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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

vs.

YOKO KATO, Petitioner/Defendant-Appellant.

SCWC-15-0000329

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-15-0000329; CR. NO. 13-1-1641)

JUNE 18, 2020

McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,

DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY POLLACK, J.

The circuit court in this case precluded the defendant 

from presenting third-party culpability evidence because it 

determined that the proffered evidence failed to establish a 

“legitimate tendency” that the third party committed the crime. 

In this opinion, we reexamine the “legitimate tendency” test in 

light of the Hawaiʻi Rules of Evidence (HRE) and subsequent 

decisions of jurisdictions whose decisions were considered when 

Electronically Filed

Supreme Court

SCWC-15-0000329

18-JUN-2020

02:10 PM
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this court adopted the test. We conclude from our review that

admissibility of third-party culpability evidence is properly

governed by HRE Rules 401 and 403, without having to also 

satisfy a legitimate tendency test. We additionally conclude 

that the circuit court erred by excluding the defendant from 

presenting third-party culpability evidence at trial, evidence 

that was fundamentally important to the defendant receiving a 

fair trial in this case. Inasmuch as the defendant’s right to 

present her defense was prejudicially affected by the circuit 

court’s error, the error was not harmless beyond a reasonable 

doubt. We also address other contentions raised by the 

defendant as certain of these issues may arise on remand. 

Accordingly, we vacate the conviction in this case,

and the case is remanded to the circuit court for further 

proceedings consistent with this opinion. 

I. BACKGROUND AND CIRCUIT COURT PROCEEDINGS

Yoko Kato was arrested in connection with a stabbing 

that occurred on October 25, 2013, in the Diamond Head area of 

Honolulu, on the island of Oʻahu. She was subsequently charged 

by complaint in the Circuit Court of the First Circuit (circuit 

court) with attempted murder in the second degree in violation 

of Hawaiʻi Revised Statutes (HRS) §§ 705-500, 707-701.5,1 and 

 

1 HRS § 707-701.5 (1993) provides in pertinent part as follows:

(continued . . .)
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706-656. Kato pleaded not guilty to the charge and a jury trial 

was held.2 

A. State’s Case at Trial

1. Complaining Witness

The complaining witness (CW), a Japanese national, 

testified through a Japanese-English interpreter as follows. 

In the fall of 2013, she was living in Hawaiʻi to study 

English. During this time, she met and began a romantic 

relationship with David Miller, a Caucasian janitor at the 

Shinnyo-en Temple that she attended. Because she did not have a 

permanent residence, she moved in with Miller for about a month

in August 2013, and Miller arranged for her to stay with his exgirlfriend Yoko Kato, a Japanese national, from October 12

through 13, 2013. While staying with Kato, Kato spoke to the CW 

about her past relationship with Miller. After staying at

Kato’s house, the CW had no contact or very limited contact with 

Miller and broke up with him. 

 

(. . . continued)

(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 The Honorable Karen S.S. Ahn presided over the proceedings in 

this case.
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While in Hawaiʻi, the CW used the LINE application

(LINE app), an internet application frequently used by Japanese 

nationals, to communicate with friends and organize outings. To 

contact someone on the LINE app, users either put their LINE 

identifications (LINE ID) directly into another user’s LINE app

or users must know the LINE ID of the other user they want to 

contact. Although the CW never gave Kato her LINE ID, Kato 

contacted her on the LINE app to request that she return a key 

that belonged to Miller’s bicycle. 

Shortly after moving out of Kato’s apartment, the CW

received a LINE message from an Ai Akanishi asking her to meet 

and have drinks. The CW did not know Akanishi, who claimed to 

have gotten the CW’s LINE ID from “other people.” Despite 

feeling that the situation was odd, she agreed to have drinks 

with Akanishi and Akanishi’s boyfriend because Akanishi said

that she was a Japanese student studying English like the CW. 

The CW agreed to meet Akanishi for drinks at Akanishi’s 

boyfriend’s house on October 25, 2013, on Kaunaoa Street. 

On that day, the CW biked to Kaunaoa Street to meet 

Akanishi and arrived at around 9:45 p.m. A man was sitting down 

on a bench when she arrived, and he directed her, in poor 

Japanese, to a dark corner where she could park her bicycle. 

The man was wearing a short sleeved shirt, pants, and a baseball 

hat, had brown colored arms and neck, and appeared to be Asian. 
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When he asked her name, his Japanese did not sound good; 

according to the CW, it was “Japanese spoken by a nonnative 

speaker.” 

While the CW was walking her bike to the dark corner,

the man stabbed her multiple times in the arm, back, and abdomen

with a knife. She screamed and began running away with the man 

chasing her. The CW ran into the Diamondhead Coffee Bean and 

Tea Leaf shop, and the employees called the Honolulu Police 

Department (HPD). She was taken to the hospital, where she 

spoke to HPD Officer Gilbert Trevino in Japanese. The CW 

described the clothing that the assailant was wearing, and she 

told the officer the height of her attacker in centimeters, 

which he converted to 5’9”. 

In an interview with Detective (Det.) Nakama on 

October 27, 2013, she described the person who stabbed her as a 

male. The next day, she told Det. Nakama that the assailant 

could have been a woman, and that the voice was high for a male. 

In describing her injuries, the CW stated that she 

could no longer use her arm fully and still had scars from the 

knife wounds and post-stabbing surgeries.3 The CW testified that 

she did not believe that Miller was the individual who stabbed 

 

3 Dr. David Inouye, an expert in surgery and surgery critical care, 

testified that he operated on the CW’s wounds, that they were caused by a 

knife, and that the wounds were life threatening. 
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her because he spoke good Japanese, he did not have a motive, 

and he did not fit the physical shape of the person who stabbed 

her. The CW also testified that Kato was not the person who 

stabbed her.

2. Other Witnesses

Emiko Morie, a woman who lived on Kaunaoa Street, 

testified through a Japanese-English interpreter that she 

observed the CW arrive and begin speaking to an individual that 

Morie believed was a man. Morie stated that she saw the man

chase after the CW and fall. When she went to investigate, 

Morie testified, she discovered a flip phone where the man had 

fallen. Morie explained that she opened the phone and saw that 

a call had recently been made to a contact named “David.” She

stated that she called that contact, and a man answered and 

offered to retrieve the phone within thirty minutes. Morie said 

that a middle-aged Japanese woman, whom she later identified as 

Kato, approached her twenty minutes later and asked for the 

phone, but she refused to give it to the woman. 

Eli Mosher, who was talking with his friend seated 

outside of his church when the incident occurred, testified that 

he saw the CW being chased by a man who fell down. He stated 

that the man was about 5’6” to 5’8” with medium build. Mosher 

testified that he also described the person as a male in a 

written statement that he gave to police on the evening of the 
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incident and when he was interviewed by Detective Nakama two 

days later. Mosher also said that the person could “possibly” 

have been a woman, although he acknowledged that he was making 

that statement for the very first time at trial.

HPD Officer Jonathan Locey related that he responded 

to the scene and interviewed the CW. He explained that because 

the CW could not speak Japanese, he was only able to communicate 

with her through hand signals and English. The officer 

testified that, based on the CW’s statements, the suspected 

assailant was a Caucasian male, wearing a white or gray T-shirt, 

jeans, and a black baseball cap. The CW never told him that the 

attacker was Asian, Officer Locey stated. 

HPD Officer William Ellis testified that he was

investigating the scene of the incident when he was given a flip 

phone by Morie, who told him that she found the phone in the 

general area of the crime scene. Officer Ellis said that he was 

then approached by a woman who identified herself as “Yuri 

Mochizuki” and claimed that she lost her phone. The woman was 

able to describe and unlock the phone, so he gave it to her, the 

officer stated. The woman did not explain to him how she lost 

the phone, Officer Ellis testified, and he was unaware that the 

phone was connected to the incident. After giving her the 

phone, she went into a gas station to use the restroom and did 
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not return although she had been requested to do so, the officer 

stated.

4 

Yui Mochizuki, Kato’s roommate at the time of the 

incident, testified through a Japanese-English interpreter that 

she saw Kato’s ex-boyfriend Miller at the apartment drinking 

beer with Kato at about 7:30 p.m. on October 25, 2013. 

Mochizuki explained that she left for a party about that time 

and got home around 1:30 a.m.; Kato was home and told her that 

she had lost her phone that night. Kato said that she had found 

an envelope at the door earlier that night containing $60 and a 

note written in Japanese with directions on where to find her 

phone, Mochizuki testified. Kato stated that she had followed 

the instructions, which said to go to the Coffee Bean and Tea 

Leaf shop in the Diamond Head area at 9:00 p.m., Mochizuki 

testified, but when she got there, someone pushed her, causing 

her phone to fall. After being pushed, Kato said she heard a 

scream and saw police officers in the area, Mochizuki stated. 

Mochizuki testified that Kato told her that she believed Miller 

wrote the note, which contained the words “I love you,” but Kato 

was unsure because the Japanese in the letter was better than 

 

4 Christopher Lam, a worker at that gas station, testified that

Kato came in to use the bathroom around 11:00 p.m. He told Kato that they 

did not have a public bathroom and she left, Lam stated. Kato was wearing a 

red shirt and red shorts, Lam testified, and she did not have a knife or 

blood on her. 
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Miller’s abilities. Mochizuki explained that she had heard 

Miller speak Japanese poorly, using only words and not complete 

sentences. Mochizuki testified that she never saw Kato with a 

knife and did not see any injuries on her on October 25 or 26, 

2013. 

