State v. Macariola

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-DEC-2021
07:58 AM
Dkt. 70 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
ROSS K. MACARIOLA, JR., Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(SOUTH KOHALA DIVISION)
(CASE NO. 3DCW-XX-XXXXXXX)

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

Defendant-Appellant Ross K. Macariola (Macariola)

appeals from the September 20, 2018 Judgment and Notice of Entry

of Judgment (Judgment) entered against him by the District Court

of the Third Circuit, South Kohala Division (District Court).1

Macariola was convicted of Assault in the Third Degree

under Hawaii Revised Statutes (HRS) § 707-712(1)(a)(2014)2

(Assault Third) and sentenced to ten days of confinement with

1
The Honorable Mahilani E.K. Hiatt presided.
2
HRS § 707-712 provides, in pertinent part:

§ 707-712 Assault in the third degree. (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; or
(b) Negligently causes bodily injury to another person
with a dangerous instrument.
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

eight days suspended and placed on probation for one year. On

appeal, Macariola requests that this court reverse the

conviction.

I. BACKGROUND

On May 2, 2018, the State of Hawai#i (State) filed a

Complaint against Macariola, alleging that Macariola had

"intentionally, knowingly or recklessly caused bodily injury to

another person, RAYNARD TORRES [(Torres)], thereby committing the

offense of Assault in the Third Degree, in violation of Section

707-712(1)(a), [HRS]."

During pretrial proceedings on August 7, 2018, the

District Court stated that pretrial motions were due on or before

August 23, 2018, and that responses to these motions, witness

lists, and exhibit lists were due on September 13, 2018. As

discussed herein, both the State and District Court subsequently

misstated the date that witness and exhibit lists were due. On

appeal, the parties concur that the deadline for witness and

exhibit lists was September 13, 2018.

On September 13, 2018, Macariola filed a witness list

and a Notice of Intent to Offer Character Evidence (Notice) under

Hawai#i Rules of Evidence (HRE) Rules 404(a)(2) and 404(b).

Macariola's Notice indicated his intent to introduce evidence

about Torres's prior criminal convictions, specifically, "an

assault in 2007, a TRO violation in 2013, a harassment case in

2
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

2013, and a case of Abuse of a Family/Household Member in 2014;

as well as evidence of his Promotion of Dangerous Drugs in 2008."

Macariola's witness list named Harry Yim (Yim) as a

defense witness, though it did not provide an address or any

other contact information and stated that Yim's address was

unknown.

The District Court found the Notice was sufficient, but

excluded the character evidence as irrelevant. The District

Court also denied Macariola's request to present Yim as a

witness, as well as his request to continue the trial to permit

the State to interview Yim. The District Court's decision to

preclude Yim's testimony was largely premised on both the State

and District Court's mistaken belief that the witness list had

not been filed in accordance with trial milestones.
MS. BAILEY: Um, the State does not have that
witness list in its file, but the deadline was August
23rd, 2018. And pursuant to Rule 16, there also be --
needs to be a way for, especially if the person's not
identified in discovery, a way for the State to -- to
contact that individual, and there was no contact
information provided.

. . . .

THE COURT: Uh, my understanding, from review of
the minutes3 and from the procedure, uh, that I've
seen the Court follow, is that the pretrial motion
deadline is the same as the witness and exhibit list
deadline. The trial -- the -- the third -- the week
before trial is the response to any pretrial motions.

So if you filed your witness list on the 13th of September,
that's past the deadline of the August 23rd, Mr. Miller.

. . . .

3
The August 7, 2018 minutes read, in relevant part, "pretrial mot
deadline 23-Aug-2018 witness/exhibit lists and response deadline 13-Sep-2018."

3
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

THE COURT: Well the -- the issue that I have is, um,
is sufficient notice to the State. So if the deadline for
the witness list was -- it -- which -- which it was, was
August 23rd, you don't meet that deadline, um, by filing on
September 13th. Um, and I wouldn't, uh, I mean if -- if you
had filed on August 23rd and you had said, "address
unknown," um, and then you did find him subsequently, uh, I
would be inclined to allow him to testify, uh, because that
would have been sufficient notice to the State, um, I think.
But filing a witness September 23rd, or excuse me, on
September 13th when it was due August 23rd, I understand
we're all busy people but, uh, that's two weeks after the
deadline.

