IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,

Plaintiff-Appellee,

vs.

DAE HAN MOON,

Defendant-Appellant.

SCAP-19-0000714

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CAAP-19-0000714; CASE NO. 1PC161002007)

FEBRUARY 10, 2023

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ.,

AND WILSON, J., DISSENTING

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

This case considers the application of Hawai‘i Revised 

Statutes (HRS) § 327C-1 (2010), which defines the process for 

making “death determinations in the State” in all “civil and 

criminal actions.” HRS § 327C-1(d). 

Electronically Filed

Supreme Court

SCAP-19-0000714

10-FEB-2023

08:52 AM

Dkt. 15 OP
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On December 25, 2016, Dae Han Moon allegedly shot 

Steve Feliciano in the head during an altercation. During a

grand jury proceeding on December 29, 2016, the Chief Medical 

Examiner of the City and County of Honolulu testified that the 

day prior, a doctor had pronounced Feliciano brain dead, and 

that the cause of his death was a gunshot wound to the head. 

Because Feliciano was an organ donor, he was “being kept alive 

artificially.” The grand jury indicted Moon on four counts, 

including Murder in the Second Degree. 

Subsequently, Feliciano’s organs and tissues were 

removed, and an autopsy was performed. The case proceeded to a 

jury trial in the Circuit Court of the First Circuit, where 

several witnesses testified to seeing Moon shoot Feliciano. The 

First Deputy Medical Examiner, who performed Feliciano’s autopsy, 

testified that the cause of Feliciano’s death was a gunshot 

wound to the head. The jury found Moon guilty on all counts.

Moon argues that the requirements of HRS § 327C-1 

apply to all criminal cases involving death, including his case. 

Thus, the State needed to fulfill these requirements to prove 

the element of “death.” We disagree. Based on its plain 

language and legislative history, this statute applies in cases 

where a “death determination” – that is, where a “generally 

medically recognized criteria of determining the occurrence of 
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death” – is required or implicated. Christine Mukai et al., 

Legis. Reference Bureau, Towards a Definition of Death 14 (1977) 

[hereinafter LRB Report], https://lrb.hawaii.gov/wpcontent/uploads/1977TowardsADefinitionOfDeath.pdf. In contrast, 

there was ample evidence introduced at trial that Feliciano died 

as a result of a gunshot wound to the head. As such, there was 

no need for a “determination of death” within the meaning of HRS 

§ 327C-1. Accordingly, we affirm the circuit court’s Amended 

Judgment of Conviction and Sentence.1

II. BACKGROUND

A. Factual Background

The following facts are undisputed on appeal. On 

December 25, 2016, Moon shot Feliciano once in the back of the 

head at close range with a pistol. The shooting occurred in the 

Ala Moana Shopping Center parking structure. Following the 

shooting, paramedics transported Feliciano to Queen’s Medical 

Center (QMC) in critical condition. There, Dr. Kazuma Nakagawa 

pronounced Feliciano brain dead at 5:49 p.m. on December 28, 

2016. The next day, a grand jury indicted Moon on four counts: 

Murder in the Second Degree in violation of HRS §§ 707-701.5

(2014)2 and 706-656 (2014)3 (Count 1); Place to Keep Pistol or 

1 Moon also asks that we reverse his convictions on five other 

grounds. As discussed below, these arguments lack merit.

2 HRS § 707-701.5 states:

(. . . continued)
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Revolver in violation of HRS § 134-25 (2011) (Count 2); Carrying 

or Use of Firearm in the Commission of a Separate Felony in 

violation of HRS § 134-21 (2011) (Count 3); and Ownership or 

Possession Prohibited of Any Firearm or Ammunition by a Person 

Bound Over to Circuit Court for Certain Crimes in violation of

HRS § 134-7(b) and (h) (2011) (Count 4). Feliciano’s organs and 

tissues were removed on December 30, 2016. On January 3, 2017, 

an autopsy was performed. The case subsequently proceeded to a 

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

defendant shall be sentenced to imprisonment as 

provided in section 706-656.

3 HRS § 706-656(2) states:

Except as provided in section 706-657, pertaining to 

enhanced sentence for second degree murder, persons 

convicted of second degree murder and attempted second 

degree murder shall be sentenced to life imprisonment with 

possibility of parole. The minimum length of imprisonment 

shall be determined by the Hawai͑i paroling authority; 

provided that persons who are repeat offenders under 

section 706-606.5 shall serve at least the applicable 

mandatory minimum term of imprisonment.

If the court imposes a sentence of life imprisonment 

without possibility of parole pursuant to section 706-657, 

as part of that sentence, the court shall order the 

director of public safety and the Hawai͑i paroling 

authority to prepare an application for the governor to 

commute the sentence to life imprisonment with parole at 

the end of twenty years of imprisonment; provided that 

persons who are repeat offenders under section 706-606.5 

shall serve at least the applicable mandatory minimum term 

of imprisonment.
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jury trial, and the jury found Moon guilty as charged on all 

four counts.

B. Grand Jury Proceedings 

At the grand jury proceedings four days after the 

shooting, the State called Dr. Christopher Happy, the Chief 

Medical Examiner for the City and County of Honolulu, to testify 

before the grand jury. Dr. Happy testified that he reviewed 

Feliciano’s medical records and photographs of Feliciano in the 

hospital; he also spoke to investigating officers about the 

events surrounding Feliciano’s death. In examining this 

information, Dr. Happy observed “a gunshot wound in the back of 

[Feliciano’s] head with fragments of a bullet lodged in the 

head.” He testified that the gunshot wound to the head was the 

cause of Feliciano’s death, and the manner of death, a homicide. 

According to Dr. Happy, the date of Feliciano’s death was 

December 28, 2016 at 5:49 p.m. Dr. Happy explained that 

Feliciano had “been declared brain dead” at that time based on 

an “evaluation by a neurologist who has found that he has no 

function left in his brain.” Since Feliciano was an organ donor, 

he was being kept alive artificially so that his organs could be 

donated. Consequently, an autopsy had yet to be conducted.
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C. Circuit Court Proceedings4

1. Trial Proceedings

At trial, various witnesses testified that Moon and 

Feliciano were involved in an altercation at the Ala Moana

Center parking structure on December 25, 2016. During this

altercation, Moon shot Feliciano in the head.5 After the 

incident, police and paramedics arrived at the scene. Ruddy 

Hernandez, a paramedic for the City and County of Honolulu, 

testified that, upon their arrival, Feliciano was “pulseless and 

apneic, unresponsive,” meaning that he “had no activity of his 

heart and he wasn’t breathing.” The paramedics performed CPR, 

and Feliciano was able to regain a “return of spontaneous 

circulation” or “ROSC,” such that “his blood pressure, his heart 

rate and his heart started to conduct a pulse.” At that point, 

Feliciano was “in a critical state”; he was “hypotensive,” 

meaning that “his blood pressure was really low.” Paramedics 

were able to maintain ROSC, but Feliciano remained in critical 

condition when he arrived at QMC.

Christopher Inoue, a medical-legal investigator for

the Department of the Medical Examiner for the City and County 

4 The Honorable Karen T. Nakasone presided.

5 Several witnesses also testified that, prior to shooting 

Feliciano, Moon hit Feliciano on the head with a gun. After Moon shot 

Feliciano, Feliciano fell to the ground.

 
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of Honolulu, testified that Dr. Nakagawa pronounced Feliciano 

dead on December 28, 2016 at 5:49 p.m.6 At 7:35 p.m. that same 

day, Inoue saw Feliciano’s body on a hospital gurney. Inoue 

observed various signs of “medical intervention”: 

He was intubated and connected to a ventilator. There were 

EKG leads on his chest and abdomen. There was a cervical 

collar and a Foley catheter. There was also a pulse 

oximeter and a blood pressure cuff and he had intravascular 

lines on his bilateral arms and left femoral area. 

