NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 

NO. CAAP-21-0000555

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellant, 

v.

COLE F. SULENTA, Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CASE NO. 2CPC-20-0000220(3))

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

Plaintiff-Appellant, State of Hawai#i (State) appeals

from the September 13, 2021 Findings of Fact (FOF), Conclusions

of Law (COL); Order Granting Defendant-Appellee Cole F. Sulenta's

(Sulenta) Motion to Dismiss Counts 1-5 for Insufficient Evidence

(Order Granting Motion to Dismiss), filed by the Circuit Court of

the Second Circuit (Circuit Court).

1 Sulenta was charged via

Felony Information and Non-Felony Complaint (Information) with

Accidents Involving Death or Serious Bodily Injury in violation

of Hawaii Revised Statutes (HRS) § 291C-12; two counts of

Negligent Injury in the First Degree in violation of HRS § 707-

705; Operating a Vehicle Under the Influence of an Intoxicant in

violation of HRS § 291E-61(a)(1); and Reckless Driving of Vehicle

in violation of HRS § 291-2.

1 The Honorable Kelsey T. Kawano presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-21-0000555

27-JUL-2022

07:46 AM

Dkt. 39 SO
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On appeal, the State contends that the Circuit Court

erred in granting Sulenta's Motion to Dismiss Counts 1-5 for

Insufficient Evidence (Motion to Dismiss) and entering FOF 9 and

COLs 3, 4,2 5, 6, 7, 8, 9, 10, and 11.3 

2 The Circuit Court's FOF, COL, and Order Granting Motion to Dismiss

contains a typographical error with two COLs numbered as COL 4. In its

Opening Brief, the State clarifies that it challenges the second COL 4 ( Second

COL 4). 

3 The challenged FOF and COLS state:

FINDINGS OF FACT

. . . . 

9. The Order Granting Motion to Suppress further concluded

that Officer Thompson's Declaration is inadmissible

testimonial hearsay barred by Crawford v. Washington, 541 U.

S. 36 (2004).

CONCLUSIONS OF LAW

. . . .

3. The State's additional evidence was set forth in Ofc.

Thompson's declaration was submitted in support of the

information charging packet. However, this Court has

determined that information to be inadmissible testimonial

hearsay, barred by Crawford v. Washington, 541 U.S. 36

(2004).

. . . .

4. The information in the charging packet is admissible for

purposes of establishing probable cause to support the

information charge. But, it is not permissible for purposes

of opposing the subsequent motion to dismiss for lack of

probable cause nor for use at the trial where the proponent

of the hearsay statements is deceased and unavailable for

cross-examination.

5. When [Sulenta] exercised his right to seek dismissal of

the information pursuant to HRS § 806-86(a), he was stymied

in that effort because Ofc. Thompson was not here to answer

questions about his declaration.

6. None of the facts argued by the State in opposition to

the instant motion to dismiss have any basis for admission

and consideration by this Court without Ofc. Thompson.

7. The sources and identities of the declarant's hearsay

statements as related by Ofc [sic] Thompson in his

declaration are unknown to this Court. The declaration only

cited to two MPD reports, 19-035605 and 19-035607. But, they

are his own police reports, and his two police reports do

(continued...)

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Upon review of the record and the briefs submitted by

the parties and having given due consideration to the arguments

advanced and the issues raised, we resolve the State's point of

error as follows, and affirm.

The pertinent background is as follows. On April 30,

2020, the State filed the five-count Information against Sulenta,

along with sealed exhibits in support of the Information (Sealed

Exhibits), which contained the Declaration of Maui Police

Department (MPD) Officer Jason Thompson (Officer Thompson), who

investigated the case involving Sulenta. FOFs 2 and 3. On May

1, 2020, the Circuit Court found that the Sealed Exhibits

contained sufficient evidence to support a finding of probable

cause (PC) for the Information, and filed its Order Following

Judicial Review of Information and Complaint and Supporting

Documents (May 1, 2020 Order Finding PC).4 FOF 4.