. . . .

THE COURT: So, Mr. Miller, it's not just some rule or
just some procedure, uh, you know, for –- for no purpose.
And really the rule is to allow notice to the other side, in
this case the State, to prepare. And by filing something on
the 13th and then calling him today, I -- I just don't see
that the State had proper notice and an ability to prepare.

So, uh, I am not going to allow his testimony. Uh,
and I understand you're busy, but I'm busy, too, and the
State's busy. We're -- we're all busy.

You were in front of the Court on September 11th, um,
and at that time could have had the opportunity to let the
Court know what the status was of your investigation and
what your calendar looked like, and the Court could have
entertained a motion to continue trial at that point. But
and then to come here today for trial and say you're
prepared to proceed, and then call somebody that is, uh, not
previously disclosed, uh, Court not -- Court's not going to
allow him.

(Emphasis added).

The State called three witnesses during its case-in-

chief, including Torres. Torres testified that he was in the

area to sell a tattoo gun to Lovelyn Yamamoto (Yamamoto). Torres

further testified that Shane Batalona (Batalona) accompanied

Yamamoto to Torres's vehicle and examined the tattoo gun.

Shortly thereafter, the encounter became violent and Torres was

struck by both Batalona and Macariola.

Macariola was the only witness in the defense case-in-

chief. He testified that he had acted in defense of Batalona and

4
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

of himself, and that Torres was the initial aggressor. The

District Court found that Macariola struck Torres in the face and

that Macariola did not have a reasonable belief to act in self-

defense or in defense of another.

II. POINTS OF ERROR

Macariola asserts three points of error on appeal: (1)

the District Court's refusal to allow the Defense to introduce

complainant's prior acts, including a drug conviction and

convictions for charges involving violence and aggression,

prevented Macariola from presenting a complete defense; (2) the

District Court abused its discretion in precluding Macariola from

presenting the testimony of a percipient witness to the incident

based on an erroneous belief that trial counsel had missed the

deadline for filing his witness list; and (3) Macariola's

conviction must be reversed because the State failed to adduce

substantial evidence that any physical contact Macariola made

with the complainant was not in defense of others or in self-

defense.

III. APPLICABLE STANDARDS OF REVIEW

"The admissibility of evidence requires different

standards of review depending on the particular rule of evidence

at issue. When application of a particular evidentiary rule can

yield only one correct result, the proper standard for appellate

review is the right/wrong standard. The traditional abuse of

discretion standard should be applied in the case of those rules

5
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

of evidence that require a 'judgment call' on the part of the

trial court." State v. Pond, 118 Hawai#i 452, 461, 193 P.3d 368,

377 (2008) (citing State v. St. Clair, 101 Hawai#i 280, 286, 67

P.3d 779, 785 (2003)) (bracket omitted).

Evidentiary rulings made pursuant to HRE Rule 404

require a "judgment call," and therefore we apply the abuse of

discretion standard. State v. Williams, 147 Hawai#i 606, 613,

465 P.3d 1053, 1060 (2020) (citing State v. Richie, 88 Hawai#i

19, 37, 960 P.2d 1227, 1245 (1998)). An abuse of discretion

occurs when the trial court "clearly exceeds the bounds of reason

or disregards rules or principles of law or practice to the

substantial detriment of a party litigant." Id. (citing Samson

v. Nahulu, 136 Hawai#i 415, 425, 363 P.3d 263, 273 (2015)).

"A trial court's determination that evidence is

'relevant' within the meaning of HRE Rule 401 [] is reviewed

under the right/wrong standard of review." St. Clair, 101

Hawai#i at 286, 67 P.3d at 785. HRE Rule 401 defines relevant

evidence as "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."

We review the sufficiency of evidence on appeal as

follows:
[E]vidence 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

6
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

whether guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact .

State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)

(citation omitted).

"'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. And as trier of fact, the trial

judge is free to make all reasonable and rational inferences

under the facts in evidence, including circumstantial evidence."

State v. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d 322, 330-31

(2007) (citation omitted).

IV. DISCUSSION

Macariola's main argument on appeal is that his

constitutional right to present a complete defense was violated.

The protections granted to an accused by article 1, section 14 of

the Hawai#i Constitution include "a meaningful opportunity to

present a complete defense." State v. Pulse, 83 Hawai#i 229,

246, 925 P.2d 797, 814 (1996) (citation omitted). The right to

present a complete defense includes the "constitutional right to

present any and all competent evidence to support a defense."

State v. David, 149 Hawai#i 469, 481, 494 P.3d 1202, 1214 (2021)

(citing State v. Abion, 148 Hawai#i 445, 448, 478 P.3d 270, 273

(2020)). The Hawai#i Supreme Court held in Abion:
Where the accused asserts a defense sanctioned by law to
justify or to excuse the criminal conduct charged, and there
is some credible evidence to support it, the issue is one of

7
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

fact that must be submitted to the jury, and it is
reversible error for the court to reject evidence which, if
admitted, would present an essential factual issue for the
trier of fact.

Abion, 148 Hawai#i at 448, 478 P.3d at 273 (emphasis added)

(quotation marks omitted).

In David, the defendant-appellant was convicted of

assault in the first degree after he stabbed and killed his

cousin at a family gathering. 149 Hawai#i at 471, 494 P.3d at

1204. The trial court permitted the introduction of evidence

that the victim had been drinking and was aggressive that evening

as evidence of the defendant's self-defense. However, the trial

court also excluded evidence of the victim's .252 blood alcohol

concentration (BAC), absent expert testimony. Id. The supreme

court vacated the conviction and held that excluding the BAC

evidence violated the defendant's constitutional right to present

a complete defense, and that expert testimony was not required to

present the BAC evidence. Id. at 481, 494 P.3d at 1214. The

supreme court reasoned that the defendant's case "hinged on his

credibility" and that because his defense "depended on his

account of [the victim's] behavior before the fatal altercation

and, by extension, on his credibility, we hold that there is a

reasonable possibility that excluding the BAC evidence affected

the trial's outcome." Id. Thus, the defendant's due process

rights were violated because he was not permitted to "present any

8
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

and all competent evidence tending to show that he acted in self-

defense." Id. at 482, 494 P.3d at 1215 (citing Abion, 148

Hawai#i at 448, 478 P.3d at 273)).

In Williams, the defendant-appellant was convicted of

attempted murder in the second degree. On appeal, he alleged

that the trial court erred in precluding admission of several

statements in the weeks leading up to the incident that supported

the defendant's self-defense claim. Williams, 147 Hawai#i at

607-08, 465 P.3d at 1054-55. The defendant attempted to

introduce evidence that the victim had "boasted" about the

following seven acts: (1) doing time for the crime of murder in

California; (2) that he did hard time in California; (3) that he

knew how to fight because of the time he spent in jail and that

he had to learn to fight to survive; (4) that he knew about gang-

bangers and gang-members; (5) that he had experience with

violence from spending time in jail; (6) that he "got away" with

murder by beating the charge – because someone else took credit

for it; and (7) that he did the crime but got off on a

technicality. Id. The trial court permitted the defendant only

to testify that "[victim] knows how to fight. He learned how to

fight in jail." Id. at 609, 465 P.3d at 1056. The supreme court

held that the trial court's "curtailment of the defendant's

testimony as to his state of mind at the time he committed the

offense bespeaks a misapprehension of the discretion available to

the court." Id. at 615, 465 P.3d at 1062. The supreme court

9
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

reasoned that the trial court had "prevented [the defendant] from

offering his own version of facts relevant to his self-defense

claim" and thus "violated his constitutional right to present a

complete defense." Id. at 614, 465 P.3d at 1061.

