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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-NOV-2022
07:56 AM
Dkt. 47 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI, Plaintiff-Appellee,
v.
ROBERT WILLIAM DESHIELDS, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge and Leonard, J. with
Nakasone, J. concurring separately)
Defendant-Appellant Robert W. DeShields (DeShields)
appeals from the Notice of Entry of Judgment and/or Order
(Judgment) entered on November 10, 2020, in the District Court of
the First Circuit, Honolulu Division (District Court).1
On April 10, 2019, Plaintiff-Appellee State of Hawaiʻi
(State) filed a complaint alleging that DeShields intentionally,
knowingly, or recklessly caused bodily injury to the complaining
witness (CW), constituting assault in the third degree in
1
The Honorable Thomas A. Haia entered the Judgment, and the
Honorable Florence Nakakuni presided over DeShields's jury-waived trial and
sentencing.
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violation of Hawaii Revised Statutes (HRS) § 707-712(1)(a) (2014)
(Assault Third).2
After a jury-waived trial, DeShields was found guilty
of Assault Third and sentenced to one year of probation, with
special conditions of substance abuse assessment and any
treatment, if recommended, anger management, restitution with an
ability-to-pay study, and a crime victim compensation fee of $55.
DeShields raises three points of error on appeal,
contending that the District Court: (1) erred when it prevented
DeShields from cross-examining CW about whether the injuries to
her hands resembled the way her hands reacted to the chemicals in
the pool where she worked as a lifeguard; (2) clearly erred in
its oral finding of fact that CW suffered seizures as a result of
being assaulted by DeShields; and (3) erred when it imposed
substance abuse counseling and treatment, if recommended, as a
special condition of probation.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, as well as the
relevant legal authorities, we resolve DeShields's points of
error as follows:
2
HRS § 707-712 provides, in relevant 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[.]
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(1) DeShields argues that the District Court erred in
precluding cross-examination of CW concerning whether the effect
that pool chemicals had on her hands resembled the injuries she
attributed to DeShields when he struck her hands with his cane.
When DeShields's attorney asked CW if she had a skin condition,
the State objected based on relevance. The District Court asked
defense counsel, "What's the relevance of this?" Counsel
responded that it "goes to any possible injury claim." The court
sustained the State's relevance objection.
Even assuming that testimony tending to support the
defense's alternative explanation for the discoloration and/or
bruises on CW's hands was relevant, the District Court's error in
not allowing the testimony was harmless beyond a reasonable
doubt. CW testified that DeShields hit her "viciously" with his
metal cane and that she felt "horrific pain" in her hands as a
result. As noted above, Assault Third consists of
"[i]ntentionally, knowingly, or recklessly caus[ing] bodily
injury to another person[.]" HRS § 707-712(1)(a). "Bodily
injury" is defined as "physical pain, illness, or any impairment
of physical condition." HRS § 707-700 (2014). In light of the
entire record of the trial, including the undisputed testimony of
CW that she felt horrific pain as a result of DeShields striking
her with his cane, which the District Court found to be credible,
there is no reasonable possibility that any error related to
disallowing the skin-condition testimony might have contributed
to DeShields's conviction.
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(2) DeShields argues that the District Court erred by
orally finding that CW suffered seizures as a result of having
been assaulted by DeShields. However, the District Court did not
find that the assault caused CW's seizures. Rather, the District
Court recounted CW's testimony that "she developed seizures right
after [the assault]. She never had seizures prior. She went
back to work at Aulani after the incident on the evening of
August 27, 2017. She said she had a seizure in front of her
supervisor who sent her home." Accordingly, we conclude that
DeShields is not entitled to relief based on this point of error.
(3) DeShields argues that the District Court erred
when it imposed a special condition requiring him to undergo a
substance abuse assessment and treatment, if recommended.
Hawaiʻi appellate courts have long recognized:
[A] sentencing court may not impose discretionary conditions
of probation pursuant to HRS § 706–624(2) [] unless there is
a factual basis in the record indicating that such
conditions "are reasonably related to the factors set forth
in HRS § 706–606" and insofar as such "conditions involve
only deprivations of liberty or property," that they "are
reasonably necessary for the purposes indicated in HRS
§ 706–606(2)."
State v. Kahawai, 103 Hawaiʻi 462, 462–63, 83 P.3d 725, 725–26
(2004) (internal citation and brackets omitted).
HRS § 706-606 (2014) provides:
§ 706-606 Factors to be considered in imposing a
sentence. The court, in determining the particular sentence
to be imposed, shall consider:
(1) The nature and circumstances of the offense and
the history and characteristics of the
defendant;
(2) The need for the sentence imposed:
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(a) To reflect the seriousness of the offense,
to promote respect for law, and to provide
just punishment for the offense;
(b) To afford adequate deterrence to criminal
conduct;
(c) To protect the public from further crimes
of the defendant; and
(d) To provide the defendant with needed
educational or vocational training,
medical care, or other correctional
treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct.
Here, CW testified that DeShields initiated the assault
because he was upset about missing pain pills. DeShields
corroborated the same. It is not unreasonable to get upset if
one's medication goes missing, but an extreme reaction including
a physical assault is indicative of an anger management issue.
As such, the record contains a factual basis for imposing the
probationary condition of anger management. However, the
evidence in the record indicates that the missing pain relief
medicine was prescribed to DeShields. There is no evidence, for
example, that DeShields's possession of his prescription pain
pills was illegal or that he was abusing his prescribed pain
medication. Upon review of the entirety of the evidence in the
record, we conclude that there was no factual basis for imposing
a probationary condition of a substance abuse assessment and
possibly treatment, as well. Therefore, we further conclude that
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the District Court abused its discretion in including this
special condition.
For these reasons, the District Court's November 10,
2020 Judgment is affirmed as to DeShields's conviction for
Assault Third; however, the District Court's sentence is vacated,
and this case is remanded to the District Court for resentencing.
DATED: Honolulu, Hawaiʻi, November 28, 2022.
On the briefs:
/s/ Lisa M. Ginoza
William H. Jameson, Jr., Chief Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Loren J. Thomas,
(Sonja M.P. McCullen
on the briefs),
Deputy Prosecuting Attorneys,
for Plaintiff-Appellee.
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CONCURRING OPINION BY NAKASONE, J.
I agree with the Summary Disposition Order and concur
separately in the result reached in the first point of error,
because I would hold that the District Court did not err in
sustaining the State's relevance objection. The Opening Brief
(OB) principally relies on DeShields' testimony presented during
the defense's case as the pertinent record upon which to review
this claim of error,1 which is incorrect. The relevant record
upon which to review the ruling is the offer of proof made at the
time the District Court ruled on the objection –- which was
during the Complainant's testimony in the State's case-in-chief.
See Hawaiʻi Rules of Evidence Rule 103(a)(2) (requiring an offer
of proof to preserve error predicated upon exclusion of evidence,
in which "the substance of the evidence was made known to the
court by offer or was apparent from the context within which
questions were asked."). An offer of proof should include "a
description of the evidence and a theory of admissibility."
1
DeShields argues that:
It is clear from the record in this case that defense
counsel had a good faith basis to cross-examine
[Complainant] about whether the injuries to the back of her
hands were caused by or resembled the way her hands reacted
to the chemicals in the pool water of the Aulani Hotel. In
his case-in-chief, DeShields testified that [Complainant]
told him that the chemicals in the Aulani pool caused the
back of her hands to become red (inflamed) and that she had
to treat the redness (inflammation) with lotion . Whether
the injuries to the back of [Complainant's] hands were
caused by or resembled the injuries that [Complainant]
claimed were caused by DeShields striking her with a cane
was clearly a fact of consequence which was admissible under
HRE Rules 401 and 402. Therefore, it was error to exclude
cross-examination of this issue because it was irrelevant.
OB at 8 (emphasis added). The cross-examination at issue occurred on the
first day of trial on September 19, 2019. DeShields' testimony was not
presented until the second day of trial on December 6, 2019.
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Addison M. Bowman, Hawaii Rules of Evidence Manual § 103-3
(2020). The purpose of an offer of proof is to "provide an
adequate record for appellate review and to assist the trial
court in ruling on the admissibility of evidence." State v.
Pulse, 83 Hawaiʻi 229, 248, 925 P.2d 797, 816 (1996) (citations
and italics omitted).
Here, the offer of proof the District Court was given
at the time of its ruling was that the "skin condition" question
was relevant as it "goes to any possible injury claim."2 The
detailed relevance proffer claimed on appeal, that DeShields
2
The transcript provides:
Q [(BY DEFENSE COUNSEL)] Okay. Um, you said you worked
as a lifeguard at Aulani?
A [(BY COMPLAINANT)] Correct.
Q Okay. Part of that lifeguard, your duties, means that
you have to go into the pool?
A Yes.
Q And that pool is filled with chlorine?
A Yes.
Q Do you have a skin condition that --
[PROSECUTOR]: Objection, Your Honor. Relevance.
THE COURT: What's the relevance of this?
[DEFENSE COUNSEL]: Uh, goes to any possible injury
claim, Judge, in this case.
[PROSECUTOR]: Your Honor, with regards to the skin,
um, I don't think that's relevant.
THE COURT: Oh. The objection is sustained.
Transcript of September 19, 2019 Proceeding at 57, State v. DeShields,
CAAP-XX-XXXXXXX (Apr. 5, 2021) (Judiciary Information Management System docket
number 23) (pertaining to the arraignment, plea and trial in State v.
DeShields, No. 1DCW-XX-XXXXXXX (2019)).
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sought to cross-examine "whether the injuries to her hands
resembled the way in which her hands reacted to the chemicals in
the pool water of the Aulani Hotel where she worked as a
lifeguard," OB at 7, was not presented to the District Court at
the time of its ruling. Therefore, I would conclude that the
record at the time of the ruling does not reflect that a "skin
condition" had any tendency to make the existence of the
consequential fact of "injury" more probable or less probable
under HRE Rule 401. The District Court was not wrong in
precluding further cross-examination based on the relevance
proffer it was given at the time of its ruling. See State v.
Martin, 146 Hawaiʻi 365, 381, 463 P.3d 1022, 1038 (2022)
(reviewing admissibility of evidence for relevance under the
right/wrong standard); HRE Rules 103(a)(2), 401, and 402.
Karen T. Nakasone
/s/ Associate Judge
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