3(...continued)

not reference the additional evidence for which the State

argued.

8. Ofc. Thompson was not involved in investigating the

vehicle collision other than investigating [Sulenta] himself

for criminal conduct. Ofc. Thompson's records and files do

not indicate that he conferred with other officers who did

the collision investigation or what information was obtained

from such conferences. The only documented conference in his

reports was with Sergeant Ryan Saribay ("Sgt. Saribay"),

which was irrelevant to this issue of the additional

information.

9. None of the other records and files in this case,

including prior motions and exhibits attached thereto, and

the items listed in the foregoing paragraph 9 of the

Findings of Fact, indicate that Ofc. Thompson conferred with

other officers who investigated the incident or what

information was obtained from such conferences, with the

exception of a conference with Sgt. Saribay.

10. Accordingly, the current records and files of this case

are devoid of any evidence to support a finding of probable

cause for the continued prosecution of this case. 

11. The trial court can dismiss a complaint or indictment

because of the incompetency of evidence. State v. Corpuz, 67

Haw. 438, 690 P.2d 282 (1984). Id., 67 Haw. at 440, 690 P.2d

at 284.

4 The Honorable Kirstin M. Hamman signed the May 1, 2020 Order

Finding PC. An amended order was filed on May 11, 2020.

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On August 5, 2020, Officer Thompson died. FOF 5.

In November 2020, Sulenta filed motions to suppress

statements and evidence (Motions to Suppress). In his Motions to

Suppress, Sulenta argued that the State's evidence, which

included documentation created by Officer Thompson, such as

evidence of oral statements made by Sulenta, Sulenta's

Standardized Field Sobriety Test, the Incident/Investigation

Report, the Motor Vehicle Accident Report, the transcript of

Officer Thompson's body camera (body cam) video, and the Lahaina

Police Station Processing Video (processing video), should be

suppressed because Officer Thompson was now deceased and

unavailable for cross-examination. Following a June 16, 2021

hearing5 on the suppression motions, the Circuit Court granted

the motions, and subsequently filed a July 23, 2021 FOF and COL;

Order Granting Motion to Suppress Evidence (July 23, 2021 Order

Granting Suppression).6

5 The State called the following witnesses at the hearing: Shayna

Hipolito, a former MPD employee who assisted Officer Thompson with booking

Sulenta at the Lahaina Police Station and authenticated the processing video;

MPD Officer Paul Pomainville, who authenticated Officer Thompson's body cam

video; and Sergeant Ryan Saribay, who responded to the police dispatch and was

the first officer on the scene of the accident, observed Sulenta at the scene,

and turned over the investigation once Officer Thompson arrived.

6 The Order Granting Suppression stated in pertinent part:

FINDINGS OF FACT

10. Ofc. Thompson also prepared a declaration (Dkt.

#3) which served as the sole basis for the judicial

determination of probable cause (Dkt. #7) for the Felony

Information and Non-Felony Complaint herein (Dkt.#1).

. . . .

CONCLUSIONS OF LAW

. . . .

19. Ofc. Thompson's declaration in support of the

Felony Information and Non-Felony Complaint herein, referred

to in paragraph 4 above fall within the "core class of

testimonial statements described in Crawford." State v.

Fitzwater, 122 Haw. 354, 371-373 (2010), quoting, Crawford

v. Washington, 541 U.S. at 51-52; Melendez v. Massachusetts,

557 U.S. 305, 129 S. Ct. 2527 (2009). The declaration is

inadmissible testimonial hearsay.

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The Circuit Court suppressed the documentation from Officer

Thompson, the body cam video, and the Lahaina Police Station

Processing Video, ruling these items inadmissible at trial due to

the Confrontation Clause and Sixth Amendment7 issues resulting

from Officer Thompson's unavailability for cross-examination by

Sulenta.

On July 29, 2021, Sulenta filed the Motion to Dismiss

at issue in this appeal, arguing inter alia, that dismissal was

necessary based on the July 23, 2021 Order Granting Suppression.

