State v. Moon.

Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
10-FEB-2023
08:52 AM
Dkt. 15 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,
Plaintiff-Appellee,

vs.

DAE HAN MOON,
Defendant-Appellant.

SCAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; CASE NO. 1PC161002007)

FEBRUARY 10, 2023

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ.,
AND WILSON, J., DISSENTING

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

This case considers the application of Hawai‘i Revised

Statutes (HRS) § 327C-1 (2010), which defines the process for

making “death determinations in the State” in all “civil and

criminal actions.” HRS § 327C-1(d).
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

On December 25, 2016, Dae Han Moon allegedly shot

Steve Feliciano in the head during an altercation. During a

grand jury proceeding on December 29, 2016, the Chief Medical

Examiner of the City and County of Honolulu testified that the

day prior, a doctor had pronounced Feliciano brain dead, and

that the cause of his death was a gunshot wound to the head.

Because Feliciano was an organ donor, he was “being kept alive

artificially.” The grand jury indicted Moon on four counts,

including Murder in the Second Degree.

Subsequently, Feliciano’s organs and tissues were

removed, and an autopsy was performed. The case proceeded to a

jury trial in the Circuit Court of the First Circuit, where

several witnesses testified to seeing Moon shoot Feliciano. The

First Deputy Medical Examiner, who performed Feliciano’s autopsy,

testified that the cause of Feliciano’s death was a gunshot

wound to the head. The jury found Moon guilty on all counts.

Moon argues that the requirements of HRS § 327C-1

apply to all criminal cases involving death, including his case.

Thus, the State needed to fulfill these requirements to prove

the element of “death.” We disagree. Based on its plain

language and legislative history, this statute applies in cases

where a “death determination” – that is, where a “generally

medically recognized criteria of determining the occurrence of

2
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

death” – is required or implicated. Christine Mukai et al.,

Legis. Reference Bureau, Towards a Definition of Death 14 (1977)

[hereinafter LRB Report], https://lrb.hawaii.gov/wp-

content/uploads/1977TowardsADefinitionOfDeath.pdf. In contrast,

there was ample evidence introduced at trial that Feliciano died

as a result of a gunshot wound to the head. As such, there was

no need for a “determination of death” within the meaning of HRS

§ 327C-1. Accordingly, we affirm the circuit court’s Amended

Judgment of Conviction and Sentence. 1

II. BACKGROUND

A. Factual Background

The following facts are undisputed on appeal. On

December 25, 2016, Moon shot Feliciano once in the back of the

head at close range with a pistol. The shooting occurred in the

Ala Moana Shopping Center parking structure. Following the

shooting, paramedics transported Feliciano to Queen’s Medical

Center (QMC) in critical condition. There, Dr. Kazuma Nakagawa

pronounced Feliciano brain dead at 5:49 p.m. on December 28,

2016. The next day, a grand jury indicted Moon on four counts:

Murder in the Second Degree in violation of HRS §§ 707-701.5

(2014) 2 and 706-656 (2014) 3 (Count 1); Place to Keep Pistol or

1 Moon also asks that we reverse his convictions on five other
grounds. As discussed below, these arguments lack merit.

2 HRS § 707-701.5 states:
(. . . continued)
3
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Revolver in violation of HRS § 134-25 (2011) (Count 2); Carrying

or Use of Firearm in the Commission of a Separate Felony in

violation of HRS § 134-21 (2011) (Count 3); and Ownership or

Possession Prohibited of Any Firearm or Ammunition by a Person

Bound Over to Circuit Court for Certain Crimes in violation of

HRS § 134-7(b) and (h) (2011) (Count 4). Feliciano’s organs and

tissues were removed on December 30, 2016. On January 3, 2017,

an autopsy was performed. The case subsequently proceeded to a

(. . . continued)

(1) Except as provided in section 707-701, a person
commits the offense of murder in the second degree if
the person intentionally or knowingly causes the
death of another person.
(2) Murder in the second degree is a felony for which the
defendant shall be sentenced to imprisonment as
provided in section 706-656.

3 HRS § 706-656(2) states:

Except as provided in section 706-657, pertaining to
enhanced sentence for second degree murder, persons
convicted of second degree murder and attempted second
degree murder shall be sentenced to life imprisonment with
possibility of parole. The minimum length of imprisonment
shall be determined by the Hawai͑i paroling authority;
provided that persons who are repeat offenders under
section 706-606.5 shall serve at least the applicable
mandatory minimum term of imprisonment.
If the court imposes a sentence of life imprisonment
without possibility of parole pursuant to section 706-657,
as part of that sentence, the court shall order the
director of public safety and the Hawai͑i paroling
authority to prepare an application for the governor to
commute the sentence to life imprisonment with parole at
the end of twenty years of imprisonment; provided that
persons who are repeat offenders under section 706-606.5
shall serve at least the applicable mandatory minimum term
of imprisonment.

4
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

jury trial, and the jury found Moon guilty as charged on all

four counts.

B. Grand Jury Proceedings

At the grand jury proceedings four days after the

shooting, the State called Dr. Christopher Happy, the Chief

Medical Examiner for the City and County of Honolulu, to testify

before the grand jury. Dr. Happy testified that he reviewed

Feliciano’s medical records and photographs of Feliciano in the

hospital; he also spoke to investigating officers about the

events surrounding Feliciano’s death. In examining this

information, Dr. Happy observed “a gunshot wound in the back of

[Feliciano’s] head with fragments of a bullet lodged in the

head.” He testified that the gunshot wound to the head was the

cause of Feliciano’s death, and the manner of death, a homicide.

According to Dr. Happy, the date of Feliciano’s death was

December 28, 2016 at 5:49 p.m. Dr. Happy explained that

Feliciano had “been declared brain dead” at that time based on

an “evaluation by a neurologist who has found that he has no

function left in his brain.” Since Feliciano was an organ donor,

he was being kept alive artificially so that his organs could be

donated. Consequently, an autopsy had yet to be conducted.

5
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

C. Circuit Court Proceedings 4

1. Trial Proceedings

At trial, various witnesses testified that Moon and

Feliciano were involved in an altercation at the Ala Moana

Center parking structure on December 25, 2016. During this

altercation, Moon shot Feliciano in the head. 5 After the

incident, police and paramedics arrived at the scene. Ruddy

Hernandez, a paramedic for the City and County of Honolulu,

testified that, upon their arrival, Feliciano was “pulseless and

apneic, unresponsive,” meaning that he “had no activity of his

heart and he wasn’t breathing.” The paramedics performed CPR,

and Feliciano was able to regain a “return of spontaneous

circulation” or “ROSC,” such that “his blood pressure, his heart

rate and his heart started to conduct a pulse.” At that point,

Feliciano was “in a critical state”; he was “hypotensive,”

meaning that “his blood pressure was really low.” Paramedics

were able to maintain ROSC, but Feliciano remained in critical

condition when he arrived at QMC.

Christopher Inoue, a medical-legal investigator for

the Department of the Medical Examiner for the City and County

4 The Honorable Karen T. Nakasone presided.

5 Several witnesses also testified that, prior to shooting
Feliciano, Moon hit Feliciano on the head with a gun. After Moon shot
Feliciano, Feliciano fell to the ground.

6
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

of Honolulu, testified that Dr. Nakagawa pronounced Feliciano

dead on December 28, 2016 at 5:49 p.m. 6 At 7:35 p.m. that same

day, Inoue saw Feliciano’s body on a hospital gurney. Inoue

observed various signs of “medical intervention”:

He was intubated and connected to a ventilator. There were
EKG leads on his chest and abdomen. There was a cervical
collar and a Foley catheter. There was also a pulse
oximeter and a blood pressure cuff and he had intravascular
lines on his bilateral arms and left femoral area.