HPD Det. Roy Nakama, the officer assigned to

investigate the case, testified that he reviewed all the reports 

associated with the case and that based on the information

therein, he believed that the suspect was possibly male, slim 

build, wearing dark clothes, and approximately 5’5” to 5’9” in 

height. The detective related that, during the CW’s interview, 

the CW, when describing the assailant, stated that “on second 

thought it could have been a female,” “possibly a male or a 

female,” and that Kato might have done this to her. The police

thereafter searched Kato’s apartment and found her flip phone

and an iPod Touch but did not recover any weapons or clothing. 

When Kato was arrested, Det. Nakama related, she had a bandage 

over her right knee and bruises on her left knee. Det. Nakama 

also testified that he interviewed Miller, but that he did not 

consider Miller to be a suspect, did not check Miller for 

physical injuries, and did not request his cell phone. 

Kristen Hamamoto, a digital forensics examiner, 

testified that she found LINE app communications between the CW 

and Akanishi, and between the CW and Kato, on the CW’s phone, 
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but she could not determine what device the Akanishi messages 

came from. The examiner explained that she found photos of 

texts from “David” on Kato’s iPhone. Hamamoto testified that 

she also found that Kato’s iPod either sent or received 

communications with an email address connected to Akanishi, but 

she was unable to date those messages.

5

Richard Sakurai, Anthony Loui, and Hien Ung, who were

employed at a security equipment store during October 2013, 

testified that a woman, whom Sakurai and Ung identified as Kato,

came into the store in October and was interested in knives. 

Ung stated that Kato purchased a knife from the store; Sakurai 

and Loui testified that they could not confirm a purchase. 

B. Defense’s Case at Trial

Kato called David Miller as a witness. Although all 

of Miller’s testimony was later stricken, as explained below, 

Miller testified that he met the CW in March or April 2013. 

Initially they were just friends but it developed into something 

more serious, Miller said. Miller testified that in August 

2013, the CW had become his girlfriend and moved into his 

apartment. She had to move out on September 1, 2013, Miller 

 

5 The CW testified that she had not received any messages from 

Akanishi since the incident. Reyn Yoshinaga, a special agent with Homeland 

Security, testified that no one with the name Ai Akanishi entered the U.S. 

starting from the late 1990s.
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explained, and their relationship lasted until about mid-October

2013. The defense asked Miller if he was aware the CW was 

dating other men while he was dating her; the State objected as 

to relevance and its objection was sustained. The State 

similarly objected to the defense’s next question, asking Miller 

if he had seen the CW with other men, and again the objection 

was sustained on relevancy grounds. Defense counsel requested a 

bench conference to explain the relevance of his line of 

questioning.

In the bench conference, defense counsel explained 

that the defense was attempting to show that Kato did not have a 

motive to stab the CW whereas Miller did. Counsel argued that 

Miller wanted to marry the CW and thus was angry and upset with 

the CW for dating other men and leaving him, which resulted in 

his stabbing her. The State responded that Kato could not bring 

up evidence of Miller’s motive under State v. Rabellizsa, 79 

Hawaiʻi 347, 903 P.2d 43 (1995). Counsel maintained that there 

was a sufficient nexus under Rabellizsa because Miller was angry 

and upset at the CW; the CW was saying that she loved Miller, 

missed him, and wanted to see him, and “then she just blows him 

off.” And not only was Miller upset, counsel explained, but he 

went through the CW’s phone, and he “saw these males’ names.” 

The court asked defense counsel if Miller “said I’m going to 
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kill [the CW]” and when counsel said that he had not, the court 

stated “Rabellizsa, no nexus.” 

Following the bench conference, the defense attempted 

to ask Miller if he had seen the CW with other men, prompting 

Miller to request a break and the court to excuse the jury and 

begin another bench conference. The court returned to the 

Rabellizsa issue. The court evaluated some of the evidence to 

determine if there was a nexus, noting that “nobody saw [Miller] 

near the scene,” and “nobody says it was a Caucasian.” Defense 

counsel responded that the CW had identified her assailant as a 

Caucasian to two different police officers. The court replied, 

“but there’s testimony that it’s an Asian person.” The court 

then stated that Miller was 5’10” while testimony indicated that 

the person who assaulted the CW was 5’5” to 5’7”. Defense 

counsel stated that Miller’s build was similar to the person who 

stabbed the CW, and that the estimates of the witnesses varied 

from perception of height. The court also stated that Miller 

testified that he was not bothered now that the CW was going out 

with other men. Defense counsel again noted that Miller went 

through the CW’s cell phone and saw numerous phone numbers of 

males and was unhappy about her relationships with other men. 

Additionally, counsel stated, on October 23, 2013, Miller told 

Kato that the CW was having sex with other men. 
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Having “heard the evidence,” the court held that the 

defense “had to have some nexus between the other guy and the 

crime,” and that the court didn’t “see any here.” The court 

then turned to Fifth Amendment issues with regard to Miller’s 

testimony. 

Prior to trial, Kato had filed a notice of intent

(Kato’s Motion in Limine #1) to introduce evidence that Miller 

had physically abused Kato in May 2013, that Miller had been 

arrested on June 24, 2013, for abuse of a family or household 

member based on a different incident with Kato,

6 and that Miller 

had subsequently forced Kato to write a letter recanting her 

abuse allegations. Counsel explained that the defense would 

elicit testimony that in September 2013, Miller had told Kato 

that she ruined his life and that Miller had threatened to get 

revenge on her for having him arrested for the abuse offense. 

The defense’s theory was that David Miller set Kato up and was 

the person who stabbed Kato or arranged it, defense counsel 

explained to the court. 

 

6 Miller was subsequently prosecuted for harassment, but the case 

was dismissed without prejudice because of the prosecution’s failure to 

secure a Japanese interpreter for Kato and for not providing the defense with 

a 911 tape relating to the offense. 
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During a pretrial Hawaiʻi Rules of Evidence (HRE) Rule 

104 hearing,7 Kato had called Miller to ask him questions 

regarding (1) the evidence proffered in her Motion in Limine #1, 

(2) questions relating to his relationships with Kato and the 

CW, (3) questions relating to his Japanese proficiency, and (4) 

questions relating to his motive to want to stab the CW. Before 

Miller testified, the defense argued that Miller should not be 

allowed to take the Fifth Amendment on those questions because, 

under State v. Kupihea, 80 Hawaiʻi 307, 909 P.2d 1122 (1996), the 

chance of his prosecution for harassment, violations of a 

temporary restraining order (TRO),

8 or the CW’s stabbing was 

“slim to none.” The court did not issue a ruling, and Miller 

was called to testify. 

Miller, with the assistance of court-appointed Fifth 

Amendment counsel, exercised his Fifth Amendment rights in 

response to defense counsel’s questions as to multiple matters.

The court ruled that Miller had properly asserted his Fifth 

 

7 HRE Rule 104(a) (1993) provides, in relevant part:

Preliminary questions concerning the qualification of a 

person to be a witness, the existence of a privilege, or 

the admissibility of evidence shall be determined by the 

court, subject to the provisions of subsection (b). In

making its determination the court is not bound by the 

rules of evidence except those with respect to privileges.

8 A TRO had been issued against Miller, effective June 26, 2013, to 

December 25, 2013, that prohibited any contact between Miller and Kato, 

including texts, contact, and phone conversations. It was later amended to 

allow them to be at the temple at the same time.
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Amendment privilege on questions regarding (1) June 24, 2013, 

the date of his arrest for abuse of family or household member; 

(2) any contact between himself and Kato from June 26, 2013, to 

December 23, 2013, as that could expose him to liability for 

violating the TRO; (3) and questions regarding his conversations 

with the CW that involved Kato. At this hearing, Miller 

answered questions relating to his feelings towards the CW 

before and after their relationship ended,9 his feelings about 

the CW dating other men,10 and the CW’s two-day stay with Kato.11 

Miller also testified that he carries a “quick release” knife

with a four-inch blade for work. 

But at trial, after Kato attempted to ask Miller if he 

had seen the CW with other men, Miller’s court-appointed Fifth 

Amendment lawyer12 informed the court that counsel would be 

instructing Miller, for the first time, to exercise his Fifth 

 

9 Specifically, Miller testified that he fell in love with the CW 

and hoped to marry her, although he never communicated this to the CW. 

Miller also testified that the CW told him that she loved him and would see 

him soon, before she stopped contacting him. Miller explained that he was 

not angry at the CW for ending their relationship.

10 Miller said that he wasn’t sure if the CW was seeing other men 

but that he never saw her with other men. Miller also explained that he was 

not upset about the CW dating men before him. 

11 Miller stated that he told the CW not to tell Kato that he and 

the CW were in a relationship. Miller also explained that the CW told him 

that she never told Kato she was in a relationship with Miller. 