Sulenta attached the suppression order to his motion, urging that

"in light of [the order], it is evident that the State lacks the

evidence to proceed against [Sulenta] . . . ." In opposition,

the State argued that under HRS § 806-88(b), a determination of

probable cause may be based in whole or in part on hearsay

evidence and upon evidence that may ultimately be ruled

inadmissible at trial, and that there was sufficient additional

evidence that was not suppressed "for the case to proceed to

trial."

Following hearings on August 5 and 19, 2021, the

Circuit Court granted Sulenta's motion and dismissed Counts 1-5

without prejudice, noting in its oral ruling that the State could

re-file a felony information with the additional "potential

sources of evidence that may exist" that the State had made

reference to. On September 13, 2021, the Circuit Court filed its

FOF, COL, and Order Granting Motion to Dismiss, from which the

State timely appealed.

A circuit court's ruling on a "motion to dismiss an

[information] based on sufficiency of the evidence to support the

[information]" is reviewed de novo. State v. Shaw, 150 Hawai#i

56, 61, 497 P.3d 71, 76 (2021) (citing State v. Taylor, 126

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

7 The sixth amendment to the United States Constitution and article

I, section 14 of the Hawai#i Constitution guarantee an accused the right to

confront adverse witnesses. State v. Balisbisana, 83 Hawai#i 109, 115, 924

P.2d 1215, 1221 (1996).

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Findings of fact are reviewed on appeal under the

clearly erroneous standard. Jones v. State, 79 Hawai#i 330,

334, 902 P.2d 965, 969 (1995). "A finding of fact is clearly

erroneous when, despite evidence to support the finding, the

appellate court is left with the definite and firm

conviction in reviewing the entire evidence that a mistake

has been committed." Id. (quoting Tachibana v. State, 79

Hawai#i 226, 231, 900 P.2d 1293, 1298 (1995)). "A finding of

fact is also clearly erroneous when the record lacks

substantial evidence to support the finding." O'Grady v.

State, 140 Hawai#i 36, 43, 398 P.3d 625, 632 (2017) (quoting

In re Grievance Arbitration Between State of Haw. Org. of

Police Officers, 135 Hawai#i 456, 461-62, 353 P.3d 998,

1003-04 (2015)).

"An appellate court may freely review conclusions of

law and the applicable standard of review is the right/wrong

test." Dan v. State, 76 Hawai#i 423, 428, 879 P.2d 528, 533

(1994) (quoting Maria v. Freitas, 73 Haw. 266, 270, 832 P.2d

259, 262 (1992)).

Birano v. State, 143 Hawai#i 163, 181, 426 P.3d 387, 405 (2018).

FOF 9

FOF 9 stated that the suppression order concluded that

Officer Thompson's Declaration was inadmissible hearsay banned by

the Crawford case. The State acknowledges that FOF 9 "is a

correct statement of what the Circuit Court ruled" in the

suppression order, but claims that FOF 9 "incorrectly implies

that the admissibility of evidence is a proper consideration on a

Motion to Dismiss an Information." The State thus concedes that

FOF 9 is accurate and not clearly erroneous as a factual finding. 

The State's disagreement with an implication of FOF 9 that it

perceives as incorrect does not render FOF 9 clearly erroneous as

a factual finding. See Birano, 143 Hawai#i at 181, 426 P.3d at

405.

COL 3

The State argues that COL 3 is erroneous because the

admissibility of evidence is not "a proper consideration" on a

motion to dismiss an Information and that "while Crawford has

implications regarding admission at trial, it has no bearing on

the determination of probable cause." We do not read COL 3 as

applying Crawford to a "determination of probable cause." COL 3,

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which is actually an FOF, merely states that the evidence in

Thompson's Declaration in support of the Information was

previously determined by the court "to be inadmissible

testimonial hearsay" banned by Crawford. This FOF is based on

the record of prior proceedings in this case, is supported by the

suppression order, and is not clearly erroneous. See id. 

