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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUL-2023
07:59 AM
Dkt. 79 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
PAMELA N. MURAKAMI, also know as PAMELA N.M. FARNSWORTH
Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE SECOND CIRCUIT
(CASE NOS. 2FC161000203(4), 2FC161000336(4), and 2FC161000379(4))
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)
Following a bench trial on January 22 and 23, 2018,
Defendant-Appellant Pamela N. Murakami (Murakami) was convicted
of five counts of violation of an order for protection pursuant
to Hawaii Revised Statutes (HRS) § 586-11 (2018).1 Murakami
appeals from the corresponding Amended Judgment and Sentence of
the Court entered by the Family Court of the Second Circuit
(Family Court) on May 30, 2018.2
Murakami contends the Family Court erred in granting
Plaintiff-Appellee State of Hawai#i's (State) motion to
1
HRS § 586-11 provides, in pertinent part:
Whenever an order for protection is granted pursuant to this
chapter, a respondent or person to be restrained who
knowingly or intentionally violates the order for protection
is guilty of a misdemeanor.
2
The Honorable Richard T. Bissen, Jr. presided.
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consolidate the cases and counts against her. Murakami also
contends there was insufficient evidence to convict her of
violating the order for protection entered on behalf of her exhusband, Bradley Farnsworth (Farnsworth).
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 by the parties, we
resolve Murakami's points of error as follows and affirm.
(1) Murakami contends the Family Court erred in
granting the State's motion to consolidate the charges against
her because each count involved separate and distinct encounters
between Murakami and Farnsworth on different dates and thus
consolidation of the five charges against her was prejudicial.
Murakami was charged with five counts of violation of
an order for protection in three cases: 2FC161000203 (1 count for
an incident on April 5, 2016); 2FC161000336 (3 counts for
incidents on April 19, May 24, and June 7, 2016); and
2FC161000379 (1 count for an incident on July 12, 2016). The
asserted violations occurred on five separate dates and occurred
at or around the Mayor Hannibal Tavares Community Center in
Pukalani on the island of Maui (Community Center).
On October 3, 2017, the State filed a Motion for an
Order Consolidating Cases for Trial (Motion to Consolidate),
which sought to consolidate the three cases and the counts
pursuant to Hawai#i Rules of Penal Procedure (HRPP) Rules 8 and
13.3 On October 24, 2017, the Family Court granted the State's
3
HRPP Rule 8 Provides, in pertinent part:
(a) Joinder of offenses. Two or more offenses may be
joined in one charge, with each offense stated in a separate
count, when the offenses:
(1) are of the same or similar character, even if not
part of a single scheme or plan; or
(2) are based on the same conduct or on a series of
acts connected together or constituting parts of a single
scheme or plan.
HRPP Rule 13 provides, in pertinent part:
(continued...)
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Motion to Consolidate over Murakami's objection and entered an
Order Granting State's Motion to Consolidate.
We conclude the Family Court did not err in granting
the State's Motion to Consolidate. "On appeal, a trial court's
order consolidating cases for trial under [HRPP] Rule 13 shall
not be disturbed absent an abuse of discretion." State v.
Cordeiro, 99 Hawai#i 390, 403, 56 P.3d 692, 705 (2002) (quoting
In re Doe, 79 Hawai#i 265, 273,
900 P.2d 1332, 1340 (App. 1995)).
The charges were properly joined pursuant to HRPP Rule
8 because they involve offenses of the same or similar character.
Where joinder is proper under HRPP Rule 8, subsequent severance
is governed by HRPP Rule 14, which states:
If it appears that a defendant or the government is
prejudiced by a joinder of offenses or of defendants in
a charge or by such joinder for trial together, the
court may order an election or separate trials of
counts, grant a severance of defendants or provide
whatever other relief justice requires.
Joinder may be prejudicial by "(1) preventing
[defendants] from presenting conflicting defenses or evidence
with respect to each charge, (2) permitting the prosecution to
introduce evidence that would be inadmissible with respect to
certain charges if tried separately, or (3) bolstering weak cases
through the cumulative effect of the evidence." Cordeiro, 99
Hawai#i at 411, 56 P.3d at 713 (citation omitted).
In granting the Motion to Consolidate, the Family Court
noted that case 2FC161000336 involved three counts of violation
of an order for protection, which the State alleged took place on
April 19, May 24, and June 7, 2016. Even though the case
contains three separate dates in one complaint, the Family Court
noted that Murakami had not moved to sever those three counts.