Charlotte Carter, another medical-legal investigator,

testified that Feliciano was subsequently kept on a ventilator

for the tissue and organ transplantation. The ventilator “kept

his heart beating and his circulation going[;]” without it, his

tissues would have started to die. At 9:50 p.m. on December 30,

2016, Carter received a notification from Legacy of Life, an

organ procurement organization, that they were close to

completing the organ and tissue recovery from Feliciano. When

she arrived, Feliciano was “well removed from the ventilator” as

his organ recovery had been “[e]ffectively” completed.

Afterwards, Feliciano’s remains were transported to the Honolulu

Medical Examiner Facility.

Dr. Masahiko Kobayashi, the First Deputy Medical

Examiner, testified as an expert in the field of forensic

6 Moon objected, arguing that Inoue’s testimony was hearsay. In
response, the court gave a limiting instruction to the jury that Inoue’s out-
of-court statements “must not be considered for the truth . . . of those
statements but, rather, for the limited purpose of showing the steps in the
investigation.”

7
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

pathology. Before conducting an autopsy, Dr. Kobayashi reviewed

the report prepared by Inoue and some of Feliciano’s medical

records. Dr. Kobayashi testified that Feliciano was pronounced

dead at QMC on December 28, 2016 at 5:49 p.m. Since he was an

organ donor, he was kept on a ventilator to ensure that “his

heart was beating and his blood was circulating” so that his

tissues would not die.

On January 3, 2017, Dr. Kobayashi performed an autopsy

on Feliciano. In addition to other injuries, he testified that

Feliciano had a gunshot wound on the back-left side of his head. 7

This wound caused “widespread . . . bleeding inside the scalp

tissue over the skull” and was a “[c]ontact gunshot wound,”

meaning that “a muzzle of the gun [was] in contact with the skin

or nearly in contact.” Based on his findings and training and

experience, Dr. Kobayashi testified that the cause of

Feliciano’s death was “a gunshot wound of the head.” “[T]he

bullet entered from the back area of the head and then travelled

towards the front, towards the forehead or brow area.” The

bullet itself did not hit the brain stem; the latter “was

subsequently injured but not at the time of [the] gunshot

wound.”

7 Dr. Kobayashi also testified that Feliciano had a skin lesion and
bruise on the left side of his head consistent with being struck with a hard
object and a skull fracture consistent with falling unabated to a concrete
surface.

8
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

After the State rested, Moon made a motion for

judgment of acquittal, arguing that the State needed to comply

with the requirements of HRS § 327C-1 8 to prove that Feliciano

was dead as a matter of law – specifically, that he was brain

dead before his organs were removed. The State contended that

HRS § 327C-1 was inapplicable and that, based on the evidence

presented, there was no question that Feliciano was dead. The

circuit court denied the motion, stating,

For the reasons set forth in the prosecution’s written
memorandum and the evidence in the record, judgment of
acquittal, the court views the evidence in the light most
favorable to the State. I don’t agree with the defendant’s
characterization of [HRS § 327C-1] and the requirement that
is in that statute would sort of trump all the evidence in
this case which is undisputed that Mr. Feliciano was -- he
-- that the death in this case was undisputed looking at
the totality of the evidence.

Moon renewed the motion after the defense rested and

after the jury’s verdict was rendered; the circuit court denied

both renewed motions. 9

8 For the text of HRS § 327C-1, see infra note 19.

9 Moon also requested the following jury instruction on brain death,
which tracks the language of HRS § 327C-1:

Before you can find that the defendant caused the death of
Steve Feliciano, you must first determine that Steve
Feliciano was pronounced brain dead. Brain death will have
occurred if all four of the following facts have been
proved beyond a reasonable doubt . . . : Number 1. In the
opinion of an attending physician or osteopathic physician
licensed in the state of Hawai͑i, . . . or [excepted] from
licensure by State law, . . . based on ordinary standards
of current medical practice . . . ; and, Number 2, [i]n the
opinion of a consulting physician or osteopathic physician
licensed in the state of Hawai͑i, . . . or [excepted] from
licensure by State law, . . . based on ordinary standards
of current medical practice . . . ; and, 3, [t]hese doctors
(. . . continued)
9
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

2. Verdict and Sentence

The jury found Moon guilty as charged on all four

counts. At sentencing, the circuit court dismissed Count 4. 10

Moon was then sentenced as follows: for Count 1, life

imprisonment with the possibility of parole and a fifteen-year

mandatory minimum term of imprisonment under HRS § 706-660.1

(2014); for Count 2, ten years of imprisonment; and for Count 3,

twenty years of imprisonment. All terms of imprisonment were to

run concurrently, with credit for time served.

3. Motion for Arrest of Judgment

Nine days after the verdict was rendered, Moon filed a

motion for arrest of judgment and dismissal of Count 1 (Murder

in the Second Degree) and Count 3 (Carrying or Use of Firearm in

the Commission of a Separate Felony) pursuant to Hawai‘i Rules of

(. . . continued)

or osteopathic physicians have determined that Steve
Feliciano had experienced irreversible cessation of all
functions of the entire brain, . . . including the brain
stem . . . ; and, Number 4, [t]hese opinions are made in
signed statements.

The circuit court denied the instruction over Moon’s objection.

10 The State initially requested to dismiss Count 2 under the
doctrine of merger and based on the State’s decision to only proceed with
sentencing on Count 4, but based on a correction to Moon’s Presentence
Investigation and Report, the State changed its request, asking to dismiss
Count 4 and proceed with Count 2. The circuit court granted this request and
issued an Amended Judgment of Conviction and Sentence.

10
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Penal Procedure (HRPP) Rule 34 (effective January 1,

1977). 11 Moon argued that the circuit court “lack[ed]

jurisdiction” over his case because, inter alia, 12 “the State

failed to show at the grand jury proceeding that Feliciano had

been determined to be brain dead.” According to Moon, the plain

language, stated purpose, and legislative history 13 of HRS §

327C-1 “mandate[]” its application to “[a]ll death

determinations in the State” for “all purposes, including . . .

criminal actions.” (Second alteration in original.) A grand

jury indicting a defendant for Murder in the Second Degree, of

which death is an element, was such a criminal action.

11 HRPP Rule 34 states:

The court on motion of a defendant shall arrest judgment if
the charge does not allege an offense or if the court was
without jurisdiction of the offense alleged. The motion in
arrest of judgment shall be made within 10 days after
verdict or finding of guilty, or after plea of guilty or
nolo contendere, or within such further time as the court
may fix during the 10-day period. The finding of guilty or
nolo contendere may be entered in writing or orally on the
record.

12 In his motion for arrest of judgment, Moon also contended that
the circuit court lacked jurisdiction over his case because Dr. Happy’s
testimony before the grand jury was “inaccurate”; the State “deliberate[ly]
and intentional[ly]” used hearsay during the proceedings; and Moon’s right to
a fair and impartial grand jury proceeding had been violated, thus
prejudicing Moon.

13 Specifically, Moon pointed to the LRB Report on changing
definitions of death, to assert that the legislature enacted HRS § 327C-1 in
1978 with the intent of “codify[ing] the emerging concept of brain death . . .
in order to avoid confusion and inconsistencies between the practice of
medicine and the practice of law.” Moon argued, accordingly, that “this case
presents the exact situation that lead [sic] to the passage of HRS § 327C-1
because Feliciano hovered between life and death for several days”: the State
convened a grand jury after Feliciano was declared brain dead but before the
removal of his organs, at which point “it was most critical to determine
whether Feliciano was legally ‘brain dead.’”

11
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Moon argued that the State failed to meet the

statute’s requirements to prove Feliciano’s death in the grand

jury by neglecting to present “direct testimony of two doctors

who had signed statements declaring that Feliciano was brain

dead because he experienced the cessation of all brain activity,

including the brain stem.” Moon contended that “Feliciano was

still alive on December 29, 2016 – a fact that would have

precluded a murder indictment,” and thus, the State failed to

establish probable cause. Since a defective indictment “negates

the Court’s jurisdiction,” Moon contended that the court must

dismiss Counts 1 and 3 against Moon.

The circuit court disagreed, concluding that “[a]n

analysis of the plain . . . language of the relevant statutes

and examination of the pertinent legislative history compel the

conclusion that the definition of death in HRS Chapter 327C does

not apply to criminal prosecutions brought under the [Hawai‘i

Penal Code (HPC)].” As relevant here, the circuit court found

in its findings of fact that “[n]o evidence has been presented

to contradict Dr. Kobayashi’s opinion concerning the cause of

Feliciano’s death. There has been no suggestion that the

withdrawal of life support or organ donation was an intervening

cause of Feliciano’s death.”

12
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

In its conclusions of law, the circuit court explained

that HRS § 327C-1, in its original and amended forms, does not

reference the HPC or indicate a legislative intent to import HRS

§ 327C-1’s determination of death requirements to prosecutions

of criminal offenses codified in the HPC. Likewise, the HPC

neither defines death nor references the determination of death

requirements in HRS § 327C-1. Of particular relevance, HRS §

707-700 (2014), which defines terms for offenses including

Murder in the Second Degree, in its original and amended forms,

does not define death or reference HRS § 327C-1.

The circuit court noted that had the legislature

intended to incorporate HRS § 327C-1’s requirements into the HPC,

it could have done so, citing various HPC provisions that

explicitly reference the definition of terms in other statutes. 14

Based on the “legislature’s inaction,” the circuit court

concluded that the legislature did not intend that HRS § 327C-1

apply to all “criminal actions brought under the [HPC] where

‘death’ constitutes the result element of the offense.”

Since the HPC does not define “death,” the circuit

court gave the term its “ordinary meaning.” Quoting Black’s Law

14 The circuit court cited HRS § 707-700 (“‘Street’ shall have the
same meaning as in section 291C-1.”; “‘Vehicle’ has the same meaning as in
section 291E-1.”); and HRS § 706-660.1 (“‘Automatic firearm’ has the same
meaning defined in section 134-1.”; “‘Firearm’ has the same meaning defined
in section 134-1 except that it does not include ‘semiautomatic firearm’ or
‘automatic firearm.’”).

13
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Dictionary, the circuit court defined death as “[t]he ending of

life; the cessation of all vital functions and signs.” Death,

Black’s Law Dictionary (10th ed. 2014); Death, Black’s Law

Dictionary (7th ed. 1999). Under this ordinary meaning of death,

Dr. Happy’s expert testimony before the grand jury provided a

sufficient evidentiary basis for death.

Furthermore, the circuit court noted that Moon’s

interpretation of HRS § 327C-1 would lead to absurd results as

it “would effectively prevent the prosecution of murders in this

jurisdiction” where a dead body was not recovered. Without a

body, it would be impossible to show that a person “experienced

irreversible cessation of spontaneous respiratory and

circulatory functions” as required in HRS § 327C-1(a).

The circuit court also concluded that it had

jurisdiction over this case. It explained that Count 1 alleges

a violation of HRS § 707-701.5, which is a cognizable criminal

offense under the HPC. Additionally, the Indictment properly

alleged that Moon’s offense occurred in the City and County of

Honolulu, which is within the jurisdiction of the circuit court.

In any event, the circuit court held that Moon’s

motion “falls within the definition of a pretrial motion as set

forth in HRPP Rule 12(b)(2).” “Such motions must be brought

14
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

prior to trial,” and Moon’s failure to file such a motion before

trial “waive[d] . . . that defense or objection.” (Quoting

State v. Markowski, 88 Hawai‘i 477, 485, 967 P.2d 674, 682 (App.

1998)). In the alternative, pursuant to In re Doe, 102 Hawai‘i

75, 78, 73 P.3d 29, 32 (2003), the jury verdict rendered Moon’s

argument regarding the grand jury’s probable-cause determination

moot.

D. Appellate Proceedings

Moon appealed the circuit court’s Amended Judgment of

Conviction and Sentence to the Intermediate Court of Appeals

(ICA), and we later accepted transfer of this case.

On appeal, Moon first argues that the circuit court

erred in holding that HRS § 327C-1 does not apply to criminal

actions involving death, including his case and contends that

arguments regarding defects in his indictment were not waived.

Citing State v. Przeradski, 5 Haw. App. 29, 32, 677 P.2d 471,

474 (1984), Moon argues that by addressing the merits of his

motion for arrest of judgment on the merits, the circuit court

“impliedly granted relief from the waiver.” Moon moreover

argues that he did not file an untimely motion to dismiss the

Indictment pursuant to HRPP Rule 12(b) (2018) (last amended in

2007), but rather, a timely motion to arrest judgment pursuant

15
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

to HRPP Rule 34 (1977). 15 Moon argues that because HRPP Rule 34

states that the circuit court “shall arrest judgment if the

charge does not allege an offense” (emphasis omitted), and

because Counts 1 and 3 of the Indictment did not properly allege

offenses, the circuit court had “no discretion” and was required

to arrest his judgment.

Second, Moon argues that “the Circuit Court erred in

denying Moon’s motion to strike the testimony of Dr. Kobayashi

for failure to produce the medical records upon which he relied

in forming his opinion” 16 Moon argues that under HRE Rule 705, 17

Dr. Kobayashi should have disclosed the facts or data underlying

his opinion in discovery or at trial, and the circuit court

abused its discretion by denying Moon’s motion to strike on that

ground.

15 HRPP Rule 34 provides that a “motion in arrest of judgment shall
be made within 10 days after verdict or finding of guilty.” Moon’s verdict
was rendered on September 19, 2018, and he filed his motion nine days later
on September 28, 2018.

16 At trial, Moon objected to testimony by Dr. Kobayashi “regarding
anything that happened at the QMC” on the ground that Feliciano’s medical
records from QMC were never provided in discovery, in violation of Hawai͑i
Rules of Evidence (HRE) Rule 705 (2018) (last amended in 1984) and HRPP Rule
16 (2012). The circuit court overruled the objection.

17 HRE Rule 705 provides:

Rule 705. Disclosure of facts or data underlying expert opinion
The expert may testify in terms of opinion or inference and give
the expert’s reasons therefor without disclosing the underlying
facts or data if the underlying facts or data have been disclosed
in discovery proceedings. The expert may in any event be
required to disclose the underlying facts or data on cross-
examination.

16
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Third, Moon argues that the circuit court committed

plain error by failing to instruct the jury on the issue of

causation, specifically “regarding intermediate intervening

cause of death as set forth in HRS §§ 702-214, 215 and 216.”

“[E]ven though Dr. Kobayashi testified that the cause of death

was the gunshot wound, it was still a jury question as to

whether the removal of Decedent’s organs was an independent

intervening cause of death. The jury should have been

instructed accordingly.”

Fourth, Moon argues that he was denied his

constitutional right to trial by jury when four potential jurors

of Korean ancestry were excused.

Fifth, Moon argues that the circuit court’s Tachibana

colloquy 18 was deficient because the court failed to ascertain

whether the defendant’s waiver was voluntary.

Finally, Moon argues that “[d]efense counsel provided

ineffective assistance of counsel by conceding in opening

statement that Moon was the shooter” and waiving the potential

defense “that Moon was not the person who shot [Feliciano].”

For the foregoing reasons, Moon requests his

convictions on Counts 1 and 3 be reversed, or in the alternative,

18 Tachibana v. State, 79 Hawai‘i 226, 236, 900 P.2d 1293, 1303
(1995), established the requirement that when a defendant in a criminal case
indicates an intention not to testify, the trial court “must advise criminal
defendants of their right to testify and must obtain an on-the-record waiver
of that right.”

17
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

that his conviction on these counts be vacated and the case

remanded for a new trial.

III. STANDARDS OF REVIEW

A. Statutory Interpretation

“Questions of statutory interpretation are questions

of law to be reviewed de novo under the right/wrong standard.”

Nakamoto v. Kawauchi, 142 Hawaiʻi 259, 268, 418 P.3d 600, 609

(2018) (quoting Lingle v. Haw. Gov’t Emps. Ass’n, AFSCME, Loc.

152, AFL-CIO, 107 Hawaiʻi 178, 183, 111 P.3d 587, 592 (2005)).

B. Motion for Judgment of Acquittal

When reviewing a motion for judgment of acquittal, we
employ the same standard that a trial court applies to such
a motion, namely, whether, upon the evidence viewed in the
light most favorable to the prosecution and in full
recognition of the province of the trier of fact, the
evidence is sufficient to support a prima facie case so
that a reasonable mind might fairly conclude guilt beyond a
reasonable doubt. State v. Pone, 78 Hawaiʻi 262, 265, 892
P.2d 455, 458 (1995); State v. Alston, 75 Haw. 517, 528,
865 P.2d 157, 164 (1994); State v. Rocker, 52 Haw. 336, 346,
475 P.2d 684, 690 (1970). Sufficient evidence to support a
prima facie case requires “substantial evidence” as to
every material element of the offense charged. State v.
Eastman, 81 Hawaiʻi 131, 135, 913 P.2d 57, 61 (1996).
“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. Id. Under
such a review, we give “full play to the right of the fact
finder to determine credibility, weigh the evidence, and
draw justifiable inferences of fact.” State v. Yabusaki,
58 Haw. 404, 410, 570 P.2d 844, 848 (1977).

State v. Jhun, 83 Hawaiʻi 472, 481, 927 P.2d 1355, 1364 (1996).

C. Motion for Arrest of Judgment

“A motion in arrest of judgment must be made before

the judgment is entered.” Kerr v. Martin, 7 Haw. 645, 650 (Haw.

18
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Kingdom 1889).

IV. DISCUSSION

A. HRS § 327C-1 Does Not Apply to All Criminal Cases Involving
Death

We first consider whether HRS § 327C-1 applies to this

case, a matter of statutory interpretation. We conclude that it

does not.

“[T]he fundamental starting point for statutory

interpretation is the language of the statute itself.” State v.

Wheeler, 121 Hawai‘i 383, 390, 219 P.3d 1170, 1177 (2009)

(quoting Citizens Against Reckless Dev. v. Zoning Bd. of Appeals

of Honolulu, 114 Hawai‘i 184, 193, 159 P.3d 143, 152 (2007)).

When interpreting a statute, “our foremost obligation is to

ascertain and give effect to the intention of the legislature,

which is to be obtained primarily from the language contained in

the statute itself.” Nakamoto, 142 Hawai‘i at 268, 418 P.3d at

609 (quoting Lingle, 107 Hawai‘i at 183, 111 P.3d at 592).

“Nevertheless, statutory language is read ‘in the context of the

entire statute’ and interpreted ‘in a manner consistent with its

purpose.’” State v. Abella, 145 Hawai‘i 541, 552, 454 P.3d 482,

493 (2019) (quoting State v. Haugen, 104 Hawai‘i 71, 76, 85 P.3d

178, 183 (2004)). To determine this purpose, “we are not

limited to the words of the statute to discern the underlying

policy which the legislature seeks to promulgate but may look to

19
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

[the] relevant legislative history.” State v. Wells, 78 Hawai‘i

373, 376, 894 P.2d 70, 73 (1995) (brackets and ellipsis omitted)

(quoting Sol v. AIG Haw. Ins. Co., 76 Hawai‘i 304, 307, 875 P.2d

921, 924 (1994)).

Moon argues that the circuit court erred in ruling

that HRS § 327C-1 does not apply to criminal actions in which

death constitutes the result element of the offense, like the

grand jury proceeding in his case. Moon bases his argument on

the language of HRS § 327C-1(d), which he argues, “plain[ly] and

unambiguous[ly]” states that the statute applies to “[a]ll death

determinations” for “all purposes, including . . . criminal

actions, any laws to the contrary notwithstanding.” (Emphasis

omitted.) Since this case is a “criminal action” involving

death, he argues that the requirements of HRS § 327C-1 apply,

and these requirements were not met here.

We disagree. Under the plain language of HRS § 327C-1,

specifically the title and subsection (d), this statute applies

to “[d]etermination[s] of death” or “death determinations.”

While these terms, viewed in isolation, could apply to all

criminal cases involving death, when viewed in context, it is

clear they are terms of art intended to apply to more limited

circumstances where the exact time or occurrence of death is

necessarily at issue or undetermined.

20
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

HRS § 327C-1, 19 titled “Determination of death,” sets

19 Quoted in full, HRS § 327C-1 provides:

(a) Except as provided in subsection (b), a person shall be
considered dead if, in the announced opinion of a
physician or osteopathic physician licensed under part
I of chapter 453, physician or osteopathic physician
excepted from licensure by section 453-2(b)(3),
physician assistant licensed under chapter 453, or
registered nurse licensed under chapter 457, based on
ordinary standards of current medical practice, the
person has experienced irreversible cessation of
spontaneous respiratory and circulatory functions.
Death will have occurred at the time when the
irreversible cessation of the functions first coincided.
(b) In the event that artificial means of support preclude
a determination that respiratory and circulatory
functions have ceased, a person shall be considered
dead if, in the opinion of an attending physician or
osteopathic physician licensed under part I of chapter
453, or attending physician or osteopathic physician
excepted from licensure by section 453-2(b)(3), and of
a consulting physician or osteopathic physician
licensed under part I of chapter 453, or consulting
physician or osteopathic physician excepted from
licensure by section 453-2(b)(3), based on ordinary
standards of current medical practice, the person has
experienced irreversible cessation of all functions of
the entire brain, including the brain stem. The
opinions of the physicians or osteopathic physicians
shall be evidenced by signed statements. Death will
have occurred at the time when the irreversible
cessation of all functions of the entire brain,
including the brain stem, first occurred. Death shall
be pronounced before artificial means of support are
withdrawn and before any vital organ is removed for
purposes of transplantation.
(c) When a part of a donor is used for direct organ
transplantation under chapter 327, and the donor’s
death is established by determining that the donor
experienced irreversible cessation of all functions of
the entire brain, including the brain stem, the
determination shall only be made under subsection (b).
The determination of death in all other cases shall be
made under subsection (a). The physicians or
osteopathic physicians making the determination of
death shall not participate in the procedures for
removing or transplanting a part, or in the care of any
recipient.
(d) All death determinations in the State shall be made
pursuant to this section and shall apply to all
purposes, including but not limited to civil and
criminal actions, any laws to the contrary
(. . . continued)
21
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

forth the procedural requirements to be followed by physicians

and other medical providers in making “death determinations,”

particularly in cases where the patient is on life support or

the patient’s organs are being prepared for transplantation.

See HRS §§ 327C-1(b)-(d). While subsection (a) provides the

procedure applicable in most situations where a “death

determination” is required, see HRS § 327C-1(a), subsection (b)

sets forth a more detailed process that applies in cases where

“artificial means of support preclude a determination that

respiratory and circulatory functions have ceased,” HRS

§ 327C-1(b). 20 Notably, HRS § 327C-1 makes no reference to the

HPC, which was enacted six years earlier in 1972. Neither does

(. . . continued)

notwithstanding; provided that presumptive deaths under
the Uniform Probate Code shall not be affected by this
section.
(e) The director of health may convene in every odd-
numbered year, a committee which shall be composed of
representatives of appropriate general and specialized
medical professional organizations, licensed attorneys,
and members of the public. The committee shall review
medical practice, legal developments, and other
appropriate matters to determine the continuing
viability of this section, and shall submit a report of
its findings and recommendations to the legislature,
prior to the convening of the regular session held in
each even-numbered year.

(Emphasis added.)

20 The latter requires written opinions by two physicians or
osteopathic physicians that the person at issue “has experienced irreversible
cessation of all functions of the entire brain, including the brain stem.”
HRS § 327C-1(b). And, it provides that “[d]eath shall be pronounced before
artificial means of support are withdrawn and before any vital organ is
removed for purposes of transplantation.” Id.

22
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

the HPC cross-reference HRS § 327C-1. Since the HPC does not

include a definition of death, death should be given its

commonly understood meaning. See State v. Guess, 715 A.2d 643,

647-48 (Conn. 1998) (interpreting the definition of death “in

accordance with its commonly approved usage,” rather than

applying the state’s determination-of-death statute, “[b]ecause

the legislature did not provide a definition of death in the

Penal Code”).

Moon nevertheless relies on subsection (d) of the

statute, which provides that “[a]ll death determinations in the

State shall be made pursuant to this section and shall apply to

all purposes, including but not limited to civil and criminal

actions, any laws to the contrary notwithstanding.” HRS § 327C-

1(d). Moon suggests that this means the procedure set forth in

the statute applies whenever the fact of death needs to be

established. But this interpretation ignores that the plain

language of the statute, while defining the process for “death

determinations,” does not define death itself for all purposes.

Indeed, neither subsections (a) nor (b) define the circumstances

under which a person “is” dead; rather, they state the

conditions under which a person “shall be considered” dead. HRS

§§ 327C-1(a) and (b). Thus, while HRS § 327C-1 provides a way

in which death can be established, it does not provide

the only way in which the fact of death must be established.

23
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

This interpretation is supported by the legislature’s

use of the phrase “determination of death” in other statutes.

For instance, “determination of death” is mentioned in HRS

§ 560:1-107 (1993), 21 which provides the “rules relating to a

21 HRS § 560:1-107 is entitled “Evidence of death or status” and
states:

In addition to the rules of evidence, the following rules
relating to a determination of death and status apply:
(1) Death occurs when an individual has sustained either:
(A) Irreversible cessation of circulatory and
respiratory functions; or
(B) Irreversible cessation of all functions of the
entire brain, including the brain stem. A
determination of death must be made in
accordance with accepted medical standards;
(2) A certified or authenticated copy of a death
certificate purporting to be issued by an official or
agency of the place where the death purportedly
occurred is prima facie evidence of the fact, place,
date, and time of death and the identity of the
decedent;
(3) A certified or authenticated copy of any record or
report of a governmental agency, domestic or foreign,
that an individual is missing, detained, dead, or alive
is prima facie evidence of the status and of the dates,
circumstances, and places disclosed by the record or
report;
(4) In the absence of prima facie evidence of death under
paragraph (2) or (3), the fact of death may be
established by clear and convincing evidence, including
circumstantial evidence;
(5) An individual whose death is not established under the
preceding paragraphs who is absent for a continuous
period of five years, during which the individual has
not been heard from, and whose absence is not
satisfactorily explained after diligent search or
inquiry, is presumed to be dead. The individual's death
is presumed to have occurred at the end of the period
unless there is sufficient evidence for determining
that death occurred earlier;
(6) In the absence of evidence disputing the time of death
stated on a document described in paragraph (2) or (3),
a document described in paragraph (2) or (3) that
states a time of death one hundred twenty hours or more
after the time of death of another individual, however
the time of death of the other individual is determined,
(. . . continued)
24
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

determination of death and status” for probate matters under

Hawai‘i’s Uniform Probate Code. Relatedly, the Hawai‘i Probate

Rules (HPR) use the term “determination of death,” when

referring to “determination of death proceedings,” which are

conducted for missing persons. See, e.g., HPR Rules 150-152,

154 (describing the commencement of action, notice, and order

requirements for “Determination of Death Proceedings” for

missing persons).

The term “determination of death” is also mentioned in

HRS Chapter 327, entitled “Medical and Research Use of Bodies.”

HRS § 327-38 (2010) describes prohibitions and penalties for the

disposition of dead human bodies, stating,

“Dead human body” means:

(1) An individual who has sustained either
irreversible cessation of circulatory and respiratory
functions or irreversible cessation of all functions
of the entire brain, including the brain stem;
provided that the determination of death be made in
accordance with accepted medical standards[.]

HRS § 327-38(e) (emphasis added).

The statute regarding “Requests for anatomical gifts”

similarly states,

Any person in charge of a hospital, or the designated
representative of the person in charge of the hospital,

(. . . continued)

establishes by clear and convincing evidence that the
individual survived the other individual by one hundred
twenty hours.

(Emphases added.)

25
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

other than a person connected with the determination of
death, may request any of the persons in section [327-9],
in the order of priority stated, to give consent to the
gift of all or any part of the decedent’s body to any
potential donee for any purpose provided in section [327-
11].

HRS § 327-52 (2010) (emphasis added).

These examples, as well as HRS § 327C-1’s placement

under “Title 19. Health,” 22 demonstrate that the terms

“determination of death” and “death determination” are not

synonymous with the mere fact of death. Rather, they hold a

specific meaning that is applicable when the precise medical

establishment of death is required. 23

The legislative history and purpose of HRS § 327C-1

not only supports the foregoing interpretation, but also

suggests that the statute was drafted to guide and protect

health-care providers from civil or criminal liability. The

22 Title 19 (“Health”) ranges from HRS Chapter 321 (“Department of
Health”) to HRS Chapter 344 (“State Environmental Policy”). HRS Chapter 327C
(“Death”), which houses HRS § 327C-1, follows HRS Chapter 327 (“Medical and
Research Use of Bodies”). The latter includes the Revised Uniform Anatomical
Gift Act, which regulates the responsibilities of health-care providers,
medical examiners, and coroners in the acceptance and disposition of donated
body parts. HRS Chapter 327C is followed by HRS Chapters 327E (“Uniform
Health-Care Decisions Act”), 327F (“Medical Treatment Decisions for Psychotic
Disorders”), 327G (“Advance Mental Health Care Directives”), 327H (“Pain
Patient’s Bill of Rights”), 327K (“Provider Orders for Life-Sustaining
Treatment”), and 327L (“Our Care, Our Choice Act”). HRS § 327C-1 thus
appears within a series of health-related chapters that address the rights
and duties of patients, decedents, and medical professionals; notably absent
are provisions relating to criminal process or the rights of criminal
defendants.

23 A precise medical determination of death may be required, for
example, in certain probate cases, when using a body for medicine and
research, or when an action is commenced while a person is still on life
support.

26
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Senate Judiciary Committee Report recommending the bill’s

passage notes that “there is no State statute which defines when

a human being shall be pronounced dead,” suggesting that the

legislature intended to provide a procedure for the

“determination of death” rather than a universally applicable

means of proving death. S. Stand. Comm. Rep. No. 617, in 1978

Senate Journal, at 1026 (emphasis added). The same report

states that the purpose of the bill is “to establish and provide

a definition of the medical death of a human being,” noting:

Historically, there was no alternative to the
traditional method of determining death. 24 However, the
increased sophistication and extension of medical knowledge
in resuscitation, artificial life support techniques, and
organ transplants now require a different means of
measuring death. The traditional criteria are no longer
reliable in certain circumstances.

Id. (emphasis added).

HRS 327C-1 was thus directed at health care providers

- particularly those involved in the process of determining

whether organs may be removed from an individual for

transplantation. The specific procedure outlined in the statute

was designed to be a safe harbor from civil or criminal

liability.

Two years before the enactment of HRS § 327C-1 in 1978,

the Senate passed S.R. No. 432, S.D. 1, calling on the

24 The LRB Report characterizes the “traditional” method of death
determination as the “measure of circulatory-respiratory death.” LRB Report,
supra p.3, at 5.

27
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Legislative Reference Bureau (LRB) to study “statutorily

defining and timing the death of a human being.” S. Stand. Comm.

Rep. No. 1029, in 1976 Senate Journal, at 1272. This request

was made in recognition of “an impressive number of cases and an

unprecedented amount of litigation” concerning “a legal

definition of death.” The resulting report, entitled “Towards a

Definition of Death,” recognized that “the advent of modern

medicine and development of extraordinary life sustaining

techniques” created the need for a definition of death, “a

previously non-existent problem.” LRB Report, supra p.3, at 1.

After reviewing the legal and medical implications of a

definition of death and surveying other states’ statutes

defining death, the report “recommend[ed] that the State of

Hawai͑i enact a statutory definition of death.” 25 Id. at 1-3.

There are several indications that the definition of

death proposed by the LRB Report was meant to apply to a set of

limited circumstances in which a determination of death is

required. The report began by discussing cases where the

absence of a legal-death standard created uncertainty, noting

that “[t]he current lack of agreement between medical practice

and law has resulted in some legal entanglements, some of which

25 The report proposed statutory text to that end. LRB Report,
supra p.3, at 116-18. The proposed text was adopted almost word for word.
See HRS § 327C-1 (1978).

28
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

resulted in judicial recognition of and acquiescence in the

brain death standard.” Id. at 2. After explaining that “[t]he

relevance of a definition of death, or any need for such a

definition is perhaps made most understandable when viewed in

the light of well-publicized death issues,” the report discussed

two cases 26 - one involving a patient on life support, the other

involving an organ donor 27 - “to clarify the definition of death

as an issue.” Id. at 4. Both cases highlighted the need for a

statute that “determin[ed] at as nearly accurate a point in time

as possible, the moment of death, or more precisely . . . the

point at which a human body has progressed in the process of

death when realistic medical assessment of condition is a

finding of death.” See id. at 4.

26 The first case discussed in the LRB Report was the Quinlan case,
in which New Jersey courts considered a petition from Karen Ann Quinlan’s
parents to remove her artificial respirator. LRB Report, supra p.3, at 3-10,
119 n.1. For over a year, Quinlan was in a vegetative state with her
breathing artificially maintained after she allegedly took a lethal
combination of tranquilizers and alcohol. Id. at 4-5. Medical test results,
however, showed some brain rhythm, so she never met the requirements for
brain-function death. Id. at 5. This court in Abella cited the Quinlan case,
and described its influence on the development of the law in Hawai͑i and
nationally regarding a patient’s “right to refuse further life-sustaining
medical treatment.” Abella, 145 Hawai‘i at 553, 454 P.3d at 494 (citing In re
Quinlan, 355 A.2d 647 (N.J. 1976).
The Cameron case took place in Hawai‘i and concerned court
proceedings regarding the removal of Alice Cameron’s organs for donation.
LRB Report, supra p.3, at 10-14. After an alleged drug overdose, Cameron
“could not breathe without the assistance of the respirator” and was declared
brain dead by her treating physician, despite disagreement among other
physicians as to whether she was in fact dead. Id. at 11-12.

27 These are precisely the circumstances discussed in HRS § 327C-1.
See HRS §§ 327C-1(b) and (c).

29
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

The LRB Report also identified specific areas in which

the need for a statute defining death was particularly evident.

The report listed three categories of legal cases where

determinations of death previously arose: (1) property,

inheritance, and insurance rights; 28 (2) missing persons; 29 and (3)

homicide and wrongful death. Id. at 52-56. As to the latter,

the report focused on issues of liability, discussing cases in

which physicians who removed brain-dead patients from artificial

life-support systems “exposed [themselves] to criminal liability

for homicide, or civil liability for wrongful death, or both.” 30

28 The LRB explained that litigation often arises in simultaneous
death cases where the primary issue is the “question of survivorship” (e.g.,
determining whether a spouse died at the scene when her brain ceased to
function or when she was removed from the respirator). LRB Report, supra p.3,
at 52. Likewise, issues arise regarding insurance benefits when insurance
companies set time limits for accidental death benefits (e.g., determining
whether a spouse, who was kept alive on a respirator for more than ninety
days after an accident, had “died” within an insurance policy’s ninety-day
time limit). Id. at 53. In such cases, “timing bears crucially on
inheritance rights.” Id.

29 In missing persons cases, the LRB explained that the law
determines “the period of time which must elapse” for a “presumptive
determination[] of death,” specifically for “distributing the person’s
property or freeing a spouse to remarry . . . .” LRB Report, supra p.3, at
53-54. The LRB noted that in Hawai‘i this period of time is five years per
the Uniform Probate Code. Id. at 54.

30 The LRB Report describes Tucker’s Administrator v. Lower, in
which the brother of a transplant donor sued the surgeons who removed his
brother’s organs for the wrongful death of the donor. LRB Report, supra p.3,
at 54, 124 n.12. The report noted that, in this case, “the primary issue was
the determination of the time of death,” specifically, whether the donor was
dead at the time the surgeons removed his organs. Id. at 54. The LRB Report
also describes Regina v. Potter, in which a court reduced a defendant’s
charge from murder to assault, finding that the “intervening acts of the
physicians” – specifically, terminating the artificial life support of the
brain-dead patient - “mitigated the original charge.” Id. at 30-31, 55; cf.
Abella, 145 Hawai‘i at 559, 454 P.3d at 500 (rejecting the argument that
“removal of life support cannot constitute an intervening cause that may
(. . . continued)
30
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Id. at 54. Where a person accuses a doctor of homicide or

wrongful death for the removal of life support, the LRB noted,

both timing and causation are at issue. Id. at 55. In such

cases, the report implied, a medical determination of death may

be warranted.

Other jurisdictions have similarly held that death-

determination statutes are not applicable to every case

involving death. In State v. Edwards, 767 N.W.2d 784, 800 (Neb.

2009), the Nebraska Supreme Court held that their determination-

of-death statute did not apply to homicide cases where the body

of the decedent was missing. There, following a jury trial, the

defendant was convicted of Murder in the Second Degree and Use

of a Deadly Weapon to Commit a Felony. Id. at 795. The

decedent was last seen leaving her apartment for the defendant’s

apartment. Id. at 792. While her body was never recovered, the

decedent’s blood was found in the defendant’s bedroom, on the

mattress and walls, on a weapon in his closet, and in the trunk

of his car. Id. at 793-94. The defendant argued that, inter

alia, the State failed to prove the decedent’s death under

(. . . continued)

absolve a defendant from liability for causing death”). The LRB noted, in
addition to the issue of causation, that “[t]he question of timing of death
in view of physician intervention” was necessarily at issue in Regina. LRB
Report, supra p.3, at 55. Thus, both Tucker’s Administrator and Regina
illustrated that, in certain cases, the precise timing of a person’s death
could have legal implications and could be determined using the procedures
set forth in HRS § 327C-1.

31
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Nebraska’s determination-of-death statute 31 and the court should

have instructed the jury on this statute. Id. at 798-99.

The Nebraska Supreme Court rejected both arguments,

finding the statute inapplicable. Id. at 798, 800. The court

explained, “We do not read the [statute] as establishing a rule

of evidence requiring that in all cases involving an alleged

decedent, the fact of death must be medically established.” Id.

at 800. Rather, the statute applies to certain cases involving

death determinations: “[T]here may be cases in which the

[statute’s] medical standards are implicated, when there is a

question as to the cause or time of an alleged death, or where

there is conflicting medical evidence about the alleged

decedent’s condition.” Id. As there were no such questions or

evidence in this case, the court applied the standard of death

recognized under Nebraska’s common law – proof of death by

circumstantial evidence – and concluded that the evidence at

trial was sufficient to prove the decedent’s death. Id.

31 Nebraska’s statute, entitled “Determination of death,” falls
under “Chapter 71. Public Health & Welfare” and states the following:

Only an individual who has sustained either (1)
irreversible cessation of circulatory and respiratory
functions, or (2) irreversible cessation of all functions
of the entire brain, including the brain stem, is dead. A
determination of death must be made in accordance with
accepted medical standards.

Neb. Rev. Stat. § 71-7202 (1992).

32
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

We likewise hold that HRS § 327C-1 applies only in

certain criminal cases that involve “death determinations.”

Most notably, in cases where a physician is charged with a crime

for removing a patient from life support, the physician can

fulfill the requirements of this statute to prove the patient

was dead before the removal of such support. But not all

criminal cases involving death require such death determinations.

In most criminal cases, the fact and time of death are not

contested – in those cases, all would agree the decedent died,

so HRS § 327C-1 does not apply.

To hold otherwise would be to disregard well-accepted

canons of statutory construction. Generally, statutes should be

construed “to avoid, if possible, inconsistency, contradiction,

and illogicality.” Abella, 145 Hawai‘i at 552, 454 P.3d at 493

(quoting Haugen, 104 Hawai‘i at 76, 85 P.3d at 183). “If a

literal construction of statutory language would produce an

absurd result, we presume that result was not intended and

construe the statute in accord with its underlying legislative

intent.” Id. (citing Haugen, 104 Hawai‘i at 77, 85 P.3d at 184).

The interpretation of HRS § 327C-1 advanced by Moon here would

produce absurd results. Most notably, in cases in which someone

is abducted, murdered, and the body is disposed of, there would

be no way for a health care provider to make the required

determination, and the State could never make the required
33
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

showing that the defendant had caused the death of another. 32

With these principles in mind, we turn to the facts of

this case.

B. The State Was Not Required to Meet the Requirements of HRS
§ 327C-1 to Prove Feliciano’s Death

At trial, various witnesses testified that Moon shot

Feliciano in the head during an altercation. Inoue testified

that Dr. Nakagawa pronounced Feliciano dead on December 28, 2016.

Feliciano’s organs and tissues were subsequently removed on

December 30, 2016. Dr. Kobayashi then performed an autopsy on

Feliciano on January 3, 2017 and determined that the cause of

Feliciano’s death was a gunshot wound to the head. No evidence

was presented to contradict this testimony. Thus, at the time

of Moon’s trial, there was no need for a “determination of

death” within the meaning of HRS § 327C-1. There was no

disagreement that Feliciano was dead at that point, and HRS §

327C-1 did not apply. Viewing the evidence at trial “in the

light most favorable to the prosecution and in full recognition

of the province of the trier of fact,” there was substantial

evidence to support the material element of death in this case.

See Jhun, 83 Hawaiʻi at 481, 927 P.2d at 1364.

32 HRS § 327C-1(c) specifically provides that “[t]he determination
of death in all other cases shall be made under subsection (a).” (Emphasis
added.) Read literally, this would mean that there could be no determination
of death in cases in which there is no body – an absurd result.

34
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Moon additionally argues that HRS § 327C-1 applied to

the grand jury proceeding, since Feliciano was “being kept alive

by artificial means” at that time. However, Moon did not

challenge the indictment before trial. Rather, he challenged it

through a motion for arrest of judgment, arguing that the “one

physician who declared [Feliciano] ‘brain dead’ . . . [was] not

sufficient to prove that [Feliciano] was legally dead as

required by the statute.” 33 According to Moon, “[w]ithout

sufficient evidence to support the murder charge, the indictment

is defective on that count.” He also argues that the indictment

failed to allege an offense and/or the circuit court lacked

jurisdiction of the offense, and his motion therefore should

have been granted.

Moon essentially challenges the sufficiency of the

evidence to support his indictment, specifically the grand

jury’s probable-cause determination for the element of death.

33 A motion for arrest of judgment was not an appropriate motion for
this argument. A motion for arrest of judgment is meant “to give the trial
judge another chance to invalidate a judgment due to a fundamental error
appearing on the face of the record.” 3 Charles Alan Wright et al., Federal
Practice & Procedure § 601 (5th ed. 2022) (emphasis added) (examining Fed. R.
Crim. P. 34, which is the federal equivalent of HRPP Rule 34). The “record”
includes the indictment itself but not evidence; thus, “[a]n attack on the
sufficiency of the evidence” is not appropriate for a motion for arrest of
judgment. Id.; see also Territory v. Anderson, 23 Haw. 347, 348 (Haw. Terr.
1916) (per curiam) (“The motion in arrest [of judgment] reaches substantial
errors which are patent on the record, and which vitiate the
proceedings . . . . The objection that the verdict is contrary to the
evidence or based on insufficient evidence . . . cannot be urged in arrest of
judgment.” (quoting 12 Cyclopedia of Law & Procedure 756, 759 (William Mack
ed., 12th ed. 1904))).

35
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

However, under HRPP Rule 12(b)(2), “objections based on defects

in the charge” “must be raised prior to trial[.]” A party’s

failure to raise such objections “shall constitute waiver

thereof, but the court for cause shown may grant relief from the

waiver.” 34 HRPP Rule 12(f). Moon argues that the circuit court

“impliedly granted relief from the waiver” by “address[ing] the

merits of the motion and den[ying] it,” citing Przeradski, 5 Haw.

App. at 32, 677 P.2d at 474. In Przeradski, the defendant

failed to raise a HRPP Rule 12(b)(3) motion to suppress evidence

before trial as required under HRPP Rule 12(f). Id. at 31-32,

667 P.3d at 474. “[W]ithout comment, the trial court heard

argument on the merits from both sides, and, thereafter, denied

the motion.” Id. at 32, 667 P.3d at 474. Based on these

actions, the ICA held that “the trial court impliedly

34 We have allowed parties to challenge indictments for the first
time on appeal, but such parties have argued that their indictments failed to
charge an offense; they did not solely challenge the sufficiency of the
evidence supporting probable cause. See, e.g., State v. Tominiko, 126 Hawai‘i
68, 75, 266 P.3d 1122, 1129 (2011) (addressing defendant’s argument that “the
charge cannot be construed to charge an offense”); State v. Merino, 81 Hawai‘i
198, 211, 915 P.2d 672, 685 (1996) (addressing defendant’s argument that “the
charging complaint was fatally defective in that it ‘fail[ed] to sufficiently
allege the elements of conspiracy’” (alteration in original)). We have
permitted such challenges because, pursuant to HRPP Rule 12(b)(2), “defenses
and objections based on defects in the charge” “must be raised prior to
trial” unless the challenge is “that it fails to show jurisdiction in the
court or to charge an offense.” (Emphasis added.) HRPP Rule 12(b)(2) states
that such challenges regarding jurisdiction or charging an offense “shall be
noticed by the court at any time during the pendency of the proceedings.”
HRPP Rule 12(b)(2) (emphasis added); Merino, 81 Hawai‘i at 211, 915 P.2d at
685. Although framed as a challenge that the indictment failed to allege an
offense (or that the court lacked jurisdiction), as noted above, Moon is
challenging the sufficiency of the evidence to establish probable cause.

36
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

granted . . . relief [from the waiver]” under HRPP Rule 12(f)

and that the motion was properly before the ICA. Id. at 32, 667

P.3d at 474.

In contrast, the circuit court here specifically found

that the motion was untimely and that Moon had failed to

establish good cause. Thus, notwithstanding this court’s

discretion to review a defendant’s untimely motion, here, we

decline to do so. 35 As mentioned above, the State in this case

developed evidence at trial that supported a finding beyond a

reasonable doubt that Moon committed Murder in the Second Degree;

this included evidence of death. On these facts, Moon’s

objection to the sufficiency of evidence supporting the

indictment, made in a post-judgment motion for arrest of

judgment, was untimely and thus waived.

Relatedly, Moon, citing In re Doe, 102 Hawai‘i at 78,

73 P.3d at 32, argues that his case is not moot because it

concerns “unusual circumstances. 36 Moon argues that if he had

moved to dismiss the indictment before trial, the State would

35 Contrary to Moon’s contention, Przeradski does not hold that
appellate courts must review untimely motions. See Schutter v. Soong, 76
Hawaiʻi 187, 204, 873 P.2d 66, 83 (1994) (citing Przeradski for the
proposition that the defendant’s “failure to file a timely motion will not be
deemed a waiver of his right to seek disqualification, and [this court] may
review the decision of the lower court” (emphasis added)).

36 In In re Doe, the court held that “absent unusual circumstances,
any defects in a pretrial determination of probable cause are rendered moot,
or are without any effective remedy, which is much the same thing, by a
subsequent conviction[.]” 102 Hawai‘i at 78, 73 P.3d at 32 (footnote omitted).

37
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

not have been able to present evidence that Feliciano had

experienced “irreversible cessation of all functions of the

entire brain, including the brain stem,” at the grand jury

proceeding because HRS § 327C-1(b) requires that determination

to be made by two physicians independently. HRS § 327C-1(b).

According to Moon, the State would not have been able

to present evidence of brain death even if a second grand jury

was convened after the organ-donation procedure because “by that

time, Feliciano’s organs had all been removed. He was dead but,

because the statutory procedure had not been followed, there was

no way to legally prove that he might have recovered from his

loss of brain function.” Moon’s arguments are unavailing. If

Moon had succeeded in moving to dismiss pretrial based on the

State’s failure to establish probable cause on the element of

death as he suggests, the State could have returned to the grand

jury several days later, after Feliciano’s organs had been

removed. 37 At that point, no one would have disagreed that

Feliciano was dead, and the State would not have needed to

present evidence that Feliciano had experienced irreversible

cessation of brain function.

37 Feliciano’s organs and tissues were removed two days after the
grand jury indictment.

38
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

C. Moon’s Other Arguments Lack Merit

Moon’s remaining arguments on appeal are unavailing.

First, the circuit court did not err in denying Moon’s motion to

strike Dr. Kobayashi’s testimony at trial. HRE Rule 705

provides as follows:

Rule 705 Disclosure of facts or data underlying
expert opinion. The expert may testify in terms of opinion
or inference and give the expert’s reasons therefor without
disclosing the underlying facts or data if the underlying
facts or data have been disclosed in discovery proceedings.
The expert may in any event be required to disclose the
underlying facts or data on cross-examination.

In this case, the “underlying facts or data”

supporting Dr. Kobayashi’s testimony were disclosed in discovery

in the form of an autopsy report that was provided to the

defense. 38 HRE Rule 705. This autopsy report satisfied the

disclosure requirement because, as the circuit court found in

its order denying Moon’s motion to dismiss with prejudice based

on the State’s failure to disclose medical records from QMC, it

“included . . . all relevant information that he gleaned from

the [QMC] medical records.” Therefore, the QMC records did not

need to be separately produced. 39 Since there was no violation

38 The autopsy report referenced the QMC medical records as a
component of Moon’s “[r]ecent medical history.”

39 To obtain the QMC medical records, Moon could have sought to
subpoena them from QMC. As noted by the circuit court, “[n]othing precluded
the defense from issuing [a subpoena duces tecum] on August 6, 2018 [when
Moon first requested the QMC medical records from the State], or soon
thereafter, requesting the production of Mr. Feliciano’s records from the
QMC.”

39
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

of HRE Rule 705 here, the circuit court did not err in denying

Moon’s motion to strike Dr. Kobayashi’s testimony. 40

Second, the circuit court did not commit plain error

by failing to instruct the jury on the issue of causation.

Citing Abella, 145 Hawai‘i at 560-61, 454 P.3d at 501-02, Moon

argues that the circuit court should have instructed the jury on

whether the removal of Feliciano’s organs was an independent

intervening cause of death. Abella is inapplicable to the facts

of this case. Unlike in Abella, where the defendant could point

to several volitional acts, including surgery and the removal of

medical support, as potential intervening causes, 145 Hawai‘i at

558, 454 P.3d at 499, here, Moon neither identifies any medical

procedures that could have contributed to Feliciano’s death, nor

argues that Feliciano’s death was related to the removal of

medical support. Rather, Moon contends that removal of

Feliciano’s organs, which occurred after Feliciano’s death,

could have been considered an intervening cause of death. We

find this argument unavailing and hold that the circuit court

did not err by not instructing the jury on the issue of

40 Even if a violation of HRE Rule 705 occurred, the circuit court’s
refusal to strike Dr. Kobayashi’s testimony appears harmless beyond a
reasonable doubt. Moon presents no evidence on appeal of a “reasonable
possibility that the error contributed to [Moon’s] conviction.” State v.
Nichols, 111 Hawai‘i 327, 329, 141 P.3d 974, 976 (2006).

40
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

causation pursuant to HRS §§ 702-214 (2014), 215 (2014), and 216

(2014).

Third, Moon’s constitutional right to trial by jury

was not violated by the excusal of four potential jurors of

Korean ancestry. The circuit court properly considered the

State’s race-neutral justifications for its peremptory

challenges and found “no evidence that the State exercised its

peremptory challenges to exclude Korean jurors on the basis of

the juror’s [sic] race.” 41 Upon reviewing the record, we agree

that the defendant failed, upon hearing the State’s race-neutral

explanations, to prove the State had committed purposeful

discrimination. See State v. Daniels, 109 Hawai‘i 1, 6, 122 P.3d

796, 801 (2005) (holding that “if a category-neutral explanation

[for a peremptory challenge] is tendered, the trial court must

then decide whether the opponent of the strike has proved

purposeful discrimination”). In this regard, the circuit court

did not err.

Fourth, the circuit court’s Tachibana colloquy was not

deficient. The record establishes that the court engaged in a

true colloquy with Moon, demonstrating that he understood that

he had a constitutional right to testify, that no one could

41 Although listed under the heading “Conclusions of Law,” the
circuit court’s statement regarding the absence of evidence of the State’s
racial motive was a finding of fact, not a conclusion of law.

41
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

prevent him from testifying, that if he chose to testify, the

prosecutor would be allowed to cross-examine him, and that the

decision to testify was his. Under these circumstances, the

circuit court did not err in concluding that Moon’s waiver of

the right to testify was voluntary.

Finally, Moon’s ineffective assistance of counsel

claim lacks merit. Given the strength and amount of evidence

supporting that Moon shot Feliciano, defense counsel’s

concession in opening statement that Moon was the shooter was

plausibly tactical. See Briones v. State, 74 Haw. 442, 444, 848

P.2d 966, 969 (1993) (“Specific actions or omissions alleged to

be error but which had an obvious tactical basis for benefitting

the defendant’s case will not be subject to further scrutiny.”);

cf. Florida v. Nixon, 543 U.S. 175, 176, (2004) (holding defense

counsel’s failure to obtain defendant’s express consent to a

strategy of conceding guilt did not automatically render

counsel’s performance deficient). We therefore reject Moon’s

ineffective assistance of counsel claim.

42
*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

V. CONCLUSION

For the foregoing reasons, we affirm the circuit

court’s October 3, 2019 Amended Judgment of Conviction and

Sentence.

Emmanuel G. Guerrero /s/ Mark E. Recktenwald
for appellant
/s/ Paula A. Nakayama
Chad M. Kumagai
for appellee /s/ Sabrina S. McKenna

/s/ Todd W. Eddins

43