State v. Kasty

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUN-2021
07:51 AM
Dkt. 70 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
DAVID R. KASTY, also known as DAVID KASDY, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1PC161000403)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant David Kasty (Kasty) appeals from

the May 1, 2019 Judgment of Conviction and Probation Sentence;

Notice of Entry (Judgment), as amended by the August 12, 2020

Amended Judgment of Conviction and Probation Sentence; Notice of

Entry (Amended Judgment) and the June 23, 2021 Second Amended

Judgment of Conviction and Probation Sentence; Notice of Entry

(Second Amended Judgment), all entered by the Circuit Court of

the First Circuit (Circuit Court).1

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The Honorable Fa#auuga L. To#oto#o presided.
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On March 15, 2016, Kasty was charged via Felony

Information with the offense of Assault in the Second Degree in

violation of Hawaii Revised Statutes (HRS) § 707-711(1)(a), (b)

and/or (d) (2014).2 A jury found Kasty guilty of Assault in the

Second Degree based on Dangerous Instrument (HRS § 707-711(d))

and Substantial Bodily Injury (HRS § 707-711(a) or (b)).

Kasty raises two points of error on appeal, contending

that: (1) the Circuit Court plainly erred when it allowed the

jury to consider Kasty's statement that he stabbed his wife when

the State failed to introduce any admissible evidence from which

the jury could have concluded that the stabbed person (SP) was

his wife; and (2) there was a lack of substantial evidence to

support Kasty's conviction of Assault in the Second Degree.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

2
At the time of the incident, HRS § 707-711 provided, in relevant
part:

§ 707-711 Assault in the second degree. (1) A person
commits the offense of assault in the second degree if:

(a) The person intentionally or knowingly causes
substantial bodily injury to another;

(b) The person recklessly causes serious or
substantial bodily injury to another; [or]

. . . .

(d) The person intentionally or knowingly causes
bodily injury to another with a dangerous
instrument[.]

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

resolve Kasty's points of error as follows:

(1) Kasty argues, citing Hawai#i Rules of Evidence

(HRE) Rule 104(b), that because the State never proved that SP

was his wife, the Circuit Court plainly erred when it allowed the

State to introduce Kasty's statement to Honolulu Police

Department (HPD) Sergeant Roger Nitta (Sergeant Nitta) that: "I

stabbed my wife."

HRE Rule 104(b) provides:
Relevancy conditioned on fact. When the relevancy of
evidence depends upon the fulfillment of a condition of
fact, the court shall admit it upon, or subject to, the
introduction of evidence sufficient to support a finding of
the fulfillment of the condition.

Kasty contends that his statement that he stabbed his

wife is relevant to prove identity and state of mind, but only if

the State proved that SP was his wife.

This argument is without merit. HRE Rule 401 provides:

Rule 401 Definition of "relevant evidence".
"Relevant evidence" means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.

HRE Rule 402 provides:

Rule 402 Relevant evidence generally admissible;
irrelevant evidence inadmissible. All relevant evidence is
admissible, except as otherwise provided by the
Constitutions of the United States and the State of Hawaii,
by statute, by these rules, or by other rules adopted by the
supreme court. Evidence which is not relevant is not
admissible.

The fact that Kasty was or was not married to SP is not

determinative here. The State was not required to prove that

they were in fact married. Kasty's statement to Sergeant Nitta

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tended to make the existence of one or more facts of consequence

to the determination of whether Kasty was guilty of Assault in

the Second Degree more probable than if the statement had not

been admitted. The statement's relevance is not conditioned on

the admission of evidence that they were married.

(2) Kasty's first argument that there was no

substantial evidence to support his conviction is based on his

argument that it was plain error to admit his statement that he

stabbed his wife. Accordingly, we reject this argument.

Kasty further argues that, even with his statement that

he stabbed his wife, there was a lack of substantial evidence

from which the jury could have concluded that he intentionally,

knowingly, recklessly, or negligently stabbed SP in the back

because there was no evidence from which the jury could have

concluded which of those four states of mind he was acting under.

It is well-established that, in reviewing the

sufficiency of the evidence, the "evidence adduced in the trial

court must be considered in the strongest light for the

prosecution when the appellate court passes on the legal

sufficiency of such evidence to support a conviction[.]" State

v. Sprattling, 99 Hawai#i 312, 317, 55 P.3d 276, 281 (2002)

(citation and original brackets omitted). "The test on appeal is

not whether guilt is established beyond a reasonable doubt, but

whether there was substantial evidence to support the conclusion

of the trier of fact." Id. (citation omitted). Substantial

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evidence has been described as "evidence which a reasonable mind

might accept as adequate to support the conclusion of the fact

finder." State v. Mitchell, 94 Hawai#i 388, 393, 15 P.3d 314,

319 (App. 2000) (citation omitted). Moreover, "an appellate

court will not pass upon issues dependent upon the credibility of

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

the trier of fact." Sprattling, 99 Hawai#i at 317, 55 P.3d at

281 (citation and brackets omitted). Finally, "[g]iven the

difficulty of proving the requisite state of mind by direct

evidence in criminal cases, [the Hawai#i Supreme Court] ha[s]

consistently held that . . . proof by circumstantial evidence and

reasonable inferences arising from circumstances surrounding the

defendant's conduct is sufficient." See State v. Batson, 73 Haw.

236, 254, 831 P.2d 924, 934 (1992) (citations, internal quotation

marks, and original brackets omitted).

