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NOS. CAAP-23-0000240 and CAAP-23-0000241

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-23-0000240

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

D.B., Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1CPC-19-0000791)

and

CAAP-23-0000241

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

D.B., Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1PC161000051)

SUMMARY DISPOSITION ORDER

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

D.B. appeals from the orders of commitment entered by

the Circuit Court of the First Circuit on February 28, 2023.1 We

affirm both orders.

On January 13, 2016, D.B. was charged by felony

information with Assault in the Second Degree, in violation of

1 The Honorable Christine E. Kuriyama presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-23-0000240

31-JAN-2024

07:54 AM

Dkt. 52 SO
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Hawaii Revised Statutes (HRS) § 707-711(1)(a) and/or (b)

and/or (d). On May 12, 2016, the circuit court found him unfit

to proceed. Proceedings were suspended and he was committed to

the Hawai#i State Hospital "for detention, care, and treatment

for so long as such unfitness shall endure." D.B. was also found

unfit to proceed on May 17, 2018, April 22, 2019, September 1,

2020, and September 14, 2022. The circuit court entered orders

authorizing treatment over D.B.'s objection on October 10, 2018,

March 3, 2020, and September 15, 2021.

On February 28, 2023, the circuit court found that D.B.

was: "(1) unfit to proceed and will probably remain unfit to

proceed; (2) mentally ill; (3) imminently dangerous to self and

others; and (4) in need of care and treatment and there is no

suitable alternative available through existing facilities and

programs which would be less restrictive than hospitalization." 

The criminal case was dismissed under HRS § 704-406(7)(b), and

D.B. was committed to the custody of the Director of Health for

placement in an appropriate institution for detention, care, and

treatment.

On May 24, 2019, D.B. was charged by felony information

with Assault in the Second Degree, in violation of HRS § 707-

711(1)(g), for allegedly assaulting a Hawai#i State Hospital

employee. The circuit court found him unfit to proceed on

October 1, 2019, September 1, 2020, and September 13, 2022. The

circuit court entered orders authorizing treatment over D.B.'s

objection on March 3, 2020, and September 3, 2021.

On February 28, 2023, the circuit court found that D.B.

was: "(1) unfit to proceed and will probably remain unfit to

proceed; (2) mentally ill; (3) imminently dangerous to self and

others; and (4) in need of care and treatment and there is no

suitable alternative available through existing facilities and

programs which would be less restrictive than hospitalization." 

The criminal case was dismissed under HRS § 704-406(7)(b), and

D.B. was committed to the custody of the Director of Health for

placement in an appropriate institution for care and treatment.

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D.B. appealed from both orders of commitment.2 We

consolidated the appeals.

D.B. was initially committed to the Hawai#i State

Hospital under HRS § 704-406(1). HRS § 704-406(7) (Supp. 2016)

provides, in relevant part:

(7) . . . Within a reasonable time following any

. . . commitment under subsection (1), the director of

health shall report to the court on whether the defendant

presents a substantial likelihood of becoming fit to proceed

in the future. The court, in addition, may appoint a panel

of three qualified examiners in felony cases . . . to make a

report. If, following the report, the court determines that

the defendant probably will remain unfit to proceed, the

court may dismiss the charge and:

. . . .

(b) Subject to section 334-60.2 regarding

involuntary hospitalization criteria, order the

defendant to be committed to the custody of the

director of health to be placed in an

appropriate institution for detention, care, and

treatment.

HRS § 334-60.2 (Supp. 2016) provides:

Involuntary hospitalization criteria. A person may be

committed to a psychiatric facility for involuntary

hospitalization, if the court finds:

(1) That the person is mentally ill or suffering

from substance abuse;

(2) That the person is imminently dangerous to self

or others; and

(3) That the person is in need of care or treatment,

or both, and there is no suitable alternative

available through existing facilities and

programs which would be less restrictive than

hospitalization.

D.B. does not contest the first criterion — that he is

mentally ill. But he argues that the circuit court erred by

finding he was imminently dangerous to himself or others, and

that there was no suitable alternative available through existing

facilities and programs that would be less restrictive than

2 D.B. does not challenge the circuit court's determinations that he

was unfit to proceed in his criminal cases.

