 

Willis does not dispute this evaluation of factor 1.

2. Stress at Time of Observation (COL 13)

The Circuit Court found that M.K. was under some stress

before the attack and under immense stress during and after the

attack. Willis contends, without elaboration, that the Circuit

Court "improperly discounted" this factor. 

It appears, however, that the Circuit Court considered

this factor and ultimately determined that M.K. clearly observed

her assailant before the attack, as well as seeing him flee after

the attack, findings that are supported by the testimony adduced

at the motion to suppress hearing. We "will not pass upon the

trial judge's decisions with respect to the credibility of

witnesses and the weight of the evidence, because this is the

province of the trial judge." Kaneaiakala, 145 Hawai#i at 240,

450 P.3d at 770 (quoting State v. Eastman, 81 Hawai#i 131, 139,

913 P.2d 57, 65 (1996)).

3. Ability to Describe the Person (COL 15)

Willis does not dispute the Circuit Court's finding

that it was "unclear to what extent M.K. could provide a

description of the person that stabbed her[,]" given the effects

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of her wounds, and she was finally able to communicate to the

police that her assailant was wearing a white t-shirt and pants. 

4. Extent to Which Willis Fit the Description (COL 17)

The Circuit Court found that Willis was wearing a white

t-shirt and long pants in the various surveillance videos, and it

was "difficult to evaluate M.K.'s description beyond that because

it was very difficult for her to communicate with the police." 

Willis contends that the Circuit Court "disregarded" that M.K.

provided a description of Willis "that was somewhat at odds (blue

jeans vs. khaki pants) with what was depicted in surveillance

videos . . . ." 

However, the record does not establish that the Circuit

Court failed to consider this fact in evaluating the totality of

the circumstances. Indeed, the court acknowledged in COL 15 that

M.K. "believed the man's pants were light blue."

5. Cross-Racial or Ethnic Identification (COL 19)

Willis does not dispute the Circuit Court's finding

that it was unclear to what extent M.K.'s identification of

Willis was cross-racial.

6. Capacity to Make an Identification (COL 21)

The Circuit Court found that M.K. "had the capacity to

make an identification." Willis disagrees, arguing that "[t]here

was evidence that she was under the influence of drugs and had

just suffered life-threatening injuries and significant blood

loss." Willis argues, without any citation to the record, that

M.K. was "under the influence of methamphetamine and

benzodiazepines which would affect both her ability to perceive

and to remember events." 

The record does not establish, however, that the

Circuit Court failed to consider these alleged factors in

evaluating the totality of the circumstances. Although M.K. was

told at the hospital that a report on her urine sample showed

traces of methamphetamine and benzodiazepine, there was no

evidence presented that M.K. was under the influence of drugs to

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an extent that would affect her ability to perceive and remember

the events surrounding the attack. There was also no evidence

presented that M.K.'s injuries and blood loss impaired her

ability to perceive events. Accordingly, the court found in COL

38 that "[t]here is no evidence that M.K. was impaired at the

time that she observed the guy that stabbed her." Based on our

review of the record, this finding is not clearly erroneous.

7. Ability to Identify Other Participants (COL 22)

Willis does not dispute the Circuit Court's conclusion

that this factor is inapplicable to M.K. 

8. Ability to Identify Willis in a Lineup (COL 23)

The Circuit Court found that M.K. could not identify

anyone in the photographic lineup that she reviewed on July 11,

2020. Willis contends, without elaboration, that the court

"erroneously discounted" this factor. 

However, the record does not establish that the Circuit

Court failed to consider this factor, as evidenced by COL 23

itself, or otherwise "discounted" this factor in evaluating the

totality of the circumstances.

9. Period of Time Between the Stabbing and the

Identification (COL 25)

Willis does not dispute the Circuit Court's finding

that M.K.'s identification of Willis occurred three days after

the stabbing and that this delay may have been due to the extent

of M.K.'s injuries and her resulting hospitalization. 

10. Prior Contacts (COL 27)

The Circuit Court found that prior to July 8, 2020,

"M.K. had seen the guy that stabbed her three or four times in

the area around the beach but had never spoken to the man or had

any contact with the man." Willis contends, without elaboration,

that the court "disregarded" this factor.