12 Miller’s court-appointed counsel at the pretrial hearing and at 

trial was the Office of the Public Defender, although different attorneys 

appeared on his behalf at the two proceedings.
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Amendment rights to any questions that would “arguably give 

[Miller] a motive to assault [the CW].” The court then held 

another HRE Rule 104 hearing during a trial recess because of 

Miller’s intention to exercise the Fifth Amendment to questions 

he had answered at the pretrial HRE Rule 104 hearing. Kato 

argued that Miller should be forced to testify because he had 

already answered these questions with counsel present and 

because, under Kupihea, the chance of Miller’s prosecution for 

the stabbing of the CW was remote. 

At the trial HRE Rule 104 hearing, the court overruled 

Kato’s objections and allowed Miller to invoke the Fifth 

Amendment on (1) “motive related questions” because Kato was 

trying to blame Miller for the crime, (2) communications he had 

with Kato because “it’s going to lead directly to [Miller] fixed 

[the stabbing] up, allegedly,” and (3) communications with the 

CW after she moved out because it would “infer that he had 

communications with [the CW] up to the 24th” of October, which 

could furnish a link. The court further permitted Miller to 

exercise his Fifth Amendment rights on questions he had 

previously answered, including questions relating to his 

feelings towards the CW before and after their relationship 

ended, Miller’s feelings about the CW dating other men, the CW’s 

two-day stay with Kato, and whether he owned a knife. The court 

explained its ruling by noting that Kato was trying to blame 
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Miller for the stabbing, and thus any questions about his motive 

could implicate him. The court did not rule on defense’s 

contention that Miller had waived his Fifth Amendment privilege 

by answering those questions at the pretrial Rule 104 hearing 

with appointed counsel present, instead remarking, “when there’s 

a change of lawyer, are you stuck with your old assertions of 

the Fifth, or are you not? I don’t know.” 

In light of the court’s ruling, defense counsel argued 

that much of the information that would be excluded by Miller 

asserting his Fifth Amendment privileges could not come out 

through Kato’s testimony because it would be excluded as hearsay 

statements.13 Kato’s right to a fair trial would be violated 

unless Miller was considered unavailable so that his statements 

could come in under HRE Rule 804, defense counsel maintained. 

The court reaffirmed its rulings on Miller’s Fifth Amendment 

privileges but does not appear to have ruled on Kato’s argument 

that eliciting the evidence through Kato would not be viable. 

After the court’s rulings to essentially preclude all 

testimony from Miller related to the incident, his prior 

relations with Kato, and his relationship with the CW, the court 

convened the jury, and struck all of Miller’s trial testimony

 

13 Kato originally informed the court that she would testify. The 

court, in rendering its ruling allowing Miller to exercise the Fifth 

Amendment, stated its assumption that Kato would be able to testify as to 

what Miller had told her. 
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with Kato’s consent.

14 Kato exercised her right to remain silent 

and did not testify; according to defense counsel, Kato made 

this decision because of the court rulings regarding Miller’s 

exercise of his Fifth Amendment rights. 

B. Jury Instructions and Verdict 

During the settling of jury instructions, the court 

ruled that, under Rabellizsa, Kato could not argue that Miller 

stabbed the CW, but Kato could argue that someone besides her 

was the person who stabbed the CW. The court explained that 

there was nothing tying Miller to the scene nor did Miller match 

the physical description of the assailant provided by witnesses. 

In her closing argument, Kato referenced the fact that the CW 

and witnesses identified a male suspect, but, complying with the 

court’s ruling, Kato did not argue that it was Miller. 

The court instructed the jury on the included offenses 

of attempted murder in the second degree, including reckless 

endangering in the second degree. The jury was not instructed 

on accomplice liability nor did the parties raise an accomplice 

liability theory in their closing arguments.15 

 

14 At the close of the State’s case, Kato moved for a judgment of 

acquittal; that motion was denied. 

15 During the discussion on the defense motion for judgment of 

acquittal, the court asked if accomplice liability was “involved here.” The 

State responded that “it could be” and defense counsel answered “I mean, 

theoretically. But even that is a stretch. . . . So either [Kato’s] the 

stabber, or she’s not. She’s an accomplice, or not.” 
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During jury deliberations, the jury asked the court if 

it could “consider whether someone else aided [Kato]?” In 

response, the court told the jury, “During this trial, you 

received all of the evidence which you may consider to decide 

this case. You must follow all of the court’s instructions to 

you.” The jury communicated with the court again, stating,

After deliberating yesterday afternoon and all morning, we 

are still hung almost 50/50. One major point of confusion 

is how we interpret the legalese of the charge itself on 

page 23 of our instruction [for attempted murder in the 

second degree]. Some of us feel that [Kato] is not guilty 

because there is reasonable doubt whether [Kato] actually 

held the knife and stabbed [the CW]. Others feel that 

there is proof beyond a reasonable doubt that [Kato] took 

actions to lead [the CW] to Kaunaoa St. where someone was 

waiting to stab [the CW].

Our question is, in layman’s terms, does the charge include 

[Kato] intentionally conspiring to have [the CW] stabbed 

without actually being the stabber?

In response to the jury’s second question, the court responded 

“No.” 

The jury found Kato guilty of reckless endangering in 

the second degree.16 Kato was sentenced to one year 

incarceration with credit for time served, with the jail 

sentence stayed pending appeal. Kato timely appealed from the 

circuit court’s March 11, 2015 Judgment of Conviction and 

Sentence (judgment) to the Intermediate Court of Appeals (ICA). 

 

16 HRS § 707-714(1)(a) (Supp. 2012) provides as follows: “A person 

commits the offense of reckless endangering in the second degree if the 

person . . . [e]ngages in conduct that recklessly places another person in 

danger of death or serious bodily injury[.]”
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II. ICA PROCEEDINGS

Kato raised the following four points of error on 

appeal: (1) the circuit court erred in instructing the jury on 

reckless endangering in the second degree as a lesser-included 

offense; (2) there was not substantial evidence for the jury to 

convict Kato for reckless endangering in the second degree; (3) 

the court abused its discretion in failing to compel Miller to 

testify over his assertion of his Fifth Amendment privileges; 

and (4) the court erred in precluding Kato from adducing 

evidence that Miller had a motive to commit the crime charged. 

The State acknowledged in its answering brief that it 

failed to convince the jury beyond a reasonable doubt that Kato 

was the person who stabbed the CW. The State, while noting that 

the jury was not instructed on accomplice liability, asserted 

that it would have been improper to do so as the State did not 

present accomplice evidence. The State argued that a reckless 

endangering in the second degree verdict does not require Kato 

to have been an accomplice; it merely required the State to 

prove that Kato had placed the CW in danger of death or serious 

bodily injury. As to Miller’s Fifth Amendment privileges, the 

State noted that it did not offer him immunity and therefore the 

risk of prosecution for violations of the TRO or the CW’s 

stabbing was not remote under Kupihea. Finally, the State 

argued that Kato failed to present any evidence linking Miller 
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to the stabbing of the CW and thus failed to show a legitimate 

tendency that Miller was the assailant. 

The ICA, in its memorandum opinion,

17 stated that the 

State pursued a theory that Kato was the person who stabbed the 

CW, but it determined that there was substantial evidence upon 

which the jury could have found Kato to be an accomplice.

18 

Thus, the ICA concluded that it was not error for the circuit 

court to instruct on reckless endangering in the second degree, 

and there was sufficient evidence to support Kato’s conviction 

on this offense.

Turning to the circuit court’s allowance of Miller’s 

assertion of his Fifth Amendment privilege, the ICA noted that 

the privilege applies to testimony at any proceeding if it might 

tend to show the witness committed a crime. The ICA explained 

that Kato attempted to introduce evidence that would show that 

 

17 The ICA’s memorandum opinion can be found at State v. Kato, No. 

CAAP-15-0000329, 2019 WL 1253370 (App. Mar. 19, 2019) (mem.).

18 The ICA ruling on this issue states as follows:

In this case, there was substantial evidence upon which the 

jury could have concluded that Kato, pretending to be 

someone named “Ai Akanishi,” used the LINE application to 

lure [the CW] to the Kaunaʻoa Street address where someone -

who may or may not have been Kato herself - was waiting 

there to stab her. Jury Communication No. 2 bears this 

out, as does the extremely short time - twelve minutes -

between the Circuit Court answering the jury’s question and 

the return of the verdict. 

(Emphasis added.)
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Miller violated a TRO, violation of which was still subject to 

prosecution at the time of the pretrial motions and trial, as 

well as evidence that could “furnish a link in the chain of 

evidence needed to prosecute him” for the CW’s stabbing. 

Accordingly, the ICA held that the court did not abuse its 

discretion when it did not compel Miller to answer questions 

after he invoked his Fifth Amendment right against selfincrimination. 

