State v. Faufata

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-JUL-2021
07:55 AM
Dkt. 79 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAII,
Plaintiff-Appellee,
v.
TODD FAUFATA,
Defendant-Appellant

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-CR. NO. 16-1-1497)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Nakasone, JJ)

Defendant-Appellant Todd Faufata (Faufata) appeals from
the Judgment of Conviction and Sentence and Notice of Entry as to
Count #2 filed on December 23, 2016 in the Family Court of the
First Circuit (Family Court).1 Following a jury trial, Faufata
was convicted of Assault in the Third Degree (Assault Third), in
violation of Hawaii Revised Statutes (HRS) § 707-712(1)(a)
(2014).2

1
The Honorable Sherri L. Iha presided.
2
HRS § 707-712(1)(a) provides:

Assault in the third degree. (1) A person commits the
offense of assault in the third degree if the person:
(continued...)
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On appeal, Faufata contends that: (1) the Family Court
erred in admitting a witness's cell phone video over Faufata's
objection; (2) the Family Court committed plain error by failing
to sua sponte instruct the jury on the Defense of Property; (3)
the Family Court plainly erred in failing to instruct the jury on
Mutual Affray as a mitigating defense to Assault Third; (4) the
State committed prosecutorial misconduct during closing argument
by "testifying to facts not in evidence;" (5) Faufata received
ineffective assistance of counsel; and (6) the Family Court
erroneously denied Faufata's Motion for Judgment of Acquittal
(MJOA) and renewed MJOA.
For the reasons set forth below, we vacate and remand
for a new trial due to instructional errors and the erroneous
admission of evidence.
I. BACKGROUND
This case arose out of a June 27, 2016 argument
involving Faufata, his girlfriend Gaylyn Kahele (Kahele), and
Kahele's sister Gaylyann Bajarin (Bajarin), that occurred at the
apartment where Faufata and Kahele lived.
Faufata was charged with one count of Abuse of Family
or Household Members (Abuse) under HRS § 709-906(1) and (5)(a)
(2014) against Kahele, and Assault Third against Bajarin. The
jury found Faufata not guilty of the Abuse charge and guilty of
Assault Third against Bajarin.
On the day of the incident, Faufata and Kahele were
arguing over Faufata's belief that Kahele was cheating on him
with a female co-worker. Bajarin came to the apartment to pick
up Kahele. Bajarin identified herself to Faufata, saying, "I'm

2
(...continued)
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person[.]

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the dyke, kick my ass, come on." Bajarin testified that Faufata
yelled obscenities at her in response, whereas Faufata testified
that he walked towards her and calmly responded, "You fucking for
real," before turning his back to her and walking away. Kahele
and Bajarin left the apartment.
Around 10:00 a.m., Faufata sent a text message to
Kahele stating, "All your shit will be out on the street," and a
text message to Bajarin that read, "Cunt." Kahele and Bajarin
immediately drove to the apartment. Upon arriving at a fence
outside the apartment, Kahele observed many of her belongings
along the fence.
Kahele entered the apartment and went to her and
Faufata's shared bedroom. Kahele attempted to grab a green box
belonging to Faufata. Kahele and Faufata scuffled over the green
box; Kahele testified that she was hit from behind, while Faufata
testified that he did not hit her. Kahele called out to Bajarin
for help. Upon Bajarin's arrival, Kahele lost sight of Faufata
and Bajarin because Faufata's mother (Mother) wrapped her cane
around Kahele's neck and pulled, then used her hands to yank
Kahele outside.
Bajarin testified that she heard Kahele yelling for her
and ran into the apartment and into the bedroom. Bajarin tried
to pull Kahele from Faufata; and put her hands in between Kahele
and Faufata and pushed him against the wall. Bajarin admitted
she hit Faufata first, but did so to get him away from Kahele.
Faufata saw Kahele run out of the house. Bajarin testified that
Faufata then hit her in the face, twice with a closed fist, once
on each side of her face. Upon being hit by Faufata, Bajarin
felt pain, staggered back, but was able to call 911. Photographs
of Bajarin's injuries were admitted into evidence, showing
swelling of her right side cheek and left temple, and a bruise
over her right eye.

