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NO. CAAP-17-0000843

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.

MICAH STERLING, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1CPC-17-0000711)

SUMMARY DISPOSITION ORDER

(By: Hiraoka and Wadsworth, JJ., and

Leonard, Presiding Judge, concurring separately)

Defendant-Appellant Micah Sterling (Sterling) appeals

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

on October 26, 2017, in the Circuit Court of the First Circuit

(Circuit Court).

1/ Following a jury trial, Sterling was

convicted of Assault in the Third Degree, in violation of Hawaii

Revised Statutes (HRS) § 707-712(1)(a) (2014).2/

On appeal, Sterling contends that the Circuit Court

erred in ruling that certain hearsay statements, to which the

complaining witness testified at trial, fell under the hearsay

1/ The Honorable Karen T. Nakasone presided.

2/ HRS § 707-712(1)(a) provides: 

(1) A person commits the offense of assault in the

third degree if the person:

(a) Intentionally, knowingly, or recklessly causes

bodily injury to another person[.]

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000843

23-DEC-2020

07:57 AM

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exception for statements for purposes of medical diagnosis or

treatment. See Hawai#i Rules of Evidence (HRE) Rule 803(b)(4)

(2002).3/

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we affirm the

Judgment for the reasons set forth below. 

I. Background

At trial, the complaining witness, Aaron Lau (Lau),

testified as follows. He is a licensed registered nurse, 

certified emergency nurse, and trauma certified registered nurse,

employed in the emergency room (ER) of Queens Medical Center

(QMC). In that capacity, he assesses and treats patients and

carries out orders given by the emergency room physician. On

May 30, 2017, Lau was assigned to Rooms 4, 5, and 6, and Hallway

6 in the QMC emergency department. Lau attended to Sterling

around noon that day in Hallway 6. Lau testified in part as

follows:

Q BY [Deputy Prosecuting Attorney (DPA)]: . . . What

was [Sterling] brought into the emergency room for?

A He was brought in by ambulance after EMS was

activated because the patient was seen drinking and laying

[sic] --

[DEFENSE COUNSEL]: Objection, Your Honor.

3/ HRE Rule 803 provides, in relevant part:

The following are not excluded by the hearsay rule,

even though the declarant is available as a witness:

. . . .

(b) Other exceptions.

. . . . 

(4) Statements for purposes of medical diagnosis or

treatment. Statements made for purposes of

medical diagnosis or treatment and describing

medical history, or past or present symptoms,

pain, or sensations, or the inception or general

character of the cause or external source

thereof insofar as reasonably pertinent to

diagnosis or treatment.

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A -- outside of --

THE COURT: Overruled.

A -- laying [sic] outside of Pali Longs.

While in Hallway 6, Lau performed a neurological

assessment of Sterling and checked his vital signs. In response

to the State's questions, Lau explained:

Q . . . And when you say you assessed him, how

did you assess him?

A Uh, I start by performing a neurological

assessment to see if the patient is confused or altered,

seeing if he could tell me his name, where he was, what year

it was, checking his vital signs, pupils, that kind of

thing.

Q Based on your neurological assessment, what did

-- what did you determine?

A Uh, the patient was obviously intoxicated. He

was very lethargic and obtunded. And he would wake up

briefly if I, you know, kept arousing him, but then he would

quickly fall back asleep.

Q Now could you smell the odor of alcohol?

A I could.

. . . .

Q How close were you to the defendant that you

could smell the odor of alcohol?

A I was right at his bedside. I had to look into

his eyes, had to listen to his heart, his lungs so I was

pretty much right up in his face.

Q . . . [I]s there any other assessments that you

conducted?

A I also checked his vital signs. I looked at his

eyes, his pupils. I listened to his heart and lungs,

checked his pulse, see if he could move all of his

extremities.

While Lau was assessing Sterling, Lau "tried to speak

with [Sterling] to see whether [Lau] could awaken him. Most of

the time [Sterling] would just mumble kind of incoherently and

then fall back asleep." Lau stated that "[he] smelled the

alcohol on [Sterling's] breath. [Sterling's] eyes were

bloodshot. [Sterling] was uncooperative." 

After Lau assessed Sterling, the ER physician ordered

that Sterling be placed in a cervical collar for his safety,

which Lau applied. The physician also ordered a CAT scan for

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Sterling's head and neck, which Lau arranged. Lau explained that

"[a] cervical collar maintains alignment of the neck and the

spine within the neck." Lau also explained that he placed the

cervical collar on Sterling because "[t]he patient was obviously

confused. We couldn't get a story from the patient, if he had

fallen down or was just laying [sic] on the ground[,] until we

could prove with the CAT scan he had no actual injury to his

neck. So we placed a cervical collar." Lau further testified

that the CAT scan was necessary because Sterling "was obviously

confused. We didn't know if it was because of alcohol or we

didn't know if he had fallen down causing him to be confused or

both." 

The CAT scan was not successfully completed. Lau

testified as follows: 

Q [By DPA] . . . [W]as a CAT scan conducted on

[Sterling]?

A Uh, it was not successfully done.

Q Okay. And why not?

A Once the patient got down to CAT scan, I

received a call from the CAT scan technician stating that

they were trying to --

 [DEFENSE COUNSEL]: Objection. Hearsay.

 THE COURT: Overruled.

Q You can finish.

A That they were trying to pull the patient over

from the ER gurney over to the CAT scan table. But when

they did that, the patient suddenly awoke and became angry

at them, started yelling and spitting at them.

Q When you were on the phone with the CAT scan

technician, could you hear the defendant in the background?

A I could.

Q How did you know it was his voice?

A I recognized his voice from earlier and also the

CAT scan technician was saying, "Oh, you hear him yelling

back there?"

 [DEFENSE COUNSEL]: Objection. Hearsay.

 THE COURT: Overruled. 

. . . .

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Q What kind of tone of voice was [Sterling] using?

A He was obviously very angry.

Sterling was returned to the ER, where Lau observed

that the cervical collar had been removed. Lau also observed,

from about five feet away, that Sterling was getting more

agitated and attempting to undo his pants. Based on his

experience, Lau believed that Sterling "obviously needed to

urinate, but he was getting very frustrated because he was drunk

and he couldn't figure out how to do it." Lau grabbed a pair of

gloves and a urinal bottle and then approached Sterling and said,

"I'm Aaron here, your nurse in the emergency. I'm going to help

you with the urinal bottle." Lau had not touched or reached for

Sterling, when Sterling suddenly sat up, turned toward Lau, and

punched him with a closed right fist on the left side of Lau's

"throat-neck area." Lau "immediately felt pain there" that

lasted "[a]bout 20 minutes." As Sterling continued to get more

agitated, Lau grabbed both of Sterling's wrists and pushed him

back down onto the ER gurney. Shortly after, other ER nurses,

technicians, and physicians came to assist Lau. 

Sterling also testified at trial, as follows. On

May 30, 2017, he went to the Safeway by the Long's near the Pali

to get lunch. He bought a sandwich and sat down outside to eat

it. "There was a guy that came up to [Sterling,] . . . asked

[him] for some food, for some of [his] sandwich, and some money." 

When Sterling said "no," the man started yelling at him, they got

into an argument, and the man started hitting Sterling. When

asked what happened next, Sterling testified: "I don't know. I

must have got knocked out or -- or something. That's all I

remember about that." Sterling next "remember[ed] some people

were asking me if I was okay and I was laid out on the ground." 

Sterling did not know any of the people and assumed he was in

"the same spot."4/

4/ Sterling later testified that he did not recall being taken to

QMC, put on a gurney, "hooked up with needles," placed in a cervical collar,

or transported for a CAT scan.

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When asked what happened next, Sterling testified: "I

woke up and there was a guy with my penis in his hand, and he was

telling me that he was going to -- he was grabbing my -- my

privates and he was going to help me. And I said, [']No, get

away from me,['] and I pushed him away." Sterling did not know

who the person was, where he (Sterling) was, or what was

happening. Sterling stated that he fell back asleep. Sometime

later, "[he] woke up and there was a police officer and they told

[him] that [he] was being taken to jail pretty much." 

As to whether he was drinking that day, Sterling

testified as follows: 

Q And were you drinking that day?

A I don't recall.

Q You don't recall if you were drinking?

A I don't remember it.

Q You don't remember if you were drinking?

A No.

Drew Matsuura (Matsuura) also testified at trial. On

May 30, 2017, he was working as a medical scribe in the ER at

QMC. At around 1 p.m. that day, Matsuura was sitting at his

scribe station, located between Rooms 5 and 6, near Hallway 6, in

the ER. From where he was sitting, Matsuura eventually saw Lau

tending to Sterling. Matsuura was 10 to 15 feet away from Lau

and Sterling, the area was well lit, and nothing blocked

Matsuura's view. While Lau was at Sterling's bedside, Matsuura

saw Sterling sit up and, "kind of out of nowhere," turn and punch

Lau with a closed fist in the "left jaw/neck area." Matsuura

testified that he did not see Lau touch Sterling in the groin

area or in any inappropriate way before Sterling hit Lau. 

II. Discussion

Sterling contends that the Circuit Court erred in

allowing Lau to testify to: (1) a statement made by an

unidentified declarant that Sterling had been "seen drinking

. . . outside of Pali Longs" (Statement 1); and (2) statements

made by the CAT scan technician regarding Sterling's behavior and

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demeanor during the attempted CAT scan, i.e., that Sterling

"became angry" and "started yelling and spitting at them" 

(Statement 2). Sterling argues that in both instances, the

Circuit Court erroneously ruled that the statements were

admissible under the HRE Rule 803(b)(4) hearsay exception for

statements for purposes of medical diagnosis or treatment.5/

We conclude that the Circuit Court did not err in

overruling Sterling's hearsay objection to Statement 2. While

the court did not state the basis for its ruling, Lau's testimony

established that the challenged statements fell under the hearsay

exception for present sense impressions. See HRE Rule

803(b)(1);6/ see also State v. Melendez, 146 Hawai#i 391, 397, 463

P.3d 1048, 1054 (2020) (an appellate court may affirm a judgment

on any supporting ground in the record (quoting State v.

Fukagawa, 100 Hawai#i 498, 506-07, 60 P.3d 899, 907-08 (2002))). 

Specifically, Lau testified to statements made by the CAT scan

technician describing Sterling's behavior while the technician

was perceiving the behavior or immediately thereafter. Indeed,

5/ During the testimony at issue, the Circuit Court did not state the

basis for overruling Sterling's hearsay objections. Prior to opening

statements, however, Sterling objected to the following anticipated hearsay

testimony by Lau, as contained in his written statement form to the police: 

"[A]t about 12:13 the patient was assigned to Hallway 6 after brought in by

EMS due to being found laying in front of Pali Longs and was seen drinking

alcohol per the triage note." At that time, the Circuit Court ruled: "That

is what the court is going to allow in. . . . These are statements that Mr.

Lau is reporting, and he's allowed to report under that hearsay exception[,]"

referring to HRE Rule 803(b)(4). After further discussion, the court

clarified: "If the State can lay a foundation as to how this testimony is

reasonably pertinent to the diagnosis and treatment, then it comes in in its

entirety under . . . 803-4." 

6/ HRE Rule 803 provides, in relevant part:

The following are not excluded by the hearsay rule,

even though the declarant is available as a witness:

. . . .

(b) Other exceptions.

(1) Present sense impression. A statement

describing or explaining an event or condition

made while the declarant was perceiving the

event or condition or immediately thereafter.

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Lau testified that he could hear Sterling in the background when

the technician asked, "Oh, you hear him yelling back there?"

Even if we assume that the Circuit Court erred in

admitting Statements 1 and 2,7/ we conclude that on the entire

record, such error was harmless beyond a reasonable doubt. See

State v. Jones, 148 Hawai#i 152, 170, 468 P.3d 166, 184 (2020)

("Erroneously admitted evidence is evaluated under the harmless

beyond a reasonable doubt standard." (quoting State v.

Matsumoto, 145 Hawai#i 313, 327, 452 P.3d 310, 324 (2019))

(internal quotation marks omitted)). In evaluating whether an

erroneous admission of evidence is harmless, the supreme court

has explained:

[E]rror is not to be viewed in isolation and considered

purely in the abstract. It must be examined in light of the

entire proceedings and given the effect to which the whole

record shows it is entitled. In that context, the real

question becomes whether there is a reasonable possibility

that error might have contributed to conviction. If there

is such a reasonable possibility in a criminal case, then

the error is not harmless beyond a reasonable doubt, and the

judgment of conviction on which it may have been based must

be set aside. 

State v. McCrory, 104 Hawai#i 203, 210, 87 P.3d 275, 282 (2004)

(quoting State v. Gano, 92 Hawai#i 161, 176, 988 P.2d 1153, 1168

(1999)); see State v. Lora, 147 Hawai#i 298, 310, 465 P.3d 745,

757 (2020).

To establish that Sterling committed Assault in the

Third Degree, the State was required to prove that Sterling

intentionally, knowingly, or recklessly caused bodily injury to

Lau. See HRS § 707-712(1)(a). Here, the State produced

"overwhelming and compelling evidence tending to show [Sterling]

guilty beyond a reasonable doubt." State v. Texeira, 147 Hawai#i

513, 538, 465 P.3d 960, 985 (2020) (quoting State v. Rivera, 62

Haw. 120, 127, 612 P.2d 526, 532 (1980)). Lau and Matsuura both

testified that Sterling sat up in bed, turned, and punched Lau

with a closed fist in the neck-throat area. In his own

testimony, Sterling admitted pushing Lau. In addition, Lau's

7/ We do not decide whether Statement 1 fell under the hearsay

exception for statements for purposes of medical diagnosis or treatment.

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unrefuted testimony established that he sustained bodily injury,

i.e., physical pain, during the incident. See HRS § 707-700. 

The jury could reasonably have inferred based on the overwhelming

evidence of Sterling's actions that he intentionally, knowingly,

or recklessly caused bodily injury to Lau. 

Sterling argues that the admission of Statement 1 was

not harmless because it supported Lau's opinion that Sterling was

intoxicated at the hospital, which in turn supported Lau's

testimony that Sterling had been uncooperative and had struck

Lau. Sterling further contends that the admission of Statement 1

"demeaned [his] credibility as it contradicted his claim that he

did not recall drinking that day[.]"8/ 

To the extent that evidence of Sterling's "drinking" on

the day of the incident, as referenced in Statement 1, affected

his or Lau's credibility, the record reveals that the jury heard

compelling independent evidence of such drinking from Lau. See

State v. Crisostomo, 94 Hawai#i 282, 290, 12 P.3d 873, 881 (2000)

(ruling that any error in admitting alleged hearsay statements

was harmless because they were cumulative of other admissible

testimony). In examining Sterling, Lau smelled alcohol on his

breath; Lau also observed that Sterling's eyes were bloodshot, he

was lethargic, obtunded and uncooperative, and he was falling

asleep and mumbling incoherently. Later, Lau observed that

8/ Sterling also asserts that Statement 1 constituted evidence of a

prior, criminal, bad act (drinking in public), and the jury could have

considered it propensity evidence. This argument was not raised below and is

thus deemed waived. See State v. Gonzalez, 128 Hawai#i 314, 317, 288 P.3d

788, 791 (2012) (noting that failure to properly raise issue at trial level

precludes party from raising that issue on appeal (quoting State v. Kikuta,

125 Hawai#i 78, 89, 253 P.3d 639, 650 (2011))); HRE Rule 103(a)(1). 

Similarly, Sterling now contends that the admission of Statement 1 violated

his right to confrontation and "may have influenced [his] decision to

testify." However, Sterling did not raise these objections when Statement 1

was offered during trial, and they are thus deemed waived See Kobashigawa v.

Silva, 129 Hawai#i 313, 322, 300 P.3d 579, 588 (2013). In addition, Sterling

did not establish on the record that he decided to testify at least in part

based on the Circuit Court's ruling as to Statement 1. Cf. State v. Schnabel,

127 Hawai#i 432, 439, 450, 279 P.3d 1237, 1244, 1254 (2012) (concluding that

the trial court's error in admitting evidence infringed on the defendant's

right to testify, where defense counsel stated on the record that the

defendant had decided not to testify based in part on the court's ruling). 

Given the record and the circumstances of this case (see infra), we further

conclude there was no plain error.

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Sterling was getting more agitated while attempting to undo his

pants to urinate, and when Lau tried to assist Sterling, Sterling

struck him. Sterling did not deny that he was drinking on the

day of the incident; rather, he testified that he did not recall. 

Considering the entire record in this case, we conclude there is

no reasonable possibility that the admission of Statement 1

contributed to Sterling's conviction.

Sterling argues that the admission of Statement 2 was

not harmless because it supported the credibility of Lau's

account of Sterling's angry and violent behavior and thus Lau's

claim that Sterling "had struck him unprovoked." Sterling

further asserts that the admission of Statement 2 undermined his

credibility by contradicting his claim that "he was basically

unconscious through most of his time at the hospital and that the

only reason he reacted adversely to Lau was because Lau was

touching his penis."9/

The record reveals, however, that the jury heard

compelling independent evidence of Sterling's behavior from Lau

and Matsuura, both of whom testified that Sterling had punched

Lau with a closed fist in the neck-throat area. See Crisostomo,

94 Hawai#i at 290, 12 P.3d at 881. In addition, Lau testified

that he had not touched or reached for Sterling when Sterling

suddenly sat up and struck Lau. Matsuura corroborated Lau's

account, stating that he did not see Lau touch Sterling in the

groin area or in any inappropriate way before Sterling hit Lau. 

Considering the entire record, we conclude there is no reasonable

possibility that the admission of Statement 2 contributed to

Sterling's conviction. 

Accordingly, any error of the Circuit Court in

admitting Statements 1 and 2 was harmless beyond a reasonable

doubt.

9/ Sterling also argues that Statement 2 constituted evidence of "a

prior bad act that was admitted substantively without a limiting

instruction[,]" and the admission of Statement 2 violated his right to

confrontation. Neither argument was raised below and is thus deemed waived. 

Given the record and the circumstances of this case (see infra), we further

conclude there was no plain error.

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III. Conclusion

For these reasons, we affirm the Judgment of Conviction

and Sentence, entered on October 26, 2017, in the Circuit Court

of the First Circuit.

DATED: Honolulu, Hawai#i, December 23, 2020.

On the briefs:

Jon N. Ikenaga,

Deputy Public Defender,

for Defendant-Appellant.

Donn Fudo,

Deputy Prosecuting Attorney,

City & County of Honolulu,

for Plaintiff-Appellee.

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

CONCURRING OPINION BY LEONARD, PRESIDING JUDGE

I concur in the result.

/s/ Katherine G. Leonard

Presiding Judge

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