In evaluating whether the circuit court erred in 

precluding evidence of Miller’s motive to attack the CW, the ICA 

stated that, in order to introduce evidence that a third person 

committed the crime, there must be a nexus between the third 

person and the commission of the crime, motive evidence alone 

would be irrelevant and collateral. (Citing State v. Rabellizsa, 

79 Hawaiʻi 347, 349-50, 903 P.2d 43, 45-46 (1995)). The ICA 

recited certain evidence proffered, namely that the CW described 

her attacker as a non-native speaker of Japanese and a Caucasian 

male with a height between 5’4” to 5’8” tall, and weighed the 

evidence implicating Kato and tending to show that Miller was 

not the stabber. The ICA noted that there was no evidence 

connecting Miller to the LINE app or to messages sent by “Ai 

Akanishi,” nor was there evidence that Miller had access to 

Kato’s phone. After evaluating the evidence, the ICA held that 

the evidence proffered did not have a legitimate tendency to 
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show that Miller was the person who stabbed CW or that he framed 

Kato for the attack. Thus, the ICA held that the circuit court 

did not err in precluding Kato from eliciting evidence of 

Miller’s alleged motive to murder the CW, the ICA held. 

The ICA accordingly affirmed the judgment of the 

circuit court. Kato timely filed an application for writ of 

certiorari, which this court accepted. 

III. STANDARDS OF REVIEW

A. Evidentiary Rulings

The standard employed when reviewing the admissibility 

of evidence varies with the particular evidentiary rule at 

issue. State v. West, 95 Hawaiʻi 452, 456, 24 P.3d 648, 652

(2001) (citing Kealoha v. Cty. of Haw., 74 Haw. 308, 319, 844 

P.2d 670, 676 (1993)). When a rule is amenable to objective 

application such that it can result in only one correct answer 

in a given situation, the lower court’s application of the rule 

is reviewed under the right/wrong standard. Id. The evaluation 

of whether evidence is “relevant” within the meaning of HRE Rule 

401 (1993) falls into this category of determinations, and we 

are thus not required to give weight to the trial court’s 

application of the rule. State v. St. Clair, 101 Hawaiʻi 280, 

286, 67 P.3d 779, 785 (2003).
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B. Sufficiency of the Evidence

Appellate courts review the sufficiency of the 

evidence at trial for “substantial evidence.” State v. Kalaola, 

124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010). Substantial 

evidence in this context is defined as “credible evidence which 

is of sufficient quality and probative value to enable a person 

of reasonable caution to support a conclusion.” Id. Evidence 

adduced in the trial court must be considered in the strongest 

light for the prosecution when the appellate court passes on the 

legal sufficiency of such evidence to support a conviction.

State v. Batson, 73 Haw. 236, 248, 831 P.2d 924, 931 (1992).

C. Fifth Amendment Privilege Against Self-Incrimination

“Whether a trial court should compel a witness to 

testify over the witness’s assertion that his answer might tend 

to incriminate him or her is a matter within the sound exercise 

of its discretion, and is thus reviewed for an abuse of 

discretion.” State v. Kupihea, 80 Hawaiʻi 307, 312, 909 P.2d 

1122, 1127 (1996) (citation omitted).

D. Jury Instructions

The propriety of jury instructions, or their omission,

is a question of law reviewed de novo using the following 

standard: “[w]hether, when read and considered as a whole, the 

instructions given are prejudicially insufficient, erroneous, 

inconsistent, or misleading.” State v. Bovee, 139 Hawaiʻi 530, 
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537, 394 P.3d 760, 767 (2017) (quoting State v. Frisbee, 114 

Hawaiʻi 76, 79, 156 P.3d 1182, 1185 (2007)); Kobashigawa v. 

Silva, 129 Hawaiʻi 313, 320, 300 P.3d 579, 586 (2013). 

IV. DISCUSSION

A. The Circuit Court Erred in Precluding the Defense from

Adducing Third-Party Culpability Evidence that Miller Was the 

Person Who Assaulted the CW.

Kato contends that there was sufficient evidence under 

State v. Rabellizsa, 79 Hawaiʻi 347, 903 P.2d 43 (1995), to show 

a legitimate tendency that Miller was the person who committed 

the stabbing, and thus the court erred in not allowing her to 

elicit testimony about Miller’s motive to assault the CW with a 

knife. 

In Rabellizsa, this court considered as a matter of 

first impression the admissibility of “evidence of a third 

person’s motive to commit the crime for which the defendant was 

charged.” 79 Hawaiʻi at 350, 903 P.2d at 46. The Rabellizsa

court, citing a series of cases from other jurisdictions, noted 

that generally motive alone is not sufficient to establish 

relevance; rather, there must be a “nexus between the proffered 

evidence and the charged crime.” Id. (quoting Winfield v. 

United States (Winfield I), 652 A.2d 608, 613 (D.C. 1994) 

(stating that evidence must “clearly link” a third party to the 

commission of the crime)). 
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The court in Rabellizsa quoted from People v. Green, 

which held that, to be admissible, a third party’s motive to 

commit the crime “must be coupled with substantial evidence 

tending to directly connect that person with the actual 

commission of the offense.” Id. (quoting 609 P.2d 468, 480 

(Cal. 1980)). This court stated that the California Supreme 

Court “[f]ollowing Green,” held in People v. Hall that “there 

must be direct or circumstantial evidence linking the third 

person to the actual perpetration of the crime.” Id. (emphasis 

omitted) (quoting 718 P.2d 99, 104 (Cal. 1986)). 

The Rabellizsa court additionally cited State v. 

Denny, wherein the Wisconsin Court of Appeals held that, for 

third-party culpability evidence to be admissible, “there must 

be a ‘legitimate tendency’ that the third person could have 

committed the crime.” Id. (quoting 357 N.W.2d 12, 17 (Wis. Ct. 

App. 1984) (requiring a defendant to show motive, opportunity, 

and “some evidence to directly connect a third person to the 

crime charged which is not remote in time, place or 

circumstances” for the evidence to be admissible)). 

In light of the authority that it had reviewed, the 

Rabellizsa court adopted Denny’s “legitimate tendency” test,

stating that it “comports with the relevancy test set forth in

HRE Rule 401.” Id. at 351, 903 P.2d at 47. Thus, while this 

court recognized the applicability of HRE Rule 401 to the 
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admissibility of third-party culpability evidence, such evidence 

was additionally required to meet a “legitimate tendency” test.

Id. Although the court in Rabellizsa did not specifically 

define the “legitimate tendency” test, our trial and appellate 

courts in applying the test have frequently required the 

defendant, when offering third-party culpability evidence, to 

meet varying standards, such as by showing “substantial 

evidence” or “direct evidence” that the third party is “directly 

connected,” “clearly linked,” or has a “nexus” to the commission 

of the charged offense.”

19 Here, the circuit court, as part of 

its ruling on the admissibility of the third-party culpability 

evidence, stated that, “But I don’t know if that’s a nexus. I 

mean nobody saw [Miller] near the scene” and that under 

“Rabellizsa, no nexus.”

In the 25 years since Rabellizsa was decided, almost 

all of the decisions underlying our holding in Rabellizsa have 

been clarified or modified by subsequent caselaw in those 

 

19 See, e.g., State v. Griffin, 126 Hawaiʻi 40, 54, 266 P.3d 448, 462 

(App. 2011) (quoting Rabellizsa as holding that “there must be a nexus 

between the proffered evidence and the charged crime” and that third-party 

motive “must be coupled with substantial evidence tending to directly connect 

that person with the actual commission of the offense”); State v. Peralto, 95 

Hawaiʻi 1, 3 n.1, 18 P.3d 203, 205 n.1 (2001) (holding there was no trial 

error relating to any alternative theory of the crime absent “evidence to 

directly connect [a third party] to the crime charged” that is not remote in 

time, place or circumstances (quoting Rabellizsa, 79 Hawaiʻi at 350, 903 P.2d 

at 46)); State v. Kato, No. CAAP-15-0000329, 15-17 (quoting Rabellizsa’s 

recitation of the standard set forth in People v. Green). 
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jurisdictions. It is therefore appropriate to reassess our 

continuing application of the “legitimate tendency” test. 

Initially, it is noted that the Rabellizsa court, in 

the beginning of its analysis, set forth the following: “As 

stated in People v. Green” and then quoted its standard for the

admission of third-party culpability evidence. Rabellizsa, 79 

Hawai’i at 350, 903 P.2d at 46 (quoting Green, 609 P.2d at 480). 

Immediately after the quotation, the Rabellizsa court stated:

“Following Green, the California Supreme Court held that” and 

then quoted from People v. Hall. Id. (quoting Hall, 718 P.2d at 

104). However, the Hall court had overruled the Green standard 

and held that it was “not to be followed.” Hall, 718 P.2d at 

104 n.3. The Rabellizsa court did not reference the overruling

of Green, and although it did not adopt the test set forth in 

Green, the passage quoted in the Rabellizsa decision has been 

followed or quoted in subsequent Hawaiʻi cases that have cited 

Rabellizsa.

20 Further, the California Supreme Court in Hall, in 

 

20 The quoted passage states as follows: 

It is settled . . . that evidence that a third person had a motive to 

commit the crime with which the defendant is charged is inadmissible if 

it simply affords a possible ground of suspicion against such person; 

rather, it must be coupled with substantial evidence tending to 

directly connect that person with the actual commission of the offense. 

. . . The rule is designed to place reasonable limits on the trial of 

collateral issues . . . and to avoid undue prejudice to the People from 

unsupported jury speculation as to the guilt of other suspects . . . .