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Faufata testified that he blocked a punch from Bajarin
and told her, "[W]ho the hell are you, get the hell out of my
house." Bajarin kept swinging at him, and he told her to "get
the hell out of my house," before he hit her to stop her from
hitting him. Faufata followed Bajarin outside because he was
worried that Bajarin would attack Mother. Both Bajarin and
Faufata testified that Faufata subdued Bajarin and held her to
the ground until the police arrived. While on the ground,
Bajarin started recording the scene with the video camera on her
cell phone. Bajarin did not start recording until after Faufata
pinned her down outside the house.
The Family Court held a hearing on Motions in Limine
before trial. The Family Court granted Faufata's request to
exclude "[a]ny history of documented and/or undocumented
allegations of crimes of violence" or "drug use." The Family
Court specifically held that evidence of drugs within the green
box was inadmissible. Faufata objected to the State's
introduction of the cell phone video recorded by Bajarin, and
argued that the statements made in the video were prejudicial
under Hawai#i Rules of Evidence (HRE) Rules 403 and 404(b), and
contained hearsay. The Family Court ruled that a redacted
version of the video would be allowed.
At trial, the cell phone video recorded by Bajarin was
entered into evidence as State's Exhibit 12 (Exhibit 12) and
played in open court over Faufata's objection.
II. STANDARDS OF REVIEW

A. Jury Instructions
When jury instructions or the omission thereof are at
issue on appeal, the standard of review is whether, when
read and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading. Erroneous instructions are presumptively
harmful and are a ground for reversal unless it
affirmatively appears from the record as a whole that the
error was not prejudicial. However, error is not to be
viewed in isolation and considered purely in the abstract.
It must be examined in the light of the entire proceedings
and given the effect which the whole record shows it to be

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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. Nichols, 111 Hawai#i 327, 334, 141 P.3d 974, 981 (2006)
(brackets and internal citations omitted) (quoting State v.
Gonsalves, 108 Hawai#i 289, 292-93, 119 P.3d 597, 600-01 (2005)).
B. Plain Error
Pursuant to Hawai#i Rules of Penal Procedure (HRPP)
Rule 52(b), we may notice "[p]lain errors or defects affecting
substantial rights ... although they were not brought to the
attention of the court." State v. Engelby, 147 Hawai#i 222, 231-
32, 465 P.3d 669, 678-79 (2020) (brackets in original) (quoting
Nichols, 111 Hawai#i at 335, 141 P.3d at 982 (internal citation
and quotation omitted)). "[E]rroneous jury instructions may be
grounds for reversal despite counsel's failure to object at trial
because it is ultimately the trial court that is responsible for
ensuring that the jury is properly instructed." State v. Kikuta,
125 Hawai#i 78, 95, 253 P.3d 639, 656 (2011) (quoting Nichols,
111 Hawai#i at 335, 141 P.3d at 982) (brackets and internal
quotation marks omitted). "[O]nce instructional error is
demonstrated," the reviewing court will vacate the judgment
"without regard to whether timely objection was made, if there is
a reasonable possibility that the error contributed to the
defendant's conviction, i.e., that the erroneous jury instruction
was not harmless beyond a reasonable doubt." Id. (citations,
brackets and internal quotation marks omitted).
C. Admissibility of Evidence
"When application of a particular evidentiary rule can
yield only one correct result, the proper standard for appellate
review is the right/wrong standard." State v. Williams, 147
Hawai#i 606, 613, 465 P.3d 1053, 1060 (2020) (quoting State v.

