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NO. CAAP-22-0000731

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, 

v.

ERIC STROEVE, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CASE NO. 1CPC-21-0000568)

SUMMARY DISPOSITION ORDER

(By: Ginoza, Chief Judge and Nakasone, J., 

with Hiraoka, J., concurring and dissenting separately)

Self-represented Defendant-Appellant Eric Stroeve1

appeals from the "Judgment of Conviction and Sentence" entered by

the Circuit Court of the First Circuit on December 5, 2022.2 For

the reasons explained below, we vacate and remand.

In the early morning hours of May 10, 2021, someone set

fire to Ali#iōlani Hale, a state historical building that houses

the Hawai#i Supreme Court. Stroeve was indicted by a grand jury

on May 14, 2021. He was charged with Arson in the First Degree,

1 According to Stroeve, his last name "is pronounced like scuba. 

It's Dutch[.]" 

2 The Honorable Kevin A. Souza presided. An amended judgment was

entered on December 20, 2022, effective nunc pro tunc December 5, 2022. The

amended judgment corrected a typographical error in the amount of credit for

time served.

Electronically Filed

Intermediate Court of Appeals

CAAP-22-0000731

29-NOV-2023

08:09 AM

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in violation of Hawaii Revised Statutes (HRS) § 708-8251(1)(b).3

He pleaded not guilty. 

The State filed a motion to determine voluntariness of

statements Stroeve made to a Honolulu Police Department (HPD)

officer. The circuit court entered "Findings of Fact,

Conclusions of Law, and Order Granting State's Motion to

Determine Voluntariness" on June 6, 2022. 

Jury trial began on July 12, 2022. The State adduced

evidence that Stroeve was identified as the person shown in a

surveillance video lighting a fire near the koa doors of the

Judiciary History Center entrance, located at the front of the

Hawai#i Supreme Court building. The fire caused smoke damage,

damage to the koa doors, and damage to parts of the interior

carpet, for a total amount of $815,637.40.4

The jury found Stroeve guilty as charged. The Judgment

was entered on December 5, 2022. Stroeve was sentenced to twenty

years in prison, with credit for time served. A Free Standing

Order of Restitution of $115,721.45 was entered on December 7,

2022. This appeal followed.

Stroeve contends that the circuit court erred by:

(1) admitting into evidence footage from the body-worn camera of

HPD officer Timothy Massie during the hearing on the State's

motion to determine voluntariness; (2) granting the State's

motion to determine voluntariness; (3) "suppressing" Officer

Massie's body-worn camera footage on July 8 and 13, 2022; and

(4) admitting "false testimony" from a trial witness.5

(1) Stroeve contends that the circuit court erred by

admitting footage from Officer Massie's body-worn camera into

evidence during the hearing on the State's motion to determine

3 HRS § 708-8251(1)(b)(2014) provides: "(1) A person commits the

offense of arson in the first degree if the person intentionally or knowingly

sets fire to or causes to be burned property and: . . . (b) Knowingly or

recklessly damages the property of another, without the other's consent, in an

amount exceeding $20,000."

4 $815,637.40, the total amount of damages introduced at trial,

consisted of $55,500.00 to repair the koa doors; new carpet, $7,894.00; air

duct cleaning, $30,235.34; and smoke remediation, $722,008.06.

5 Stroeve did not appeal his sentence or the restitution order.

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voluntariness. The hearing was held on May 17, 2022. Stroeve

watched Officer Massie's body-worn camera video on the circuit

court's monitor. Stroeve initially declined to stipulate the

video into evidence. The State called Officer Massie as a

witness. Officer Massie identified Stroeve as the person he

arrested on May 11, 2021. Officer Massie authenticated State's

Exhibit No. 1 as a compact disc containing video footage from his

body-worn camera depicting his interaction with Stroeve on

May 11, 2021. The State moved Exhibit No. 1 into evidence. The

circuit court asked Stroeve if he had any objection. Stroeve

said, "No, Your Honor." The court then admitted State's Exhibit

No. 1 into evidence "for the purposes of this motion only." The

court did not err in so doing. See Hawaii Rules of Evidence

Rule 103(a)(1) ("Error may not be predicated upon a ruling which

admits . . . evidence unless . . . a timely objection . . .

appears of record[.]"); Tabieros v. Clark Equip. Co., 85 Hawai#i

336, 379 n.29, 944 P.2d 1279, 1322 n.29 (1997) (noting that

"complete failure to object will waive the point" concerning

admissibility of evidence).