Rabellizsa, 79 Hawaiʻi at 350, 903 P.2d at 46 (emphasis added) (alterations in 

original) (quoting Green, 609 P.2d at 480). The underlined clause was 

(continued . . .)
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articulating a requirement that a defendant present direct or 

circumstantial evidence linking the third person to the 

commission of the crime, stressed that “courts should simply 

treat third-party culpability evidence like any other evidence: 

if relevant it is admissible (§ 350) unless its probative value 

is substantially outweighed by the risk of undue delay, 

prejudice, or confusion (§ 352).” Id. at 104 (emphasis added).21

Rabellizsa also relied on Winfield I to establish that 

there “must be a nexus between the proffered evidence and the 

charged crime.” Rabellizsa, 79 Hawaiʻi at 350, 903 P.2d at 46 

(internal quotations omitted) (quoting Winfield I, 652 A.2d at 

613). But upon rehearing en banc in the same case, the D.C. 

Court of Appeals made clear that the test for relevance for 

third-party culpability evidence is the same test as for any 

 

(. . . continued)

applied, for example, by the ICA in State v. Griffin and nearly quoted in 

full by the ICA in this case. See supra note 19. 

21 California Evidence Code (Cal. Evid. Code) § 350 (1967) provides 

that “No evidence is admissible except relevant evidence.”

Cal. Evid. Code § 210 (1967) states that “‘Relevant evidence’ 

means evidence, including evidence relevant to the credibility of a witness 

or hearsay declarant, having any tendency in reason to prove or disprove any 

disputed fact that is of consequence to the determination of the action.”

Cal. Evid. Code § 352 (1967) provides as follows: “The 

court in its discretion may exclude evidence if its probative value is 

substantially outweighed by the probability that its admission will (a) 

necessitate undue consumption of time or (b) create substantial danger 

of undue prejudice, of confusing the issues, or of misleading the 

jury.” 
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other crime, noting that it had “explicitly tied the relevance 

standard to the usual meaning of that concept.” Winfield v. 

United States (Winfield II), 676 A.2d 1, 4 (D.C. 1996). 

Further, the court in Winfield II concluded “that the phrase 

‘clearly linked’ is unhelpful and should be discarded from our 

lexicon of terms governing the admissibility of third-party 

perpetrator evidence.” Id. at 3. The court explained that “[a]

requirement that evidence ‘tend to indicate some reasonable 

possibility that a person other than the defendant committed the 

charged offense’ sufficiently accommodates” the concern about 

distracting the jury from the issue of the defendant’s guilt. 

Id. at 5 (first emphasis added) (citations omitted). 

The court in Winfield II noted that a trial judge 

could exclude evidence of third-party motivation “unattended by 

proof that the party had the practical opportunity to commit the 

crime, including at least inferential knowledge of the victim’s 

whereabouts.” Id. However, the court explained that a 

defendant did not need to place the third-party at or near the 

murder scene at the relevant time given the “combined force of 

the proffered circumstances.” Id. at 6; accord Johnson v. 

United States, 136 A.3d 74, 80 (D.C. 2016) (holding that

“practical opportunity” in the third-party culpability context 

did not require proof actually placing the third party at or 

near the crime scene). The court also cautioned that “the trial 
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court must resolve close questions of admissibility in [thirdparty culpability cases] in favor of inclusion, not exclusion,” 

because “[u]nduly restricting admission of third-party 

perpetrator evidence would raise concerns of unequal 

treatment.”22 Winfield II, 676 A.2d at 6-7; accord Turner v. 

United States, 116 A.3d 894, 917 (D.C. 2015) (“[C]lose questions 

of admissibility should be resolved in favor of inclusion, not 

exclusion.”). 

The “legitimate tendency” analysis applied by the 

Wisconsin Supreme Court in Denny has also been revisited by that 

court because “it does not provide complete clarity as to the 

meaning and contours of two of its prongs.” State v. Wilson, 

864 N.W.2d 52, 64 (Wis. 2015).

23 While the Wilson court

reaffirmed the use of the Denny test in evaluating the 

admissibility of third-party culpability evidence, it also 

concluded that the “ambiguity” in the three prongs of the 

“legitimate tendency” test is “understandable in light of the 

 

22 Justice Nakayama’s dissent (dissent) states that the Winfield II

court reaffirmed the holding of Beale v. United States, 465 A.2d 796, 803 

(D.C. 1983), cert. denied, 465 U.S. 1030 (1984), as it relates to third party 

culpability evidence. Dissent at 28 n.26. However, the Winfield II court 

specifically stated, “To the extent our decisions in Brown [v. United States, 

409 A.2d 1093 (D.C. 1979)], Beale, and later cases, e.g., Watson v. United 

States, 612 A.2d 179, 182 (D.C. 1992), impose a more exacting standard of 

relevance [than FRE 401], we disavow them.” Winfield II, 676 A.2d at 5. 

23 The Denny “legitimate tendency” test requires third-party 

culpability evidence to show three prongs: (1) motive, (2) opportunity, and 

(3) a direct connection to the crime. Wilson, 864 N.W.2d at 64-67. 
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multitude of fact situations in which the Denny test may be 

employed.” Id. In addition to the Wilson court’s 

clarifications to the “legitimate tendency” test, the Wisconsin 

Supreme Court has also curtailed its application in other 

contexts:

If we were to apply Denny’s legitimate tendency test to 

unknown, third-party evidence, the bright line test 

established in Denny would be rendered meaningless . . . . 

[W]e hold that the test is not applicable to the 

introduction of allegedly similar crime evidence that is 

committed by an unknown third party. 

State v. Scheidell, 595 N.W.2d 661, 668 (Wis. 1999) (determining 

that the standard for admissibility of similar crime evidence 

would be governed by other crimes, wrongs, or acts evidence). 

The Scheidell court opined that a defendant simply could not

establish a plausible motive for an unknown defendant and thus 

would face “an insurmountable barrier to admissibility.” Id. at 

668. The Wisconsin Supreme Court further determined that the 

“legitimate tendency” test would also not apply to “frame-up 

evidence,” i.e., evidence that the defendant was being framed 

for the crime. State v. Richardson, 563 N.W.2d 899, 903 (Wis. 

1997). Finally, even prior to our holding in Rabellizsa, the 

Wisconsin Supreme Court had determined that proffered thirdparty culpability evidence “must connect that person to the
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crime, either directly or inferentially.” Michael R.B. v. 

State, 499 N.W.2d 641, 646 (Wis. 1993) (emphasis added).24 

The Hawaiʻi Rules of Evidence “govern proceedings in 

the courts of the State of Hawaii.” HRE Rule 101 (1993). We 

have explained that “the basic precondition for admissibility of 

all evidence is that it is relevant as that term is defined in 

HRE Rule 401.” Medeiros v. Choy, 142 Hawaiʻi 233, 245, 418 P.3d 

574, 586 (2018) (quotations, alterations, and emphasis omitted) 

(citing Commentary to HRE Rule 402 (1980)). HRE Rule 401 

defines “relevant evidence” as “evidence having any tendency to 

make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than 

it would be without the evidence.” In Rabellizsa, this court 

stated that “we are persuaded that the ‘legitimate tendency’ 

test comports with the relevancy test set forth in HRE Rule 

401.” 79 Hawaiʻi at 351, 903 P.2d at 47. However, requiring a

defendant to satisfy a “legitimate tendency” test to admit 

 

24 The dissent asserts that Richardson would not apply here because 

Kato was able to introduce, through Mochizuki’s testimony, evidence of the 

note she argued Miller used to frame her. Dissent at 30 n.27. Kato’s 

defense was that Miller committed the crime and framed her by luring her to 

the crime scene by the note left at her door; however the circuit court 

precluded her from arguing this defense to the jury. The dissent also argues 

that this opinion does not consider language from Michael R.B. that 

distinguishes “inferential” from “speculative connection.” Dissent at 30

n.27. On the contrary, we simply note that Michael R.B. does not require a 

defendant to show a direct connection, but rather allows the defendant to 

present third-party culpability evidence that inferentially connects the 

third party to the crime. 
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third-party culpability evidence exceeds the “any tendency” 

threshold of HRE Rule 401, and thus the test is not fully 

consistent with the Hawaiʻi Rules of Evidence. 

Accordingly, we hold that the threshold for 

admissibility of third-party culpability evidence should be 

understood as applying the same relevancy test that is applied 

for all other evidence, whether it is offered by the State or by 

the defendant. HRE Rule 401; accord Hall, 718 P.2d at 104 

(“[C]ourts should simply treat third-party culpability evidence 

like any other evidence: if relevant it is admissible [] unless 

its probative value is substantially outweighed by the risk of 

undue delay, prejudice, or confusion [].”); Winfield II, 676 

A.2d at 4 (noting that it had “explicitly tied the relevance 

standard to the usual meaning of that concept” for third-party 

culpability evidence); Gray v. Commonwealth, 480 S.W.3d 253, 267 

(Ky. 2016) (“At its heart, the critical question for [a thirdparty culpability theory of defense] is one of relevance: 

whether the defendant’s proffered evidence has any tendency to 

make the existence of any consequential fact more or less 

probable. And the best tool for assessing the admissibility of 

[third-party culpability] evidence is the Kentucky Rules of 

Evidence.” (footnote omitted)); State v. Gibson, 44 P.3d 1001, 

1004 (Ariz. 2002) (en banc) (“Rules 401, 402, and 403, Arizona 

Rules of Evidence, set forth the proper test for determining the 
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admissibility of third-party culpability evidence.”); People v. 