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West, 95 Hawai#i 452, 456-57, 24 P.3d 648, 652-53 (2001)
(citation omitted)). "Evidentiary decisions based on HRE Rule
403, which require a 'judgment call' on the part of the trial
court, are reviewed for an abuse of discretion." Id. (quoting
State v. Richie, 88 Hawai#i 19, 37, 960 P.2d 1227, 1245 (1998)
(internal quotation marks, citations, and footnotes omitted)). A
trial court's HRE Rule 403 determination will only be set aside
when it "exceeds the bounds of reason or disregards rules or
principles of law or practice to the substantial detriment of a
party litigant." Id. (quoting Samson v. Nahulu, 136 Hawai#i 415,
425, 363 P.3d 263, 273 (2015) (internal quotation marks and
citations omitted)). Admissibility of the evidence under the
hearsay rules is reviewed under the "right/wrong" standard.
State v. Delos Santos, 124 Hawai#i 130, 136, 238 P.3d 162, 168
(2010).
D. Motion for Judgment of Acquittal
On appeal, "the test for the denial of a motion for
judgment of acquittal is that applied to determine sufficiency of
the evidence to support the conviction." State v. Davalos, 113
Hawai#i 385, 389, 153 P.3d 456, 460 (2007) (citing State v.
Okumura, 78 Hawai#i 383, 403 n.15, 894 P.2d 80, 100 n.15 (1995)
("[A]lthough different language is sometimes used to describe the
standard of review when the denial of a motion for judgment of
acquittal is appealed, the test on appeal is actually identical —
if there was sufficient evidence to support the conviction, the
motion for judgment of acquittal was properly denied; if there
was sufficient evidence, the denial of the motion was error.")).
We review the sufficiency of evidence on appeal as
follows:
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; the same standard applies whether the
case was before a judge or jury. The test on appeal is not
whether guilt is established beyond a reasonable doubt, but

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whether there was substantial evidence to support the
conclusion of the trier of fact.
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.
State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)
(citations, brackets, and internal quotation marks omitted).
III. DISCUSSION
A. Defense of Property instruction
Faufata contends that the Family Court committed plain
error by failing to sua sponte instruct the jury on the defense
of use of force for the protection of property (Defense of
Property) under HRS § 703-306 (2014).3 Faufata argues that while

3
HRS § 703-306(1) and (2) provide:

Use of force for the protection of property. (1) The use of
force upon or toward the person of another is justifiable
when the actor believes that such force is immediately
necessary:

(a) To prevent the commission of criminal
trespass or burglary in a building or upon real
property in the actor's possession or in the
possession of another person for whose
protection the actor acts;
(b) To prevent unlawful entry upon real property
in the actor's possession or in the possession
of another person for whose protection the actor
acts; or
(c) To prevent theft, criminal mischief, or any
trespassory taking of tangible, movable property
in the actor's possession or in the possession
of another person for whose protection the actor
acts.

(2) The actor may in the circumstances specified
in subsection (1) use such force as the actor believes is
necessary to protect the threatened property, provided that
the actor first requests the person against whom force is
used to desist from the person's interference with the
property, unless the actor believes that:
(a) Such a request would be useless;

(b) It would be dangerous to the actor or another
person to make the request; or
(continued...)

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defense counsel failed to request an instruction on the Defense
of Property, the Family Court was still required to instruct the
jury on Defense of Property because there was evidence supporting
such an instruction. This contention has merit.
It is well-established that a defendant is entitled to
an instruction on a defense having any support in the evidence,
no matter how weak, unsatisfactory or inconclusive the evidence
might have appeared to the court. Kikuta, 125 Hawai#i at 90, 253
P.3d at 651. In this case, the record contains evidence through
the testimony of Kahele, Bajarin, and Faufata, of Faufata's
belief that Kahele and Bajarin were taking his property.
Faufata testified that the apartment lease was under his name
only, and that Kahele only stayed there occasionally. Kahele
admitted that she grabbed the green box in the bedroom that
belonged to Faufata. Bajarin's action of jumping on Faufata's
back and hitting him first as Kahele and Faufata struggled over
the green box in the bedroom, would support Faufata's belief that
Bajarin may be aiding Kahele's theft of his property.
The record also reflects evidence to support Faufata's
belief that Bajarin was trespassing on his property. Bajarin
testified that she heard Faufata yelling: "Who the fuck are you,
what are you doing in my house, who the fuck are you, get out."
Faufata testified that he repeatedly told Bajarin to "get the
hell out of my house." On the 911 tape, Faufata and Mother are
heard saying: "You don't belong here." On the cellphone video,
Faufata tells Bajarin: "What are you doing on my step?" and "You
don't belong here." Based on this record, under HRS § 703-306,

3
(...continued)
(c) Substantial harm would be done to the physical
condition of the property which is sought to be
protected before the request could effectively
be made.
Hawai#i Standard Jury Instructions Criminal (HAWJIC) 7.18B contains the
Defense of Property instruction, which will not be quoted here as it is
lengthy.

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there was evidence of Faufata's belief that he was entitled to
use force to prevent the theft of his property and to prevent
Bajarin's unpermitted entry into his residence, and thus, the
Family Court was required to give a Defense of Property
instruction.
The omission of the Defense of Property instruction was
not harmless beyond a reasonable doubt. See Kikuta, 125 Hawai#i
at 95, 253 P.3d at 656; State v. Yue, No. 29141, 2010 WL 3705983,
at *3-4 (Haw. App. Sept. 23, 2010) (SDO) (finding plain error for
trial court's failure to instruct on Defense of Property where
this defense and self-defense were "central to the defense
presentation at trial" and such error was not harmless beyond a
reasonable doubt due to a reasonable possibility that the error
contributed to the defendant's conviction). While there were
factual disputes as to self-defense and the struggle between
Faufata and Bajarin regarding who was hitting whom, the evidence
reflected that the home and the green box belonged to Faufata.
In closing argument, while conceding that Kahele grabbed
Faufata's property, the prosecutor argued that there was no jury
instruction that allowed Faufata to use force against Kahele to
take back his box:
Now, the defense keeps bringing up that box and it
being his box. There's nothing in these instructions that
gives someone the right to attack someone for property.
There's nothing in these instructions that give that. Is
there anything in here that says someone has the right to
physically attack someone else for property? It's not in
here.
This argument was contrary to Hawai#i law on the Defense of
Property, regardless of whether it was included as an instruction
or not. The State's argument wrongly implied that no law gave
Faufata "the right" to use force against Kahele for taking
Faufata's property, which was inaccurate. In light of this
record, the omission of the Defense of Property instruction was
harmful. See id.

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B. Mutual Affray instruction
Faufata contends that the Family Court committed plain
error by failing to sua sponte instruct the jury on the
mitigating defense of Mutual Affray.4 Faufata argues that based
on the evidence presented at trial, the jury could find that
Faufata and Bajarin entered into the fight or scuffle by mutual
consent. This contention has merit.
"Assault in the third degree is a misdemeanor unless
committed in a fight or scuffle entered into by mutual consent,
in which case it is a petty misdemeanor." HRS § 707-712(2).
Mutual Affray "is not a lesser included offense of Assault in the
Third Degree," but is a "mitigating defense that reduces the
offense of Assault in the Third Degree to a petty misdemeanor."
Kikuta, 125 Hawai#i at 96, 253 P.3d at 657 (citing HRS §
707-712(2)). The Kikuta Court held that a trial court "must
submit a mutual affray instruction to the jury where there is any
evidence in the record that the injury was inflicted during the
course of a fight or scuffle entered into by mutual consent, as
indicated in HAWJIC 9.21." Id. (footnote omitted). "[C]onsent"
includes implied consent. Id. Consent may be "inferred from
one's conduct" or may be "implied from an individual's words,
gestures, or conduct." Id. (citations and internal quotation
marks omitted). The Kikuta Court determined, from its review of
the conflicting testimonies of the defendant and complainant,

4
HAWJIC 9.21A provides:

If you find that the prosecution has proven the
offense of Assault in the Third Degree beyond a
reasonable doubt, then you must also consider whether
the fight or scuffle was entered into by mutual
consent, whether expressly or by conduct.

You must determine whether the prosecution has proven
beyond a reasonable doubt that the fight or scuffle was not
entered into by mutual consent. This determination must be
unanimous and is to be indicated by answering 'Yes' or 'No'
on a special interrogatory that will be provided to you.
See HRS § 707-712(1)(a).

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that "there was some evidence adduced from which Complainant's
consent to affray may be implied" and thus, the Mutual Affray
instruction should have been given. Id.
In this case, the threshold warranting a Mutual Affray
instruction, i.e. whether there is "any evidence in the record
that the injury was inflicted during the course of a fight or
scuffle entered into by mutual consent[,]" was met through the
testimonies of both Bajarin and Faufata. Id. at 95, 253 P.3d at
656 (emphasis added). While Bajarin initially denied attacking
Faufata, during redirect examination, she admitted she threw the
first blow at Faufata. She said he was pushing her away, and she
was the one trying to hit him. Bajarin testified that she had
her phone in her right hand and "whacked" him on the head with
it, and that's what pissed him off even more to where his fist
came right over." Bajarin further testified: "And then when I
got in the middle, that's when all hell broke loose, I just
physically got into it trying to get him off her, trying to pull
her away." Bajarin also grabbed Mother's cane away from her and
hit Faufata with it.
Faufata testified that, earlier that morning, Bajarin
had challenged him to a fight, saying, "I'm the dyke, kick my
ass, come on," three times. Faufata claimed that when he was in
the bedroom, Bajarin jumped on his back and she was grabbing and
swinging at him multiple times. Faufata hit her on the left side
of her head with a closed fist, and hit her in the side, as she
kept trying to fight him. He was able to block all of her blows.
He kept yelling at her to "get out of his house." Finally, in
closing argument, the prosecutor described the encounter as a
"scuffle."
Thus, the record contains evidence, inter alia, that
Bajarin threw the first blow, Bajarin challenged Faufata to
fight, and that they engaged in a physical altercation that the

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prosecutor described as a "scuffle." The Family Court was
required to give a Mutual Affray instruction, and plainly erred
in not doing so. See id. at 96, 253 P.3d at 657.
C. Cell phone video
Faufata contends that the Family Court erred in
admitting Bajarin's cell phone video, State's Exhibit 12, due to
lack of relevance and because it was more prejudicial than
probative. Faufata also claims that the statements made by
Bajarin after the police arrived did not qualify for admission
under the excited utterance exception to the hearsay rule. The
following events are depicted in the six-and-a-half-minute
(06:30) video: Faufata, sitting on the ground with his right arm
outstretched to hold Bajarin down, asks, "Who are you on my
step?" (0:00). Bajarin says, "Makes us look good, and you look
bad." Faufata responds, "'Cause you don't belong here." (0:07).
The video pans to Mother, who is bending over and holding Kahele,
face down, on the ground with her arms. Mother and Kahele
exchange angry words. Faufata says, "Who the fuck are you?
Fucking dykes. The lesbian (indiscernible)." (0:12). Kahele
says, "TRO him, [Bajarin]," to which Mother replies, "TRO is on
the third one! The third one!" (0:33). At 0:55, a static noise
is heard, the image jolts and disappears. From this point, there
is no image, and only audio is available. Faufata is heard
yelling, "What? Fucking what?" Other persons are yelling, then
someone, in what sounds like Faufata's voice, says, "Injuries
sustained." (0:56). Faufata yells, "Where you live!" and voices
are heard swearing at each other. The sounds of a police radio
and a police officer's voice, are audible from 01:18. From this
point onward, Bajarin can be heard speaking with police officers,
relating that Faufata and Mother had attacked her when she came
to "save her sister" whom Faufata was "attacking . . . inside the
house." Bajarin is heard disputing Faufata's claim that Kahele
did not live there. At 2:15, the video image reappears showing

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the parties now separated, with four police officers at the
scene. Relevant to this appeal, Bajarin gives a detailed account
of the argument between Faufata and Kahele, explains how and why
Bajarin became involved, reports that Faufata hit, choked, and
elbowed Bajarin, and that Faufata is a "chronic user[.]" (2:28-
4:00).
Faufata contends that the video contained prejudicial
statements by Bajarin in violation of HRE Rules 403 and 404(b).
Faufata also contends that at about one minute, 18 seconds into
the recording (01:18) when the police arrived on the scene,
Bajarin's statements thereafter were narrative, "self-serving,"
hearsay statements that did not qualify for admission under the
excited utterance exception, HRE Rule 803(b)(2). The Family
Court did not specifically rule on these objections raised on
appeal, but rather made a general ruling precluding the ending
section of the complete video from being admitted, explaining
that it was "precluding only the part from where the police
officers goes and starts to question her," where Bajarin "starts
blurting out he's a chronic[.]" The Family Court set the
redaction point, from 6:30 onward, which was "way towards the
end" of the unredacted video.
We address Faufata's contentions using the following
chronological categories: the pre-police-arrival section of the
video from 0:00 to 01:17, and the post-police-arrival section of
the video from 01:18 to 6:30.
Pre-police-arrival, 0:00 to 01:17
Faufata specifically challenges two statements in the
pre-police-arrival section of the video: (1) Faufata claims that
Bajarin's statement to Faufata "Makes us look good, and you look
bad." at 0:04, was not within the excited utterance hearsay
exception, and (2) Faufata claims that Faufata saying "fucking
dykes" and "lesbians" at 0:12 was prejudicial under HRE Rules 403
and 404.