(2) Stroeve contends that the circuit court erred by

granting the State's motion to determine voluntariness. During

the hearing on the motion, Officer Massie testified that Stroeve

made three statements after he was handcuffed and patted down:

"Not a survivor left tomorrow morning[,]" "All the courtrooms

burned to the ground[,]" and "Courts of bullshit." Stroeve

argues that "the Miranda warning was never provided" and he

"never waived his Fifth Amendment right against selfincrimination." Whether a person's constitutional right against

self-incrimination was violated is a question of law reviewed de

novo under the right/wrong standard. State v. Kazanas, 

138 Hawai#i 23, 33, 375 P.3d 1261, 1271 (2016).

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme

Court held that a suspect must be warned "that he has the right

to remain silent, that anything he says can be used against him

in a court of law, that he has the right to the presence of an

attorney, and that if he cannot afford an attorney one will be

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appointed for him." Id. at 479. Under Hawai#i law, a defendant

objecting to admissibility of their statement must establish that

the statement resulted from (1) "interrogation" while they were

(2) "in custody." State v. Hewitt, 153 Hawai#i 33, 43, 526 P.3d

558, 568 (2023). There is no dispute that Stroeve was in custody

when he made the statements. The issue presented is whether he

was under interrogation.

The circuit court made findings of fact and conclusions

of law when granting the State's motion. Hawai#i Rules of

Appellate Procedure Rule 28(b)(4)(C) requires that Stroeve's

opening brief quote or reference any findings or conclusions

urged as error. Stroeve didn't do this, although he generally

contends the circuit court abused its discretion in finding

Officer Massie credible, in finding that Stroeve was not

questioned by police during his arrest, and ruling that the

statements in question were voluntary. To promote access to

justice, the supreme court instructs that self-represented

litigants shouldn't be automatically foreclosed from appellate

review because they fail to comply with court rules. Erum v.

Llego, 147 Hawai#i 368, 380-81, 465 P.3d 815, 827-28 (2020). 

Accordingly, we review the circuit court's findings to determine

whether they were clearly erroneous, Est. of Klink ex rel. Klink

v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523 (2007). 

The circuit court found:

6. Officer Massie was in the process of arresting

[Stroeve], checking for weapons, and attempting to get

on-scene booking information, such as name and birthday. 

During this process, [Stroeve] did not give his booking

information.

7. While [Stroeve] was in custody, Officer Massie

asked [Stroeve] whether he had anything sharp with respect

to his pockets. Officer Massie did not ask [Stroeve] any

other questions.

8. At the time [Stroeve] made the three utterances,

[Stroeve] was not responding to any particular questions.

10.[6] The court finds Officer Massie's testimony to be

credible and reliable.

6 There was no finding of fact numbered 9.

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11. Through Officer Massie's testimony, [Stroeve]

spontaneously uttered the following statements: "not a

survivor left tomorrow. Every courtroom burned to the

ground." "Court of bullshit."

Based on our review of the record, including Officer

Massie's body-worn camera video, findings of fact nos. 6, 7, and

8 were supported by substantial evidence and were not clearly

erroneous. As to finding of fact no. 10, "[i]t is well-settled

that an appellate court will not pass upon issues dependent upon

the credibility of witnesses and the weight of evidence; this is

the province of the trier of fact." Fisher v. Fisher, 111

Hawai#i 41, 46, 137 P.3d 355, 360 (2006) (quoting In re Doe, 

95 Hawai#i 183, 190, 20 P.3d 616, 623 (2001)).

Finding of fact no. 11, however, was clearly erroneous. 

Officer Massie's body-worn camera video reflects that while

walking up to Stroeve, Officer Massie asks Stroeve to put down

his knife. Stroeve complies. Officer Massie asks Stroeve to

drop his scissors. Stroeve complies. Officer Massie asks

Stroeve, "can you give me your name and stuff now?"

Stroeve looks at a second police officer at the scene

and says, "you guys are back again."

The second officer tells Stroeve, "'kay right now we're

speaking to you because you're a suspect, that matches the

description, or your person matches the description of an arson

suspect, okay?"

Officer Massie asks what Stroeve has in his hand, and

says, "what is that, keys? Drop 'em please." Stroeve bends down

and Officer Massie says, "no, don't reach for stuff my man."

The second officer continues, "so that's why we're

talking to you . . ."

Stroeve says to Officer Massie, "you don't have to

worry about me doing anything."

Officer Massie replies, "well, you never know anymore

with people, right?"

Stroeve says, "You guys have to ask questions and

listen . . ."

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The second officer continues, "so now I'm telling you

why we're speaking to you, because you match the description of

an arson suspect. Okay? You want to give us your information?"

Stroeve pauses, looks at the second officer, and says,

"Um, I want to give you the whole info."