However, the record does not establish that the Circuit

Court failed to consider this factor, as evidenced by COL 27

itself, in evaluating the totality of the circumstances. 

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11. Certainty of the Identification (COL 29)

The Circuit Court found that: (a) on July 11, 2020,

M.K., doing her best to communicate with her injuries, informed

the police that the man depicted in the video shown to her by

Todd was the person that stabbed her; and (b) at the later

suppression hearing, M.K. testified that when she made the

identification, the person depicted in the video looked like the

person that stabbed her. Willis contends that the Circuit Court

"disregarded" that M.K. "was uncertain . . . when she was [first]

shown [the video by Todd] and the sequential photographic lineup." 

However, the record does not establish that the Circuit

Court failed to consider these facts. In FOF 7, the Circuit

Court found that when Todd initially showed M.K. the video at the

hospital, she mouthed the word "maybe." In FOF 9, the Circuit

Court found that when the photographic lineup was conducted on

July 11, 2020, she could not positively identify anyone. 

Nothing in the record indicates that the Circuit Court failed to

consider these facts in evaluating the totality of the

circumstances.

12. Identification By Own Recollection (COL 31)

Willis does not dispute the Circuit Court's finding

that "[b]ased on M.K.'s credible testimony, her identification of

the person depicted in the surveillance video was the product of

her own recollection."

13. Any Other Evidence (COL 33)

Willis does not dispute the Circuit Court's conclusion

that this factor does not appear to be applicable.

14. Effect of Suggestiveness (COL 35)

The Circuit Court found that the police themselves did

not employ any suggestive identification procedures, because Todd

was acting on his own accord in showing M.K. the video, and there

was no evidence that Todd encouraged or pressured M.K. to

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identify the person depicted in the video. Although Willis

challenges the identification as the functional equivalent of a

police show-up, he does not contest the court's findings that

Todd's auntie was not a police officer, the police did not direct

Todd to show M.K. the video, and Todd did not encourage or

pressure M.K. to identify the person depicted in the video as her

assailant. The Circuit Court properly considered these factors

in evaluating the effect of the suggestiveness of the procedure

used to obtain M.K.'s identification of Willis.

The Circuit Court then assessed the "dispositive"

Kaneaiakala factors that contributed to the court's totality-ofthe-circumstances determination that M.K.'s identification was

sufficiently reliable for presentation to the jury. Based on our

review of the evidence adduced at the motion to suppress hearing,

we conclude that the Circuit Court did not clearly err in making

this determination. See 145 Hawai#i at 241, 450 P.3d 771.

C. Prosecutorial Misconduct

Willis contends that the DPA engaged in multiple acts

of misconduct that violated Willis's constitutional right to a

fair trial. We focus on one set of statements in the DPA's

closing argument that we find dispositive. Willis argues that

the DPA "committ[ed] deliberate misconduct by arguing to the jury

in closing, without evidence or basis in the record," that: (1)

after the attack on M.K., Willis was at the white sink depicted

in State's Exhibit 4, washing blood off his hands and face and

white t-shirt;8/ and (2) Willis's white t-shirt was blood stained

when he returned to Niu Valley some three hours after the attack. 

During closing arguments, the DPA in fact made the

following statements:

Taylor Gray said when she saw the man who was on

[M.K.'s] back get up, she took a look at him, she saw him,

8/ State's Exhibit 4 was the surveillance video footage recovered by

the police from 4635 Kahala Avenue, which was close to where M.K. was stabbed. 

At about 1:46 p.m. on the day of the attack, "the surveillance video depicted

a light skinned person with medium length curly hair, shirtless, tan pants,

and shoes running from the direction of the beach to a white utility work

sink. The light skinned person appeared to wash himself in the work sink and

then ran away." (Record citations omitted.)

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saw part of him, but she noticed that there was something on

his white shirt. She didn't explain what it was, but there

was something on the white shirt. But up to this point,

there's been nothing on the defendant's white shirt. So

what could it be? Blood? There was plenty of blood. Sand? 