Primo, 753 N.E.2d 164, 168 (N.Y. 2001) (“‘Clear link’ and 

similar coinages, however, may be easily misread as suggesting 

that evidence of third-party culpability occupies a special or 

exotic category of proof. The better approach, we hold, is to 

review the admissibility of third-party culpability evidence 

under the general balancing analysis that governs the 

admissibility of all evidence.”); Tibbs v. State, 59 N.E.3d 

1005, 1011 (Ind. Ct. App. 2016) (“Evidence which tends to show 

that someone else committed the crime makes it less probable 

that the defendant committed the crime and is therefore relevant 

under [Evidence] Rule 401” (alteration in original)). 

Thus, when a defendant seeks to introduce third-party 

culpability evidence, the defendant must initially clear no 

higher hurdle than that set by HRE Rule 401.25 The lack of a 

“direct” link does not mean that the evidence is not relevant 

under HRE Rules 401. A defendant need not place the third party 

at or near the scene of the crime; it is sufficient for 

 

25 To the extent that Rabellizsa and any other decision of this 

court or the ICA have held that defendants must show that the third-party is 

“directly connected to the commission of the charged offense” or that the 

third party has a “nexus” or “direct link” to the offense, such tests are

superseded by this opinion. See Rabellizsa, 79 Hawaiʻi at 350-51, 903 P.2d at 

46-47; Peralto, 95 Hawaiʻi at 2 n.1, 18 P.3d at 204 n.1. Likewise, we reject 

the formulation set forth in Griffin, 126 Hawaiʻi at 54, 266 P.3d at 462, that 

evidence of third-party motive “must be coupled with substantial evidence 

tending to directly connect that person with the actual commission of the 

offense,” as inconsistent with HRE Rule 401. 
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relevancy considerations that the defendant has provided direct 

or circumstantial evidence tending to show that the third person

committed the crime. See HRE Rule 401. Further, we agree with 

the Washington D.C. Court of Appeals that a trial court should 

resolve a close question of admissibility in favor of the 

defendant. Winfield II, 676 A.2d at 6-7. 

In this case, significant evidence was presented that 

had a tendency to show that Miller was the person who committed 

the offense against the CW. Three different witnesses, the CW, 

Morie, and Mosher testified that they saw a male either stab or 

chase the CW. Officer Locey believed, based on the CW’s 

statements in the coffee shop, that he was looking for a 

Caucasian male. At trial, the CW explained that her assailant 

spoke poor Japanese. Kato proffered evidence that Miller was a 

Caucasian male, a non-native speaker of Japanese, and close in 

height to the person who did the stabbing as described by the 

CW. The CW was stabbed with a knife; Kato showed that Miller 

carried a “quick release” knife for work, which indicates his 

access to and familiarity with knives. Through Mochizuki’s 

testimony, Kato showed that Miller was together with Kato

immediately before the offense. Also through Mochizuki, Kato 

established her suspicions that Miller arranged to have her near 

the crime scene through the note she believed he had written. 

From Morie’s testimony it can be inferred that Miller was likely 
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the man called shortly after the CW was stabbed and that when he 

told Morie that he would retrieve the phone, Kato arrived 

instead. This gives rise to a strong inference that Miller was 

in direct contact with Kato shortly after the CW was stabbed. 

Additionally, based on Miller’s testimony at the 

pretrial Rule 104 hearing, Kato showed that Miller had 

previously dated the CW, wanted to marry her, and had not wanted 

to end his relationship with the CW. Further, the defense 

proffered that Kato’s testimony would show Miller had gone 

through the CW’s phone and found text messages to other men and 

told Kato about this on October 23, 2013, that he informed Kato 

the CW was having sex with other men, and that he was “angry and 

upset at [the CW].” Miller’s testimony and the defense’s 

proffer underscored Miller’s anger toward CW and provided a 

motive for him to want to physically assault the CW. Also, at 

the pretrial HRE Rule 104 hearing, defense counsel stated that 

Kato was prepared to testify that she believed Miller was 

setting her up in revenge for ruining his life by having him 

arrested for physically assaulting her. 

The proffered evidence had a tendency, either directly

or circumstantially, to implicate Miller as the person who 
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stabbed the CW.26 In fact, the evidence at trial alone so 

strongly indicated that Miller was the perpetrator of the 

stabbing that this course of events is manifested in the jury 

communications to the court, acknowledged by the State in its 

answering brief, recognized by the ICA in its memorandum 

opinion, and reflected in the jury’s verdict.27 Applying HRE 

Rule 401, there was ample evidence that had a tendency to show 

that Miller was the person who assaulted the CW, which 

indisputably was a fact of consequence to the determination of 

the action. Further, the evidence adduced also readily 

satisfied the “legitimacy tendency” test applied by the circuit 

court and was improperly excluded on this basis.28 

 

26 The evidence also allows an inference that Kato and Miller were 

working in tandem, with Miller committing the stabbing and Kato aiding Miller 

in committing the offense. 

27 As stated, the jury specifically asked the court whether it could 

“consider whether someone else aided [Kato],” and they were told in response 

to follow the court’s instructions. The jury next informed the court that 

“there is reasonable doubt whether [Kato] actually held the knife and stabbed 

[the CW]” and that “others feel that there is proof beyond a reasonable doubt 

that [Kato] took actions to lead [the CW] to Kaunaoa St. where someone was 

waiting to stab [the CW].” The jury then asked “does the charge include 

[Kato] intentionally conspiring to have [the CW] stabbed without actually 

being the stabber?” The court responded “no” to the jury’s second question. 

Also, as noted, the State acknowledged in its answering brief 

that it had “failed to prove beyond a reasonable doubt that [Kato] was the 

stabber and inflicted bodily injury upon [the CW].” Likewise, the ICA noted 

that someone other than Kato might have been the CW’s assailant. 

28 The dissent cites other evidence in the record that, in its view, 

refutes the relevancy of the third-party culpability evidence: for example, 

Miller said that he was not angry when the CW stopped contacting him, he 

never spoke to her about marriage, and he did not find out that the CW was 

seeing other men during or after their relationship. Dissent at 35 n.33. 

But it is not the trial court’s responsibility in determining the relevancy 

(continued . . .)
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Once a defendant has cleared the threshold of HRE Rule 

401, the court must still evaluate whether the proffered 

evidence is “substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury, or 

by considerations of undue delay, waste of time, or needless 

presentation of cumulative evidence.” HRE Rule 403 (1993). 

In this case, the probative value of the proffered 

evidence was indisputably not substantially outweighed by the 

danger of unfair prejudice, confusion of the issues, misleading 

the jury, or by considerations of undue delay or waste of time. 

See HRE Rule 403. The excluded evidence was of fundamental 

importance to the jury in its determination of the charge in 

this case and deprived Kato of a fair trial. The circuit court 

erred in precluding Kato from introducing third-party 

culpability evidence and in foreclosing defense counsel from 

arguing in closing argument that Miller assaulted the CW or 

framed Kato for the attack. The error prejudicially affected 

 

(. . . continued)

of evidence to weigh conflicting evidence, whether such evidence is in the 

form of testimony or an offer of proof. Additionally, the dissent concludes 

that “Miller, at 5’10”, is much taller than the suspect.” Dissent at 33. 

However, the CW on the night of the incident told Officer Trevino, who was 

Japanese speaking, the height of her attacker in centimeters, which the 

officer converted to 5’9”. Further, Mosher testified that the suspect was 

5’6” to 5’8”. Again, as further discussed in Part IV.B, infra, it is not the 

function of the trial court to resolve such factual disputes in determining 

the admissibility of third-party culpability evidence. 
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Kato’s right to present her defense and to a fair trial, and it 

was clearly not harmless beyond a reasonable doubt. See State v. 

DeLeon, 143 Hawaiʻi 208, 218-19, 426 P.3d 432, 442-43 (2018)

(holding trial court’s exclusion of specific instances of 

victims’ prior violent acts when there was actual dispute as to 

who was the first aggressor was not harmless error).