A defendant's right to present evidence is not,

however, limitless and "may, in appropriate cases, bow to

accommodate other legitimate interests in the criminal trial

process." Abion, 148 Hawai#i at 454, 478 P.3d at 279 (citing

State v. Kassebeer, 118 Hawai#i 493, 514, 193 P.3d 409, 430

(2008)).

In Kassebeer, the supreme court held that the trial

court's two evidentiary rulings did not violate the defendant-

appellant's constitutional right to present a complete defense.

Kassebeer, 118 Hawai#i at 514, 193 P.3d at 430. The trial court

permitted the prosecution to ask the police officer, who had

responded to a report of sexual assault and kidnapping, whether

"[w]hat she told you, did - did that jive with the injuries that

she had?" but prevented Kassebeer from asking the same police

officer, "[i]nsofar as the injuries, do you recall that [the

complainant] told you that the injuries that you saw were from a

prior incident?" Id. In upholding the trial court's ruling, the

supreme court reasoned that the defendant had "other potential

avenues of laying the required foundation as to the source of the

complainant's injuries, and he was not denied the opportunity to

10
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

do so." Id. Accordingly, his constitutional rights to present

evidence and to confront witnesses were not violated. Id.

A. The Evidence re Acts Involving Drugs and Violence

Macariola contends that the District Court abused its

discretion in precluding cross-examination of Torres regarding

his "knowledge of drugs" and character for violence. Macariola

argues that Torres's convictions were relevant character evidence

on the issue of Torres's credibility, who was the first

aggressor, and to Macariola's state of mind, and thus the

exclusion of this evidence violated his constitutional right to

present a complete defense.

As to the first issue, Macariola attempted to cross-

examine Torres on his "knowledge of drugs" after Torres expressed

confusion as to why Macariola confronted him about drugs on the

night of the altercation.
A. –- yeah. Um, he had walked in about I'd say
halfway through, and to the passenger window, and asked my
wife if –- if "that is JR," and then came around the car and
then –-

Q. Okay, so –-

A. –- tried to confront me about –-

. . . .

THE WITNESS: –- drugs, and it –- it's, like –-

Q. (BY MR. MILLER) Why –- what is that so amazing to
you?

A. Because –- I mean for him to like just walk up
and just start asking me if I'm there to sell drugs is –-
kinna make –- I'm kind of dumbfounded. I don't know what to
say to that. Like, its like --

Q. Well you –-

A. –- I don't know what even gives him that
impression or why, you know, to just go and just start –-

11
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Q. You don't know –-

A. –- I mean it –-

Q. –- why he had that impression?

A. Yeah, I don't.

. . . .

Q. . . . Okay.

So –- and my question is, uh, weren't you in
the –- in the past, previously, involved in some
drugs?

After the State's objection, Macariola rephrased the

question and instead asked whether Torres had "knowledge about

different kinds of illegal drugs." After the District Court

sustained the State's relevance objection, Macariola's attorney

stated, "Your Honor, he's saying he doesn't know why they were

bringing up this stuff about drugs, and I wanted to establish,

well, he's not a totally innocent person regarding knowledge of

drugs, that he knows about drugs. That's all." The District

Court then again sustained the State's relevance objection.

Because the District Court excluded the line of

questioning as irrelevant, we analyze under a right/wrong

standard. We also note that HRE Rule 607 states that, "[t]he

credibility of a witness may be attacked by any party, including

the party calling the witness." Torres's testimony that he "had

no idea" why Macariola would mention drugs opened the door for

defense counsel to challenge that assertion and test Torres's

credibility. Thus, the District Court erred in prohibiting this

cross-examination, which tended to impugn Torres's testimony that

he had no idea why someone might think he was selling drugs.

12
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Next, we turn to whether the District Court erred when

it declined to admit any evidence concerning Torres's past

convictions for crimes that would indicate a character of

aggressiveness and violence. We recognize that here, as in

David, Macariola's defense "hinged on his credibility" and the

believability of his testimony about Torres's violent behavior

and how it influenced Macariola's conduct. See David, 149

Hawai#i at 481, 494 P.3d at 1214 (citing State v. Lealoa, 126

Hawai#i 460, 470, 272 P.3d 1227, 1237 (2012) (recognizing that in

a self-defense case, the defendant's credibility is "at the crux"

of the case because the jury must decide "whether the defendant

did in fact subjectively believe the use of force was

necessary")).