It's on a beach. We don't know. 

But if you're the defendant, what do you do if you

have blood on your shirt? What do you do if you have blood

on your hands?

State's Exhibit 4. 

Ladies and gentlemen, this is State's Exhibit 4. And

the time is 1:46:22. First of all, before we go, notice

defendant is here. No shirt because it's soiled. Pants,

light colored pants. Shoes, looks like some sort of marking

on the side of it. 

Okay. Please run it to 1:46:43 and then stop it. 

Okay. Stop.

Notice something in his left hand. Looks white. Most

likely it's his shirt.

Go to 45 please.

You notice he's turning, leaving the sink, and he's

got something behind his back curled up. It's white. State

submits that's his shirt. So we don't know whether he

washed the shirt at the sink, but we know from Edward Leal

that he washed his hands and his face because he had blood

on them.

(Emphasis added.) Minutes later, the DPA showed the jury State's

Exhibit 6, the surveillance video footage recovered from 5605

Haleola Street. The DPA argued:

Shirt is soiled. So what happened was that after the

defendant arrived to the beach with a clean white [t]-shirt,

after he stabbed [M.K.], he got blood on it, possibly sand. 

Tried to wash it out, and disappeared for two hours.

Although Willis did not object during trial to any of

these statements, in prosecutorial misconduct cases, "there is no

difference between the plain error and harmless beyond a

reasonable doubt standards of review." State v. Hirata, 152

Hawai#i 27, 31, 520 P.3d 225, 229 (2022) (citing State v. Riveira,

149 Hawai#i 427, 431 n.10, 494 P.3d 1160, 1164 n.10 (2021)). 

"[O]nce the defense establishes misconduct - objection or no

objection - appellate review is the same: 'After considering the

nature of the prosecuting attorney's conduct, promptness or lack

of a curative instruction, and strength or weakness of the

evidence against the defendant, a reviewing court will vacate a

conviction if there is a reasonable possibility that the conduct

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might have affected the trial's outcome.'" Id. (quoting Riveira,

149 Hawai#i at 431, 494 P.3d at 1164).

In applying this standard of review, we first address

whether the DPA's statements constituted misconduct. During

closing argument, a prosecutor "is permitted to draw reasonable

inferences from the evidence." State v. Basham, 132 Hawai#i 97,

112, 319 P.3d 1105, 1120 (2014) (ellipsis omitted) (quoting State

v. Clark, 83 Hawai#i 289, 304, 926 P.2d 194, 209 (1996)). 

However, [p]rosecutors are . . . forbidden from introducing new

information or evidence in closing argument." Hirata, 152 Hawai#i

at 33, 520 P.3d 231 (citing Basham, 132 Hawai#i at 113, 319 P.3d

at 1121 ("Closing arguments are not the place to introduce new

evidence outside the safeguards of the Hawai#i Rules of

Evidence.")); see also State v. Yip, 92 Hawai#i 98, 111, 987 P.2d

996, 1009 (App. 1999) ("In closing arguments, it is improper to

refer to evidence which is not in the record or has been excluded

by the court.").

Here, the DPA went well beyond drawing reasonable

inferences from the evidence in arguing to the jury that, after

the attack on M.K., Willis was at the white sink washing blood

off his hands and face. We first note that at trial, Leal, who

testified that he saw a man washing his face and arms in the sink

sometime between one and two p.m. that day, did not identify

Willis as the person depicted in Exhibit 4, and Corporal Motas,

who had mentored Willis, was asked but was not able to identify

Willis as the person depicted in Exhibit 4. In any event, Leal

did not testify that Willis "washed his hands and his face

because he had blood on them." (Emphasis added.) He stated only

that the man he saw that day "was washing his arms, here, and

also wash[ed] his face a little." The DPA's statement to the

jury thus referred to evidence of blood on Willis that was not in

the record and, indeed, misrepresented evidence that was in the

record. This misstatement constituted misconduct.