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hospitalization. Those criteria must be established by "clear

and convincing evidence[.]" HRS § 334-60.5(j) (2022); In re JK,

149 Hawai#i 400, 404, 491 P.3d 1179, 1183 (App. 2021).

"Clear and convincing evidence" is:

an intermediate standard of proof greater than a

preponderance of the evidence, but less than proof beyond a

reasonable doubt required in criminal cases. It is that

degree of proof which will produce in the mind of the trier

of fact a firm belief or conviction as to the allegations

sought to be established, and requires the existence of a

fact be highly probable.

In re JK, 149 Hawai#i at 409, 491 P.3d at 1188 (quoting Masaki v.

Gen. Motors Corp., 71 Haw. 1, 15, 780 P.2d 566, 574 (1989)).

When we review whether a fact has been proved by clear

and convincing evidence, we look to see whether the record

contains substantial evidence from which a reasonable factfinder

could have found it highly probable that the fact was true. In

re JK, 149 Hawai#i at 409, 491 P.3d at 1188. We must view the

record in the light most favorable to the prevailing party below

and give deference to how the trier of fact may have evaluated

the credibility of witnesses, resolved conflicts in the evidence,

and drawn reasonable inferences from the evidence. Id. at 409-

10, 491 P.3d at 1188-89. We do not reweigh the evidence; we must

accept the factfinder's resolution of conflicting evidence, and

we may not evaluate witness credibility. Id. at 410, 491 P.3d

at 1189. The question is not whether we find the evidence clear

and convincing; it is whether a reasonable trier of fact could

have regarded the evidence as satisfying that standard of proof. 

Id.

(1) The circuit court found that D.B. was imminently

dangerous to himself or others based primarily on reports written

by Nikita Hay, Psy.D., Duke E. Wagner, Ph.D., and Martin Blinder,

M.D. D.B. argues that Dr. Blinder opined he wasn't dangerous. 

Dr. Blinder examined D.B. on February 8, 2023. Six days later,

D.B. assaulted another Hawai#i State Hospital patient, and had to

be placed in mechanical restraints.

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Dr. Hay (a psychologist with the state Department of

Health) reported the assault, which happened the day she examined

D.B. She opined that D.B. presented a high risk of harm to

others, himself, and property, and was likely to be physically

violent toward others if discharged into the community, with or

without treatment services.

Dr. Wagner noted that D.B. regularly showed poor

judgment and threatening and aggressive behavior, seemed to have

little respect for normative behavior within a social context,

violated the boundaries of others, and wasn't capable of

self-managing his medication or overall treatment needs.

Dr. Wagner opined that D.B.'s risk of danger to himself, others,

and property would increase to high if he was released into the

community.

Both Dr. Hay and Dr. Wagner recommended that D.B.

continue to be committed to the Hawai#i State Hospital. The

circuit court also took judicial notice of the record in both of

D.B.'s cases. The records include many reports from D.B.'s

examiners and care providers including Jane Caplan, M.D., Aubrey

Pat Chambers, M.D., Arif Husain, M.D., Barrett Levine, M.D.,

Kenneth Luke, M.D., Khalid Memon, M.D., Rhodelynn Ramos, M.D.,

Richard Rovin, M.D., Elena Sharipova, M.D., and Melissa

Vargo, Psy.D. The records also contain the orders authorizing

treatment over D.B.'s objection. This was all substantial

evidence from which a reasonable factfinder could have found it

highly probable that D.B. was imminently dangerous to himself and

others.

(2) D.B. did not argue about alternatives to continued

hospitalization during the circuit court hearing. He argues we

should recognize plain error. But he stated to the circuit court

that he did not contest Dr. Hay's and Dr. Wagner's reports, which

recommended continued commitment to the Hawai#i State Hospital. 

Under these circumstances, we decline to recognize plain error. 

See In re JK, 149 Hawai#i at 406-07, 491 P.3d at 1185-86 (noting

that plain error will not be recognized if consideration of the

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issue not raised requires additional facts, or its resolution

will affect the integrity of the trial court's findings of fact).

For these reasons, the "Order[s] of Dismissal and 

Commitment" entered by the circuit court on February 28, 2023,

are affirmed.

DATED: Honolulu, Hawai#i, January 31, 2024.

On the briefs:

/s/ Keith K. Hiraoka

Lars Robert Isaacson, Presiding Judge

for Defendant-Appellant.

/s/ Clyde J. Wadsworth

Loren J. Thomas, Associate Judge

Deputy Prosecuting Attorney,

City and County of Honolulu, /s/ Karen T. Nakasone

for Plaintiff-Appellee. Associate Judge

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