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As to Bajarin's statement of "Makes us look good, and
you look bad." at 0:04, Faufata did not object to this statement
at trial; it is waived in this appeal, and we do not address it.
See HRE Rule 103(a)(1) (requiring timely objections and specific
ground of objection); State v. Moses, 102 Hawai#i 449, 456, 77
P.3d 940, 947 (2003) ("As a general rule, if a party does not
raise an argument at trial, that argument will be deemed to have
been waived on appeal . . . .").
As to Faufata's statements, "fucking dykes" and
"lesbians" at 0:12, Faufata specifically objected to this part of
the video during motions in limine as "prejudicial" because it
would "incite emotions within the jury." On appeal, Faufata
cites HRE Rule 403, arguing that "[t]here was very little
relevance" for this evidence," and "[i]t only served to make
[Faufata] seem angry and bigoted," and thus, "[a]ny minimal
relevance was far outweighed by the unfair prejudice." Faufata
claims that the video had minimal relevance, because the physical
confrontation had ended at the point these statement were made.
Video of a crime scene may be admissible where the
"principal purpose was to show the layout of the crime scene and
the persons involved." Richie, 88 Hawai#i at 38, 960 P.2d at
1246. The first minute of the video shows Faufata holding
Bajarin down on the porch and is consistent with the testimony
regarding the conclusion of the physical altercation between
Faufata and Bajarin. It shows Kahele being restrained by Mother.
There are boxes and belongings around them. The video provides a
view of the scene and the persons involved, in the immediate
aftermath of the altercation between Bajarin and Faufata. The
physical appearance and the demeanor of Bajarin, Faufata, Kahele,
and Mother can be seen. The speech and tone of all of their
voices can be heard. The video was probative of Faufata's state
of mind, where the State had to prove Faufata committed assault
against Bajarin with the required state of mind, and Faufata

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denying the same. Thus, this section of the video, from 0:00
until the point the police radio can be heard at 01:17, as a
matter of law, had probative value and was relevant. The record,
however, does not reflect the Family Court's reasoning for
admitting this evidence, including the Family Court's Rule 403
balancing of the probative value, if any, of the "dykes" and
"lesbians" statements, against any unfair prejudice to Faufata.5
See HRE Rule 403. On remand, if the Family Court is again asked
to address the admissibility of this section of the video under
HRE Rule 403, the record should reflect the court's balancing of
the HRE Rule 403 factors prior to admission of such evidence.
See State v. Arakawa, 101 Hawai#i 26, 35, 61 P.3d 537, 546 (App.
2002) (no written findings or recitation of HRE Rule 403 formula
required, as long as the record clearly reflects the trial court
weighed the probative value against the danger of prejudice).
Post-police-arrival, 01:18 to 6:30
In the post-police-arrival section of the video, at
01:18, the sounds of police arriving and a voice of a police
officer are heard. Faufata argued below that after the police
had arrived, Bajarin "provide[d] a narrative of self-serving
statements, hearsay statements" and these statements did "not
qualify as a present sense impression or a spontaneous utterance"

5
The record reflects that the Family Court had no advance notice
regarding the objections Faufata now raises on appeal, because Faufata orally
raised these objections for the first time during the motions in limine
hearing. Trial defense counsel informed the court that he filed "boilerplate
motions in limine" that did not specifically identify what the defense was
objecting to. The defense motion did not state what Faufata was seeking to
exclude or redact from the cell phone video. The prosecutor complained that
the defense had not specifically identified what was prejudicial, even the day
before, and the State was just told "there was prejudicial things." The
prosecutor asserted, "[T]here's nothing inside this motion in limine that says
what exactly is redactable and should be redacted. So I cannot redact
something unless I know what -- what's going on. I can't form an argument
about what should be redacted unless I know exactly what he wants to redact."
The Family Court stated that it had not seen the video at the point the
attorneys made their initial arguments, and noted that these arguments were
"not in [defense counsel's] motion in limine . . . ." On remand, the defense
should timely and specifically apprise the Family Court and opposing counsel
of the disputed items of evidence.