However, as stated in Abion, a defendant's right to

present relevant evidence "is not without limitation and may, in

appropriate cases, bow to accommodate other legitimate interests

in the criminal trial process." Abion, 148 Hawai#i at 454, 478

P.3d at 279. Laying the requisite evidentiary foundation is a

legitimate interest in the criminal trial process. See

Kassebeer, 118 Hawai#i at 430, 193 P.3d at 514; see also State v.

Maddox, 116 Hawai#i 445, 460, 173 P.3d 592, 607 (App. 2007)

(requiring that foundation be established before permitting the

introduction of character evidence under HRE Rule 404(a)(2)).

13
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Accordingly, our analysis turns on whether Macariola laid

sufficient foundation to admit character evidence under HRE Rule

404(a)(2).4

A party may introduce "specific instances of conduct

[under HRE Rule 405(b)] to prove character when character is an

essential element of, inter alia, a defense to the crime." State

v. DeLeon, 143 Hawai#i 208, 215, 426 P.3d 432, 439 (2018). When

there is a factual dispute as to who was the initial aggressor,

"a victim's pertinent character trait is an 'essential element'

to a claim of self-defense, and therefore, evidence of specific

instances of conduct concerning that character trait, such as the

victim's prior violent acts, may be admissible under HRE 405(b)."

Id. A factual dispute about who was the first aggressor arises

when there is some evidence to support such a finding. Id. at

215-18, 426 P.3d at 439-42. The trial court has "discretion to

determine to what extent, and in what manner, evidence" of a

victim's criminal record may be permitted. State v. Basque, 66

Haw. 510, 515, 666 P.2d 599, 603 (1983).

In DeLeon, the defendant argued that he acted in self-

defense when he shot and killed a person in a group that was

allegedly threatening him. In support of his defense, he

4
HRE Rule 404(a)(2), Character of victim, provides an exception to
HRE Rule 404's general prohibition against admitting evidence of a person's
character to show that the person acted in conformity with that trait. HRE
Rule 404(a)(2) permits "[e]vidence of a pertinent trait of character of the
victim of the crime offered by an accused, or by the prosecution to rebut the
same, or evidence of a character trait of peacefulness of the victim offered
by the prosecution in a homicide case to rebut evidence that the victim was
the first aggressor."

14
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

testified that he got out of his vehicle and heard someone behind

him say, "[t]here's that fucking Mexican." DeLeon, 143 Hawai#i

at 217, 426 P.3d at 441. He then turned and saw three to four

men, including Powell and Beaudoin, approaching him that he

recognized from an altercation earlier that night. Id. at 217-

18, 426 P.3d at 441-42. DeLeon then pointed his gun at Powell

and shot him while his hands were open and raised. Id. at 218,

426 P.3d at 442. At the completion of the defense case, DeLeon

sought to introduce evidence of Powell's and Beaudoin's prior

violent acts to support his position that Powell and Beaudoin had

been the first aggressors. Id. at 212, 426 P.3d at 436. The

trial court excluded the evidence and held that no factual

dispute existed because Beaudoin's conduct was remote in time,

place, and to the incident, and Powell's conduct was roughly one

hour before the confrontation that resulted in Powell's death.

Id. at 212, 426 P.2d at 436. The supreme court, viewing the

totality of the circumstances, concluded that a factual dispute

as to who was the first aggressor existed, and thus the trial

court erred in excluding evidence of two of the witness's prior

bad acts. Id. at 218-19, 426 P.3d at 442-43. The DeLeon court

held that a factual dispute existed because
(1) DeLeon, by himself, faced Powell and his group, which
consisted of three to four people, including Beaudoin; (2)
someone from that group said, "[t]here's that fucking
Mexican"; (3) Powell, and possibly two others from the
group, which may have included Beaudoin, continued to
approach after DeLeon fired warning shots into the air and
ground and told them several times to stay back; [and] (4)
as Powell continued to approach, Powell stated, "[w]hat, you

15
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

think one gun is going to stop us all?" when he was within
arm's length of DeLeon.