The DPA's statement minutes later, "So what happened

was that after [Willis] arrived to the beach with a clean white

[t]-shirt, after he stabbed [M.K.], he got blood on it,"

piggybacked on the misstatement of Leal's testimony and also

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introduced new evidence of blood in closing argument. Based on

our review of the record, it appears that the State presented no

evidence that the stains on the white t-shirt depicted in the

videos at issue were or even appeared to be blood. We thus

conclude the DPA's statement that "after he stabbed [M.K.],

[Willis] got blood on [his t-shirt]" also amounted to misconduct.

We turn now to determining whether there is a

reasonable possibility that this misconduct "might have affected

the trial's outcome." Hirata, 152 Hawai#i at 33, 520 P.3d at 231 

(quoting Riveira, 149 Hawai#i at 431, 494 P.3d at 1164). We

consider three factors in applying this standard: (1) the nature

of the DPA's misconduct; (2) the promptness or lack of a curative

instruction; and (3) the strength or weakness of the evidence

against Willis. Id. at 34, 520 P.3d at 232.

In considering the first factor, we note again that the

DPA misrepresented Leal's testimony and referred to evidence of

blood on Willis and on his shirt that was not in the record. 

This blood evidence was woven into the State's case to

incriminate Willis, and clearly could have been viewed by the

jury as circumstantial evidence that Willis stabbed M.K. The

harm from this inference "cannot be overstated" given that the

State presented no evidence that the stains were blood and, if

blood, that it was M.K.'s blood. State v. Pitts, 146 Hawai#i 120,

133, 456 P.3d 484, 497 (2019). The seriousness of the misconduct

is also exacerbated by the State's presumed knowledge that: (1)

no blood was recovered from the white sink, which had been seized

and analyzed by the HPD; and (2) a white shirt belonging to

Willis had been suppressed, having been seized in an illegal

search, and when analyzed, was found not to have blood on it.9/

9/ Defense counsel attested to these facts in a declaration filed in

the Circuit Court, and the State does not dispute them. Instead, the State

argues that there is no evidence that the white shirt seized in the illegal

search was the same shirt Willis was wearing when he allegedly stabbed M.K.,

and that even if it was, it could easily have been washed clean of any DNA

evidence before it was discovered in the illegal search. This misses the

point. The State presented no evidence that the stains on the white t-shirt

depicted in the videos were blood. By waiting until closing argument to

present this "evidence" to the jury, the State precluded Willis from

confronting it. Further, because the illegally seized shirt was suppressed,

the State could not offer explanations as to why it did not contain evidence

of blood. 

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See Willis, 150 Hawai#i at 238, 241, 500 P.3d at 423, 426

(affirming suppression of the shirt).

We next consider whether the court gave prompt curative

instructions. Riveira, 149 Hawai#i at 433, 494 P.3d at 1166. 

Here, the defense did not object to the challenged statements by

the DPA, and the Circuit Court did not step in and give a

curative instruction. The State appears to argue that the

Circuit Court's general instruction to the jury to consider only

the evidence presented, and that statements by lawyers are not

evidence, cured any prejudice caused by the DPA's challenged

statements. However, the general instructions given to the jury

did not neutralize the DPA's misconduct. See id. 

Finally, we conclude that the evidence of Willis's

guilt, though sufficient to support the verdict (see infra), was

not overwhelming. No forensic evidence was presented of blood

found on Willis or the clothing he was wearing. Because M.K. was

the only person that positively identified Willis as her

assailant, the case depended heavily on the credibility of M.K. 

These considerations weigh against a finding of harmlessness. 

See State v. Pitts, 146 Hawai#i 120, 133, 456 P.3d 484, 497 

(2019); State v. Underwood, 142 Hawai#i 317, 329, 418 P.3d 658,

670 (2018) ("When a conviction is largely dependent on a jury's

determination as to the credibility of a complainant's testimony,

we have held that the evidence of the offense is not so

'overwhelming' that it renders the prosecutor's improper

statements harmless beyond a reasonable doubt.").

Based on our evaluation of the three relevant factors,

we conclude that the DPA's improper statements about blood on

Willis and his shirt were not harmless beyond a reasonable doubt. 

Accordingly, there is a reasonable possibility that the

misconduct may have contributed to Willis's conviction, and the

conviction must be vacated.

D. Motions for Judgment of Acquittal and for New Trial

Willis contends that the Circuit Court erred in denying

his motion for judgment of acquittal because "[n]o reasonable

juror could fairly conclude guilt beyond a reasonable doubt from

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the evidence presented by the State even when viewed in the light

most favorable to the State[.]" He similarly contends that the

Circuit Court erred in denying his motion for a new trial because

"the conviction was not supported by substantial or sufficient

evidence" and the court ignored the alleged prosecutorial

misconduct. Willis argues that the State presented no evidence

of motive for the attack, did not recover a weapon used in the

attack, and presented no forensic evidence linking Willis to the

attack. He also challenges the reliability of M.K.'s

identification of Willis as her assailant. 

We review a ruling on a motion for judgment of

acquittal by applying the same standard as the trial court,

namely, "whether, upon the evidence viewed in the light most

favorable to the prosecution and in full recognition of the

province of the trier of fact, the evidence is sufficient to

support a prima facie case so that a reasonable mind might fairly

conclude guilt beyond a reasonable doubt." State v. Angei, 152

Hawai#i 484, 492, 526 P.3d 461, 469 (2023) (quoting State v. Jhun,

83 Hawai#i 472, 481, 927 P.2d 1355, 1364 (1996)). "The granting

or denial of a motion for new trial is within the sound

discretion of the trial court and will not be disturbed absent a

clear abuse of discretion." State v. Williams, 149 Hawai#i 381,

391, 491 P.3d 592, 602 (2021). 

 In order to convict Willis of attempted murder in the

second degree, the State was required to prove beyond a

reasonable doubt that he intentionally engaged in conduct that

was a substantial step in a course of conduct intended or known

to cause M.K.'s death. See HRS §§ 705-500, 707-701.5. The

primary dispute at trial centered on identification of Willis as

M.K.'s assailant. "The testimony of one percipient witness can

provide sufficient evidence to support a conviction." State v.

Pulse, 83 Hawai#i 229, 244, 925 P.d 797, 812 (1996) (citing

Eastman, 81 Hawai#i at 141, 913 P.2d at 67). Appellate courts

"give 'full play to the right of the fact finder to determine

credibility, weigh the evidence, and draw justifiable inferences

of fact.'" Angei, 152 Hawai#i at 492, 526 P.3d at 469 (quoting

Juhn, 83 Hawai#i at 481, 927 P.2d at 1364). 

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M.K., who appears to be the only eyewitness who saw her

assailant in close proximity both before and after the attack,

identified the person depicted in Todd's video as her attacker,

and later identified Willis at trial. The surveillance videos

presented by the State largely corroborated M.K.'s description of

her attacker.

Viewing the evidence in the "light most favorable to

the prosecution and in full recognition of the province of the

trier of fact," there was sufficient evidence to support a prima

facie case so that a reasonable mind might fairly conclude that

Willis was M.K.'s assailant and was guilty beyond a reasonable

doubt of attempted murder in the second degree. See Angei, 152

Hawai#i at 492, 526 P.3d at 469. The Circuit Court's denial of

Willis's motion for judgment of acquittal was not erroneous. 

As to the denial of Willis's motion for a new trial,

the evidence, when viewed in the light most favorable to the

State, was sufficient to support Willis's conviction. However,

the Circuit Court erred in denying Willis's motion for a new

trial based on prosecutorial misconduct, for the reasons

previously discussed. See Williams, 149 Hawai#i at 397, 491 P.3d

at 608. 

III. Conclusion

For the reasons discussed above, we vacate the Amended

Judgment of Conviction and Sentence, entered on July 20, 2022, in

the Circuit Court of the First Circuit, and remand this case for

a new trial.

On the briefs: /s/ Katherine G. Leonard

Acting Chief Judge

Eric A. Seitz,

Della A. Belatti,

Jonathan M.F. Loo, and /s/ Keith K. Hiraoka

Kevin Yoklen Associate Judge

for Defendant-Appellant

Brian Vincent, /s/ Clyde J. Wadsworth

Deputy Prosecuting Attorney, Associate Judge

City & County of Honolulu,

for Plaintiff-Appellee

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