"I'll take whatever you got," says the second officer.

Stroeve says, "Okay, April 4, 2012."

"No, I don't want to go that back far [sic]," says the

second officer.

"I am the victim of attempted murder by the Maui County

Police Department," says Stroeve.

The second officer replies, "Right now, we're only

talking about an arson case."

During this time Officer Massie is taking out his

handcuffs and asks Stroeve to turn around.

Stroeve asks, "Why are you putting me in cuffs?"

Officer Massie responds, "Because you're going to be

arrested for that now."

"For what?"

Officer Massie responds, "He just told you, the arson."

"Arson?" asks Stroeve, as he turns to face Officer

Massie.

"Stop trying to turn," says Officer Massie. The second

officer secures the handcuffs on Stroeve.

"Wait, somebody's alleging I arsoned a place?"

"Yes, that's exactly what it is," says Officer Massie. 

"And you matched the description, the video, the clothing, so

right now you're going to be placed under arrest for the arson,

okay."

As the second officer informs dispatch that he has "one

custody," a third officer arrives at the scene.

Stroeve asks, "And you guys conspired to murder me how

many times since I got out of prison?"

"You know, I don't know what you're talking about,"

says the second officer.

"And take my hands?"

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Officer Massie responds, "No, would you like to give us

your information before you get into a blue-and-white, or will

you give us your information right now?"

"Well, I guess I'm going to talk to a detective."

Officer Massie asks the third officer to take photos of

Stroeve.

"You guys are forgetting that you tried to murder me

and take my hands, twice. Right. And, this is not a reasonable

seizure. You haven't even asked questions and investigated

anything."

"That's because we can't ask you the questions," says

Officer Massie.

"It's justified for me to go to war against you since

you guys declared war against me."

Officer Massie asks Stroeve, "Can you face this way

please?"

While being photographed, Stroeve says, 

And you've been stalking me illegally, without a

warrant, this entire time. Unreasonable seizures. 

[Unintelligible] You guys owe me like five hundred million

dollars. And you're going to keep going more and more in

the hole. You think you're in the right, and you're going

to put me in cuffs now. Once again. You're full of shit. 

I don't give a fuck. You guys are so full of shit it ain't

even fuckin' possible. [Unintelligible] This is an

unreasonable seizure.

As Officer Massie instructs the other officers about

recovering evidence, Stroeve says, "Yeah, I want evidence against

every fucking cop that's been stalking me twenty-four seven. 

Fucking assholes. Twice tried to take my hands. Murder

[unintelligible]."

Officer Massie asks Stroeve, "You got anything that's

going to poke me?"

Stroeve doesn't respond. Officer Massie searches

Stroeve's pockets. Stroeve says, "You're taking stuff out of my

pockets and moving it around."

Officer Massie explains, "Feels like you might have a

knife or some kind of weapon in here, that's why."

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"Ah, you could have asked and I would have told you no. 

But you can't do that."

"We can."

"No you can't."

"'Kay, I gotta take this off you okay, this

right . . ."

"You can't arrest me. I own this fucking police

department."

"I heard that many a time."

Stroeve continues:

And the state of bullshit. You guys don't have enough

money to afford [unintelligible] fucking retarded. Hey, ah,

what happened to my dead kids? Ann Margaret that you

murdered? You guys murder people during the Arita

[phonetic] trial, and uh, covered it up and haven't told 'em

any kids [unintelligible]. Really. God I wonder. How long

ago did this happen? And your fucking needs. This is

awesome. 

During this time, Officer Massie is searching through

Stroeve's many layers of clothing, pockets, and a bag attached to

his belt by a chain, while the other officers are standing by. 

Officer Massie asks Stroeve, "Can you lift your hands please? 

Thank you." Officer Massie continues searching through Stroeve's

clothing.

Stroeve then made the following underscored statements,

which the circuit court found to be spontaneous utterances: 

Somebody please pull out a [unintelligible]. Not a

survivor left tomorrow morning. Every courtroom. Burned to

the ground. Court of bullshit. Broke every fucking rule of

law, been in violation of my rights for nine years now. And

counting. And keep on going. Takes a licking and keeps on

ticking. You guys are dead. Not by me, the whole world's

gonna come [unintelligible]. Twenty-two million dead,

murdered. But you couldn't stop. And never gave closure to

everybody on planet earth, they're all coming here to

fucking kill you. 

After additional conversation not relevant here, Stroeve was 

placed in a marked police vehicle.