Second COL 4 and COLs 5 - 10

The State argues that Second COL 4 was wrong, where the

Circuit Court concluded that the "information in the charging

packet," i.e. Officer Thompson's Declaration, "is not permissible

for purposes of opposing the subsequent motion to dismiss for

lack of probable cause nor for use at the trial where the

proponent of the hearsay statements is deceased and unavailable

for cross-examination." The State argues that HRS §§ 806-85(b)8

and 806-88(b)9 allow the court to rely upon hearsay for both the

8 HRS § 806-85 (2014), entitled "Probable cause," provides in

pertinent part:

(a) When an information is filed, the court having

jurisdiction shall review the information and its exhibit to

determine whether there is probable cause to believe that

the offense charged was committed and that the defendant

committed the offense charged.

(b) A finding of the existence of probable cause or lack

thereof may be based in whole or in part upon hearsay

evidence or upon evidence that may ultimately be ruled to be

inadmissible at the trial.

(c) If the court finds that there is probable cause to

believe that the offense charged was committed and that the

defendant committed the offense charged, the court shall set

bail and direct the clerk to issue a warrant for the arrest

of the defendant. . . .

9 HRS § 806-88 (2014), entitled "Ruling on motion to dismiss,"

provides:

(a) The court shall determine from an examination of the

information and its attachments, and in light of any

evidence presented at a hearing on a motion to dismiss the

information, whether the information and its attachments

establish the existence of probable cause to believe that

the offense charged has been committed and that the

defendant committed the offense charged.

(continued...)

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probable cause determination and a motion to dismiss an

Information. The State also claims that Second COL 4 conflicts

with HRS § 806-88, which "requires consideration" of Officer

Thompson's Declaration submitted in support of the Information.

While the wording in Second COL 4 is confusing, COL 7

makes clear that the Circuit Court did consider Officer

Thompson's Declaration. The Circuit Court's reasoning in Second

COL 4 and COL 5 turned on Sulenta's inability to exercise his

right to call the officer and question him at the motion to

dismiss hearing as provided by HRS § 806-87(a).10 HRS § 806-

87(a) provides that a defendant may introduce evidence at a

hearing to dismiss an Information, by issuing subpoenas and

calling witnesses, to challenge the existence of probable cause. 

Sulenta was unable to do this since Officer Thompson had passed

away. Hence, COL 5's conclusion that Sulenta was "stymied" in

seeking dismissal of the Information under HRS § 806-88(a),

"because Officer Thompson was not here to answer questions about

his declaration," was not wrong. See id. As the State points

out, HRS § 806-88 requires the court to rule on a motion to

dismiss based on reviewing the Information and attachments, but

9(...continued)

(b) A finding of the existence of probable cause or lack

thereof may be based in whole or in part upon hearsay

evidence or on evidence that may ultimately be ruled to be

inadmissible at the trial.

10 HRS § 806-87 (2014), entitled "Evidence at hearing on motion to

dismiss," provides:

(a) The defendant may introduce evidence at the hearing. 

The defendant may also subpoena and call witnesses if the

motion is accompanied by a declaration stating that counsel

for the defendant (or the defendant if appearing without

counsel) has a good faith basis to believe that each witness

subpoenaed will provide specific testimony to help

demonstrate that the information and its exhibit or exhibits

do not establish the existence of probable cause to believe

that the offense charged has been committed or probable

cause to believe that the defendant committed the offense

charged.

(b) The court may, in its discretion, permit the State to

call witnesses, introduce evidence, or otherwise supplement

the exhibit or exhibits appended to the information.

(Emphases added).

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the statute also requires consideration of "any evidence

presented at a hearing" on a motion to dismiss. Here, the

Circuit Court in COL 7 did consider the contents of Officer

Thompson's Declaration pursuant to HRS § 806-88(a), but further

concluded that the Declaration and the other "facts argued by the

State" could not be used to oppose the Motion to Dismiss where

the officer "is deceased and unavailable for cross-examination." 