Id. at 218, 426 P.3d at 442.

In Maddox, the trial court granted the State's motion

in limine precluding Maddox from cross-examining the complaining

witness (Mota) on Mota's character for violence, as evidenced by

petitions for restraining orders and judgments of conviction for

violating two restraining orders in Oregon. 116 Hawai#i at 458,

173 P.3d at 605. After Mota testified, Maddox renewed his

request to cross-examine Mota about the bad acts alleged in the

restraining order petitions. Id. at 459, 173 P.3d at 606. The

trial court denied the request and noted that the evidence did

not raise a factual issue as to whether Mota had been the first

aggressor. Id. On appeal, this court held that the trial court

had not erred in excluding the character evidence. Id. at 460,

173 P.3d at 607. We also noted that the disputed character

evidence would have been admissible later in trial, after Maddox

had laid the requisite foundation. Id.
Once Maddox testified in the defense case, there was ample
evidence to support a finding that Mota was the first
aggressor. . . . At that point in the trial, Maddox was
clearly entitled to question Mota about the past acts of
violence reflected in the Oregon court documents. Maddox,
however, did not attempt or seek permission to question Mota
about past acts of violence after Maddox had introduced
evidence supporting a finding that Mota was the first
aggressor. Thus, the circuit court was never called upon to
rule on whether such questions were permissible after the
required evidentiary foundation had been laid. Under these
circumstances, we cannot say that the circuit court erred.

Id.

Here, as in Maddox, Macariola attempted to cross-

examine Torres about prior acts of violence without laying the
16
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

requisite foundation. Viewing the totality of the circumstances

at the time of the request, no factual issue had been raised as

to who was the first aggressor. Only Officer Ines and Torres had

testified when Macariola requested to cross-examine Torres on his

character for aggressiveness and violence. Neither witness's

testimony raised a factual issue as to Torres being the first

aggressor. Rather, Officer Ines's testimony regarding

Macariola's voluntary statement indicated that Macariola was the

initial aggressor.
A. Yes. When I spoke with him [Macariola], he
stated that, um, he was outside, having a few beers.
That –-

. . . .

THE WITNESS: Mr. Macariola was out on
Opelo Road having some –- few beers. He saw a vehicle
pull up, um, with a male driver, who was the victim,
uh, and –- in this case, and was yelling out the
window "who wanted to buy ice?" Uh, he repeated that
again. Mr. Macariola then said, "You know what, get
the F out of here. We don't –- we don't want that
kind of stuff."

. . . .

THE WITNESS: And, uh, then Mr. Macariola hit him
[Torres] in the face with a closed fist.

On cross-examination of Officer Ines, Macariola's

questions did not raise the issue of self-defense or defense of

others. There was only one question that may have been trying to

get to the defense-of-others defense – with Batalona being the

other – and the response was insufficient to establish a factual

issue.

MR. MILLER: Q. Did Mr. Macariola tell you
how Mr. Batalona was involved?

A. He –- he says that he was involved also.

17
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Q. Okay.

Did he tell you any more detail about how he
was involved?

A. That I don't remember. I don't know.

Torres testified during the State's case-in-chief that

he had not initiated the altercation with Macariola. Torres then

testified consistently on cross-examination.

Q. Um, when you got out of the car to get your stuff
back, did you, you know, how were you –- did you –- did you
push Mr. Batalona or hit him or shove him in any way?

A. No.

Q. No.

A. He [Batalona] grabbed me.

Q. And when Mr. Macariola came over, did you try to
swing at him?

A. No.

Q. You didn't try to swing at him?

A. No.

Q. Do you ever remember grabbing, uh, Mr. Batalona by
the necklace around his neck?

A. No. I don't remember that.

After Torres's testimony, there was no factual question

raised as to who was the first aggressor. Thus, we conclude that

the District Court did not err in excluding the character

evidence at that time.