To prove the mens rea element of Assault in the Second

Degree pursuant to HRS § 707-711(1)(a) or (b), the State needed

to establish, beyond a reasonable doubt, that Kasty caused SP's

injury with a reckless, knowing, or intentional state of mind.3

3
HRS § 702-206 (2014) provides, in relevant part:

§ 702-206 Definitions of states of mind. (1)
"Intentionally."

(a) A person acts intentionally with respect to his
conduct when it is his conscious object to
engage in such conduct.

(b) A person acts intentionally with respect to
attendant circumstances when he is aware of the
(continued...)

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To prove Assault in the Second Degree pursuant to HRS § 707-

711(1)(d), the State needed to establish, beyond a reasonable

doubt, that Kasty caused bodily injury to SP with a dangerous

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(...continued)
existence of such circumstances or believes or
hopes that they exist.

(c) A person acts intentionally with respect to a
result of his conduct when it is his conscious
object to cause such a result.

(2) "Knowingly."

(a) A person acts knowingly with respect to his
conduct when he is aware that his conduct is of
that nature.

(b) A person acts knowingly with respect to
attendant circumstances when he is aware that
such circumstances exist.

(c) A person acts knowingly with respect to a result
of his conduct when he is aware that it is
practically certain that his conduct will cause
such a result.

(3) "Recklessly."

(a) A person acts recklessly with respect to his
conduct when he consciously disregards a
substantial and unjustifiable risk that the
person's conduct is of the specified nature.

(b) A person acts recklessly with respect to
attendant circumstances when he consciously
disregards a substantial and unjustifiable risk
that such circumstances exist.

(c) 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.

(d) A risk is substantial and unjustifiable within
the meaning of this section if, considering the
nature and purpose of the person's conduct and
the circumstances known to him, 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.

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instrument, and Kasty did so intentionally or knowingly.4 Kasty

argues that there was insufficient evidence of his state of mind

as to both of these alternatives.

Here, the evidence at trial included the testimony of

Deborah Taaga (Taaga), who was employed as a security guard at

Lighthouse Outreach Center, a homeless shelter, on the day of the

incident. Taaga testified that she had spoken to Kasty several

times before that day. Taaga got involved when SP approached her

and asked her to escort Kasty out and showed her a red spot on

her back that was maybe three to four inches in diameter. Kasty

was walking away. Taaga started walking after him and then Kasty

started running. Taaga testified that another person, Mark,

caught Kasty before she caught up and detained him in the parking

lot of the Waipahu Shopping Plaza. There was a knife on the

ground near where Kasty was on the ground, which Taaga identified

at trial (State's Exhibit 12). Taaga said that Kasty was

reaching for the knife, and Taaga kicked it away. Kasty then

started apologizing to Taaga "countless" times, saying "sorry,

Deborah" over and over again.

Mark Junior Failauga (Failauga) testified that, on the

date of the incident, he saw a person later identified as Kasty

being chased by a couple of security guards and Failauga

4
HRS § 707-700 (2014) provides, inter alia, that "'Dangerous
instrument' means any . . . weapon, device, instrument, material, or
substance, whether animate or inanimate, which in the manner it is used or is
intended to be used is known to be capable of producing death or serious
bodily injury."

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immediately started chasing after Kasty. Failauga was the first

person to catch Kasty and he tackled him in the area of the

shopping center about 130 yards from the Lighthouse Outreach

Center. After he tackled Kasty, Failauga saw "some type of

weapon fly under the car." At first he thought it was a paving

tool because of the way it was shaped and bent. At trial, he

identified the object flung under the car as State's Exhibit 12.

Sergeant Nitta testified that, when he arrived at the

scene of the incident, he saw that Kasty was handcuffed in the

back seat of a police car. As Sergeant Nitta was talking to

another HPD officer, Kasty called to them through the closed

window. Sergeant Nitta wanted to make sure that Kasty did not

need medical attention and opened the car door and asked Kasty if

he was alright. Kasty replied, "Yeah. Yeah, I arrested. I

stabbed my wife."

Richard Perron (Perron) testified that he was employed

as an evidence specialist by HPD. Perron testified about his

observations of SP's wound and her recovered clothing that was

soaked with a blood-like substance. Perron also testified

concerning State's Exhibit 12, which he described as the knife

that one of the officers recovered at the scene of the incident.

Perron testified that the knife was a Mercer brand kitchen knife

with a six-and-one-half-inch blade and a five-and-one-half-inch

handle, with about a one-inch taper, and that it was bent at the

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hilt. When he recovered the knife, Perron noticed an unknown

blood-like substance staining the tip.

Viewing all of the evidence (including the above) and

all reasonable inferences in the light most favorable to the

prosecution, we conclude that there was substantial evidence to

support the jury's conclusion that Kasty intentionally or

knowingly caused bodily injury to SP with a dangerous instrument,

and that there was substantial evidence that Kasty acted with a

reckless, knowing, or intentional state of mind when he caused

substantial bodily injury to SP.

For these reasons, the Circuit Court's May 1, 2019

Judgment, August 12, 2020 Amended Judgment, and June 23, 2021

Second Amended Judgment are affirmed.

DATED: Honolulu, Hawai#i, June 30, 2021.

On the briefs:
/s/ Katherine G. Leonard
William H. Jameson, Jr., Presiding Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Loren J. Thomas,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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