Second COL 4, COL 6. Second COL 4 and COL 6 were not wrong under

the circumstances of this case, where Sulenta could not call or

question Officer Thompson as a witness at the Motion to Dismiss

hearing as provided by HRS § 806-87. See id.

As to COLs 7-10, the State argues that these COLs are

again "flawed" because they "ignore the basis [sic] principle

regarding what may be considered on a Motion to Dismiss an

Information" under HRS §§ 806-85(b) and 806-88(b). COLs 7-10 do

not disregard HRS §§ 806-85(b) and 806-88(b), but reflect the

Circuit Court's consideration of the entirety of the record

before it, consistent with the hearing procedure set forth in HRS

§ 806-87. At a motion to dismiss hearing, HRS § 806-87 permits

both sides the opportunity to present additional evidence beyond

the original evidence in support of the initial probable cause

determination. Here, the Circuit Court properly considered

evidence beyond Officer Thompson's Declaration attached to the

Information, pursuant to HRS §§ 806-87 and 806-88. Following a

motion to dismiss hearing conducted in accordance with HRS §§

806-85, 806-86, 806-87, and 806-88, COLs 7-10 set forth the

Circuit Court's description and analysis of, and conclusions

about the record of evidence presented. These COLs are not

erroneous. See id.

COL 11

The State argues that the Circuit Court erred in COL

11, which cites State v. Corpuz, 67 Haw. 438, 690 P.2d 282

(1984), for the "proposition that a [] 'trial court can dismiss a

Complaint or Indictment because of the incompetency of

evidence.'" The State argues that this conclusion "ignores the

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actual holding of Corpuz, which explicitly permits reliance upon

hearsay testimony to support an Indictment." The State also

argues that COL 11 is incorrect because "it specifically

references dismissal of Complaints and Indictments" and not a

Felony Information. These arguments lack merit.

In Corpuz, the supreme court reaffirmed prior precedent

that: "'where the hearsay testimony was not used deliberately in

the place of better evidence to improve the case for an

indictment, dismissal of the indictment is not required.'" 

Corpuz, 67 Haw. at 440, 690 P.2d at 285 (quoting State v. Murphy,

59 Haw. 1, 6, 575 P.2d 448, 453 (1978)). COL 11 refers to the

standard of review used in the Corpuz case, and is not an

erroneous statement of law. See id. at 440, 690 P.2d at 284 ("A

motion to dismiss an indictment because of the incompetency of

evidence before a grand jury is addressed to the discretion of

the trial court.").

The State's second argument that Corpuz applies only to

complaints or indictments and not to an Information also lacks

merit. Legal precedent and authorities pertaining to complaints

and indictments similarly apply to a felony information. See HRS

§ 806-9;11 see also State v. Pitolo, 141 Hawai#i 131, 138 n.12,

406 P.3d 354, 361 n.12 (App. 2017) (quoting HRS § 806-9 and

recognizing that the requirement that an indictment contain an

averment of facts regarding a statute of limitations also applies

to a felony information).

We thus conclude that the Circuit Court did not err in

granting the motion to dismiss the Information without prejudice. 

See Shaw, 150 Hawai#i at 61, 497 P.3d at 76.

For the foregoing reasons, we affirm the September 13,

2021 Findings of Fact, Conclusions of Law; Order Granting

Defendant-Appellee Cole F. Sulenta's Motion to Dismiss Counts 1-5

11 HRS § 806-9 (2014), entitled "Information, laws applicable,"

states in pertinent part:

All provisions of law applying to prosecutions upon

indictments, . . . to motions, pleadings, trials, . . . and

to all proceedings in cases of indictment, whether in the

court of original or appellate jurisdiction, shall in the

same manner and to the same extent as near as may be, apply

to information and all prosecutions and proceedings thereon.

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for Insufficient Evidence, filed by the Circuit Court of the

Second Circuit.

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

On the briefs:

Richard B. Rost,

Deputy Prosecuting Attorney,

County of Maui,

for Plaintiff-Appellant.

Myles S. Breiner,

(Law Office of Myles S.

Breiner & Associates), 

for Defendant-Appellee.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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