29

B. The Circuit Court and the ICA Improperly Weighed the ThirdParty Culpability Evidence Proffered by Kato.

Both the circuit court and the ICA, in reaching the 

erroneous conclusion to exclude third-party culpability 

evidence, improperly weighed the evidence offered by the defense 

to support its admission. During pre-trial hearings and at 

trial, Kato proffered evidence that Miller was a Caucasian male, 

a non-native speaker of Japanese, and was 5’10”. Kato also 

elicited testimony from witnesses that the CW’s assailant was a 

Caucasian male, a non-native speaker of Japanese, and around 

 

29 The dissent misapprehends the holding of this opinion, contending 

that our decision would allow “third-party motive evidence alone” to 

establish relevancy. Dissent at 2, 26, 33. Instead, our opinion applies HRE 

Rule 401’s relevancy standard to proffered third-party culpability evidence 

in the same manner as that rule applies to all other evidence. It rejects 

the higher burden adopted in Rabellizsa, which is not consistent with the 

Hawaiʻi Rules of Evidence. Evaluating the admissibility of third-party 

culpability evidence under HRE Rules 401 and 403 is not a “flimsy standard,” 

as characterized by the dissent, dissent at 32, as emphatically demonstrated 

by HRE Rules 401 and 403’s uniform applicability to all other forms of 

evidence and upon which our courts rely upon to provide fair and efficient 

trials. Finally, the dissent maintains that it is disingenuous for this 

opinion to not cite other jurisdictions that have held third-party motive is 

relevant only when there is additional evidence to connect the third person 

to the crime. Dissent at 26-27. As stated, we do not hold that evidence of 

a third party’s motive on its own will ipso facto allow admissibility of such 

evidence, instead HRE Rule 401 and Rule 403 govern. 
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5’7” to 5’9” in height. In explaining its ruling to deny the 

admission of the third-party culpability evidence, the circuit 

court stated that no one saw Miller at the scene, there was 

testimony that the assailant was Asian while Miller is 

Caucasian, Miller was not bothered by seeing the CW with other 

men, and Miller was around 5’10” tall. Similarly, in affirming 

the circuit court’s ruling that Kato’s proffered evidence did 

not show that Miller committed the crime, the ICA stated that 

the CW would have recognized Miller’s voice if he was the 

assailant, Miller was not connected to the LINE app, no evidence 

showed that Miller had possession of Kato’s phone, and Kato gave 

an inconsistent story to her roommate about losing her phone. 

In Holmes v. South Carolina, the United States Supreme 

Court considered an evidentiary rule adopted in South Carolina 

caselaw that excluded third-party culpability evidence “where 

there is strong evidence of [a defendant’s] guilt, especially 

where there is strong forensic evidence.” 547 U.S. 319, 329

(2006) (alteration in original). The Supreme Court noted that, 

under South Carolina’s rule, “if the prosecution’s case is 

strong enough, the evidence of third-party guilt is excluded 

even if that evidence, if viewed independently, would have great 

probative value[.]” Id. The Court observed that the logic of 

South Carolina’s rule required evaluating the State’s evidence, 

which cannot be done without making the type of factual findings 
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of credibility and reliability of the evidence, traditionally 

reserved for the trier of fact. Id. at 330.

Just because the prosecution’s evidence, if credited, would 

provide strong support for a guilty verdict, it does not 

follow that evidence of third-party guilt has only a weak 

logical connection to the central issues in the case. 

Id. Without considering challenges to the reliability of the 

State’s evidence, the Supreme Court held that “no logical 

conclusion” could be reached regarding the strength of the 

defense’s evidence, nor could the State’s evidence be accurately 

assessed, especially when the State’s evidence had not been 

conceded. Id. at 331. The Court hypothesized that an inverse 

rule, i.e., one requiring the State to show that its evidence 

against the defendant is not countered by evidence showing that 

the defendant is not guilty, would be equally illogical. Id. at 

330.

The Holmes court concluded that basing the 

admissibility of a defendant’s third-party culpability evidence 

solely on the strength of the State’s evidence is “arbitrary,” 

and does not “rationally serve” the goal of third-party 

culpability rules. Id. at 330-31. Thus, the Supreme Court held 

that South Carolina’s rule violated a defendant’s right in a 

criminal case to have a “meaningful opportunity to present a 

complete defense.” Id. at 331. 

The very concern raised in Holmes, namely the ability 

of a defendant to introduce third-party culpability evidence on 
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its own merit, was present in this case. Here, the circuit 

court and the ICA, when evaluating whether Kato’s proffered 

evidence and the evidence adduced during trial had a “legitimate 

tendency” to show that Miller was the person who assaulted the 

CW, both incorrectly weighed and relied on evidence tending to 

show that Miller was not the assailant. 

The circuit court credited the State’s evidence 

showing that the assailant was female, Asian, and shorter than 

Miller.30 In so crediting the State’s evidence, the circuit 

court necessarily determined that Kato’s evidence showing that 

the assailant was male, white, around the same height as Miller, 

and spoke poor Japanese and was a nonnative speaker of Japanese 

was not credible. The ICA similarly evaluated the State’s 

evidence, crediting Miller’s testimony that he had not used the 

LINE app and determining that Miller was not the CW’s assailant 

because the CW would have recognized him. In so concluding, the 

ICA necessarily gave no weight to Kato’s proffered evidence that 

Miller had access to her phone and thus her LINE app, ignored 

the CW’s testimony that Kato was not the individual who stabbed 

her and that the assailant was not a native Japanese speaker, 

 

30 The circuit court also credited Miller’s testimony that he was 

not upset at the CW despite (1) Miller’s testimony that he had wanted to 

marry the CW and that she just stopped contacting him without telling him 

that they were officially breaking up, and (2) proffered defense evidence 

that Miller had found text messages to other men on the CW’s phone, Miller 

knew she was having sex with other men, and Miller was upset and angry at the 

CW.
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and rejected all the evidence from witnesses whose description 

of the assailant did not match Kato. Because much of the 

State’s evidence was not conceded and by selectively crediting 

evidence, the circuit court and the ICA made determinations that 

should have been reserved to the jury for its consideration. 

Holmes, 547 U.S. at 330; see also State v. Aplaca, 96 Hawaiʻi 17, 

25, 25 P.3d 792, 800 (2001) (holding that the circuit court 

erred by not submitting the question of the victim’s age and the 

defendant’s knowledge of the victim’s age to the jury); State v. 

Tamura, 63 Haw. 636, 637-38, 633 P.2d 1115, 1117 (1981) (per 

curiam) (“The jury, as the trier of fact, is the sole judge of 

the credibility of witnesses or the weight of the evidence.”).

When a court excludes a defendant’s third-party 

culpability evidence based solely on the weight of the State’s 

evidence tending to show that there was not a third-party 

perpetrator, its decision arbitrarily excludes such evidence and 

violates a defendant’s right to have a “meaningful opportunity 

to present a complete defense.” Holmes, 547 U.S. at 331. 

Because the circuit court and the ICA impermissibly rejected 

Kato’s proffered evidence based on the State’s contested 

evidence that Miller did not match the height, race, sex, and 

Japanese fluency of the assailant, each court erred in the 

manner that it evaluated the admissibility of the third-party 

culpability evidence. The circuit court’s error in excluding 
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the evidence prejudicially affected Kato’s right to a fair trial 

and was not harmless beyond a reasonable doubt. See State v. 

Pulse, 83 Hawaiʻi 229, 248, 925 P.2d 797, 816 (1996) (holding 

that the exclusion of competent testimony that infringed upon a 

constitutional right of the accused was presumptively 

prejudicial and was not harmless error).31

C. The Circuit Court Utilized the Proper Standard and Did Not 

Abuse Its Discretion in Evaluating Miller’s Invocations of His 

Fifth Amendment Privilege.

Article I, section 10 of the Hawaiʻi Constitution, 

which is virtually identical to the Fifth Amendment to the 

United States Constitution,32 provides in pertinent part that “no 

person shall . . . be compelled in any criminal case to be a 

witness against oneself” (Fifth Amendment privilege). Haw. 

Const. art. I, § 10. The Fifth Amendment privilege applies to 

any testimony an individual gives, whether at the person’s own 

 

31 The dissent argues that the circuit court and the ICA did not 

selectively credit the State’s evidence and that this opinion relies on 

defense counsel’s offer of proof instead of evidence in the record. Dissent 

at 35 n.34. The evidence was not in the evidentiary trial record because the 

circuit court excluded it after improperly weighing the State’s evidence 

against the defense’s proffer. The requisite record for admission of the 

evidence was established in accordance with HRE Rule 103(a)(2) (Supp. 2012), 

which provides as follows: “In case the ruling is one excluding evidence, the 

substance of the evidence was made known to the court by offer or was 

apparent from the context within which questions were asked.” Kato’s counsel 

stated to the circuit court the underlying bases for the admissibility of the 

third-party culpability evidence. 

32 The Fifth Amendment to the United States Constitution provides in 

relevant part, “No person shall . . . be compelled in any criminal case to be 

a witness against himself[.]” U.S. Const. amend. V. 
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criminal proceedings or at the proceeding of another. State v. 

Kupihea, 80 Hawaiʻi 307, 313, 909 P.2d 1122, 1128 (1996).

In evaluating the extent of a witness’s Fifth 

Amendment privilege, this court has stated that the privilege 

does not protect against “remote possibilities [of future 

prosecution] out of the ordinary course of law” but is instead 

“confined to instances where the witness has reasonable cause to 

apprehend danger from a direct answer.” Kupihea, 80 Hawaiʻi at 

313, 909 P.2d at 1128 (alteration in original) (first quoting 

Territory of Hawaii v. Lanier, 40 Haw. 65, 72 (Haw. Terr. 1953); 

and then quoting Hoffman v. United States, 341 U.S. 479, 486 

(1951)). The privilege against self-incrimination “extends not 

only to answers that would in themselves support a conviction, 

but to those that would furnish a link in the chain of evidence 

needed to prosecute.” Id. at 313, 909 P.2d at 1128 (quoting

Lanier, 40 Haw. at 72). 