"[T]he touchstone in analyzing whether 'interrogation'

has taken place is whether the police officer should have known

that his or her words and actions were reasonably likely to

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elicit an incriminating response from the defendant." Kazanas,

138 Hawai#i at 38, 375 P.3d at 1276 (cleaned up). Although

Officer Massie only asked Stroeve for his "name and stuff," the

second police officer told Stroeve he resembled the suspect in an

arson case and asked, "You want to give us your information?" At

that time, the police officers knew they were going to arrest

Stroeve. When Stroeve responded, "Um, I want to give you the

whole info," the second officer should have realized that his

question to Stroeve was likely to elicit an incriminating

response. At that point, Stroeve should have been given the

Miranda warnings. He was not. Instead, the second officer said,

"I'll take whatever you got" and "right now, we're only talking

about an arson case." Under Kazanas, this constituted

interrogation. Stroeve's later statements should not have been

admitted at trial. 

The circuit court erred by granting the State's motion

to determine voluntariness and allowing the admission of

Stroeve's un-Mirandized statements. We conclude that the error

was not harmless beyond a reasonable doubt.

At trial, Officer Massie was asked whether Stroeve said

anything after he was arrested, and testified to the statements

as follows:

He had said three things. They were -- the

first one was: Courts of bullshit. The second one

was: All courts burn to the ground. And then the

last thing he said was: Not a survivor left tomorrow

morning.

The gist of Stroeve's defense was twofold: (1) that he

lit a different fire at the same location three days before this

incident; and (2) that he did not intend for the fire he lit to

cause any damage at all, and certainly not in an amount exceeding

$20,000.00. Stroeve testified that "[he] was not there on May

10th", the date of the incident at issue, and stated: "I believe

100 percent that this incident occurred on Friday, May 7th." 

Stroeve claimed that the surveillance video from the date of the

incident was forged using his image from three days before. He

lit the fire to "make an example of the capitol patrol sheriffs"

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who he claimed had robbed him "five weeks before." Stroeve

wanted to show that the capitol patrol sheriffs were "probably

too busy robbing people, that their building security [wa]s so

poor that somebody could potentially set up a fire at one of

their buildings and not get caught." Stroeve explained that he

"didn't have a motive to really damage the building at all[,]"

and that "this is a criminal conspiracy . . . to frame me for

damages and a crime that I did not commit . . . ." Stroeve

testified that "the first thing [he] lit on fire" were the "No

Trespassing" laminated cards, which Stroeve "placed on the

ground[,]" "not touching the doors." Stroeve claimed the "flames

were not going to touch the doors[,]" and the flames were "selfextinguished." Stroeve then placed the stanchions over the

laminating cards but said "none of these stanchions are touching

the doors[,]" and explained that "even if these stanchions caught

fire, the doors are not going to catch fire." Stroeve "did not

believe that there was any risk of any damage at all." Stroeve

asserted that when he "got back with the trash bag, those two

laminating cards were no longer burning" and when he looked back

at the fire from nearby he believed that the fire "completely

went out" because "there was [sic] no more flickering lights

coming from the fire." Stroeve testified: "I concluded that the

fire self-extinguished itself [sic] like it should have. 

Although I cannot confirm that it completely went out, I believe

that it did." Stroeve specifically denied any intention to cause

over $20,000 of damage, as follows:

[By standby counsel]: Let me ask you this, then, 

Mr. Stroeve: Did you intend to cause more than $20,000 of

damage to the Judicial [sic] History Center?

[By Stroeve]: No, I did not.

Stroeve also maintained that he "had no motive to damage the

doors." 

"Erroneously admitted evidence is evaluated under the

harmless beyond a reasonable doubt standard." State v. Jones,

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

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

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erroneous admission of evidence is not harmless when there is a

reasonable possibility that the error might have contributed to

the conviction." State v. Baker, 147 Hawai#i 413, 435, 465 P.3d

860, 882 (2020) (emphasis added) (citing State v. McCrory, 

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

Here, the record reflects that there is a reasonable

possibility that the erroneous admission of Stroeve's statements

might have contributed to his Arson in the First Degree

conviction. See id. The element of proof at issue, based on

Stroeve's testimony, was whether the State proved Stroeve's state

of mind with respect to the result of his conduct, of damage "in

an amount exceeding $20,000." HRS § 708-8251(1)(b). The State

had to prove that Stroeve acted at least recklessly with respect

to the resulting amount of damage, i.e. that Stroeve "consciously

disregard[ed] a substantial and unjustifiable risk that his

conduct will cause such a result." HRS § 702-206(3)(c) (2014). 

Stroeve's defense minimized the scope of the fire he admitted

lighting as "no longer burning"; that it "completely went out";

and that there was no "risk of any damage at all" to the building

because neither the lit laminated cards nor the stanchions he

later placed on top of the cards were "touching the doors." 