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because "this [wa]s already after the fact." On appeal, Faufata
argues that two specific statements in this portion of the video
were prejudicial: (1) Bajarin's statement at 1:41, that "This is
the first time here [sic] to do anything about it[,]" implying
that Faufata had abused Kahele before; and (2) Bajarin's
statement at 3:42 calling Faufata "chronic" and "chronic user,"
claiming that Faufata was a heavy drug user. We first address
Faufata's hearsay argument.
Under HRE Rule 803(b)(2), a "statement relating to a
startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition" is an
"excited utterance" not excluded by the hearsay rule. To qualify
as an excited utterance, the proponent of a statement must
establish that: "(1) a startling event or condition occurred;
(2) the statement was made while the declarant was under the
stress of excitement caused by the event or condition; and (3)
the statement relates to the startling event or condition."
State v. Machado, 109 Hawai#i 445, 451, 127 P.3d 941, 947 (2006)
(citing HRE 803(b)(2)).

The "ultimate question in these cases is 'whether
the statement was the result of reflective thought or
whether it was rather a spontaneous reaction to the
exciting event.'" Machado, 109 Hawai#i at 451, 127 P.3d
at 947 (quoting [State v. ]Moore, 82 Hawai#i [202,] 221,
921 P.2d [122,] 141 [(1996)]. The "time span between the
'startling event' and the statement to be admitted as
an excited utterance" is a factor in the determination,
but a short time period is not a foundational
prerequisite. Id. (quoting Moore, 82 Hawai#i at 221,
921 P.2d at 141). "Other factors that courts often
look to in determining whether a statement was the
product of excitement include ... the nature of the
event, the age of the declarant, the mental and physical
condition of the declarant, the influences of intervening
occurrences, and the nature and circumstances of the
statement itself." Id. (citing Moore, 82 Hawai#i at 221,
921 P.2d at 141).

Delos Santos, 124 Hawai#i at 137, 238 P.3d at 169. Statements
that are coherent, specific, and inclusive renditions of the

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incident are considered to be statements of reflective thought.
Id. at 139, 238 P.3d at 171.
In this case, Bajarin's statements after the police
arrived, giving a detailed, coherent, timeline of events, were
the product of reflective thought. Bajarin describes Faufata
tossing Kahele's belongings outside, Faufata's offensive text
message, the events inside the apartment, background details of
Faufata's and Kahele's relationship, and Faufata's alleged drug
use and prior abuse history. See id. Bajarin informs the
officer that Kahele is on Faufata's rental contract and requests
to press charges against Faufata. These statements were the
product of reflective thought and constituted hearsay not subject
to the excited utterance exception. See HRE Rules 802 and
803(b)(2). The Family Court erred in admitting the statements
after the arrival of the police, from 01:18 onward. See Delos
Santos, 124 Hawai#i at 136, 238 P.3d at 168. In light of our
conclusion, it is not necessary to address Faufata's remaining
arguments regarding the allegedly prejudicial statements in this
section of the video.
D. Remaining points of error
Because we vacate and remand for a new trial for the
reasons set forth above, we do not reach Faufata's remaining
contentions regarding prosecutorial misconduct and ineffective
assistance of his trial counsel. As to the MJOA motions, viewing
the evidence in the strongest light for the State, Bajarin's
testimony that Faufata twice struck her in the face and
photographs of Bajarin's injuries constituted substantial
evidence to support a reasonable factfinder's conclusion of guilt
beyond a reasonable doubt; and thus, the Family Court did not err
in denying the motions. See Davalos, 113 Hawai#i at 389, 153
P.3d at 460.

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IV. CONCLUSION
For the foregoing reasons, we vacate the Judgment of
Conviction and Sentence and Notice of Entry as to Count #2 filed
on December 23, 2016 in the Family Court of the First Circuit,
and remand for a new trial, consistent with this Memorandum
Opinion.
DATED: Honolulu, Hawai#i, July 20, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Dwight C.H. Lum Chief Judge
for Defendant-Appellant
/s/ Katherine G. Leonard
Sonja P. McCullen Associate Judge
Deputy Prosecuting Attorney
City and County of Honolulu /s/ Karen T. Nakasone
for Plaintiff-Appellee Associate Judge

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