Charlotte Carter, another medical-legal investigator, 

testified that Feliciano was subsequently kept on a ventilator 

for the tissue and organ transplantation. The ventilator “kept 

his heart beating and his circulation going[;]” without it, his 

tissues would have started to die. At 9:50 p.m. on December 30, 

2016, Carter received a notification from Legacy of Life, an 

organ procurement organization, that they were close to 

completing the organ and tissue recovery from Feliciano. When 

she arrived, Feliciano was “well removed from the ventilator” as 

his organ recovery had been “[e]ffectively” completed. 

Afterwards, Feliciano’s remains were transported to the Honolulu 

Medical Examiner Facility. 

Dr. Masahiko Kobayashi, the First Deputy Medical 

Examiner, testified as an expert in the field of forensic 

6 Moon objected, arguing that Inoue’s testimony was hearsay. In 

response, the court gave a limiting instruction to the jury that Inoue’s outof-court statements “must not be considered for the truth . . . of those 

statements but, rather, for the limited purpose of showing the steps in the 

investigation.”
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pathology. Before conducting an autopsy, Dr. Kobayashi reviewed

the report prepared by Inoue and some of Feliciano’s medical 

records. Dr. Kobayashi testified that Feliciano was pronounced 

dead at QMC on December 28, 2016 at 5:49 p.m. Since he was an 

organ donor, he was kept on a ventilator to ensure that “his 

heart was beating and his blood was circulating” so that his 

tissues would not die. 

On January 3, 2017, Dr. Kobayashi performed an autopsy 

on Feliciano. In addition to other injuries, he testified that 

Feliciano had a gunshot wound on the back-left side of his head.7 

This wound caused “widespread . . . bleeding inside the scalp 

tissue over the skull” and was a “[c]ontact gunshot wound,” 

meaning that “a muzzle of the gun [was] in contact with the skin 

or nearly in contact.” Based on his findings and training and 

experience, Dr. Kobayashi testified that the cause of 

Feliciano’s death was “a gunshot wound of the head.” “[T]he 

bullet entered from the back area of the head and then travelled 

towards the front, towards the forehead or brow area.” The 

bullet itself did not hit the brain stem; the latter “was 

subsequently injured but not at the time of [the] gunshot 

wound.” 

7 Dr. Kobayashi also testified that Feliciano had a skin lesion and 

bruise on the left side of his head consistent with being struck with a hard 

object and a skull fracture consistent with falling unabated to a concrete 

surface.
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After the State rested, Moon made a motion for 

judgment of acquittal, arguing that the State needed to comply 

with the requirements of HRS § 327C-18 to prove that Feliciano 

was dead as a matter of law – specifically, that he was brain 

dead before his organs were removed. The State contended that

HRS § 327C-1 was inapplicable and that, based on the evidence 

presented, there was no question that Feliciano was dead. The 

circuit court denied the motion, stating,

For the reasons set forth in the prosecution’s written 

memorandum and the evidence in the record, judgment of 

acquittal, the court views the evidence in the light most 

favorable to the State. I don’t agree with the defendant’s 

characterization of [HRS § 327C-1] and the requirement that 

is in that statute would sort of trump all the evidence in 

this case which is undisputed that Mr. Feliciano was -- he 

-- that the death in this case was undisputed looking at 

the totality of the evidence. 

Moon renewed the motion after the defense rested and 

after the jury’s verdict was rendered; the circuit court denied 

both renewed motions.9 

8 For the text of HRS § 327C-1, see infra note 19.

9 Moon also requested the following jury instruction on brain death, 

which tracks the language of HRS § 327C-1:

Before you can find that the defendant caused the death of 

Steve Feliciano, you must first determine that Steve 

Feliciano was pronounced brain dead. Brain death will have 

occurred if all four of the following facts have been 

proved beyond a reasonable doubt . . . : Number 1. In the 

opinion of an attending physician or osteopathic physician 

licensed in the state of Hawai͑i, . . . or [excepted] from 

licensure by State law, . . . based on ordinary standards 

of current medical practice . . . ; and, Number 2, [i]n the 

opinion of a consulting physician or osteopathic physician 

licensed in the state of Hawai͑i, . . . or [excepted] from 

licensure by State law, . . . based on ordinary standards 

of current medical practice . . . ; and, 3, [t]hese doctors 

(. . . continued)
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2. Verdict and Sentence

The jury found Moon guilty as charged on all four 

counts. At sentencing, the circuit court dismissed Count 4.10 

Moon was then sentenced as follows: for Count 1, life 

imprisonment with the possibility of parole and a fifteen-year 

mandatory minimum term of imprisonment under HRS § 706-660.1

(2014); for Count 2, ten years of imprisonment; and for Count 3, 

twenty years of imprisonment. All terms of imprisonment were to 

run concurrently, with credit for time served. 

3. Motion for Arrest of Judgment

Nine days after the verdict was rendered, Moon filed a 

motion for arrest of judgment and dismissal of Count 1 (Murder 

in the Second Degree) and Count 3 (Carrying or Use of Firearm in 

the Commission of a Separate Felony) pursuant to Hawai‘i Rules of 

(. . . continued)

or osteopathic physicians have determined that Steve 

Feliciano had experienced irreversible cessation of all 

functions of the entire brain, . . . including the brain 

stem . . . ; and, Number 4, [t]hese opinions are made in 

signed statements.

The circuit court denied the instruction over Moon’s objection. 

10 The State initially requested to dismiss Count 2 under the 

doctrine of merger and based on the State’s decision to only proceed with 

sentencing on Count 4, but based on a correction to Moon’s Presentence 

Investigation and Report, the State changed its request, asking to dismiss 

Count 4 and proceed with Count 2. The circuit court granted this request and 

issued an Amended Judgment of Conviction and Sentence. 
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Penal Procedure (HRPP) Rule 34 (effective January 1, 

1977).11 Moon argued that the circuit court “lack[ed] 

jurisdiction” over his case because, inter alia,12 “the State 

failed to show at the grand jury proceeding that Feliciano had 

been determined to be brain dead.” According to Moon, the plain 

language, stated purpose, and legislative history13 of HRS § 

327C-1 “mandate[]” its application to “[a]ll death 

determinations in the State” for “all purposes, including . . . 

criminal actions.” (Second alteration in original.) A grand 

jury indicting a defendant for Murder in the Second Degree, of 

which death is an element, was such a criminal action. 

11 HRPP Rule 34 states:

The court on motion of a defendant shall arrest judgment if 

the charge does not allege an offense or if the court was 

without jurisdiction of the offense alleged. The motion in 

arrest of judgment shall be made within 10 days after 

verdict or finding of guilty, or after plea of guilty or 

nolo contendere, or within such further time as the court 

may fix during the 10-day period. The finding of guilty or 

nolo contendere may be entered in writing or orally on the 

record.

12 In his motion for arrest of judgment, Moon also contended that 

the circuit court lacked jurisdiction over his case because Dr. Happy’s 

testimony before the grand jury was “inaccurate”; the State “deliberate[ly] 

and intentional[ly]” used hearsay during the proceedings; and Moon’s right to 

a fair and impartial grand jury proceeding had been violated, thus 

prejudicing Moon. 

13 Specifically, Moon pointed to the LRB Report on changing 

definitions of death, to assert that the legislature enacted HRS § 327C-1 in 

1978 with the intent of “codify[ing] the emerging concept of brain death . . . 

in order to avoid confusion and inconsistencies between the practice of 

medicine and the practice of law.” Moon argued, accordingly, that “this case 

presents the exact situation that lead [sic] to the passage of HRS § 327C-1 

because Feliciano hovered between life and death for several days”: the State 

convened a grand jury after Feliciano was declared brain dead but before the 

removal of his organs, at which point “it was most critical to determine 

whether Feliciano was legally ‘brain dead.’” 
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Moon argued that the State failed to meet the 

statute’s requirements to prove Feliciano’s death in the grand 

jury by neglecting to present “direct testimony of two doctors 

who had signed statements declaring that Feliciano was brain 

dead because he experienced the cessation of all brain activity, 

including the brain stem.” Moon contended that “Feliciano was 

still alive on December 29, 2016 – a fact that would have 

precluded a murder indictment,” and thus, the State failed to 

establish probable cause. Since a defective indictment “negates

the Court’s jurisdiction,” Moon contended that the court must 

dismiss Counts 1 and 3 against Moon. 

The circuit court disagreed, concluding that “[a]n 

analysis of the plain . . . language of the relevant statutes 

and examination of the pertinent legislative history compel the 

conclusion that the definition of death in HRS Chapter 327C does 

not apply to criminal prosecutions brought under the [Hawai‘i

Penal Code (HPC)].” As relevant here, the circuit court found 

in its findings of fact that “[n]o evidence has been presented 

to contradict Dr. Kobayashi’s opinion concerning the cause of 

Feliciano’s death. There has been no suggestion that the 

withdrawal of life support or organ donation was an intervening 

cause of Feliciano’s death.” 
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In its conclusions of law, the circuit court explained 

that HRS § 327C-1, in its original and amended forms, does not 

reference the HPC or indicate a legislative intent to import HRS 

§ 327C-1’s determination of death requirements to prosecutions 

of criminal offenses codified in the HPC. Likewise, the HPC 

neither defines death nor references the determination of death 

requirements in HRS § 327C-1. Of particular relevance, HRS § 

707-700 (2014), which defines terms for offenses including

Murder in the Second Degree, in its original and amended forms,

does not define death or reference HRS § 327C-1. 

The circuit court noted that had the legislature 

intended to incorporate HRS § 327C-1’s requirements into the HPC, 

it could have done so, citing various HPC provisions that

explicitly reference the definition of terms in other statutes.14 

Based on the “legislature’s inaction,” the circuit court 

concluded that the legislature did not intend that HRS § 327C-1 

apply to all “criminal actions brought under the [HPC] where 

‘death’ constitutes the result element of the offense.” 

Since the HPC does not define “death,” the circuit 

court gave the term its “ordinary meaning.” Quoting Black’s Law 

14 The circuit court cited HRS § 707-700 (“‘Street’ shall have the 

same meaning as in section 291C-1.”; “‘Vehicle’ has the same meaning as in 

section 291E-1.”); and HRS § 706-660.1 (“‘Automatic firearm’ has the same 

meaning defined in section 134-1.”; “‘Firearm’ has the same meaning defined 

in section 134-1 except that it does not include ‘semiautomatic firearm’ or 

‘automatic firearm.’”). 
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Dictionary, the circuit court defined death as “[t]he ending of 

life; the cessation of all vital functions and signs.” Death, 

Black’s Law Dictionary (10th ed. 2014); Death, Black’s Law 

Dictionary (7th ed. 1999). Under this ordinary meaning of death, 

Dr. Happy’s expert testimony before the grand jury provided a 

sufficient evidentiary basis for death. 

Furthermore, the circuit court noted that Moon’s 

interpretation of HRS § 327C-1 would lead to absurd results as 

it “would effectively prevent the prosecution of murders in this 

jurisdiction” where a dead body was not recovered. Without a

body, it would be impossible to show that a person “experienced 

irreversible cessation of spontaneous respiratory and 

circulatory functions” as required in HRS § 327C-1(a). 

The circuit court also concluded that it had

jurisdiction over this case. It explained that Count 1 alleges 

a violation of HRS § 707-701.5, which is a cognizable criminal 

offense under the HPC. Additionally, the Indictment properly 

alleged that Moon’s offense occurred in the City and County of 

Honolulu, which is within the jurisdiction of the circuit court.

In any event, the circuit court held that Moon’s 

motion “falls within the definition of a pretrial motion as set 

forth in HRPP Rule 12(b)(2).” “Such motions must be brought 
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prior to trial,” and Moon’s failure to file such a motion before 

trial “waive[d] . . . that defense or objection.” (Quoting 

State v. Markowski, 88 Hawai‘i 477, 485, 967 P.2d 674, 682 (App. 

1998)). In the alternative, pursuant to In re Doe, 102 Hawai‘i 

75, 78, 73 P.3d 29, 32 (2003), the jury verdict rendered Moon’s 

argument regarding the grand jury’s probable-cause determination 

moot. 

D. Appellate Proceedings

Moon appealed the circuit court’s Amended Judgment of 

Conviction and Sentence to the Intermediate Court of Appeals

(ICA), and we later accepted transfer of this case. 

On appeal, Moon first argues that the circuit court 

erred in holding that HRS § 327C-1 does not apply to criminal 

actions involving death, including his case and contends that 

arguments regarding defects in his indictment were not waived. 

Citing State v. Przeradski, 5 Haw. App. 29, 32, 677 P.2d 471, 

474 (1984), Moon argues that by addressing the merits of his 

motion for arrest of judgment on the merits, the circuit court 

“impliedly granted relief from the waiver.” Moon moreover 

argues that he did not file an untimely motion to dismiss the 

Indictment pursuant to HRPP Rule 12(b) (2018) (last amended in 

2007), but rather, a timely motion to arrest judgment pursuant 
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to HRPP Rule 34 (1977).15 Moon argues that because HRPP Rule 34 

states that the circuit court “shall arrest judgment if the 

charge does not allege an offense” (emphasis omitted), and 

because Counts 1 and 3 of the Indictment did not properly allege 

offenses, the circuit court had “no discretion” and was required 

to arrest his judgment. 

Second, Moon argues that “the Circuit Court erred in 

denying Moon’s motion to strike the testimony of Dr. Kobayashi 

for failure to produce the medical records upon which he relied 

in forming his opinion”16 Moon argues that under HRE Rule 705,17

Dr. Kobayashi should have disclosed the facts or data underlying 

his opinion in discovery or at trial, and the circuit court

abused its discretion by denying Moon’s motion to strike on that 

ground. 

15 HRPP Rule 34 provides that a “motion in arrest of judgment shall 

be made within 10 days after verdict or finding of guilty.” Moon’s verdict 

was rendered on September 19, 2018, and he filed his motion nine days later 

on September 28, 2018.

16 At trial, Moon objected to testimony by Dr. Kobayashi “regarding 

anything that happened at the QMC” on the ground that Feliciano’s medical 

records from QMC were never provided in discovery, in violation of Hawai͑i 

Rules of Evidence (HRE) Rule 705 (2018) (last amended in 1984) and HRPP Rule 

16 (2012). The circuit court overruled the objection. 

17 HRE Rule 705 provides:

Rule 705. Disclosure of facts or data underlying expert opinion

The expert may testify in terms of opinion or inference and give 

the expert’s reasons therefor without disclosing the underlying 

facts or data if the underlying facts or data have been disclosed 

in discovery proceedings. The expert may in any event be 

required to disclose the underlying facts or data on crossexamination. 
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Third, Moon argues that the circuit court committed 

plain error by failing to instruct the jury on the issue of 

causation, specifically “regarding intermediate intervening 

cause of death as set forth in HRS §§ 702-214, 215 and 216.” 

“[E]ven though Dr. Kobayashi testified that the cause of death 

was the gunshot wound, it was still a jury question as to 

whether the removal of Decedent’s organs was an independent 

intervening cause of death. The jury should have been 

instructed accordingly.” 

Fourth, Moon argues that he was denied his 

constitutional right to trial by jury when four potential jurors 

of Korean ancestry were excused. 

Fifth, Moon argues that the circuit court’s Tachibana

colloquy18 was deficient because the court failed to ascertain 

whether the defendant’s waiver was voluntary.

Finally, Moon argues that “[d]efense counsel provided 

ineffective assistance of counsel by conceding in opening 

statement that Moon was the shooter” and waiving the potential 

defense “that Moon was not the person who shot [Feliciano].”

For the foregoing reasons, Moon requests his 

convictions on Counts 1 and 3 be reversed, or in the alternative, 

18 Tachibana v. State, 79 Hawai‘i 226, 236, 900 P.2d 1293, 1303

(1995), established the requirement that when a defendant in a criminal case 

indicates an intention not to testify, the trial court “must advise criminal 

defendants of their right to testify and must obtain an on-the-record waiver 

of that right.”
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that his conviction on these counts be vacated and the case 

remanded for a new trial. 

III. STANDARDS OF REVIEW

A. Statutory Interpretation

“Questions of statutory interpretation are questions

of law to be reviewed de novo under the right/wrong standard.” 

Nakamoto v. Kawauchi, 142 Hawaiʻi 259, 268, 418 P.3d 600, 609 

(2018) (quoting Lingle v. Haw. Gov’t Emps. Ass’n, AFSCME, Loc. 

152, AFL-CIO, 107 Hawaiʻi 178, 183, 111 P.3d 587, 592 (2005)).

B. Motion for Judgment of Acquittal

When reviewing a motion for judgment of acquittal, we 

employ the same standard that a trial court applies to such 

a motion, namely, whether, upon the evidence viewed in the 

light most favorable to the prosecution and in full 

recognition of the province of the trier of fact, the 

evidence is sufficient to support a prima facie case so 

that a reasonable mind might fairly conclude guilt beyond a 

reasonable doubt. State v. Pone, 78 Hawaiʻi 262, 265, 892 

P.2d 455, 458 (1995); State v. Alston, 75 Haw. 517, 528, 

865 P.2d 157, 164 (1994); State v. Rocker, 52 Haw. 336, 346, 

475 P.2d 684, 690 (1970). Sufficient evidence to support a 

prima facie case requires “substantial evidence” as to 

every material element of the offense charged. State v. 

Eastman, 81 Hawaiʻi 131, 135, 913 P.2d 57, 61 (1996).

“Substantial evidence” as to every material element of the 

offense charged is credible evidence which is of sufficient 

quality and probative value to enable a person of 

reasonable caution to support a conclusion. Id. Under 

such a review, we give “full play to the right of the fact 

finder to determine credibility, weigh the evidence, and 

draw justifiable inferences of fact.” State v. Yabusaki, 

58 Haw. 404, 410, 570 P.2d 844, 848 (1977).

State v. Jhun, 83 Hawaiʻi 472, 481, 927 P.2d 1355, 1364 (1996).

C. Motion for Arrest of Judgment

“A motion in arrest of judgment must be made before 

the judgment is entered.” Kerr v. Martin, 7 Haw. 645, 650 (Haw. 
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Kingdom 1889).

IV. DISCUSSION

A. HRS § 327C-1 Does Not Apply to All Criminal Cases Involving

 Death

We first consider whether HRS § 327C-1 applies to this 

case, a matter of statutory interpretation. We conclude that it 

does not.

“[T]he fundamental starting point for statutory 

interpretation is the language of the statute itself.” State v. 

Wheeler, 121 Hawai‘i 383, 390, 219 P.3d 1170, 1177 (2009) 

(quoting Citizens Against Reckless Dev. v. Zoning Bd. of Appeals

of Honolulu, 114 Hawai‘i 184, 193, 159 P.3d 143, 152 (2007)). 

When interpreting a statute, “our foremost obligation is to 

ascertain and give effect to the intention of the legislature, 

which is to be obtained primarily from the language contained in 

the statute itself.” Nakamoto, 142 Hawai‘i at 268, 418 P.3d at 

609 (quoting Lingle, 107 Hawai‘i at 183, 111 P.3d at 592). 

“Nevertheless, statutory language is read ‘in the context of the 

entire statute’ and interpreted ‘in a manner consistent with its 

purpose.’” State v. Abella, 145 Hawai‘i 541, 552, 454 P.3d 482, 

493 (2019) (quoting State v. Haugen, 104 Hawai‘i 71, 76, 85 P.3d 

178, 183 (2004)). To determine this purpose, “we are not 

limited to the words of the statute to discern the underlying 

policy which the legislature seeks to promulgate but may look to 
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20

[the] relevant legislative history.” State v. Wells, 78 Hawai‘i 

373, 376, 894 P.2d 70, 73 (1995) (brackets and ellipsis omitted) 

(quoting Sol v. AIG Haw. Ins. Co., 76 Hawai‘i 304, 307, 875 P.2d 

921, 924 (1994)).

Moon argues that the circuit court erred in ruling 

that HRS § 327C-1 does not apply to criminal actions in which 

death constitutes the result element of the offense, like the 

grand jury proceeding in his case. Moon bases his argument on 

the language of HRS § 327C-1(d), which he argues, “plain[ly] and 

unambiguous[ly]” states that the statute applies to “[a]ll death 

determinations” for “all purposes, including . . . criminal 

actions, any laws to the contrary notwithstanding.” (Emphasis 

omitted.) Since this case is a “criminal action” involving 

death, he argues that the requirements of HRS § 327C-1 apply, 

and these requirements were not met here. 

We disagree. Under the plain language of HRS § 327C-1, 

specifically the title and subsection (d), this statute applies 

to “[d]etermination[s] of death” or “death determinations.” 

While these terms, viewed in isolation, could apply to all 

criminal cases involving death, when viewed in context, it is 

clear they are terms of art intended to apply to more limited 

circumstances where the exact time or occurrence of death is 

necessarily at issue or undetermined. 
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21

HRS § 327C-1,19 titled “Determination of death,” sets 

19 Quoted in full, HRS § 327C-1 provides:

(a) Except as provided in subsection (b), a person shall be 

considered dead if, in the announced opinion of a 

physician or osteopathic physician licensed under part 

I of chapter 453, physician or osteopathic physician 

excepted from licensure by section 453-2(b)(3), 

physician assistant licensed under chapter 453, or 

registered nurse licensed under chapter 457, based on 

ordinary standards of current medical practice, the 

person has experienced irreversible cessation of 

spontaneous respiratory and circulatory functions. 

Death will have occurred at the time when the 

irreversible cessation of the functions first coincided.

(b) In the event that artificial means of support preclude 

a determination that respiratory and circulatory 

functions have ceased, a person shall be considered 

dead if, in the opinion of an attending physician or 

osteopathic physician licensed under part I of chapter 

453, or attending physician or osteopathic physician 

excepted from licensure by section 453-2(b)(3), and of 

a consulting physician or osteopathic physician 

licensed under part I of chapter 453, or consulting 

physician or osteopathic physician excepted from 

licensure by section 453-2(b)(3), based on ordinary 

standards of current medical practice, the person has 

experienced irreversible cessation of all functions of 

the entire brain, including the brain stem. The 

opinions of the physicians or osteopathic physicians 

shall be evidenced by signed statements. Death will 

have occurred at the time when the irreversible 

cessation of all functions of the entire brain, 

including the brain stem, first occurred. Death shall

be pronounced before artificial means of support are 

withdrawn and before any vital organ is removed for 

purposes of transplantation.

(c) When a part of a donor is used for direct organ 

transplantation under chapter 327, and the donor’s 

death is established by determining that the donor 

experienced irreversible cessation of all functions of 

the entire brain, including the brain stem, the 

determination shall only be made under subsection (b). 

The determination of death in all other cases shall be 

made under subsection (a). The physicians or 

osteopathic physicians making the determination of 

death shall not participate in the procedures for 

removing or transplanting a part, or in the care of any 

recipient.

(d) All death determinations in the State shall be made 

pursuant to this section and shall apply to all 

purposes, including but not limited to civil and 

criminal actions, any laws to the contrary 

(. . . continued)
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22

forth the procedural requirements to be followed by physicians 

and other medical providers in making “death determinations,” 

particularly in cases where the patient is on life support or 

the patient’s organs are being prepared for transplantation. 

See HRS §§ 327C-1(b)-(d). While subsection (a) provides the 

procedure applicable in most situations where a “death 

determination” is required, see HRS § 327C-1(a), subsection (b) 

sets forth a more detailed process that applies in cases where 

“artificial means of support preclude a determination that 

respiratory and circulatory functions have ceased,” HRS 

§ 327C-1(b).20 Notably, HRS § 327C-1 makes no reference to the 

HPC, which was enacted six years earlier in 1972. Neither does 

(. . . continued)

notwithstanding; provided that presumptive deaths under 

the Uniform Probate Code shall not be affected by this 

section.

(e) The director of health may convene in every oddnumbered year, a committee which shall be composed of 

representatives of appropriate general and specialized 

medical professional organizations, licensed attorneys, 

and members of the public. The committee shall review 

medical practice, legal developments, and other 

appropriate matters to determine the continuing 

viability of this section, and shall submit a report of 

its findings and recommendations to the legislature, 

prior to the convening of the regular session held in 

each even-numbered year.

(Emphasis added.)

20 The latter requires written opinions by two physicians or 

osteopathic physicians that the person at issue “has experienced irreversible 

cessation of all functions of the entire brain, including the brain stem.” 

HRS § 327C-1(b). And, it provides that “[d]eath shall be pronounced before 

artificial means of support are withdrawn and before any vital organ is 

removed for purposes of transplantation.” Id. 
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23

the HPC cross-reference HRS § 327C-1. Since the HPC does not 

include a definition of death, death should be given its 

commonly understood meaning. See State v. Guess, 715 A.2d 643, 

647-48 (Conn. 1998) (interpreting the definition of death “in 

accordance with its commonly approved usage,” rather than

applying the state’s determination-of-death statute, “[b]ecause 

the legislature did not provide a definition of death in the 

Penal Code”). 

Moon nevertheless relies on subsection (d) of the 

statute, which provides that “[a]ll death determinations in the 

State shall be made pursuant to this section and shall apply to 

all purposes, including but not limited to civil and criminal 

actions, any laws to the contrary notwithstanding.” HRS § 327C1(d). Moon suggests that this means the procedure set forth in 

the statute applies whenever the fact of death needs to be 

established. But this interpretation ignores that the plain 

language of the statute, while defining the process for “death 

determinations,” does not define death itself for all purposes. 

Indeed, neither subsections (a) nor (b) define the circumstances 

under which a person “is” dead; rather, they state the 

conditions under which a person “shall be considered” dead. HRS 

§§ 327C-1(a) and (b). Thus, while HRS § 327C-1 provides a way 

in which death can be established, it does not provide 

the only way in which the fact of death must be established.
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24

This interpretation is supported by the legislature’s

use of the phrase “determination of death” in other statutes. 

For instance, “determination of death” is mentioned in HRS

§ 560:1-107 (1993),21 which provides the “rules relating to a 

21 HRS § 560:1-107 is entitled “Evidence of death or status” and 

states:

In addition to the rules of evidence, the following rules 

relating to a determination of death and status apply:

(1) Death occurs when an individual has sustained either:

(A) Irreversible cessation of circulatory and 

respiratory functions; or

(B) Irreversible cessation of all functions of the

entire brain, including the brain stem. A 

determination of death must be made in 

accordance with accepted medical standards;

(2) A certified or authenticated copy of a death 

certificate purporting to be issued by an official or 

agency of the place where the death purportedly 

occurred is prima facie evidence of the fact, place, 

date, and time of death and the identity of the 

decedent;

(3) A certified or authenticated copy of any record or 

report of a governmental agency, domestic or foreign, 

that an individual is missing, detained, dead, or alive 

is prima facie evidence of the status and of the dates, 

circumstances, and places disclosed by the record or 

report;

(4) In the absence of prima facie evidence of death under 

paragraph (2) or (3), the fact of death may be 

established by clear and convincing evidence, including 

circumstantial evidence;

(5) An individual whose death is not established under the 

preceding paragraphs who is absent for a continuous 

period of five years, during which the individual has 

not been heard from, and whose absence is not 

satisfactorily explained after diligent search or 

inquiry, is presumed to be dead. The individual's death 

is presumed to have occurred at the end of the period 

unless there is sufficient evidence for determining 

that death occurred earlier;

(6) In the absence of evidence disputing the time of death 

stated on a document described in paragraph (2) or (3), 

a document described in paragraph (2) or (3) that 

states a time of death one hundred twenty hours or more 

after the time of death of another individual, however 

the time of death of the other individual is determined, 

(. . . continued)
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25

determination of death and status” for probate matters under 

Hawai‘i’s Uniform Probate Code. Relatedly, the Hawai‘i Probate 

Rules (HPR) use the term “determination of death,” when 

referring to “determination of death proceedings,” which are 

conducted for missing persons. See, e.g., HPR Rules 150-152, 

154 (describing the commencement of action, notice, and order 

requirements for “Determination of Death Proceedings” for 

missing persons). 

The term “determination of death” is also mentioned in 

HRS Chapter 327, entitled “Medical and Research Use of Bodies.” 

HRS § 327-38 (2010) describes prohibitions and penalties for the 

disposition of dead human bodies, stating,

“Dead human body” means:

(1) An individual who has sustained either 

irreversible cessation of circulatory and respiratory 

functions or irreversible cessation of all functions 

of the entire brain, including the brain stem; 

provided that the determination of death be made in 

accordance with accepted medical standards[.]

HRS § 327-38(e) (emphasis added).

The statute regarding “Requests for anatomical gifts” 

similarly states,

Any person in charge of a hospital, or the designated 

representative of the person in charge of the hospital,

(. . . continued)

establishes by clear and convincing evidence that the 

individual survived the other individual by one hundred 

twenty hours.

(Emphases added.)
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26

other than a person connected with the determination of 

death, may request any of the persons in section [327-9], 

in the order of priority stated, to give consent to the 

gift of all or any part of the decedent’s body to any 

potential donee for any purpose provided in section [327-

11].

HRS § 327-52 (2010) (emphasis added).

These examples, as well as HRS § 327C-1’s placement 

under “Title 19. Health,”22 demonstrate that the terms

“determination of death” and “death determination” are not 

synonymous with the mere fact of death. Rather, they hold a 

specific meaning that is applicable when the precise medical 

establishment of death is required.23

The legislative history and purpose of HRS § 327C-1 

not only supports the foregoing interpretation, but also

suggests that the statute was drafted to guide and protect

health-care providers from civil or criminal liability. The 

22 Title 19 (“Health”) ranges from HRS Chapter 321 (“Department of 

Health”) to HRS Chapter 344 (“State Environmental Policy”). HRS Chapter 327C 

(“Death”), which houses HRS § 327C-1, follows HRS Chapter 327 (“Medical and 

Research Use of Bodies”). The latter includes the Revised Uniform Anatomical 

Gift Act, which regulates the responsibilities of health-care providers, 

medical examiners, and coroners in the acceptance and disposition of donated 

body parts. HRS Chapter 327C is followed by HRS Chapters 327E (“Uniform 

Health-Care Decisions Act”), 327F (“Medical Treatment Decisions for Psychotic 

Disorders”), 327G (“Advance Mental Health Care Directives”), 327H (“Pain 

Patient’s Bill of Rights”), 327K (“Provider Orders for Life-Sustaining 

Treatment”), and 327L (“Our Care, Our Choice Act”). HRS § 327C-1 thus 

appears within a series of health-related chapters that address the rights 

and duties of patients, decedents, and medical professionals; notably absent 

are provisions relating to criminal process or the rights of criminal 

defendants. 

23 A precise medical determination of death may be required, for 

example, in certain probate cases, when using a body for medicine and 

research, or when an action is commenced while a person is still on life 

support.
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27

Senate Judiciary Committee Report recommending the bill’s 

passage notes that “there is no State statute which defines when 

a human being shall be pronounced dead,” suggesting that the 

legislature intended to provide a procedure for the 

“determination of death” rather than a universally applicable 

means of proving death. S. Stand. Comm. Rep. No. 617, in 1978 

Senate Journal, at 1026 (emphasis added). The same report

states that the purpose of the bill is “to establish and provide 

a definition of the medical death of a human being,” noting:

Historically, there was no alternative to the 

traditional method of determining death.24 However, the 

increased sophistication and extension of medical knowledge 

in resuscitation, artificial life support techniques, and 

organ transplants now require a different means of 

measuring death. The traditional criteria are no longer 

reliable in certain circumstances.

Id. (emphasis added).

HRS 327C-1 was thus directed at health care providers 

- particularly those involved in the process of determining 

whether organs may be removed from an individual for 

transplantation. The specific procedure outlined in the statute 

was designed to be a safe harbor from civil or criminal 

liability.

Two years before the enactment of HRS § 327C-1 in 1978,

the Senate passed S.R. No. 432, S.D. 1, calling on the 

24 The LRB Report characterizes the “traditional” method of death 

determination as the “measure of circulatory-respiratory death.” LRB Report, 

supra p.3, at 5. 
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28

Legislative Reference Bureau (LRB) to study “statutorily 

defining and timing the death of a human being.” S. Stand. Comm. 

Rep. No. 1029, in 1976 Senate Journal, at 1272. This request 

was made in recognition of “an impressive number of cases and an

unprecedented amount of litigation” concerning “a legal 

definition of death.” The resulting report, entitled “Towards a 

Definition of Death,” recognized that “the advent of modern 

medicine and development of extraordinary life sustaining 

techniques” created the need for a definition of death, “a 

previously non-existent problem.” LRB Report, supra p.3, at 1. 

After reviewing the legal and medical implications of a 

definition of death and surveying other states’ statutes 

defining death, the report “recommend[ed] that the State of 

Hawai͑i enact a statutory definition of death.”25 Id. at 1-3.

There are several indications that the definition of 

death proposed by the LRB Report was meant to apply to a set of 

limited circumstances in which a determination of death is 

required. The report began by discussing cases where the 

absence of a legal-death standard created uncertainty, noting

that “[t]he current lack of agreement between medical practice 

and law has resulted in some legal entanglements, some of which 

25 The report proposed statutory text to that end. LRB Report, 

supra p.3, at 116-18. The proposed text was adopted almost word for word. 

See HRS § 327C-1 (1978).
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29

resulted in judicial recognition of and acquiescence in the 

brain death standard.” Id. at 2. After explaining that “[t]he 

relevance of a definition of death, or any need for such a 

definition is perhaps made most understandable when viewed in 

the light of well-publicized death issues,” the report discussed

two cases26 - one involving a patient on life support, the other 

involving an organ donor27 - “to clarify the definition of death 

as an issue.” Id. at 4. Both cases highlighted the need for a 

statute that “determin[ed] at as nearly accurate a point in time 

as possible, the moment of death, or more precisely . . . the 

point at which a human body has progressed in the process of 

death when realistic medical assessment of condition is a 

finding of death.” See id. at 4. 

26 The first case discussed in the LRB Report was the Quinlan case, 

in which New Jersey courts considered a petition from Karen Ann Quinlan’s 

parents to remove her artificial respirator. LRB Report, supra p.3, at 3-10, 

119 n.1. For over a year, Quinlan was in a vegetative state with her 

breathing artificially maintained after she allegedly took a lethal 

combination of tranquilizers and alcohol. Id. at 4-5. Medical test results, 

however, showed some brain rhythm, so she never met the requirements for 

brain-function death. Id. at 5. This court in Abella cited the Quinlan case, 

and described its influence on the development of the law in Hawai͑i and 

nationally regarding a patient’s “right to refuse further life-sustaining

medical treatment.” Abella, 145 Hawai‘i at 553, 454 P.3d at 494 (citing In re 

Quinlan, 355 A.2d 647 (N.J. 1976).

The Cameron case took place in Hawai‘i and concerned court 

proceedings regarding the removal of Alice Cameron’s organs for donation. 

LRB Report, supra p.3, at 10-14. After an alleged drug overdose, Cameron 

“could not breathe without the assistance of the respirator” and was declared 

brain dead by her treating physician, despite disagreement among other 

physicians as to whether she was in fact dead. Id. at 11-12. 

27 These are precisely the circumstances discussed in HRS § 327C-1. 

See HRS §§ 327C-1(b) and (c).
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30

The LRB Report also identified specific areas in which 

the need for a statute defining death was particularly evident. 

The report listed three categories of legal cases where 

determinations of death previously arose: (1) property, 

inheritance, and insurance rights;28 (2) missing persons;29 and (3) 

homicide and wrongful death. Id. at 52-56. As to the latter,

the report focused on issues of liability, discussing cases in 

which physicians who removed brain-dead patients from artificial 

life-support systems “exposed [themselves] to criminal liability

for homicide, or civil liability for wrongful death, or both.”30

28 The LRB explained that litigation often arises in simultaneous 

death cases where the primary issue is the “question of survivorship” (e.g., 

determining whether a spouse died at the scene when her brain ceased to 

function or when she was removed from the respirator). LRB Report, supra p.3,

at 52. Likewise, issues arise regarding insurance benefits when insurance 

companies set time limits for accidental death benefits (e.g., determining 

whether a spouse, who was kept alive on a respirator for more than ninety 

days after an accident, had “died” within an insurance policy’s ninety-day 

time limit). Id. at 53. In such cases, “timing bears crucially on 

inheritance rights.” Id.

29 In missing persons cases, the LRB explained that the law 

determines “the period of time which must elapse” for a “presumptive 

determination[] of death,” specifically for “distributing the person’s 

property or freeing a spouse to remarry . . . .” LRB Report, supra p.3, at 

53-54. The LRB noted that in Hawai‘i this period of time is five years per 

the Uniform Probate Code. Id. at 54.

30 The LRB Report describes Tucker’s Administrator v. Lower, in 

which the brother of a transplant donor sued the surgeons who removed his 

brother’s organs for the wrongful death of the donor. LRB Report, supra p.3,

at 54, 124 n.12. The report noted that, in this case, “the primary issue was 

the determination of the time of death,” specifically, whether the donor was 

dead at the time the surgeons removed his organs. Id. at 54. The LRB Report 

also describes Regina v. Potter, in which a court reduced a defendant’s 

charge from murder to assault, finding that the “intervening acts of the 

physicians” – specifically, terminating the artificial life support of the 

brain-dead patient - “mitigated the original charge.” Id. at 30-31, 55; cf.

Abella, 145 Hawai‘i at 559, 454 P.3d at 500 (rejecting the argument that 

“removal of life support cannot constitute an intervening cause that may 

(. . . continued)
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31

Id. at 54. Where a person accuses a doctor of homicide or 

wrongful death for the removal of life support, the LRB noted, 

both timing and causation are at issue. Id. at 55. In such 

cases, the report implied, a medical determination of death may 

be warranted.

Other jurisdictions have similarly held that deathdetermination statutes are not applicable to every case 

involving death. In State v. Edwards, 767 N.W.2d 784, 800 (Neb. 

2009), the Nebraska Supreme Court held that their determinationof-death statute did not apply to homicide cases where the body 

of the decedent was missing. There, following a jury trial, the 

defendant was convicted of Murder in the Second Degree and Use 

of a Deadly Weapon to Commit a Felony. Id. at 795. The 

decedent was last seen leaving her apartment for the defendant’s 

apartment. Id. at 792. While her body was never recovered, the 

decedent’s blood was found in the defendant’s bedroom, on the 

mattress and walls, on a weapon in his closet, and in the trunk 

of his car. Id. at 793-94. The defendant argued that, inter 

alia, the State failed to prove the decedent’s death under 

(. . . continued)

absolve a defendant from liability for causing death”). The LRB noted, in 

addition to the issue of causation, that “[t]he question of timing of death 

in view of physician intervention” was necessarily at issue in Regina. LRB 

Report, supra p.3, at 55. Thus, both Tucker’s Administrator and Regina

illustrated that, in certain cases, the precise timing of a person’s death 

could have legal implications and could be determined using the procedures 

set forth in HRS § 327C-1.
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32

Nebraska’s determination-of-death statute31 and the court should 

have instructed the jury on this statute. Id. at 798-99. 

The Nebraska Supreme Court rejected both arguments, 

finding the statute inapplicable. Id. at 798, 800. The court 

explained, “We do not read the [statute] as establishing a rule 

of evidence requiring that in all cases involving an alleged 

decedent, the fact of death must be medically established.” Id.

at 800. Rather, the statute applies to certain cases involving

death determinations: “[T]here may be cases in which the 

[statute’s] medical standards are implicated, when there is a 

question as to the cause or time of an alleged death, or where 

there is conflicting medical evidence about the alleged 

decedent’s condition.” Id. As there were no such questions or 

evidence in this case, the court applied the standard of death 

recognized under Nebraska’s common law – proof of death by 

circumstantial evidence – and concluded that the evidence at 

trial was sufficient to prove the decedent’s death. Id.

31 Nebraska’s statute, entitled “Determination of death,” falls 

under “Chapter 71. Public Health & Welfare” and states the following:

Only an individual who has sustained either (1) 

irreversible cessation of circulatory and respiratory 

functions, or (2) irreversible cessation of all functions 

of the entire brain, including the brain stem, is dead. A 

determination of death must be made in accordance with 

accepted medical standards.

Neb. Rev. Stat. § 71-7202 (1992).
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33

We likewise hold that HRS § 327C-1 applies only in

certain criminal cases that involve “death determinations.” 

Most notably, in cases where a physician is charged with a crime 

for removing a patient from life support, the physician can 

fulfill the requirements of this statute to prove the patient 

was dead before the removal of such support. But not all 

criminal cases involving death require such death determinations. 

In most criminal cases, the fact and time of death are not 

contested – in those cases, all would agree the decedent died, 

so HRS § 327C-1 does not apply.

To hold otherwise would be to disregard well-accepted 

canons of statutory construction. Generally, statutes should be 

construed “to avoid, if possible, inconsistency, contradiction, 

and illogicality.” Abella, 145 Hawai‘i at 552, 454 P.3d at 493 

(quoting Haugen, 104 Hawai‘i at 76, 85 P.3d at 183). “If a 

literal construction of statutory language would produce an 

absurd result, we presume that result was not intended and 

construe the statute in accord with its underlying legislative 

intent.” Id. (citing Haugen, 104 Hawai‘i at 77, 85 P.3d at 184).

The interpretation of HRS § 327C-1 advanced by Moon here would

produce absurd results. Most notably, in cases in which someone 

is abducted, murdered, and the body is disposed of, there would 

be no way for a health care provider to make the required 

determination, and the State could never make the required 
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34

showing that the defendant had caused the death of another.32 

With these principles in mind, we turn to the facts of

this case.

B. The State Was Not Required to Meet the Requirements of HRS 

§ 327C-1 to Prove Feliciano’s Death

At trial, various witnesses testified that Moon shot 

Feliciano in the head during an altercation. Inoue testified 

that Dr. Nakagawa pronounced Feliciano dead on December 28, 2016. 

Feliciano’s organs and tissues were subsequently removed on 

December 30, 2016. Dr. Kobayashi then performed an autopsy on 

Feliciano on January 3, 2017 and determined that the cause of 

Feliciano’s death was a gunshot wound to the head. No evidence

was presented to contradict this testimony. Thus, at the time 

of Moon’s trial, there was no need for a “determination of 

death” within the meaning of HRS § 327C-1. There was no 

disagreement that Feliciano was dead at that point, and HRS § 

327C-1 did not apply. Viewing the evidence at trial “in the 

light most favorable to the prosecution and in full recognition 

of the province of the trier of fact,” there was substantial 

evidence to support the material element of death in this case. 

See Jhun, 83 Hawaiʻi at 481, 927 P.2d at 1364. 

32 HRS § 327C-1(c) specifically provides that “[t]he determination 

of death in all other cases shall be made under subsection (a).” (Emphasis 

added.) Read literally, this would mean that there could be no determination 

of death in cases in which there is no body – an absurd result. 
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35

Moon additionally argues that HRS § 327C-1 applied to

the grand jury proceeding, since Feliciano was “being kept alive 

by artificial means” at that time. However, Moon did not 

challenge the indictment before trial. Rather, he challenged it 

through a motion for arrest of judgment, arguing that the “one 

physician who declared [Feliciano] ‘brain dead’ . . . [was] not 

sufficient to prove that [Feliciano] was legally dead as 

required by the statute.”33 According to Moon, “[w]ithout 

sufficient evidence to support the murder charge, the indictment 

is defective on that count.” He also argues that the indictment 

failed to allege an offense and/or the circuit court lacked 

jurisdiction of the offense, and his motion therefore should 

have been granted.

Moon essentially challenges the sufficiency of the 

evidence to support his indictment, specifically the grand 

jury’s probable-cause determination for the element of death. 

33 A motion for arrest of judgment was not an appropriate motion for 

this argument. A motion for arrest of judgment is meant “to give the trial 

judge another chance to invalidate a judgment due to a fundamental error 

appearing on the face of the record.” 3 Charles Alan Wright et al., Federal 

Practice & Procedure § 601 (5th ed. 2022) (emphasis added) (examining Fed. R. 

Crim. P. 34, which is the federal equivalent of HRPP Rule 34). The “record” 

includes the indictment itself but not evidence; thus, “[a]n attack on the 

sufficiency of the evidence” is not appropriate for a motion for arrest of 

judgment. Id.; see also Territory v. Anderson, 23 Haw. 347, 348 (Haw. Terr. 

1916) (per curiam) (“The motion in arrest [of judgment] reaches substantial 

errors which are patent on the record, and which vitiate the 

proceedings . . . . The objection that the verdict is contrary to the 

evidence or based on insufficient evidence . . . cannot be urged in arrest of 

judgment.” (quoting 12 Cyclopedia of Law & Procedure 756, 759 (William Mack 

ed., 12th ed. 1904))). 
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36

However, under HRPP Rule 12(b)(2), “objections based on defects 

in the charge” “must be raised prior to trial[.]” A party’s 

failure to raise such objections “shall constitute waiver 

thereof, but the court for cause shown may grant relief from the 

waiver.”34 HRPP Rule 12(f). Moon argues that the circuit court 

“impliedly granted relief from the waiver” by “address[ing] the 

merits of the motion and den[ying] it,” citing Przeradski, 5 Haw. 

App. at 32, 677 P.2d at 474. In Przeradski, the defendant 

failed to raise a HRPP Rule 12(b)(3) motion to suppress evidence 

before trial as required under HRPP Rule 12(f). Id. at 31-32, 

667 P.3d at 474. “[W]ithout comment, the trial court heard 

argument on the merits from both sides, and, thereafter, denied 

the motion.” Id. at 32, 667 P.3d at 474. Based on these 

actions, the ICA held that “the trial court impliedly 

34 We have allowed parties to challenge indictments for the first 

time on appeal, but such parties have argued that their indictments failed to 

charge an offense; they did not solely challenge the sufficiency of the 

evidence supporting probable cause. See, e.g., State v. Tominiko, 126 Hawai‘i 

68, 75, 266 P.3d 1122, 1129 (2011) (addressing defendant’s argument that “the 

charge cannot be construed to charge an offense”); State v. Merino, 81 Hawai‘i 

198, 211, 915 P.2d 672, 685 (1996) (addressing defendant’s argument that “the 

charging complaint was fatally defective in that it ‘fail[ed] to sufficiently 

allege the elements of conspiracy’” (alteration in original)). We have 

permitted such challenges because, pursuant to HRPP Rule 12(b)(2), “defenses 

and objections based on defects in the charge” “must be raised prior to 

trial” unless the challenge is “that it fails to show jurisdiction in the 

court or to charge an offense.” (Emphasis added.) HRPP Rule 12(b)(2) states 

that such challenges regarding jurisdiction or charging an offense “shall be 

noticed by the court at any time during the pendency of the proceedings.” 

HRPP Rule 12(b)(2) (emphasis added); Merino, 81 Hawai‘i at 211, 915 P.2d at 

685. Although framed as a challenge that the indictment failed to allege an 

offense (or that the court lacked jurisdiction), as noted above, Moon is 

challenging the sufficiency of the evidence to establish probable cause.
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37

granted . . . relief [from the waiver]” under HRPP Rule 12(f) 

and that the motion was properly before the ICA. Id. at 32, 667 

P.3d at 474. 

In contrast, the circuit court here specifically found 

that the motion was untimely and that Moon had failed to 

establish good cause. Thus, notwithstanding this court’s 

discretion to review a defendant’s untimely motion, here, we 

decline to do so.35 As mentioned above, the State in this case 

developed evidence at trial that supported a finding beyond a 

reasonable doubt that Moon committed Murder in the Second Degree; 

this included evidence of death. On these facts, Moon’s 

objection to the sufficiency of evidence supporting the 

indictment, made in a post-judgment motion for arrest of 

judgment, was untimely and thus waived.

Relatedly, Moon, citing In re Doe, 102 Hawai‘i at 78, 

73 P.3d at 32, argues that his case is not moot because it 

concerns “unusual circumstances.36 Moon argues that if he had 

moved to dismiss the indictment before trial, the State would 

35 Contrary to Moon’s contention, Przeradski does not hold that 

appellate courts must review untimely motions. See Schutter v. Soong, 76 

Hawaiʻi 187, 204, 873 P.2d 66, 83 (1994) (citing Przeradski for the 

proposition that the defendant’s “failure to file a timely motion will not be 

deemed a waiver of his right to seek disqualification, and [this court] may

review the decision of the lower court” (emphasis added)). 

36 In In re Doe, the court held that “absent unusual circumstances, 

any defects in a pretrial determination of probable cause are rendered moot, 

or are without any effective remedy, which is much the same thing, by a 

subsequent conviction[.]” 102 Hawai‘i at 78, 73 P.3d at 32 (footnote omitted).
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not have been able to present evidence that Feliciano had 

experienced “irreversible cessation of all functions of the 

entire brain, including the brain stem,” at the grand jury 

proceeding because HRS § 327C-1(b) requires that determination 

to be made by two physicians independently. HRS § 327C-1(b).

According to Moon, the State would not have been able 

to present evidence of brain death even if a second grand jury 

was convened after the organ-donation procedure because “by that 

time, Feliciano’s organs had all been removed. He was dead but, 

because the statutory procedure had not been followed, there was 

no way to legally prove that he might have recovered from his 

loss of brain function.” Moon’s arguments are unavailing. If

Moon had succeeded in moving to dismiss pretrial based on the 

State’s failure to establish probable cause on the element of 

death as he suggests, the State could have returned to the grand 

jury several days later, after Feliciano’s organs had been

removed.37 At that point, no one would have disagreed that 

Feliciano was dead, and the State would not have needed to 

present evidence that Feliciano had experienced irreversible 

cessation of brain function.

37 Feliciano’s organs and tissues were removed two days after the 

grand jury indictment.
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C. Moon’s Other Arguments Lack Merit

Moon’s remaining arguments on appeal are unavailing. 

First, the circuit court did not err in denying Moon’s motion to 

strike Dr. Kobayashi’s testimony at trial. HRE Rule 705 

provides as follows: 

Rule 705 Disclosure of facts or data underlying 

expert opinion. The expert may testify in terms of opinion 

or inference and give the expert’s reasons therefor without 

disclosing the underlying facts or data if the underlying 

facts or data have been disclosed in discovery proceedings. 

The expert may in any event be required to disclose the 

underlying facts or data on cross-examination. 

In this case, the “underlying facts or data” 

supporting Dr. Kobayashi’s testimony were disclosed in discovery 

in the form of an autopsy report that was provided to the 

defense.38 HRE Rule 705. This autopsy report satisfied the 

disclosure requirement because, as the circuit court found in 

its order denying Moon’s motion to dismiss with prejudice based 

on the State’s failure to disclose medical records from QMC, it

“included . . . all relevant information that he gleaned from 

the [QMC] medical records.” Therefore, the QMC records did not 

need to be separately produced.39 Since there was no violation 

38 The autopsy report referenced the QMC medical records as a 

component of Moon’s “[r]ecent medical history.” 

39 To obtain the QMC medical records, Moon could have sought to 

subpoena them from QMC. As noted by the circuit court, “[n]othing precluded 

the defense from issuing [a subpoena duces tecum] on August 6, 2018 [when 

Moon first requested the QMC medical records from the State], or soon 

thereafter, requesting the production of Mr. Feliciano’s records from the 

QMC.” 
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of HRE Rule 705 here, the circuit court did not err in denying 

Moon’s motion to strike Dr. Kobayashi’s testimony.40 

Second, the circuit court did not commit plain error 

by failing to instruct the jury on the issue of causation. 

Citing Abella, 145 Hawai‘i at 560-61, 454 P.3d at 501-02, Moon 

argues that the circuit court should have instructed the jury on 

whether the removal of Feliciano’s organs was an independent 

intervening cause of death. Abella is inapplicable to the facts 

of this case. Unlike in Abella, where the defendant could point 

to several volitional acts, including surgery and the removal of 

medical support, as potential intervening causes, 145 Hawai‘i at 

558, 454 P.3d at 499, here, Moon neither identifies any medical 

procedures that could have contributed to Feliciano’s death, nor 

argues that Feliciano’s death was related to the removal of 

medical support. Rather, Moon contends that removal of 

Feliciano’s organs, which occurred after Feliciano’s death, 

could have been considered an intervening cause of death. We 

find this argument unavailing and hold that the circuit court 

did not err by not instructing the jury on the issue of 

40 Even if a violation of HRE Rule 705 occurred, the circuit court’s 

refusal to strike Dr. Kobayashi’s testimony appears harmless beyond a 

reasonable doubt. Moon presents no evidence on appeal of a “reasonable 

possibility that the error contributed to [Moon’s] conviction.” State v. 

Nichols, 111 Hawai‘i 327, 329, 141 P.3d 974, 976 (2006).
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causation pursuant to HRS §§ 702-214 (2014), 215 (2014), and 216

(2014).

Third, Moon’s constitutional right to trial by jury 

was not violated by the excusal of four potential jurors of 

Korean ancestry. The circuit court properly considered the 

State’s race-neutral justifications for its peremptory 

challenges and found “no evidence that the State exercised its 

peremptory challenges to exclude Korean jurors on the basis of 

the juror’s [sic] race.”41 Upon reviewing the record, we agree

that the defendant failed, upon hearing the State’s race-neutral 

explanations, to prove the State had committed purposeful 

discrimination. See State v. Daniels, 109 Hawai‘i 1, 6, 122 P.3d 

796, 801 (2005) (holding that “if a category-neutral explanation 

[for a peremptory challenge] is tendered, the trial court must 

then decide whether the opponent of the strike has proved 

purposeful discrimination”). In this regard, the circuit court 

did not err. 

Fourth, the circuit court’s Tachibana colloquy was not 

deficient. The record establishes that the court engaged in a 

true colloquy with Moon, demonstrating that he understood that 

he had a constitutional right to testify, that no one could 

41 Although listed under the heading “Conclusions of Law,” the 

circuit court’s statement regarding the absence of evidence of the State’s 

racial motive was a finding of fact, not a conclusion of law. 
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prevent him from testifying, that if he chose to testify, the 

prosecutor would be allowed to cross-examine him, and that the 

decision to testify was his. Under these circumstances, the 

circuit court did not err in concluding that Moon’s waiver of 

the right to testify was voluntary. 

Finally, Moon’s ineffective assistance of counsel 

claim lacks merit. Given the strength and amount of evidence 

supporting that Moon shot Feliciano, defense counsel’s

concession in opening statement that Moon was the shooter was 

plausibly tactical. See Briones v. State, 74 Haw. 442, 444, 848 

P.2d 966, 969 (1993) (“Specific actions or omissions alleged to 

be error but which had an obvious tactical basis for benefitting 

the defendant’s case will not be subject to further scrutiny.”); 

cf. Florida v. Nixon, 543 U.S. 175, 176, (2004) (holding defense 

counsel’s failure to obtain defendant’s express consent to a 

strategy of conceding guilt did not automatically render 

counsel’s performance deficient). We therefore reject Moon’s 

ineffective assistance of counsel claim.
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V. CONCLUSION

For the foregoing reasons, we affirm the circuit 

court’s October 3, 2019 Amended Judgment of Conviction and 

Sentence.

Emmanuel G. Guerrero /s/ Mark E. Recktenwald

for appellant

/s/ Paula A. Nakayama

Chad M. Kumagai

for appellee /s/ Sabrina S. McKenna

/s/ Todd W. Eddins