Stroeve's defense attempted to show that any risk that the doors

would catch fire causing over $20,000 in damage was not

"substantial and unjustifiable" and that even if such level of

risk was shown by the evidence, he did not "consciously

disregard" that risk. See id.

Stroeve's statements of "Every courtroom. Burned to

the ground" such that "Not a survivor [would be] left tomorrow

morning"–-contradicted Stroeve's defense that he never intended

the fire to damage the doors or the building in an amount over

$20,000. The statements on their face indicated that Stroeve had

motive against the "[c]ourts," which he felt were "bullshit,"

that he intended to cause catastrophic damage to, and loss of

life by burning "[a]ll courtrooms" "to the ground" with "[n]ot a

survivor left." The statements contradicted Stroeve's testimony

in which he denied any "motive to really damage the building at

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all." The erroneously admitted statements constituted powerful

evidence against Stroeve's credibility and logically headlined

the State's closing argument as follows:

THE COURT: . . . Ms. [Prosecutor], you may get set up,

and then when you're ready, let us know, and you may begin

your closing argument.

[The State]: Not a survivor left tomorrow. All courts

burned to the ground. Court of bullshit. These were

[Stroeve]'s statements to Officer Massie. What courtroom?

You heard testimony that the Supreme Court is a historical

building. It's in the City and County of Honolulu. It is

one where tourists flock to to take photos. It houses the

Judiciary History Center. There was testimony that there

are very intricate areas in that building. And most

importantly, there were koa wooden doors.

This is the Hawaii Supreme Court building. This is

what [Stroeve] burned. He burned the koa doors at the

Judiciary History Center on May 10th, 2021.

(Emphases added.) See State v. Lora, 147 Hawai#i 298, 310-11,

465 P.3d 745, 757-58 (2020) (holding that based on "the manner in

which [an erroneous admission] was presented by the DPA, and the

reliance upon it during closing argument" rendered the error

"highly prejudicial" and not harmless beyond a reasonable doubt);

see also State v. Williams, 149 Hawai#i 381, 393-94, 491 P.3d

592, 604-05 (2021) (holding that the prosecutor's opening

statement introduction of out-of-court communications–-that had

previously been barred by the defense's motion in limine–-

constituted prosecutorial misconduct that was not harmless beyond

a reasonable doubt because it "greatly undermined [the

defendant]'s credibility"). Here, the State's prominent reliance

on Stroeve's improperly admitted statements to undercut Stroeve's

credibility and his defense of lack of the requisite state of

mind and motive to cause damage exceeding $20,000 was "highly

prejudicial." See Williams, 149 Hawai#i at 393-94, 491 P.3d at

605-05 (2021). On this record, there is a reasonable possibility

that the erroneous admission of the statements might have

contributed to Stroeve's arson conviction, and the error was not

harmless beyond a reasonable doubt. See Baker, 147 Hawai#i at

435, 465 P.3d at 882 (citing State v. McCrory, 104 Hawai#i at

210, 87 P.3d at 282.)

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(3) Stroeve contends that the circuit court erred by

"suppressing" Officer Massie's body-worn camera footage on July 8

and 13, 2022. 

On July 8, 2022, the circuit court conducted a trial

status conference and heard motions in limine. Toward the end of

the proceeding, Stroeve asked, "in trial, are we going to get to

see the body-worn camera data that comes from the [Axon

evidence.com] website?" The circuit court informed Stroeve, "as

your own attorney in this case, if you believe that the State is

proffering certain items of evidence that is inappropriate or

objectionable, it will be your duty and responsibility, then, to

object, state your reason for the objection. And the Court will

rule upon that objection." Stroeve acknowledged, "Okay." The

circuit court did not "suppress" anything during the July 8, 2022

proceeding.

On July 13, 2022, the second day of trial was held. 

The State did not offer Officer Massie's body-worn camera footage

into evidence. Neither did Stroeve. The circuit court did not

"suppress" the footage during the second trial day.

Stroeve argues that during the second trial day, he

"makes a reasonable request . . . for the court to produce

[Officer Massie's body-worn camera] video to 'prove [Officer

Massie was] committing perjury.'" The transcript of Stroeve's

cross-examination of Officer Massie doesn't support his argument:

Q. Twice you stated in your arrest affidavit

that I refused to give you any information. And if

you were going to testify before the grand jury on May

14th, 2021, and state under oath that I made three

statements to you that you are alleging is

information, why would you write that I gave you no

information in your arrest report and in your

affidavit?

A. Because the information provided was done

after the fact.