Kato argues that the circuit court incorrectly used a 

“possibility of prosecution standard” in assessing Miller’s 

invocation of the privilege instead of the “reasonable cause to 

apprehend danger from a direct answer” standard.33 Kato also 

contends that there was no indication that the State would 

charge Miller for the CW’s stabbing or prosecute Miller for the 

 

33 Although we resolve this case on other grounds, we address this 

issue in light of the possibility that it may arise again on retrial. 
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abuse charge or any TRO violations, and thus he should not have 

been permitted to exercise his Fifth Amendment rights. 

During the HRE Rule 104 hearing at trial, the circuit 

court allowed Miller to exercise his Fifth Amendment privilege 

on questions regarding his previous relationship with Kato and 

his communications with her from August to October 2013, because 

Miller could still be prosecuted for the abuse charge as it was 

dismissed without prejudice and could be charged with violating 

the TRO as it did not expire until December 25, 2013. The court 

also allowed Miller to invoke the privilege with regard to 

questions that could have shown that Miller was angry at the CW 

for ending their relationship or dating other men and relating 

to communications he had with the CW after the end of their 

relationship that would show he knew the whereabouts of the CW. 

The court stated that answering questions about communications 

with Kato was going to “lead directly to” Miller arranging the 

stabbing and that answering questions about post-relationship 

communications with the CW would show that he knew her 

whereabouts near the time of the incident, which would furnish a 

link in the chain of prosecution. 

Thus, the circuit court applied the correct legal 

standard in assessing Miller’s invocation of the Fifth Amendment 

privilege. The court also did not abuse its discretion in 

concluding that Miller had reasonable cause to apprehend danger 
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from answers to questions regarding his previous relationship 

with Kato and communications with Kato from August to October

2013, as Miller was still subject to prosecution for the abuse 

incident and for violation of the TRO. Additionally, the court 

did not abuse its discretion in concluding that answers

regarding motive to harm the CW and communications with the CW 

after the end of their relationship may have furnished a link in 

a chain of prosecution by showing that Miller had the motive and 

opportunity to assault the CW. Accordingly, the circuit court

did not err in its rulings on Miller’s exercise of his Fifth 

Amendment privilege, which were properly affirmed by the ICA.34 

 

34 At trial, Kato argued that Miller had waived his Fifth Amendment 

privilege, and Kato briefly references this circumstance in her Application: 

“Miller had answered a number of questions after the first 104 hearing and 

then changed his positions during the second 104 hearing.” The circuit court 

did not rule on whether Miller had waived the privilege. On remand, if 

Miller again asserts his privilege to questions that he answered at his 

pretrial Rule 104 hearing, the court will need to address whether Miller 

waived his Fifth Amendment privilege under HRE Rule 511 (1993):

A person upon whom these rules confer a privilege against 

disclosure waives the privilege if, while holder of the 

privilege, the person or the person’s predecessor 

voluntarily discloses or consents to disclosure of any 

significant part of the privileged matter. This rule does 

not apply if the disclosure itself is a privileged 

communication. 

See also Naipo v. Border, 125 Hawaiʻi 31, 36, 251 P.3d 594, 599 (2011) 

(a witness voluntarily waives the privilege if the witness is 

“expressly advised of the privilege and testifies without asserting the 

privilege”).
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D. The Circuit Court Did Not Plainly Err in Failing to Give an 

Accomplice Instruction to the Jury.

On appeal, Kato argues that, based on the jury 

instructions given, she could only have been found guilty of 

reckless endangering in the second degree if the jury found her 

to be the principal actor, i.e., the person who committed the 

stabbing. As the State only pursued a theory of principal 

liability and no accomplice instruction was given, Kato contends 

that she should not have been found guilty of reckless 

endangering in the second degree as the jury did not find her to 

be the principal actor. This raises the question as to whether 

the circuit court plainly erred in not giving an accomplice 

instruction to the jury.

“[I]t is the duty of the trial court to ensure that 

the jury is properly instructed.” State v. Kikuta, 125 Hawaiʻi 

78, 90, 253 P.3d 639, 651 (2011). In reviewing an omitted or 

flawed jury instruction, “we will vacate, without regard to 

whether timely objection was made, if there is a reasonable 

possibility that the error contributed to the defendant’s 

conviction, i.e., that the erroneous jury instruction was not 

harmless beyond a reasonable doubt.” DeLeon, 131 Hawaiʻi at 479, 

319 P.3d at 398 (quoting State v. Nichols, 111 Hawaiʻi 327, 337,

141 P.3d 974, 984 (2006)). 
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“The Hawaii and the federal Constitutions as well as 

our rules of penal procedure clearly require that appellants be 

informed of the charges against them.” State v. Soares, 72 Haw. 

278, 281, 815 P.2d 428, 430 (1991) (citing Haw. Const. art. I, §

[14]; U.S. Const. amend. VI; Hawaiʻi Rules of Penal Procedure 

Rule 7(d); State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 

(1977)).

35

This court has held that a defendant does not need to 

be charged as an accomplice to permit the giving of an 

accomplice instruction. State v. Apao, 59 Haw. 625, 645, 586 

P.2d 250, 263 (1978) superseded by statute on other grounds as 

stated in Briones v. State, 74 Haw. 442, 456 n.7, 848 P.2d 966, 

973 n.7 (1993) (holding that under the facts of the case, it was 

not error for the court to instruct on accomplice liability); 

State v. Fukusaku, 85 Hawaiʻi 462, 486, 946 P.2d 32, 56 (1997). 

However, charging a defendant as a principal is not necessarily 

sufficient to provide the defendant with adequate notice of the 

charges as constitutionally required. Soares, 72 Haw. at 281, 

815 P.2d at 430; State v. Toma, No. SCAP-13-0000029, at 5, 2015 

WL 9303983, at *17-18 (Dec. 21, 2015) (mem.) (Pollack, J., 

dissenting) (“[I]t does not follow that charging a defendant as 

 

35 See Haw. Const. art I, § 14 (“In all criminal prosecutions, the 

accused shall enjoy the right . . . to be informed of the nature and cause of 

the accusation . . . .”); U.S. Const. amend. VI (same). 
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a principal provides a defendant sufficient notice that he or 

she must also be prepared to defend against an accomplice theory 

of liability.”); see Fukusaku, 85 Hawaiʻi at 486, 946 P.2d at 56 

(discussing facts and circumstances of the case to determine 

whether the defendant had sufficient notice of the nature of the 

charges). 

In this case, Kato was not charged as an accomplice in 

the alleged commission of the attempted murder offense, and thus 

she did not receive any notice that the evidence at trial may 

subject her to a conviction based upon accomplice liability. 

Additionally, it is undisputed that the State’s evidence was 

directed at proving that Kato was the person who stabbed the CW

and the State did not present an accomplice theory of liability.

Thus, the court did not plainly err in not submitting an 

accomplice instruction to the jury.

Kato contends, however, that she was convicted as an 

accomplice, and not as a principal, despite the fact that the 

jury was not instructed on accomplice liability. While there 

are certainly indications in the record that the jury may have 

concluded that Kato acted as an accomplice and not a principal, 

it is not necessary for this court to resolve whether the 
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possibility of such a determination prejudiced Kato in light of 

our disposition of this case on other grounds.36

V. CONCLUSION

For the foregoing reasons, the ICA’s April 18, 2019 

Judgment on Appeal and the circuit court’s March 11, 2015 

judgment are vacated, and this case is remanded to the circuit 

court for further proceedings consistent with this opinion. 

 

36 Kato also contends that there was not substantial evidence for 

the jury to convict her of reckless endangering in the second degree. Our 

caselaw has established that this offense can be a lesser-included offense of 

attempted murder. State v. Samonte, 83 Hawaiʻi 507, 541, 928 P.2d 1, 35 

(1996). Appellate courts review the sufficiency of the evidence at trial for 

“substantial evidence.” State v. Eastman, 81 Hawaiʻi 131, 135, 913 P.2d 57, 

61 (1996). 

Looking at the evidence in the most favorable light to the 

prosecution, there is substantial evidence for the jury to conclude that Kato 

lured the CW to the location where she was attacked. State v. Vliet, 91 

Hawaiʻi 288, 293, 983 P.2d 189, 194 (1999) (“[T]his court, in passing upon the 

sufficiency of the evidence, must view the evidence in the light most 

favorable to the prosecution . . . .”). Messages retrieved on Kato’s phone 

provide evidence that she either operated the “Ai Akanishi” LINE ID or was in 

contact with “Ai Akanishi.” Kato thus would have been able to contact the CW 

as “Ai Akanishi” or would have been able to provide the CW’s LINE ID to “Ai 

Akanishi.” Kato was identified near the scene of the attack when she sought 

to retrieve the phone that had apparently been dropped there by the 

assailant. This evidence is of sufficient quality and probative value to 

allow the jury to find that Kato recklessly placed the CW in danger of death 

or serious bodily injury. See HRS § 707-714(1)(a). Accordingly, there was 

substantial evidence to support Kato’s conviction for reckless endangering in 

the second degree. 

Myron H. Takemoto

for petitioner

Stephen K. Tsushima

for respondent

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson