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NO. CAAP-17-0000426

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

MACDON DONNY THROMMAN, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

(CR. NOS. 15-1-216K and 16-1-299K)

MEMORANDUM OPINION

(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)

I. Introduction

Defendant-Appellant Macdon Thromman (Thromman) appeals

from the "Judgment of Conviction and Sentence" (Judgment) entered

on April 18, 2017, by the Circuit Court of the Third Circuit

(Circuit Court).1 As part of his appeal, Thromman also

challenges the Circuit Court's "Findings of Facts and Conclusions

of Law Re: Motion to Determine Voluntariness of Defendant's

Statements" (Voluntariness Order), entered on January 18, 2017,

and the "Findings of Fact and Conclusions of Law Re: Defendant's

Motion to Dismiss Counts 14-15 in Cr. No. 15-1-216K and Counts 1-

27 in Cr. No. 16-1-299K" (Order Denying Dismissal), entered on

January 31, 2017, both in favor of Plaintiff-Appellee State of

Hawai#i (State).

This case arises from a July 13-14, 2015 incident

during which Thromman allegedly assaulted and shot Heather Coito

1 The Honorable Ronald Ibarra presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000426

28-FEB-2022

02:37 PM

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(Heather), the mother of his two minor children who lived with

Thromman at the time. In an ensuing police response by the

Hawai#i Police Department (HPD), Thromman allegedly shot at HPD

Officer Ray Fukada (Officer Fukada) and Officer Dale Ku (Officer

Ku), injuring Officer Fukada in the process. Thromman proceeded

to barricade himself inside his residence, prompting an armed

standoff with HPD that lasted several hours. After failed

attempts by HPD's Crisis Negotiation Team (CNT) to negotiate

Thromman's surrender, HPD deployed oleoresin capsicum (pepper

spray) canisters into his residence. In response Thromman

allegedly fired at HPD officers, including Officer Paul Kim

(Officer Kim). Thromman eventually surrendered to police, and

was indicted on multiple counts.

After a jury trial, Thromman was found guilty on nine

counts: Attempted Murder in the Second Degree, in violation of

Hawaii Revised Statutes (HRS) §§ 705-500(1)(b) (2014)2 and 707-

701.5 (2014)3 (count 3 in Cr. No. 16-1-299K indictment); four

counts of Terroristic Threatening in the First Degree, two being

in violation of HRS §§ 707-715(1) (2014)4

 and 707-716(1)(b)

2 HRS § 705-500(1)(b) provides:

§705-500 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 be,

constitutes a substantial step in a course of

conduct intended to culminate in the person's

commission of the crime.

3 At the time of the offense, HRS § 707-701.5 provided:

[§707-701.5] Murder in the second degree. (1) Except

as provided in section 707-701, a person commits the offense

of murder in the second degree if the person intentionally or

knowingly causes the death of another person.

(2) Murder in the second degree is a felony for which

the defendant shall be sentenced to imprisonment as provided

in section 706-656. 

4 HRS § 707-715(1) provides:

§707-715 Terroristic threatening, defined. A person

commits the offense of terroristic threatening if the person

threatens, by word or conduct, to cause bodily injury to

another person or serious damage or harm to property,

(continued...)

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(2014) and/or 707-716(1)(e) (2014)5 (counts 7 and 8 in Cr. No.

16-1-299K indictment) and two in violation of HRS § 707-715(1)

and HRS § 707-716(1)(e) (counts 17 and 26 in Cr. No. 16-1-299K

indictment); Kidnapping, in violation of HRS §§ 707-720(1)(d)

(2014) and/or 707-720(1)(e) (2014)6 (count 10 in Cr. No. 16-1-

299K indictment); Assault in the First Degree, in violation of

HRS § 707-710 (2014)7 (count 13 in Cr. No. 16-1-299K indictment); 

Reckless Endangering in the Second Degree, in violation of HRS

§ 707-714(1)(b) (2014)8 (count 20 in Cr. No. 15-1-216K

4(...continued)

including the pets or livestock, of another or to commit a

felony:

(1) With the intent to terrorize, or in reckless

disregard of the risk of terrorizing, another

person[.]

5 HRS § 707-716(1)(b) & (e) provides: 

§707-716 Terroristic threatening in the first degree. 

(1) A person commits the offense of terroristic threatening in

the first degree if the person commits terroristic

threatening:

. . . .

(b) By threats made in a common scheme against

different persons[.]

. . . . 

(e) With the use of a dangerous instrument or a

simulated firearm. For purposes of this section,

"simulated firearm" means any object that:

(i) Substantially resembles a firearm;

(ii) Can reasonably be perceived to be a

firearm; or

 (iii) Is used or brandished as a firearm[.]

6 HRS § 707-720(1)(d) & (e) provides:

§707-720 Kidnapping. (1) A person commits the offense

of kidnapping if the person intentionally or knowingly

restrains another person with intent to:

. . . . 

(d) Inflict bodily injury upon that person or subject

that person to a sexual offense;

(e) Terrorize that person or a third person[.]

7 HRS § 707-710 provides:

§707-710 Assault in the first degree. (1) A person

commits the offense of assault in the first degree if the

person intentionally or knowingly causes serious bodily injury

to another person.

(2) Assault in the first degree is a class B felony.

8 HRS § 707-714(1)(b) provides:

(continued...)

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indictment); and Permits to Acquire, in violation of HRS §§ 134-

2(a) (2011)9 and 134-17 (2011)10 (count 21 in Cr. No. 15-1-216K

indictment). 

8(...continued)

§707-714 Reckless endangering in the second degree.

(1) A person commits the offense of reckless endangering in

the second degree if the person:

. . . . (b) Intentionally discharges a firearm in a populated

area, in a residential area, or within the

boundaries or in the direction of any road,

street, or highway; provided that the provisions

of this paragraph shall not apply to any person

who discharges a firearm upon a target range for

the purpose of the target shooting done in

compliance with all laws and regulations

applicable thereto. 

9 At the time of the offense, HRS § 134-2(a) provided: 

§134-2 Permits to acquire. (a) No person shall acquire

the ownership of a firearm, whether usable or unusable,

serviceable or unserviceable, modern or antique, registered

under prior law or by a prior owner or unregistered, either by

purchase, gift, inheritance, bequest, or in any other manner,

whether procured in the State or imported by mail, express,

freight, or otherwise, until the person has first procured

from the chief of police of the county of the person's place

of business or, if there is no place of business, the person's

residence or, if there is neither place of business nor

residence, the person's place of sojourn, a permit to acquire

the ownership of a firearm as prescribed in this section. When

title to any firearm is acquired by inheritance or bequest,

the foregoing permit shall be obtained before taking

possession of a firearm; provided that upon presentation of a

copy of the death certificate of the owner making the bequest,

any heir or legatee may transfer the inherited or bequested

firearm directly to a dealer licensed under section 134-31 or

licensed by the United States Department of Justice without

complying with the requirements of this section.

10 HRS § 134-17 provides: 

§134-17 Penalties. (a) If any person gives false

information or offers false evidence of the person's identity

in complying with any of the requirements of this part, that

person shall be guilty of a misdemeanor, provided, however

that if any person intentionally gives false information or

offers false evidence concerning their psychiatric or criminal

history in complying with any of the requirements of this

part, that person shall be guilty of a class C felony.

(b) Any person who violates section 134-3(a) shall be

guilty of a petty misdemeanor.

(c) Any person who violates section 134-2, 134-4,

134-10, 134-15, or 134-16(a) shall be guilty of a misdemeanor.

Any person who violates section 134-3(b) shall be guilty of a

petty misdemeanor and the firearm shall be confiscated as

contraband and disposed of, if the firearm is not registered

within five days of the person receiving notice of the

violation.

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On appeal, Thromman raises seven points of error,

contending the Circuit Court erred in: (1) the Order Denying

Dismissal because the CNT failed to memorialize or record its

negotiations with Thromman during the armed standoff, thus

depriving Thromman of potentially exculpatory evidence and a fair

trial; (2) the Voluntariness Order because Thromman's statements

made to the CNT during its negotiations were made without any

Miranda warnings, and thus were inadmissible at trial; (3)

denying Thromman's request to include Kidnapping in the merger

instruction for the offenses involving Heather; (4) excluding lay

witness testimony in support of Thromman's Extreme Mental or

Emotional Disturbance (EMED) defense at trial; (5) permitting the

State to recall Heather as a witness and permitting publication

of hearsay statements that were neither denied nor contradicted

by her testimony; (6) admitting the State's Exhibit 431, a news

video portraying Thromman after the incident in police custody

and being placed into a vehicle, into evidence; and (7)

sentencing Thromman to consecutive prison terms without putting

reasons on the record.

After careful review, we conclude the Circuit Court did

not err in its Order Denying Dismissal, and that Thromman waived

his arguments related to the Voluntariness Order because he did

not object to or otherwise challenge the voluntariness of his

statements to the CNT in the Circuit Court. We further conclude

the Circuit Court did not err in admitting the State's Exhibit

431 or in excluding proffered testimony about Thromman's alleged

request for counseling services at work and his having anxiety

attacks preceding the incident in support of his EMED defense.

However, we conclude the Circuit Court erred by

admitting hearsay evidence –- audio recordings of an HPD

interview of Heather -- under Hawai#i Rules of Evidence (HRE)

Rules 802.1 and 613(b), which was relevant to Thromman's

convictions in: count 7, Terrorist Threatening in the First

Degree related to Timothy Coito (Timothy), Heather's father;

count 10, Kidnapping relating to Heather; and count 13, Assault

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in the First Degree related to Heather. We also conclude the

Circuit Court erred in rejecting Thromman's request that the

Kidnapping charge, count 10, be included in a merger instruction

to the jury. We therefore vacate the Judgment with respect to

counts 7, 10, and 13, and remand for a new trial on these counts. 

We further conclude the Circuit Court did not provide

adequate reasons in the record for its imposition of consecutive

sentences for counts 3, 17, and 26. We thus vacate the

consecutive sentences for these counts and remand for further

proceedings so that the Circuit Court may further address

consecutive sentencing for these counts. 

We affirm in all other respects.

II. Background

A. Relevant Pretrial Motions

On August 10, 2015, the State filed a twenty-two count

indictment against Thromman in relation to the July 13-14, 2015

incident in Cr. No. 15-1-216K. On September 12, 2016, Thromman

was re-indicted in Cr. No. 16-1-299K on twenty-seven charges. 

Accordingly, on September 20, 2016, the Circuit Court dismissed

many of the counts in Cr. No. 15-1-216K and the cases were

consolidated on October 14, 2016.

On March 8, 2016, the State filed its Motion to

Determine Voluntariness of Defendant's Statements. The Motion

sought an order determining whether certain statements Thromman

made to HPD during and after the incident, including statements

made to the CNT team during its negotiations, were voluntarily

made. On January 18, 2017, the Circuit Court entered its

Voluntariness Order. It is undisputed that Thromman did not

object to the admission of any statements at the hearings on the

State's motion.

On October 31, 2016, Thromman filed his "Notice of

Motion of Macdon Donny Thromman to Dismiss Counts 14-15 in CR 15-

1-216K and Counts 1-27 in CR 16-1-299K" (Motion to Dismiss). In

his Motion to Dismiss, Thromman argued, inter alia, that twentyeight of the thirty-two charges must be dismissed with prejudice

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due to the State's spoliation of and failure to preserve

potentially exculpatory evidence, including "numerous statements

made by [Thromman] during negotiations with police spanning 20

hours." Thromman asserted that the CNT's failure to record its

negotiations with Thromman during the incident or to keep

adequate notes of the conversations deprived him of crucial

evidence such that it violated his due process right to a fair

trial. On January 17, 2017, the Circuit Court orally denied

Thromman's Motion to Dismiss and entered its Order Denying

Dismissal on January 31, 2017.

B. Relevant Evidence Presented at Trial

On January 17, 2017, a jury trial commenced in the

State's case against Thromman. Relevant to this appeal, the

State introduced the following exhibits into evidence in its case

against Thromman: (1) State's Exhibit 431, a video of media

footage depicting Thromman in police custody and being placed

into a vehicle for transport on the day of the incident; and (2)

State's Exhibits 430E, 430F, 430G, 430I, 430J, 430K, 430L, and

430M, which are audio recordings of various statements that

Heather allegedly made to HPD following the incident. 

As more fully explained in our discussion, the State

sought to introduce State's Exhibit 431 as probative evidence of

Thromman's demeanor and appearance on the day of the incident and

to rebut Thromman's claim that his ability to see was impaired by

pepper spray canisters deployed by HPD. The State sought to

introduce Exhibits 430E-G and 430I-M under HRE Rules 802.1 and

613(b), relating to prior inconsistent statements, to impeach

Heather's testimony at trial that she could not remember making

the statements recorded in her interview with HPD following the

incident. The Circuit Court admitted the aforementioned exhibits

into evidence over Thromman's objection.

As part of his defense, Thromman sought to introduce

the testimony of Jayson Galinato (Galinato) and Kyle Kawai

(Kawai) in support of his claim that he was under the influence

of EMED at the time of the incident. In his offer of proof,

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Thromman asserted that the witnesses would testify that Thromman

had requested to obtain counseling services from his employer in

the days preceding the incident and that Thromman had suffered

multiple anxiety attacks in the months preceding the incident. 

As more fully explained in our discussion, the Circuit Court

ultimately precluded the testimony of both witnesses because it

determined that the evidence was not relevant to show that

Thromman was under the influence of EMED on the day of the

incident and because neither witnesses were qualified to connect

the past behavior to the behavior on the day of the incident.

C. Jury Instruction, Verdict and Sentence

Prior to the case being submitted to the jury, Thromman

requested that the jury be instructed on merger for all offenses

and lesser included offenses involving Heather, including count

10, Kidnapping. The Circuit Court ultimately instructed the jury

regarding potential merger of all charges involving Heather,

except Kidnapping.

After its deliberations, the jury returned guilty

verdicts on nine of the twenty-one charges that went to trial,

which were: count 3, Attempted Murder in the Second degree

(relating to Officer Fukada); counts 7, 8, 17, and 26,

Terroristic Threatening in the First Degree (relating to Timothy,

Ann Coito (Heather's mother), Officer Dale Ku and Officer Paul

Kim); count 10, Kidnapping (relating to Heather); count 13,

Assault in the First Degree (relating to Heather); count 20,

Reckless Endangering in the Second Degree; and count 21, Permit

to Acquire Firearm.

On April 18, 2017, the Circuit Court entered its

Judgment and corresponding sentence. As part of its sentence,

the Circuit Court sentenced Thromman to: life imprisonment with

possibility of parole on count 3, with a mandatory minimum term

of fifteen years; five years imprisonment as to each count on

counts 7 and 8, with a mandatory minimum term of three years,

concurrent with all other charges; twenty years imprisonment on

count 10, with a mandatory minimum term of ten years, concurrent

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with all other charges; ten years imprisonment on count 13, with

a mandatory minimum term of five years, concurrent with all other

charges; five years imprisonment as to each count on counts 17

and 26, with a mandatory minimum term of three years, consecutive

with each other and consecutive with count 3; one year of

imprisonment on count 20, concurrent with all other charges; and

one year of imprisonment on count 21, concurrent with all other

charges.

III. Standards of Review

A. Due Process Right to a Fair Trial

"We answer questions of constitutional law by

exercising our own independent judgment based on the facts of the

case. Thus, we review questions of constitutional law under the

right/wrong standard." State v. Jenkins, 93 Hawai#i 87, 100, 997

P.2d 13, 26 (2000) (internal quotation marks and citations

omitted).

B. Admissibility of Evidence

"As a general rule, [the appellate] court reviews

evidentiary rulings for abuse of discretion." State v. Acacio,

140 Hawai#i 92, 98, 398 P.3d 681, 687 (2017) (alteration in

original) (citing Kealoha v. County of Hawai#i, 74 Haw. 308, 319,

844 P.2d 670, 676 (1993)). "However, when there can only be one

correct answer to the admissibility question, or when reviewing

questions of relevance under Hawai#i Rules of Evidence (HRE)

Rules 401 and 402, [the appellate] court applies the right/wrong

standard of review." Id. (citing Kealoha, 74 Haw. at 319, 844

P.2d at 676) (alteration in original) (other citations omitted).

We review evidentiary rulings under HRE Rules 802.1 and

613(b) under the right/wrong standard. See State v. Ortiz, 91

Hawai#i 181, 189, 981 P.2d 1127, 1135 (1999).

C. Jury Instructions

"[W]hen 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

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misleading." State v. Mark, 123 Hawai#i 205, 219, 231 P.3d 478,

492 (2010) (citation, internal quotation marks, and brackets

omitted). Jury instructions "must be examined in the light of

the entire proceedings and given the effect which the whole

record shows [them] to be entitled." State v. Nichols, 111

Hawai#i 327, 334, 141 P.3d 974, 981 (2006) (citation omitted).

D. Findings of Fact and Conclusions of Law

A circuit court's findings of fact and conclusions of law are

reviewed as follows:

[A] trial court's findings of fact are subject to the

clearly erroneous standard of review. A finding of

fact is clearly erroneous when, despite evidence to

support the finding, the appellate court is left with

a definite and firm conviction that a mistake has been

committed.

A conclusion of law is not binding upon an appellate

court and is freely reviewable for its correctness.

This court ordinarily reviews conclusions of law under

the right/wrong standard. Thus, a conclusion of law

that is supported by the trial court's findings of

fact and that reflects an application of the correct

rule of law will not be overturned. However, a

conclusion of law that presents mixed questions of

fact and law is reviewed under the clearly erroneous

standard because the court's conclusions are dependent

upon the facts and circumstances of each individual

case."

State v. Rapozo, 123 Hawai#i 329, 336, 235 P.3d 325, 332 (2010)

(alteration in original) (citation omitted). 

IV. Discussion

A. HPD's decision not to record its negotiations with

Thromman did not deprive him of his due process rights

to a fair trial.

1. Relevant case authority

 In his first point of error, Thromman asserts that

HPD's decision not to record or adequately memorialize the CNT

negotiations, which he contends would have constituted material

evidence of whether he intended to kill Heather and Officer

Fukada, his EMED defense, and whether his statements to CNT

negotiators were voluntarily made, violated his due process right

to a fair trial. Thromman also contends there is evidence that

HPD acted in bad faith in failing to record the CNT negotiations

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and there was no equivalent evidence available to mitigate the

harm to his defense. Thromman thus asserts the Circuit Court

erred in denying his Motion to Dismiss, and asks this court to

reverse his convictions.

In Arizona v. Youngblood, 488 U.S. 51 (1988), the

United States Supreme Court considered the due process

implications of the prosecution's inadvertent loss or destruction

of potentially exculpatory evidence that had been collected by

law enforcement officials. 488 U.S. at 57-58. The Court

ultimately held that "unless a criminal defendant can show bad

faith on the part of the police, failure to preserve potentially

useful evidence does not constitute a denial of due process of

law." Id. at 58. In State v. Matafeo, 71 Haw. 183, 787 P.2d 671

(1990), the Hawai#i Supreme Court went beyond the majority

decision in Youngblood, and determined that under Hawai#i law,

"[i]n certain circumstances, regardless of good or bad faith, the

State may lose or destroy material evidence which is 'so critical

to the defense as to make a criminal trial fundamentally unfair'

without it." 71 Haw. at 187, 787 P.2d at 673 (emphasis added)

(citing Youngblood, 488 U.S. at 61 (Stevens, J., concurring)). 

Thus, Thromman asserts under Matafeo that dismissal of his case

is appropriate because HPD acted in bad faith in failing to

record or adequately memorialize the CNT negotiations, which he

contends was material to his defense.

We note, however, that Matafeo and Youngblood are

factually distinguishable from the instant case because they both

dealt with the State's failure to preserve potentially

exculpatory evidence that had been collected by the police,

rather than an alleged failure of law enforcement officials to

collect, or in this case create evidence in the first instance

(i.e., to record or memorialize the CNT negotiations). See

Matafeo, 71 Haw. at 184, 787 P.2d at 672 (noting police

inadvertently destroyed all physical evidence collected relating

to appellant's case); Youngblood, 488 U.S. at 53-54 (noting the

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State failed to properly preserve samples and evidence of sexual

assault).

Other jurisdictions have recognized that law

enforcement officials generally have no duty to collect

particular evidence at the crime scene. See Miller v. Vasquez,

868 F.2d 1116, 1119-20 (9th Cir. 1989) (noting that the

government's duty to preserve evidence does not impose a duty to

obtain evidence); State v. Ware, 881 P.2d 679, 683 (N.M. 1994)

(noting that "[u]sually, the failure to gather evidence is not

the same as the failure to preserve evidence, and that the State

generally has no duty to collect particular evidence at the crime

scene" (citations omitted)); State v. Steffes, 500 N.W. 2d 608,

612 (N.D. 1993) (holding that "[p]olice generally have no duty to

collect evidence for the defense"); People v. Bradley, 205 Cal.

Rptr. 485, 488 (Cal. Ct. App. 1984) (holding that the duty to

preserve evidence does not encompass an initial duty to gather or

collect or seize potential evidence at the scene of the crime for

defendant's use); Taylor v. State, 335 P.3d 1218, 1222 (Mont.

2014) (holding police officers have no duty to assist in

procuring evidence for a defendant, and "[a] defendant must show

bad faith to prove a due process violation when lost evidence is

only potentially exculpatory, rather than apparently

exculpatory").

In Miller, the Ninth Circuit Court of Appeals discussed

the due process implications of the government's failure to

collect potentially exculpatory evidence. 868 F.2d at 1119-21

(discussing whether police failure to collect victim's

bloodstained jacket and to photograph defendant's scratched arms

violated defendant's due process right to a fair trial). The

court first noted that while "the government may have a duty to

preserve evidence after the evidence is gathered and in

possession of the police[,]" such duty "[does] not impose a duty

to obtain evidence." 868 F.2d at 1119 (emphases in original)

(citations omitted).

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The court did, however, hold that "a bad faith failure

to collect potentially exculpatory evidence would violate the due

process clause." Id. at 1120. The court reasoned that, just as

in Youngblood,

limiting the scope of the due process clause in this context

to a bad faith failure to collect such evidence "both limits

the extent of the police's obligation . . . to reasonable

bounds and confines it to that class of cases where the

interests of justice most clearly require it, i.e., those

cases in which the police themselves by their conduct

indicate that the evidence could form a basis for

exonerating the defendant.

Id. (ellipses in original) (quoting Youngblood, 488 U.S. at 58). 

For purposes of this case, we need not decide whether

to adopt the articulation of due process rights set forth in

Miller regarding the failure to collect potentially exculpatory

evidence. As discussed below, even assuming arguendo that the

Miller rule applied, the Circuit Court properly found no bad

faith on the part of HPD.

2. The Circuit Court did not err in its order denying

dismissal

The Circuit Court's conclusion that Thromman's due

process rights were not violated based on the failure of officers

to record or memorialize the CNT negotiations was dependent on

the Circuit Court's relevant findings of fact. We therefore

review the Circuit Court's Order Denying Dismissal under the

clearly erroneous standard. See Rapozo, 123 Hawai#i at 336, 235

P.3d at 332. "In the absence of evidence of bad faith by the

State, we cannot presume that the police detectives involved in

the investigation will be less than truthful about the evidence." 

Matafeo, 71 Haw. at 188, 787 P.2d at 674. In its Order Denying

Dismissal, the Circuit Court concluded that Thromman made "no

showing of materiality or bad faith by the actions of the [HPD,]"

and thus denied his Motion to Dismiss.

Thromman asserts there is evidence that HPD acted in

bad faith in its decision not to record or adequately memorialize

the CNT negotiations. Thromman asserts: (1) the responding CNT

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officers had all acknowledged they were informed that Thromman

had shot fellow HPD Officer Fukada, and thus had an "animus"

toward defendant; (2) HPD had also disregarded potentially

exculpatory evidence in executing a search warrant of the

premises after the shooting occurred; (3) HPD's "implausible and

contradictory excuses" for not recording the negotiations; and

(4) HPD Sergeant Reynold Kahalewai's (Sergeant Kahalewai)

decision making on the days of the incident and his delayed

production of his police report and handwritten notes of the

incident. In light of the Circuit Court's findings, which are

unchallenged, these assertions do not convince us that HPD acted

in bad faith in not recording the CNT negotiations.

In its Order Denying Dismissal, the Circuit Court made

relevant findings of fact regarding HPD and the CNT's response to

the July 13-14, 2015 incident, which are not challenged by

Thromman and are thus binding on this Court. See Rapozo, 123

Hawai#i at 334 n.4, 235 P.3d at 330 n.4. The Circuit Court's

findings indicated that on the day of the incident, HPD officers

retrieved CNT equipment to potentially be used in the ongoing

negotiations with Thromman. Such equipment included a "throw

phone," which is a device that can be thrown to a barricaded

person that allows police to communicate with that person. The

"throw phone" is connected to a "call box" by a cable line, and

the "call box" is capable of recording the conversations on a

cassette tape. HPD did not use the "throw phone" to communicate

with Thromman during the incident, and instead communicated with

him primarily through the land line located in the North Kohala

Police Station.

The Circuit Court found that,

[i]n this case, the throw phone was not optimal because of

the dangerousness of the situation, their Ford 250 was not

bullet proof, negotiations were on-going prior to the

equipment arriving, and there was not enough cable between

the North Kohala Police Station and the house Defendant

barricaded himself within. If the call box were to be used,

the phone company's assistance was necessary to enable

officers to use the call box with the station phone; this

would interfere with ongoing negotiations.

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As indicated in the Circuit Court's findings, HPD had strategic,

practical, and safety reasons for not using the "throw phone" to

negotiate with Thromman or to record the conversations with the

"call box". The findings also indicate that CNT negotiators did

not conduct negotiations with Thromman on a speaker phone

"because the background noise would make it difficult to

negotiate with [Thromman]" and because Sergeant Kahalewai "was

concerned that [Thromman] would hear things not intended for

him." Thus, it was not feasible for HPD to conduct the

negotiations on speaker phone so that a scribe could transcribe

or record the conversations. 

Further, as the Circuit Court noted in its conclusions

of law, HPD and CNT members were responding to an emergency

situation where Thromman was armed and had allegedly shot Heather

and Officer Fukada. Thus, the Circuit Court found that HPD was

concerned with the immediate barricaded situation and was not

concerned with recording the negotiations. 

Based on the record, the Circuit Court did not err in

denying Thromman's Motion to Dismiss.

B. Thromman's challenge to the Circuit Court's Order

Granting the State's Motion to Determine Voluntariness

was not asserted below and is thus waived.

For the first time on appeal, Thromman asserts that his

statements made to the CNT negotiators during the July 13-14,

2015 negotiations were inadmissible because they were elicited

through a custodial interrogation of Thromman, where no Miranda11

warnings were given. Thromman concedes that he did not object to

the admissibility of these statements at the time of the hearing

on the State's Motion to Determine Voluntariness. "As a general

rule, if a party does not raise an argument at trial, that

argument will be deemed to have been waived on appeal; this rule

applies in both criminal and civil cases." State v. Moses, 102

Hawai#i 449, 456, 77 P.3d 940, 947 (2003) (citation omitted). 

11 Miranda v. Arizona, 384 U.S. 436 (1966). 

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Thus, Thromman has waived the issue and we need not discuss it

further.

C. Generalized testimony of Thromman's alleged attempt to

obtain counseling and anxiety attacks preceding the

incident, without more, was not relevant to Thromman's

EMED defense.

In count 3, Thromman was convicted of Attempted Murder

in the Second Degree for shooting Officer Fukada. In his fourth

point of error, Thromman asserts the Circuit Court erred in

excluding the testimony of Galinato and Kawai in support of his

EMED defense. Galinato and Kawai were friends of Thromman, and

Galinato was also Thromman's supervisor at work. Thromman

asserts that Galinato’s and Kawai's testimony regarding

Thromman's mental state in the days and months preceding the

incident were "highly relevant evidence of his subjective sense

that he desperately needed professional help[,]" and were thus

relevant to his EMED defense to the attempted murder charge. We

disagree.

"EMED is an affirmative defense to murder or attempted

murder, 'which reduces the offense to manslaughter or attempted

manslaughter' if 'the defendant was, at the time the defendant

caused the death of the other person, under the influence of

extreme mental or emotional disturbance for which there is a

reasonable explanation.'" State v. Adviento, 132 Hawai#i 123,

137, 319 P.3d 1131, 1145 (2014) (emphasis added) (footnote and

citation omitted). "The reasonableness of the explanation shall

be determined from the viewpoint of a reasonable person in the

circumstances as the defendant believed them to be." Id.

(quotation marks and citation omitted).

At trial, Thromman sought to introduce the testimony of

Galinato and Kawai to support his EMED defense. Specifically,

Thromman anticipated that Galinato would testify to his knowledge

of Thromman's efforts in the days preceding the incident to

obtain counseling services offered through his employer for

stress related issues with his work and family that was

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ultimately denied.12 Thromman anticipated that Kawai would

testify that Thromman had suffered from multiple debilitating

anxiety attacks in the months preceding the incident. Thromman

asserted that the evidence of his prior efforts to obtain

counseling and his anxiety attacks preceding the incident were

relevant to his behavior on the day of the incident, including

whether there was a reasonable explanation that he was under the

influence of EMED at the time of the incident. Thromman also

asserted that each witness's testimony would be offered to show

Thromman's then-existing state of mind or physical condition. 

The Circuit Court ultimately precluded Galinato and

Kawai's testimony because it determined that it would be

irrelevant to Thromman's EMED defense without other evidence such

as medical expert testimony, or Thromman himself, to connect the

past behavior, i.e., him seeking counseling for stress and his

alleged anxiety attacks, to his behavior on the day of the

incident. The Circuit Court indicated that as lay witnesses,

Galinato and Kawai were not qualified to relate the previous

instances of stress and anxiety attacks to how Thromman had acted

on the day of the incident. Also, it appears the Circuit Court

believed that only a medical expert could speak to the "medical

probability" of the relation of Thromman's prior conduct to his

state of mind at the time of the incident.

The Circuit Court noted that it would have been more

inclined to allow Galinato and Kawai's testimony had there been

other evidence that Thromman was suffering from EMED at the time

of the incident. However, the Circuit Court ultimately

disallowed the testimony based on the "state of the record" at

that point in trial, noting that if other witnesses could lay

other foundation it may allow the testimony.

We first note the Circuit Court erred to the extent

that it appeared to require Thromman to present medical expert

12 Thromman indicated that he was unsure of the exact date of when

Galinato had become aware of Thromman's efforts to obtain counseling, but he

stated that he believed it was in the days immediately preceding the incident. 

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testimony in support of his EMED defense. The Supreme Court of

Hawai#i has explained that "[e]xpert testimony about defendant

being under the influence of extreme mental or emotional

disturbance for which there is a reasonable explanation is

allowable, since such a disturbance can reduce a murder to

manslaughter." State v. Klafta, 73 Haw. 109, 117, 831 P.2d 512,

517 (1992) (emphasis added) (citation omitted). However, we have

previously noted we were "not rul[ing] that expert testimony is

required to explain a defendant's mental or emotional

disturbance." State v. Tyquiengco, 6 Haw.App. 409, 411 n.2, 723

P.2d 186, 188 n.2 (1986). Thus, the Circuit Court erred in

excluding Galinato's and Kawai's testimony to the extent that it

found that medical expert testimony was required.

However, the Circuit Court's error was harmless because

Galinato's and Kawai's proffered testimony was not relevant to

whether Thromman was under the influence of EMED at the time of

the incident or whether there was a reasonable explanation for

the disturbance at that time. As this court explained in State

v. Pavich, "the relevant inquiry is whether the defendant was

under the influence of an EMED 'at the time he [committed the

crime].'" 119 Hawai#i 74, 88-89, 193 P.3d 1274, 1288-89 (App.

2008) (emphasis and alteration in original) (quoting State v.

Moore, 82 Hawai#i 202, 210, 921 P.2d 122, 130) (1996)). 

Moreover, as the Hawai#i Supreme Court has explained, "EMED

manslaughter is the intentional or knowing killing of another

while under the influence of a reasonably induced emotional

disturbance causing a temporary loss of normal self-control, as

described in HRS § 707–702(2)." State v. Aganon, 97 Hawai#i 299,

304, 36 P.3d 1269, 1274 (2001) (emphasis added) (brackets,

ellipsis, and internal quotations omitted) (citing State v.

Sawyer, 88 Hawai#i 325, 333, 966 P.2d 637, 645 (1998)).

As Heather testified, on the evening of the incident,

Thromman "wanted to work things out" with Heather but Heather

told him she "didn't want to." Sergeant Kahalewai also testified

to receiving information that Heather had told Thromman she was

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seeing someone else. Heather further testified that after she

told Thromman she did not want to work things out, Thromman "got

mad" and "left [to get] a rifle." When Thromman returned, he

continued to ask Heather to work things out to which she

responded she did not want to and they continued "arguing back

and forth about [their relationship]." The situation got worse

from there.

Given the record in this case, there was no proffer

that either Galinato or Kawai could testify to Thromman's state

of mind on the day of the incident, or that they could provide a

link between Thromman's alleged prior anxiety attacks and attempt

to seek counseling from his employer to his behavior on the day

of the incident. Without such a link, the proffered evidence was

not probative of the presence or reasonableness of Thromman's

alleged EMED when he shot Officer Fukada, for purposes of count

3. See State v. Lavoie, 145 Hawai#i 409, 426, 453 P.3d 229, 246

(2019) as corrected (Dec. 2, 2019). In Lavoie, the Hawai#i

Supreme Court held that evidence of a defendant's prior abuse

against his wife was not probative as to his state of mind at the

time he shot her or the reasonableness of his state of mind,

explaining:

the evidence of Lavoie's prior abuse had little, if any,

probative value as to his state of mind at the time of the

shooting or to its reasonableness. Lavoie's EMED defense

stemmed from the stress that he felt after Kahalewai said

she would leave him, coupled with Kahalewai's insults and

references to his childhood sexual trauma immediately prior

to the shooting. The evidence of his prior abuse of

Kahalewai was not probative of the presence or

reasonableness of Lavoie's EMED because the witnesses

testifying to the incidents did not link the abuse to

Kahalewai leaving Lavoie. Absent such a link, Lavoie's

prior bad acts were not relevant to the reasonableness of

Lavoie's EMED at the time of the shooting.

Id. (emphases added).

Further, the Hawai#i Supreme Court has explained that

generalized testimony such as evidence of defendant's propensity

to lose her temper in stressful situations and that the infant

victim could cry a lot, without more, is not probative to whether

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defendant had acted under a loss of self-control resulting from

EMED during the incident. State v. Aganon, 97 Hawai#i at 304, 36

P.3d at 1274. Applied here, the proffer of Galinato's and

Kawai's generalized testimony that Thromman had attempted to

obtain counseling for stress related to work and family in the

days preceding the incident, or that he had suffered anxiety

attacks in the months preceding the incident, without more, was

not probative to whether Thromman had acted under a reasonably

induced emotional disturbance causing a temporary loss of normal

self-control when he shot Officer Fukada.

In this case, the Circuit Court did not err in

precluding Galinato and Kawai from testifying.

D. The Circuit Court did not abuse its discretion in

admitting video evidence of Thromman in police custody

on the day of the incident.

In his sixth point of error, Thromman asserts the

Circuit Court abused its discretion in admitting into evidence

State's Exhibit 431. State's Exhibit 431 was media footage

depicting Thromman on the day of the incident in police custody

and being placed into a vehicle for transport. The State offered

Exhibit 431 as probative evidence to show Thromman's demeanor on

the day of the incident and to rebut Thromman's argument that the

deployed pepper spray canisters had affected Thromman's ability

to see. Thromman contends such evidence was irrelevant and that

any probative value of the video was substantially outweighed by

the danger of unfair prejudice. We disagree and conclude the

Circuit Court did not abuse its discretion in admitting the

State's Exhibit 431.

"Relevant evidence may be excluded pursuant to HRE Rule

403 'if its probative value is substantially outweighed by the

danger of unfair prejudice[.]'" State v. Pasene, 144 Hawai#i

339, 362, 439 P.3d 864, 887 (2019) (alteration in original). 

Here, Thromman asserts that State's Exhibit 431 was irrelevant to

show Thromman's demeanor and ability to see because the video was

recorded more than an hour after the pepper spray canisters were

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deployed and in any event Thromman was too far away from the

camera for the jury to actually observe his eyes or his demeanor. 

Thromman also asserts that whatever minimal probative value that

the video had was substantially outweighed by the danger of

unfair prejudice because viewing the media clip may have

potentially evoked the jury's memories of the news coverage of

the incident and because it shows Thromman in custody. 

As to the probative value of the video, the Circuit

Court noted that the video was the only evidence that depicted

what Thromman looked like on the day of the incident. Therefore,

it was probative to show his demeanor and his appearance on the

day of the incident. We further note that the danger of unfair

prejudice was low. As both the State and Thromman acknowledged,

the evidence introduced at trial established that Thromman was

taken into police custody after the incident.13 Any prejudice

from viewing the video of Thromman in police custody did not

substantially outweigh the probative value of the video. We

conclude the Circuit Court did not abuse its discretion in

admitting State's Exhibit 431 into evidence.

E. The Circuit Court erred in permitting the admission of

Heather's hearsay statements under HRE Rule 802.1 as

substantive evidence.

In his fifth point of error, Thromman asserts the

Circuit Court erred in permitting Heather to be recalled at the

end of the State's case-in-chief to admit audio recordings of

certain statements that she made to HPD after the incident. The

State sought to introduce the audio recordings at trial under the

hearsay exception for prior inconsistent statements set forth in

13 The State offered Exhibit 431 through the testimony of HPD Officer

Joseph Stender (Officer Stender), one of the HPD officers who took Thromman

into custody. Officer Stender testified, inter alia, to his recollection of

Thromman being placed in custody and transported on the day of the incident.

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HRE Rule 802.114 and 613(b).15 We conclude the audio recordings

were improperly admitted under HRE Rule 802.1 because Heather was

not capable of testifying substantively about the events

described in her prior statement such as to allow the jury to

meaningfully compare the prior version of the event with the

version recounted at trial. See State v. Canady, 80 Hawai#i 469,

480-81, 911 P.2d 104, 115-16 (App. 1996); State v. Clark, 83

Hawai#i 289, 295, 926 P.2d 194, 200 (1996).

The prior statements that the State introduced at trial

were excerpts from an interview of Heather that was conducted and

recorded days after the incident by HPD Detective Sandor Finkey

(Detective Finkey). Detective Finkey interviewed Heather while

she was in the hospital, where she allegedly made the following

statements about the incident that were memorialized in State's

Exhibits 430E, 430F, 430G, 430I, 430J, 430K, 430L, and 430M as

follows:

430E: "He stand up and he told me 'You're gonna die

tonight.' 'If I cannot have you, nobody can have you,

you gonna die'."

430F: "And um he came in the front room the kid's room..., I

just put my son down to sleep and he was yelling at

me, 'Fuck you, you fucking bitch. You're gonna

die[.]"

430G: Q. When you say he punched you, do you recall um ah

with what?

A. His fist.

Q. And he punch with, with what fist he punch you

with, the left or the right or, or both?

A. His left hand.

Q. Okay.

A. Closed fist, he punched me twice.

430I: "[A]nd he told me I'm gonna grab the hammer and I

wanna bash your head in[.]"

14 The relevant language of HRE Rule 802.1 is quoted in our discussion

below.

15 HRE Rule 613(b) provides:

(b) Extrinsic evidence of prior inconsistent statement of

witness. Extrinsic evidence of a prior inconsistent statement

by a witness is not admissible unless, on direct or

cross-examination, (1) the circumstances of the statement have

been brought to the attention of the witness, and (2) the

witness has been asked whether the witness made the statement.

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430J: "I just made it right out the kitchen door and he told

me you better get your ass in this house before I

shoot you. And that's when he cock the gun and he

shot me in my, in my thigh."

430K: "Um he laughed at me, he said good for me, you

deserved it, and I better stay there or he's gonna put

another bullet to the back of my head. But when he

shot me in my thigh, I passed out for a little while. 

I woke up and that's when I lean myself against the

wall and I sat there and he was just laughing at me

after."

430L: "Um he went, he went in the kitchen, he grab some ah

gallon water and he was throwing water at my face,

telling me if I'm thirsty. Here drink some water you

fucking bitch, drink some water, drink some water

cause you're gonna die[.]"

430M: "[A]nd he told my daddy better turn around and get the

fuck out of here cause he's gonna kill him too."

At trial, the State directly examined Heather as a

witness and elicited testimony from her about her recollection of

the incident. After recounting the incident, Heather testified

that she did not remember parts of the night. The State then

questioned her about her recorded interview with Detective

Finkey, and whether she had an opportunity to listen to it prior

to testifying at court. Heather acknowledged that she listened

to the recording, and that she recognized her voice in the

recording.16 However, Heather indicated that she could not

recall most of the events she described in the audio recording,

noting that she could only remember having her fingers slammed in

the door, getting shot in the leg, having various injuries to her

head, and that Thromman had told her she "better stay." Heather

also testified that she could not remember what she had told the

HPD officers during the interview because she claimed that she

had "been on a lot of medications."

The State proceeded to question Heather whether she

remembered making specific statements recorded in her interview,

including statements reflected in State's Exhibits 430E-G and

430I-M, to which she continued to claim she could not recall. At

16 Heather also indicated that she initialed the copy of the recording

after listening to it.

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the end of the State's direct examination, Heather acknowledged

that she testified to all that she could remember from what

happened during the incident. On cross-examination, Heather

again acknowledged that she recognized her voice in the audio

recording but could not recall whether she made some of those

statements, or the accuracy of some of those statements. The

Circuit Court then dismissed Heather, subject to recall.

The State recalled Heather near the end of its case-inchief. At the hearing on Thromman's motion in limine opposing

Heather's recall, the State indicated that it sought to admit

redacted portions of the recorded interview under HRE Rules 802.1

and Rule 613(b) to impeach her prior testimony that she could not

remember making certain statements or could not recall being

punched or slapped by Thromman. Thromman argued to the Circuit

Court that the recordings could not be brought in as substantive

evidence because Heather never denied making those statements,

but rather testified that she no longer remembered the events

pertaining to those statements. The Circuit Court ultimately

determined that it would allow the State to recall Heather to

impeach her on the statements she testified to not remembering. 

The Circuit Court also noted that based on Heather's demeanor

during hearings in this case, and her testimony that she did not

remember some of the events, it was the Court's evaluation that

Heather was more aligned to the defense than the State.

In its direct examination on recall, the State

specifically questioned Heather whether she had made the

statements recorded in her interview with Detective Finkey, to

which she continued to assert that she could not remember. The

Circuit Court then conducted an HRE Rule 104 (preliminary

questions concerning the qualification of a person to be a

witness) hearing outside the presence of the jury so that the

State could establish foundation regarding the identification of

voices in the State's exhibits. At the conclusion of the HRE

Rule 104 hearing the Circuit Court admitted the recordings into

evidence, and stated the following:

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The Court: So the 430 series whether it's, uh, E which

was received into evidence the Court, uh, would state that,

yes, uh, the witness is -- the witness did testify she did

not remember making those statements on the exhibit.

However, she did acknowledge that's her voice.

The Court has also heard the detective who recorded

the statements state the demeanor under which the witness

has made those statements. The Court has also considered

the relationship between the witness and the defendant.

And it is true generally a witness who claims to have

forgotten the matter previously asserted, uh, there is no

inherent contradiction because memories do fade and the

witnesses may be telling the truth about not being able to

recollect.

On the other hand a witness who basically states,

"Don't recall" or inability to remember may not escape

cross-examination or -- or, uh, examination, uh, by

asserting no recollection or not remember making the

statements.

And in admitting these exhibits the Court has

considered and heard the tape of the witness's demeanor, the

voice on the tape, the detailed statements on the tape by

the witness and the relationship between the parties.

The Court also would note that the witness is here to

be cross-examined by the -- a party who wishes to examine on

the statement in the exhibits. So that's the reason the

Court is allowing these exhibits.

(Emphasis added.) During the hearing, the Circuit Court also

acknowledged its determination that "with respect to [Heather]

saying that she doesn't recall . . . . the Court will consider

that inconsistent." Once the jury was reconvened, the Circuit

Court allowed the State to publish the audio recordings, and the

Circuit Court gave no limiting instructions to the jury.17

Finally, on cross-examination during recall, Heather

once again testified that she recognized her voice in the

recordings and that she did not deny making those statements to

17 Prior to Heather's recall, the Circuit Court received State's

Exhibits 430E-G, and 430I-L into evidence "subject to further foundation from

[Heather]" through the testimony of Detective Finkey. During the State's

direct examination, Detective Finkey was asked whether Heather had made the

statements recorded in the State's exhibits, to which he responded yes. The

Circuit Court gave limiting instructions to the jury that Detective Finkey's

responses are not to be considered for the truth of the matter asserted.

Heather and Detective Finkey were recalled later that day to admit

State's Exhibit 430M in a substantially similar manner.

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Detective Finkey. However, Heather testified that she could not

remember being interviewed in the hospital. Heather also

testified that the only thing she could remember about the event

described in the audio recording was that Thromman had closed the

door on her, and that she told him to move out of the way so that

she could leave the house.

We conclude the State's exhibits were not admissible

under HRE Rule 802.1 as substantive evidence of the matters

stated on the recordings because Heather testified she could not

recall the events described in the audio recordings and thus was

not subject to cross-examination concerning the "subject matter"

of her prior statements. 

HRE Rule 802.1(1) provides as follows:

The following statements previously made by witnesses who

testify at the trial or hearing are not excluded by the

hearsay rule:

(1) Inconsistent statement. The declarant is subject

to cross-examination concerning the subject

matter of the declarant's statement, the

statement is inconsistent with the declarant's

testimony, the statement is offered in compliance

with rule 613(b), and the statement was:

(A) Given under oath subject to the penalty of

perjury at a trial, hearing, or other

proceeding, or in a deposition; or

(B) Reduced to writing and signed or otherwise

adopted or approved by the declarant; or

(C) Recorded in substantially verbatim fashion

by stenographic, mechanical, electrical, or

other means contemporaneously with the

making of the statement[.]

(Emphasis added.) As this court explained:

[T]he rule was intended to exclude the prior

statements of a witness who could no longer remember the

underlying events described in the statement. Absent the

opportunity to cross-examine a witness about the material

events described in a prior statement, the statement would

lack one of the twin guarantees of trustworthiness

supporting its admissibility as substantive evidence of the

matters asserted in the statement.

Hence, unlike FRE Rule 801(d)(1), HRE Rule 802.1(1)

requires more of the witness than just that he or she be

placed on the stand, under oath and respond willingly to

questions. We hold that HRE Rule 802.1(1) requires, as a

guarantee of the trustworthiness of a prior inconsistent

statement, that the witness be subject to cross-examination

about the subject matter of the prior statement, that is,

that the witness be capable of testifying substantively

about the event, allowing the trier of fact to meaningfully

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compare the prior version of the event with the version

recounted at trial before the statement would be admissible

as substantive evidence of the matters stated therein.

State v. Canady, 80 Hawai#i at 480-81, 911 P.2d at 115-16

(emphases added) (footnote, internal quotation marks, citations,

and brackets omitted). Here, the requirement of HRE Rule

802.1(1) that "[t]he declarant is subject to cross-examination

concerning the subject matter of the declarant's statement" was

not satisfied because Heather testified that she was unable to

recall the events that she allegedly described in the audio

recordings. See id. at 481, 911 P.2d at 116. 

While Heather testified to her recollection of the

incident, she continually testified that she could not remember

the events that she described in the audio recordings, that is,

whether Thromman had threatened her before and after he had shot

her, whether Thromman had punched her, whether Thromman

threatened to kill her father, or whether Thromman threatened to

kill her if she left the house. Thus, Thromman was not afforded

the opportunity to have Heather fully explain to the trier of

fact why her testimony may have been inconsistent with her out of

court statements to enable the jury to determine where the truth

lay. See Clark, 83 Hawai#i at 295, 926 P.2d at 200.

As explained above, while the Circuit Court noted that

Heather was available at trial for cross-examination, "HRE Rule

802.1(1) requires more of the witness than just that he or she be

'placed on the stand, under oath and respond willingly to

questions.'" Canady, 80 Hawai#i at 480, 911 P.2d at 115

(citation and brackets omitted). Accordingly, because Heather

could not testify substantively about the specific material

events described in the audio recording, Thromman was not

afforded the opportunity to cross-examine her about the subject

matter of the prior statement to allow the jury to meaningfully

compare the prior version of the incident with the version

recounted at trial. See id. at 480-81, 911 P.2d at 115-16.

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We further note that the Circuit Court gave no limiting

instructions to the jury when the State's exhibits were

published. Accordingly, even if the audio recordings were

properly introduced as extrinsic evidence to impeach Heather on

her prior "inconsistent" statements, the failure to instruct the

jury that the evidence was not to be considered as substantive

evidence of Thromman's guilt was error. See Clark, 83 Hawai#i at

296, 926 P.2d at 201 (noting that if extrinsic evidence of

witness's prior inconsistent statements was admissible only for

purposes of impeachment, then the failure to instruct that the

evidence was not to be considered as substantive evidence of

defendant's guilt may have been error).

The State, citing State v. Fields, 115 Hawai#i 503, 168

P.3d 955 (2007), responds that the fact Heather appeared at trial

and testified was sufficient to satisfy the requirements of the

confrontation clause. However, Thromman's point of error

challenges the admission of the audio recordings as inadmissible

hearsay, improperly admitted under HRE Rules 802.1 and 613(b). 

Thromman does not challenge based on the confrontation clause.18

The State also asserts the Circuit Court had an

adequate basis to determine that Heather's claim of lack of

memory was not credible, and thus inconsistent with her prior

recorded statements. However, the State fails to point to any

authority that such a determination was relevant in admitting the

audio recordings under HRE Rules 802.1 and 613(b).

Finally, we conclude the admission of the audio

recordings as substantive evidence of Thromman's guilt was not

harmless, in that "there is a reasonable possibility that the

error complained of might have contributed to the conviction." 

18 Different tests apply regarding the confrontation clause and HRE

Rule 802.1. With regard to the confrontation clause, the Hawai#i Supreme

Court noted that "this court has not adopted HRE Rule 802.1 as its test for

whether a witness appears at trial for cross-examination." See State v. Delos

Santos, 124 Hawai#i 130, 149-50, 238 P.3d 162, 181-82 (2010) (declining to

interpret Fields to require cross-examination regarding the subject matter of

the statement to satisfy the confrontation clause).

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State v. Balisbisana, 83 Hawai#i 109, 114, 924 P.2d 1215, 1220

(1996) (citation and internal quotation marks omitted). In the

audio recordings, Heather stated, inter alia, that Thromman had

threatened to kill her and her father, had punched her with a

closed fist, had laughed at her after shooting her, and had

threatened to kill her if she attempted to leave the house. As

challenged by Thromman, this evidence was admitted as substantive

evidence when Heather was recalled as a witness by the State, and

was not used only to impeach Heather. Such evidence was

probative regarding Thromman's convictions on count 7

(Terroristic Threatening in the First Degree relating to

Timothy), count 10 (Kidnapping relating to Heather), and count 13

(Assault in the First Degree relating to Heather).

Therefore, Thromman's convictions on counts 7, 10, and

13 must be vacated, and the case remanded for a new trial on

these counts.

F. The Circuit Court erred in denying Thromman's request

to include Kidnapping in the merger instruction for the

offenses involving Heather.

In his third point of error, Thromman contends the 

Circuit Court erroneously denied his request to include

Kidnapping in the merger instruction for the offenses involving

Heather. Thromman asserts this failure prevented the jury from

considering whether Kidnapping was part of the same course of

conduct as Assault in the First Degree against Heather. 

Consequently, Thromman argues the convictions for Kidnapping and

First Degree Assault should be vacated and remanded for the State

to elect to dismiss one of the convictions or retry the charges

with a merger instruction, pursuant to State v. Padilla, 114

Hawai#i 507, 509-10, 164 P.3d 765, 767-68 (App. 2007), as

corrected (Aug. 16, 2007). We agree that Kidnapping should have

been included in the merger instruction.

The Hawai#i Supreme Court has stated:

Generally, when the same conduct of a defendant may

establish an element of more than one offense, the

defendant may be prosecuted for each offense of which

such conduct is an element. HRS § 701-109(1) (1993).

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A defendant may not, however, be convicted of more

than one offense if the offense is defined as a

continuing course of conduct and the defendant's

course of conduct was uninterrupted, unless the law

provides that specific periods of conduct constitute

separate offenses. HRS § 701-109(1)(e).[19] Thus,

this court has concluded that only one crime is

committed when (1) there is but one intention, one

general impulse, and one plan, (2) the two offenses

are part and parcel of a continuing and uninterrupted

course of conduct, and (3) the law does not provide

that specific periods of conduct constitute separate

offenses.

State v. Martin, 146 Hawai#i 365, 389, 463 P.3d 1022, 1046

(2020), as corrected (Apr. 23, 2020), reconsideration denied, No.

SCWC-14-0001090, 2020 WL 2538923 (Haw. May 19, 2020) (citing

Lavoie, 145 Hawai#i at 431-33, 453 P.3d at 251-53; State v.

Matias, 102 Hawai#i 300, 75 P.3d 1191 (2003)) (brackets and

footnote added).

Whether a defendant's conduct constitutes "separate and

distinct culpable acts or an uninterrupted continuous course of

conduct" is a question for the trier of fact. Martin, 146

Hawai#i at 390, 463 P.3d at 1047. "And, the jury should also be

required to determine whether [the defendant] had one intention,

one general impulse, and one plan to commit both offenses." Id.

(citing Lavoie, 145 Hawai#i at 433, 453 P.3d at 253 (holding the

determination of merger must be made by the trier of fact)).

19 HRS § 701-109(1)(e) (2014) provides:

HRS §701-109 Method of prosecution when conduct

establishes an element of more than one offense. (1) When the

same conduct of a defendant may establish an element of more

than one offense, the defendant may be prosecuted for each

offense of which such conduct is an element. The defendant may

not, however, be convicted of more than one offense if:

. . . .(e) The offense is defined as a continuing course of

conduct and the defendant's course of conduct was

uninterrupted, unless the law provides that

specific periods of conduct constitute separate

offenses.

"This subsection reflects a policy to limit the possibility of multiple

convictions and extended sentences when the defendant has basically engaged in

only one course of criminal conduct directed at one criminal goal, or when it

would otherwise be unjust to convict the defendant for more than one offense."

HRS § 709-109 cmt.

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The State contends that it can be inferred from

Heather's testimony that the act and intent of Thromman by

keeping Heather in the home with him (Kidnapping) is separate and

apart from shooting her in the leg (Assault in the First Degree). 

However, the jury and not the trial court is to draw this

inference, and the lack of a merger instruction precluded the

jury from determining whether there was one intention, one

general impulse, and one plan.

The State charged Thromman with Kidnapping as to

Heather in count 10 and Assault in the First Degree as to Heather

in count 13, alleging both occurred on July 13, 2015. The

Circuit Court's jury instructions on those counts also specified

that date. Through the State's opening statement, closing

argument, and during Heather's testimony, the jury heard

descriptions of the incident leading up to Heather being shot in

the leg: Thromman had asked whether she wanted to work things

out, Heather told him she did not want to and that there was

someone else, and they began to argue. Thromman then left the

house and obtained from his car a rifle, which he loaded, and

came back into the house, yelling. In the meantime, Heather was

holding her six-month old son in her arms. Heather attempted to

leave the house but Thromman closed the door on her hand and

pulled her hair or her shirt to keep her in the house, where they

continued to argue. Heather called out for help and her uncle,

Frank Coito (Frank), heard her, came to the house, and Thromman

told Frank to leave, which Thromman allowed Frank to do. 

Heather, in the meantime, remained trapped in the house with her

son. Frank called Heather's parents, who arrived at the house. 

Thromman continued to block Heather from leaving, but Heather

demanded to be let out so that she could give her son to her

parents. Thromman let Heather out through the kitchen door onto

the ramp and kept a grasp on her hair or her shirt at arm's

length as she handed her son over the railing to Timothy, her

father. While Heather was on the ramp leading from the carport

up to the entryway into the house, Thromman grabbed her and tried

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to drag her back into the house. Again, Heather tried to escape

and managed to get outside on the ramp, with Thromman not far

behind her, when he shot her in the right thigh. Given the

record, the jury could have reasonably construed the evidence as

supporting separate and distinct culpable acts of Kidnapping and

Assault in the First Degree as to Heather, or as an uninterrupted

continuous course of conduct, such that a merger instruction was

warranted.

This court has determined that Kidnapping and Assault

in the First Degree may be charged as continuous offenses

because:

First, the statutes proscribing first-degree assault and

kidnapping do not prohibit charging the offenses as a

continuing offense. . . . Second, the relevant element of

first-degree assault (causes serious bodily injury) and

kidnapping (restrains another) may constitute a continuous

act or series of acts.

Smith v. State, No. CAAP-18-0000079, 2020 WL 2790498, at *10

(Haw. App. May 29, 2020) (mem.) (citation in quote and internal

quotation marks omitted) (citing State v. Apao, 95 Hawai#i 440,

448, 24 P.2d 32, 40 (2001) (examining whether a specific

unanimity instruction was required and stating "this court has

previously stated that, under certain circumstances, kidnapping

would be an example of a continuing offense")). Because these

offenses can be charged as continuous offenses, and given the

record in this case, the jury should have determined whether

there was one intention, one general impulse, and one plan, that

is, whether the two offenses merged. Martin, 146 Hawai#i at 390,

463 P.3d at 1047; State v. Hoey, 77 Hawai#i 17, 38, 881 P.2d 504,

525 (1994).

Here, as noted, the statutory language does not

prohibit charging Kidnapping as a continuous offense. Notably,

in its closing argument the prosecution relied on Thromman

shooting Heather in the leg for the Kidnapping charge. 

Furthermore, the charge of Assault in the First Degree was based

on Thromman shooting Heather with a firearm. Therefore, it is

reasonably possible that the jury convicted Thromman of multiple

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offenses (i.e., Kidnapping and Assault in the First Degree) based

on the same conduct (shooting Heather in the leg with a firearm). 

Moreover, there was sufficient evidence of Kidnapping and Assault

in the First Degree against Heather, as reflected by the jury's

verdict. Nonetheless, the trial court is not tasked with making

factual findings regarding when each offense occurred or whether

the defendant's conduct constitutes "an uninterrupted continuous

course of conduct." Lavoie, 145 Hawai#i at 433, 453 P.3d at 253. 

That is the province of the trier of fact.

We conclude the Circuit Court erred by failing to

include Kidnapping (count 10) in the merger instruction. Given

our earlier holding to vacate count 10 (along with counts 7 and

13) due to the erroneous admission of the audio recordings of

Heather's hearsay statements, the State does not have the option

under Padilla to dismiss either Kidnapping (count 10) or Assault

in the First Degree as to Heather (count 13), or to maintain the

conviction as to one charge. Instead, because both counts 10 and

13 are vacated and HRS § 701-109(1)(e) only prohibits conviction

for merged offenses, the State is permitted to prosecute both

counts in a new trial with an appropriate merger instruction. 

See Padilla, 114 Hawai#i at 517, 164 P.3d at 775.

G. The Circuit Court erred in imposing consecutive

sentences without adequate reasons on the record.

 In his seventh point of error, Thromman contends that

although no objection was raised, the Circuit Court plainly erred

when it imposed consecutive sentences without adequate

explanation on the record. Thus, the sentences should be vacated

and the matter remanded for resentencing. We agree.

"Multiple terms of imprisonment run concurrently unless

the court orders or the statute mandates that the terms run

consecutively" and in determining whether a sentence runs

concurrently or consecutively, the court is required to consider

the factors set forth in HRS § 706-606 (2014). HRS § 706-668.5

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(2014).20 "[A] court must state its reasons as to why a

consecutive sentence rather than a concurrent one was required." 

Lewi v. State, 145 Hawai#i 333, 350, 452 P.3d 330, 347 (2019)

(emphasis added) (quoting State v. Hussein, 122 Hawai#i 495, 509,

229 P.3d 313, 328 (2010), as corrected (Apr. 28, 2010)). "[T]he

dual purposes behind the requirement that reasons be stated for a

court's imposition of a consecutive sentence are to '(1) identify

the facts or circumstances within the range of statutory factors

that the court considered, and (2) confirm for the defendant, the

victim, the public, and the appellate court that the decision was

deliberate, rational, and fair.'" Id. (brackets omitted)

(quoting State v. Kong, 131 Hawai#i 94, 102-03, 315 P.3d 720,

728-29 (2013)). "[T]he sentencing court is not required to

articulate and explain its conclusions with respect to every

factor listed in HRS § 706-606. Rather, it is presumed that a

sentencing court will have considered all factors before imposing

20 HRS § 706-668.5 provides, in relevant part: 

(1) If multiple terms of imprisonment are imposed on a

defendant, whether at the same time or at different times . .

. the terms may run concurrently or consecutively. Multiple

terms of imprisonment run concurrently unless the court orders

or the statute mandates that the terms run consecutively.

(2) The court, in determining whether the terms imposed

are to be ordered to run concurrently or consecutively, shall

consider the factors set forth in section 706-606.

In turn, the factors set forth in HRS § 706-606 are as follows:

(1) The nature and circumstances of the offense and

the history and characteristics of the defendant;

(2) The need for the sentence imposed:

(a) To reflect the seriousness of the offense,

to promote respect for law, and to provide

just punishment for the offense;

(b) To afford adequate deterrence to criminal

conduct;

(c) To protect the public from further crimes

of the defendant; and

(d) To provide the defendant with needed

educational or vocational training, medical

care, or other correctional treatment in

the most effective manner;

(3) The kinds of sentences available; and

(4) The need to avoid unwarranted sentence

disparities among defendants with similar records

who have been found guilty of similar conduct.

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concurrent or consecutive terms of imprisonment under HRS

§ 706-606." Lewi, 145 Hawai#i at 350-51, 452 P.3d at 347-48

(footnote and internal quotation marks omitted) (quoting Kong,

131 Hawai#i at 102, 315 P.3d at 720). "Thus, a sentencing court

is required to articulate its reasoning only with respect to

those factors it relies on in imposing consecutive sentences." 

Id. at 351, 452 P.3d at 348 (quoting Kong, 131 Hawai#i at 102,

315 P.3d at 720).

In State v. Barrios, the Hawai#i Supreme Court affirmed

the defendant's convictions but vacated the sentence, as the

Circuit Court failed to adequately explain its rationale for

imposing multiple consecutive sentences that resulted in a one

hundred-year prison sentence. 139 Hawai#i 321, 321, 389 P.3d

916, 916 (2016). The supreme court determined that the Circuit

Court examined the nature and circumstances of Barrios's crime

under HRS § 706–606(1) and the need for the sentence "[t]o

reflect the seriousness of the offense, [and] to promote respect

for the law" under HRS § 706–606(2)(a) in recounting the

following:

This young child was a child, a baby. I think she was

eight years old when the abuse started. Eight years

old, a second grader, and it went on for years and

years and years. You groomed her. You used threats.

You used manipulation. You used mind games. You

molded her to be a victim....

The history and circumstances of the crime that the

Court needs to look upon can be no more serious crime

than the 72 A felonies that you're looking at, a total

of 146 different counts. You have no respect for the

law.

Id. at 336, 389 P.3d at 931. The Circuit Court also apparently

relied upon the need for the sentence to afford adequate

deterrence to the defendant's criminal conduct under HRS

§ 706–606(2)(b). Id. at 337, 389 P.3d at 932 (first alteration

in original). The court further considered the need for the

sentence "[t]o protect the public from further crimes of the

defendant" under HRS § 706–606(2)(c), id. (alteration in

original), in stating, "[i]t is the hope of this Court for the

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safety of all children that you should never see the outside of a

prison's walls." Id. at 337, 389 P.3d at 932. Notwithstanding

the fact that the Circuit Court addressed statutory factors on

the record, the Hawai#i Supreme Court determined that the Circuit

Court did not sufficiently explain its decision to impose

multiple consecutive sentences as required by Hussein and Kong. 

Id. As an example, the State recommended sentences for the counts

for kidnapping and sexual assault counts to run concurrently with

other sentences, but the Circuit Court imposed consecutive

sentences for those same counts without stating reasons why it

rejected the State's recommendation. Id.

Here, the State argued for consecutive sentencing for

count 3 (Attempted Murder in the Second Degree relating to

Officer Fukada) and count 17 (Terroristic Threatening relating to

Officer Ku) and count 26 (Terroristic Threatening relating to

Officer Kim). Thromman asked for all sentences to run

concurrently and for the court to impose only the mandatory

minimums. 

For count 3, the Circuit Court imposed an

"indeterminate period of LIFE with the possibility of parole, and 

with a mandatory minimum of fifteen (15) years[.]" For counts 17

and 26, the Circuit Court imposed "an indeterminate period of

FIVE (5) YEARS as to each count, with a mandatory minimum of

three (3) years, consecutive with each other and consecutive with

Count 3[.]" All other sentences were imposed to run

concurrently.

In announcing Thromman's sentence, the Circuit Court

stated:

In this case this is a -- an example of a

domestic violence case that shows that there are more

than two parties to a domestic violence case. 

Certainly, the primary party, the -- the brunt of the

incident is the complaining victim. Nevertheless,

this case shows that there are more than the victim.

In fact there are multiple victims in the

domestic violence case such as this. You have the

family members who try to intervene. You have the

police officers in the community who tries [sic] to

protect the family -- other family members and the

victim in this case. So domestic violence is not a --

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a -- a case where only two people are involved and the

State should not be involved.

A -- certainly the police officers are

sworn to uphold the law, protect people, and certainly

what -- what I've heard their lives are just as

important as the victim. Notwithstanding that they're

trained to protect the public, they -- they're human

beings like everybody. They have families also, you

know. In the -- in the PSI, I've read the report from

family members of the police officers, and certainly

one -- the police officer got shot, stated succinctly,

"people have bad days and certainly, you know,

sometimes people break up. It's not uncommon

unfortunately. But people don't go out shooting other

people to try to maintain the relationship.

If that's the kind of relationship you

want, to threaten somebody to stay in a relationship,

that's not a relationship. It's like being in prison.

It's like being -- keeping someone from going their

separate ways [sic]. And like you mentioned it,

certainly, yes, you may have problems within your

relationship involving children, but does not -- that

does not mean that you cannot raise the children

separately. In fact in this particular case,

unfortunately, Mr. Thromman, I read a lot of support

letters from you, your family, your friends, but

unfortunately you made a bad choice that affects not

only your life but affects other people's life's

[sic]: The officer who was shot, the officers who were

shot at, your family members, your children, and

unfortunately for you, you know, like your lawyer

points out, 24 hours will have affect -- will affect

the rest of your life.

And so the Court having adjudge you guilty

of Count 3, Attempted Murder in the Second Degree, it

is the judgment and sentence of this Court that you be

committed . . . for an indeterminate period of life

with the possibility of parole with a mandatory

minimum of 15 years.

. . . .

As to the counts 17 and 26, the Terroristic

Threatening Against a [sic] Police Officers, it is the

judgment and sentence of this Court that you be

committed to the custody, [of the] Director, [of the]

Department of Public Safety, for an indeterminate

period of 5 years as to each count with a mandatory

minimum of 3 years for each count. Each count to run

consecutively with each other and each count to run

consecutively with Attempted Murder in the Second

Degree.

(Emphasis added.) 

Applying Hussein and Kong, we must presume that the

Circuit Court considered all factors before imposing concurrent 

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or consecutive sentences. Kong, 131 Hawai#i at 102, 315 P.3d at

728 (quoting Hussein, 122 Hawai#i at 503, 229 P.3d at 321). The

Circuit Court in this case hinted at "[t]he need for the sentence

imposed [(a)] to reflect the seriousness of the offense, to

promote respect for law, and to provide just punishment for the

offense," pursuant to HRS § 706-606(2)(a), when it stated that a

domestic violence case involves more than just the complaining

victim and made references to the involvement of the police. 

However, similar to the trial court in Barrios, 139 Hawai#i at

337, 389 P.3d at 932, the Circuit Court failed to provide any

meaningful rationale for imposing consecutive sentences for each

of counts 3, 17, and 26. We therefore conclude that the Circuit

Court erred in failing to place adequate reasons on the record

for imposing consecutive sentences, in accordance with Hussein

and Kong.

V. Conclusion

Based on the foregoing, we affirm the following entered

by the Circuit Court of the Third Circuit:

(1) the January 18, 2017 "Findings of Facts and

Conclusions of Law re: Motion to Determine Voluntariness of

Defendant's Statements"; and

(2) the January 31, 2017 "Findings of Fact and

Conclusions of Law Re: Defendant's Motion to Dismiss Counts 14-15

in Cr. No. 15-1-216K and Counts 1-27 in Cr. No. 16-1-299K."

We vacate the "Judgment of Conviction and Sentence"

entered on April 18, 2017, with respect to the conviction and

sentence for: count 7 (Terroristic Threatening in the First

Degree as to Timothy Coito); count 10 (Kidnapping as to Heather

Coito); and count 13 (Assault in the First Degree as to Heather

Coito). We remand for a new trial on these counts.

We also vacate the "Judgment of Conviction and

Sentence" entered on April 18, 2017, to the extent that it

entered consecutive sentencing with respect to count 3 (Attempted

Murder in the Second Degree as to Officer Fukada), count 17

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(Terroristic Threatening in the First Degree relating to Officer

Ku) and count 26 (Terroristic Threatening in the First Degree

relating to Officer Kim). We remand for further proceedings in

the Circuit Court to address consecutive sentencing with respect

to these counts. 

In all other respects, we affirm the "Judgment of

Conviction and Sentence" entered on April 18, 2017.

DATED: Honolulu, Hawai#i, February 28, 2022.

On the briefs:

Terri L. Fujioka-Lilley,

for Defendant-Appellant

Kauanoe A. Jackson, 

Deputy Prosecuting Attorney,

for Plaintiff-Appellee

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

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