Q. It was after the arrest; correct?

A. It was found out after the arrest, when I

rewatched the body camera.

Q. Weren't these statements added to the body

camera?

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A. They were not.

Q. You're sure about that?

A. A hundred percent positive.

Q. You realize that you're under oath right now?

A. Yes, sir.

Q. And we could show the body camera and prove

that you are committing perjury?

THE COURT: I'm going to strike that last

question as being argumentative.

Next question, Mr. Stroeve.

MR. STROEVE: I am going to pass for cause.

THE COURT: No further questions, you mean?

Mr. Stroeve, no further questions?

MR. STROEVE: No further questions, Your Honor.

Stroeve never requested that the circuit court

"produce" Officer Massie's body-worn camera footage, which was

Exhibit 1 for the hearing for the State's motion to determine

voluntariness. Stroeve never offered the footage into evidence,

nor does he point to any part of the record showing that he

objected or raised an issue to the circuit court about not being

able to use the footage at trial. Because Stroeve never requested

or offered it, the circuit court cannot be said to have

"suppressed" it. Stroeve's third argument is without merit.

(4) In light of our disposition, it is not necessary

to reach Stroeve's last point of error. 

For the reasons explained above, the December 5, 2022

"Judgment of Conviction and Sentence" entered by the circuit

court is vacated, and we remand for a new trial.

DATED: Honolulu, Hawai#i, November 29, 2023.

On the briefs:

Eric M. Stroeve,

Self-Represented DefendantAppellant.

Stephen K. Tsushima,

Deputy Prosecuting Attorney

for Plaintiff-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Karen T. Nakasone

Associate Judge

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OPINION BY HIRAOKA, J.

CONCURRING IN PART AND DISSENTING IN PART

I concur with parts (1) and (3) of the majority's

summary disposition order. I also concur with the portion of

part (2) holding that the trial court erred by granting the

State's motion to determine voluntariness, and by allowing

Officer Massie to testify about Stroeve's statements at trial. 

But I respectfully disagree with the majority's conclusion that

the error was not harmless beyond a reasonable doubt.

Trial error is not to be viewed in isolation or

considered in the abstract; it must be examined in light of the

entire proceeding and given the effect to which the whole record

shows it is entitled. State v. McDonnell, 141 Hawai#i 280,

297–98, 409 P.3d 684, 701–02 (2017) (citation omitted). We must

determine whether there is a reasonable possibility the error

might have contributed to the conviction. Id. "[E]ven if the

trial court erred in admitting evidence, a defendant's conviction

will not be overturned if the error was harmless beyond a

reasonable doubt." State v. Veikoso, 126 Hawai#i 267, 276, 270

P.3d 997, 1006 (2011) (cleaned up). "Where there is a wealth of

overwhelming and compelling evidence tending to show the

defendant guilty beyond a reasonable doubt, errors in the

admission or exclusion of evidence are deemed harmless." Id.

(cleaned up).

As acknowledged by the majority, Stroeve asserted two

defenses at trial: (1) he didn't light the fire shown in the

surveillance video because he actually lit a different fire at

the same location three days before, and the video shown at trial

was "forged" using his image from three days before; and (2) he

didn't intend for the fire he lit to cause any damage at all, and

certainly not in an amount exceeding $20,000. The majority

concludes that Stroeve's incriminating statements contradicted

Stroeve's defense that he never intended the fire to cause any

damage, much less cause more than $20,000 in damage.
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But "intention" is not a state of mind applicable to

the results-of-conduct element7 of Arson in the First Degree. 

HRS § 708-8251 (2014) provides, in relevant part:

(1) A person commits the offense of arson in the first

degree if the person intentionally or knowingly sets

fire to or causes to be burned property and:

. . . .

(b) Knowingly or recklessly damages the property of

another, without the other's consent, in an

amount exceeding $20,000.

(Emphasis added). "A person acts recklessly with respect to a

result of his conduct when he consciously disregards a

substantial and unjustifiable risk that his conduct will cause

such a result." HRS § 702-206(3)(c) (2014).

The jury was instructed, without objection:

The Defendant, ERIC STROEVE, is charged with the

offense of Arson in the First Degree.

A person commits the offense of Arson in the First

Degree if he intentionally or knowingly sets fire to or

causes to be burned property and knowingly or recklessly

damages the property of another, without the other's

consent, in an amount exceeding $20,000.

There are six material elements of the offense of

Arson in the First Degree, each of which the prosecution

must prove beyond a reasonable doubt.

These six elements are:

1. That, on or about May 10, 2021, in the City and

County of Honolulu, the Defendant, ERIC STROEVE, set fire to

or caused to be burned property of another; to wit the State

of Hawaii; and

2. That the Defendant did so intentionally or

knowingly; and

3. That the Defendant knowingly or recklessly

damaged the property of another; to wit the State of Hawaii

by such conduct; and

4. That the Defendant did so without the consent of

the State of Hawaii; and

7 HRS § 702-205 (2014) defines the elements of an offense as

"(1) conduct, (2) attendant circumstances, and (3) results of conduct[.]"

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5. That the Defendant was aware that the damage

exceeded $20,000 or consciously disregarded a substantial

and unjustifiable risk that the damage exceeded $20,000; and

6. That the damage to the property exceeded

$20,000.

. . . .

A person acts knowingly with respect to a result of

the person's conduct when the person is aware that it is

practically certain that the person's conduct will cause

such a result.

. . . .

A person acts recklessly with respect to a result of

the person's conduct when the person consciously disregards

a substantial and unjustifiable risk that the person's

conduct will cause such a result.

A risk is substantial and unjustifiable if,

considering the nature and purpose of the person's conduct

and the circumstances known to the person, the disregard of

the risk involves a gross deviation from the standard of

conduct that a law abiding person would observe in the same

situation.

(Emphasis added.)

Stroeve's testimony was:

Well, I can talk about what -- what I observed, because I am

the only witness in this case, and I was there at the scene. 

And so I've seen a lot of versions of the surveillance

video. I really don't want to go through it anymore. I

think the jury's going to have an opportunity to view this

video when they deliberate.

. . . .

And what they're going to see is that I did -- the

first thing that I lit on fire was some plastic laminating

cards that said "No Trespassing." And the video's going to

show that they self-extinguished. And what I intended to do

with those, there was a few of them placed in the

windowsill. There were two stanchions placed near them, and

it damaged some of the paint on the stanchions.

Then I'm going to carry two of these burning

laminating cards to the door. And I wanted to check for a

draft because there was a gap underneath that door. I

wanted to see if there was any air going in and out, and

there wasn't. There's no wind happening. And you will

notice that these laminating cards were placed on the

ground. They were not touching the doors. The flames were

not going to touch the doors.

Then I'm going to go get another stanchion. And I'm

going to lay it parallel to the doors and set it directly

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over the burning laminating cards. And that stanchion is

not going to catch fire because these stanchions are

painted. So first, a fire would have to burn through the

paint. And then I am going to get three more stanchions.

So there's a pattern of these stanchions where one is

laying down. The next one goes across the first one. Third

one's going to go across the second one. The last one that

is perpendicular to the doors is the top stanchion. And

none of these stanchions are touching the doors. So even if

these stanchions caught fire, the doors are not going to

catch fire.

Even if -- so when I go get this trash bag of

discarded mail and I'm walking back to the Supreme Court,

I'm actually in shock that nobody has arrived. I really

didn't plan on being able to succeed at bringing that bag

back, because I already lit these two fires that are going

out. And you will notice that I don't go back onto the

step. I dump it where the two stanchions are. They're the

farthest away from the doors. And when I light this paper

on fire, it is the farthest away from the doors, on the edge

of the step.

And so there has to be a chain of events that is going

to happen here. And this is the first deviation from the

truth in the surveillance video. All the fires of paper,

wood, are going to be yellow flames. What you're going to

see in this video is flames that become white, and you can't

see through them.

And you will notice the two laminating cards that I

lit and brought to the door are going to burn out. So

you're going to see now these small yellow flames, where

it's flickering. So imagine now this paper fire. It's not

one big fire. It's a bunch of individual paper letters. 

They were going to burn very quickly, and then they're going

to all self-extinguish. So what you should see is a lot of

little flames at the end of this, burning out.

But you will notice that once this fire starts, it's

going to turn white. It's going to become massive, and it's

never going to stop burning. Now, this fire's going to

continue to burn for some time. Then the video's going to

stop.

(Emphasis added.) Stroeve also admitted he used a "high butane

lighter" to light the paper he got from the trash bin at the post

office.

State's Exhibit 34 is the Judiciary's security camera

video of Stroeve and the fire. It was admitted into evidence

without objection. It shows Stroeve lighting the cards in a

windowsill. Stroeve places the burning cards at the base of the

Judiciary History Center's koa doors. Stroeve goes in and out of

the frame, returning each time with stanchions. He puts them, as

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he testified, "directly over the burning laminating cards." The

video clearly shows that the cards didn't "self-extinguish." 

Stroeve leaves the frame for a longer time. He returns with a

trash bag. The fire still hasn't gone out. He empties the bag

on the burning stanchions. He sets the trash on fire with his

high-butane lighter. He leaves the frame — for the last time —

while the fire is still burning. The video clearly shows none of

the fires he set "self-extinguished." After he leaves, the fire

becomes "massive." It doesn't go out until first responders

appear and extinguish the blaze. The video shows a large burnedout hole in one of the doors. The hole wasn't there before the

fire. Firefighters enter the History Center but the external

security camera doesn't clearly show what they do inside.

Stroeve admitted intentionally setting fire to State

property — the "No Trespassing" cards.

The security video and Stroeve's testimony clearly

showed Stroeve either intentionally or knowingly caused other

State property — the stanchions — to burn by "set[ting] it

directly over the burning laminating cards."

The video also showed overwhelming and compelling

evidence that Stroeve's leaving the still-burning fire unattended

was at least reckless. In my view, no reasonable juror could

conclude that Stroeve's leaving the fire burning at the base of

the History Center's doors wasn't "a gross deviation from the

standard of conduct that a law abiding person would observe in

the same situation." Thus, it doesn't matter whether Stroeve

intended to cause more than $20,000 of damage to State property. 

It is enough that Stroeve recklessly caused it.

The majority relies upon cases which, in my view, are

distinguishable. In State v. Lora, 147 Hawai#i 298, 465 P.3d 745

(2020) and State v. Williams, 149 Hawai#i 381, 491 P.3d 592

(2021), the improperly admitted evidence was the testimony of the

complaining witness. In both cases, the verdict hinged either

completely or largely upon the jury's evaluation of the

complaining witness's credibility. Lora, 147 Hawai#i at 311, 465

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P.3d at 758 ("The jury's verdict rested on it accepting the CW's

account as true, and the erroneously admitted testimony was

specifically used to bolster the credibility of her account.");

Williams, 149 Hawai#i at 397, 491 P.3d at 608 ("T.Y., the

complaining witness, was the only witness other than the

defendant who could describe the actual acts constituting the

offenses.").

Here, the only witnesses to the results-of-conduct

element were Stroeve and the videotape — which, in my view,

overwhelmingly and compellingly defeats both of Stroeve's

defenses and shows that Stroeve's leaving the fire when and where

he did was at least "a gross deviation from the standard of

conduct that a law abiding person would observe in the same

situation." In my view, the erroneous admission of Stroeve's

statements was harmless beyond a reasonable doubt.

Because of my conclusion, I must address Stroeve's

fourth point of error. Stroeve contends that Wayne Taniguchi

gave false testimony. Taniguchi is the Judiciary's Facility

Management Division manager. He testified at trial and also at 

Stroeve's restitution hearing.

During the trial, Taniguchi authenticated State's

Exhibit No. 27F as an invoice for $722,008.06 from Eco Clean

Hawaii for fire and smoke remediation. The exhibit was received

in evidence without objection. Taniguchi explained that the

remediation process involved "cleaning up water damages and smoke

damages within the building[.]"

During the restitution hearing, Stroeve asked

Taniguchi, "during your testimony to the jury, you had testified

that the air conditioning was $730,000 in the trial. Is -- do

you -- do you recall making that statement?" (Emphasis added.)

Taniguchi testified, "I don't recall making that

statement, sir."

Stroeve asked, "You don't recall telling them that the

damages was [sic] over $700,000?"

Taniguchi responded, "Not at all."

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Stroeve argues Taniguchi's testimony during the

restitution hearing "represents fraud" because Taniguchi didn't

recall his testimony from the criminal trial five months earlier. 

Taniguchi's testimony that he doesn't recall making the statement

was consistent with his trial testimony. The $722,008.06 paid to

Eco Clean Hawaii was for fire and smoke remediation, not air

conditioning. Stroeve asked Taniguchi whether the smoke would be

contained in the office by the fire. Taniguchi explained that

the heavy smell will travel through the air-conditioning system,

but Taniguchi didn't testify that the $722,008.06 was to repair

or remediate the air conditioning. Taniguchi didn't remember

testifying "that the air conditioning was $730,000" because he

never gave such testimony.

Stroeve also argues that Taniguchi's trial testimony

was false because the restitution documentation attached to the

presentence report "does not contain any invoice from Eco Clean

Hawaii for 'fire and smoke remediation[.]'" Stroeve didn't call

the person who prepared the restitution report as a witness to

ask why the State wasn't claiming an additional $722,008.06 in

restitution. The record contains no evidence that the Judiciary

did not actually incur that cost because of the arson committed

by Stroeve.

For these reasons, I would affirm the Judgment of

Conviction and Sentence.

/s/ Keith K. Hiraoka

Associate Judge

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