During the defense case-in-chief, Macariola testified

that he went towards the altercation to protect his uncle,

Batalona, then struck Torres in self-defense. Macariola did not,

however, subsequently seek permission to question Torres about

his character for violence after the requisite foundation had

been laid. Macariola had ample opportunity to do so during the

18
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

defense case-in-chief, or during his cross-examination of Torres

after the State called Torres as a rebuttal witness. As in

Maddox, the District Court in this case was never called upon to

rule on whether such questions were permissible after the

required evidentiary foundation had been laid, and we cannot

conclude that the District Court erred.

B. Exclusion of Yim Testimony

Macariola contends that the District Court abused its

discretion in precluding testimony of an eye witness to the

incident (Yim), based on allegedly late identification of the

witness, as well as rejecting Macariola's request for a recess or

brief continuance to allow the State to interview the witness.

The parties dispute which Hawai#i Rules of Penal

Procedure (HRPP) discovery rule applied in this case. Macariola

argues that HRPP Rule 16.1 applied because this was a misdemeanor

trial, and thus excluding Yim's testimony constituted an abuse of

discretion because he did not fail to meet his discovery

obligations. The State argues that the trial court was

exercising its discretion under HRPP Rule 16(d) and was

"effectively allowing discovery pursuant to HRPP Rule 16."

Generally, HRPP Rule 16 applies to felony cases. HRPP

Rule 16(a). In misdemeanor cases, "[u]pon a showing of

materiality and if the request is reasonable, the court in its

discretion may require disclosure as provided for in this Rule 16

in cases other than those in which the defendant is charged with

19
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

a felony, but not in cases involving violations." HRPP Rule

16(d). HRPP Rule 16.1 applies to "non-felony criminal and

criminal traffic cases." HRPP Rule 16.1(a). Under HRPP Rule

16.1 "a request for discovery shall be made to the opposing side

in writing and shall list the specific materials being sought.

Unless otherwise ordered, the request shall not be filed with the

court." HRPP Rule 16.1(b).

There is no evidence in the record that there was a

showing of materiality that caused the District Court to exercise

its discretion to apply HRPP Rule 16 to the entire proceedings.

The record does, however, reflect that the District Court

exercised its discretion to set certain discovery deadlines for

the parties.
MS. BAILEY: And then, Your Honor, may we set some
motion deadlines and responses?

THE COURT: How much time do you need beforehand?

MS. BAILEY: I'm looking at maybe August 23rd for
motions. And then responses due by the 13th of September
a week prior.

THE COURT: Okay. So we'll go with those dates. And
pretrial motions will be due on or before August 23rd. And
responses to those motions shall be due September 13[th].
And witness lists and exhibit list shall also be due
September 13[th].

We presume that the District Court's pretrial order,

and subsequent sanctioning for failure to abide by that order,

was issued pursuant to HRPP Rule 16. See State v. Inman, 121

Hawai#i 195, 198-99, 216 P.3d 121, 124-25 (App. 2009).

Accordingly, we conclude that the District Court exercised its

discretion to apply HRPP Rule 16 to witness and exhibit lists.

20
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Thus, Macariola arguably was required to disclose to

the prosecutor "[t]he names and last known addresses of persons

whom the defendant intends to call as witnesses, in the

presentation of the evidence in chief, together with their

relevant written or recorded statements[.]" HRPP Rule

16(c)(2)(i). On September 13, 2018, Macariola submitted his

witness list. The witness list included Yim, but stated that his

address was unknown. At the trial on September 20, 2018,

Macariola's counsel represented that he did not know where Yim

lived until "this past Sunday," which was September 16, 2018.

Sanctions under HRPP Rule 16 are governed by HRPP Rule

16(e)(9), which allows a court to order a party to "permit the

discovery, grant a continuance, or it may enter such other order

as it deems just under the circumstances." HRPP Rule

16(e)(9)(i).5 "A trial court's imposition of sanctions pursuant

to HRPP Rule 16 for a discovery violation is reviewed for abuse

of discretion." Inman, 121 Hawai#i at 199, 216 P.3d at 125

(citing State v. Ahlo, 79 Hawai#i 385, 398, 903 P.2d 690, 703

(App. 1995)). In Ahlo, this court recognized that
[W]hile [discovery] sanctions are designed to accomplish the
purpose of discovery[,] it is clear that the imposition of
sanctions should not encroach on a fair trial. In
particular, the exclusion of defense evidence in criminal
cases as a means of sanction is a drastic measure for the
right of a defendant to adduce evidence in his behalf is one
of the fundamentals inherent in the due process guarantee of
a fair trial.

5
HRPP Rule 16(e)(9)(ii) addresses willful violation of discovery
rules by counsel; there is no evidence to suggest that section applies to this
case.

21
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Ahlo, 79 Hawai#i at 399, 903 P.2d at 704 (emphasis added)

(brackets, citation, quotation marks, and ellipses omitted).

When determining an appropriate sanction, a trial court must

consider: "(1) whether the defendant was acting maliciously or

in bad faith; (2) the extent of the prejudice to the prosecution

caused by the violation; (3) whether the prejudice could have

been cured by measures less severe than excluding evidence; and

(4) any other relevant circumstances." Inman, 121 Hawai#i at

199, 216 P.3d at 125 (citing Ahlo, 79 Hawai#i at 400, 903 P.2d at

705)).

In Inman, the trial court excluded two defense

witnesses as a sanction for the defendant's failure to comply

with a discovery order and limited the testimony of a third

witness. Id. at 196, 216 P.3d at 122. Specifically, the

defendant failed to provide a witness's birth date by the

established deadline and failed to advise the State of the

defendant's whereabouts at the time of the alleged offense, as it

related to his alibi defense. Id. at 198, 216 P.3d at 124.

There, we held the trial court abused its discretion in

precluding the defense witness testimony "essentially based on

failure of the defense to provide the birth date for [the

witness]." Id. at 199, 216 P.3d at 125.

Applying those factors, here, there was no evidence the

defendant acted maliciously or in bad faith. The extent of the

prejudice to the prosecution was minimal and could have been

22
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

remedied without excluding the defense witness. Macariola's

failure to provide contact information for Yim could have been

remedied by a brief recess or continuance.

The District Court erred in finding that Macariola's

witness list filing was late. On appeal, the parties agree that

witness lists were due on September 13, 2018. Under the

circumstances, we conclude that the District Court abused its

discretion when it disallowed a defense eyewitness based on a

mistaken belief about the court-imposed discovery deadlines and

rejected Macariola's request for a recess or brief continuance to

allow the State to interview the witness.

C. Sufficiency of the Evidence

"It is well-settled that, even where this court finds

trial error, challenges to the sufficiency of the evidence must

always be decided on appeal." State v. Davis, 133 Hawai#i 102,

116, 324 P.3d 912, 926 (2014) (citing Kalaola, 124 Hawai#i at 59,

237 P.3d at 1125). The Double Jeopardy Clause bars retrial of a

defendant where the evidence is insufficient to support a

conviction. State v. Kaulia, 128 Hawai#i 479, 496, 291 P.3d 377,

394 (2013) (citing State v. Silver, 125 Hawai#i 1, 9, 249 P.3d

1141, 1149 (2011)).

Here, the testimony presented by the State provided

substantial evidence to support the District Court's findings and

conclusions as to Macariola's conviction for Assault Third.

Thus, a new trial is permissible.

23
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

V. CONCLUSION

For these reasons, the Distict Court's September 20,

2018 Judgment is vacated; this case is remanded for a new trial.

DATED: Honolulu, Hawai#i, December 17, 2021.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Donald L. Wilkerson,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Leneigha S. Downs,
Deputy Prosecuting Attorney, /s/ Keith K. Hiraoka
County of Hawai#i Associate Judge
for Plaintiff-Appellee.

24