The Family Court determined that "there would be no more
prejudice by adding these two additional charges on to . . . the
3
(...continued)
(a) Generally. The court may order consolidation of
two or more charges for trial if the offenses . . . could
have been joined in a single charge.
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count that already has three separated, ah, charges in that."
Essentially, the Family Court determined that 2FC161000336
contained three counts involving three separate dates in a three
month period, Murakami had not moved to sever those three counts,
and Murakami would not be prejudiced by the consolidation of two
additional counts charging offenses of the same or similar
character. Murakami does not explain how adding the two
additional charges in 2FC161000203 and 2FC161000379 was
prejudicial.
Murakami only argues that each encounter should have
been weighed on its distinct merits, which appears to be a claim
of improper "bolstering." However, "in a bench trial, we presume
that the judge was not influenced by incompetent evidence."
State v. Bereday, 120 Hawai#i 486, 498, 210 P.3d 9, 21 (App.
2009) (brackets omitted); cf. In re Doe, 79 Hawai#i at 274-75,
900 P.2d at 1341-42 ("[W]e presume, in the absence of evidence to
the contrary, and we perceive none in the record, that a judge in
arriving at a judgment in a consolidated jury-waived trial will
properly segregate the evidence relating to the separate
defendants."). Murakami makes no argument that the trial judge
improperly considered the evidence, and there is no indication of
such in the record.
Therefore, the Family Court did not abuse its
discretion in granting consolidation.
(2) Murakami contends there was insufficient evidence
to prove beyond a reasonable doubt that her conduct in each of
the five incidents violated the order for protection. We
disagree.
In a sufficiency of the evidence challenge, "[t]he test
on appeal is not whether guilt is established beyond a reasonable
doubt, but whether there was substantial evidence to support the
conclusion of the trier of fact." State v. Matavale, 115 Hawai#i
149, 157-58, 166 P.3d 322, 330-31 (2007).
"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
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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.
Id. at 158, 166 P.3d at 331. (quoting State v. Batson,
73 Haw.
236, 248-49,
831 P.2d 924, 931 (1992)). Further, the "evidence
adduced in the trial court must be considered in the strongest
light for the prosecution when the appellate court passes on the
legal sufficiency of such evidence to support a conviction; the
same standard applies whether the case was before a judge or a
jury." Batson,
73 Haw. at 248,
831 P.2d at 931 (citations
omitted).
Here, the following evidence was presented. On
December 18, 2012, the Family Court entered a Third Amended Order
for Protection (Protection Order) on behalf of Farnsworth against
Murakami.4 The Protection Order expired on December 5, 2022, and
prohibited Murakami from threatening or contacting Farnsworth or
their two minor children as follows:
1. Do not threaten or physically abuse [Farnsworth] or
anyone living with [Farnsworth].
2. Do not contact, write, telephone or otherwise
electronically contact (by recorded message, pager, etc.)
[Farnsworth], including where [Farnsworth] lives or works.
. . . .
5. Do not have any contact with [the parties' minor
children] except as provided in SECTION C.
Section C states that "[a]ll custody and visitation shall be in
accordance with FC-D-12-1-0065." On January 7, 2013, the Family
Court entered a Judgment of Divorce and Awarding Child Custody
(Divorce Decree) in Murakami and Farnsworth's divorce proceeding,
FC-D-12-1-0065. The Divorce Decree awarded Farnsworth sole legal
and physical custody of the minor children and granted Murakami
visitation as follows:
[Murakami] may have supervised or unsupervised visitation
with the parties' children at the discretion of Plaintiff
Bradley Steven Farnsworth, with the supervisor(s) to be
4
The Honorable Mimi DesJardins presided.
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selected by Plaintiff Bradley Steven Farnsworth and paid for
by Defendant Pamela Naomi Murakami Farnsworth, or by further
order of the Court. However, the Court will not consider a
motion by Defendant regarding visitation until such time as
Defendant provides proof that she is under the care of a
psychiatrist and following all recommended treatment or has
been clinically discharged.
(Emphases added.) There is no dispute that there was an order
for protection against Murakami and in favor of Farnsworth at all
relevant times in this case. There is also no dispute that
Murakami was on notice, not only of the Protective Order, but of
the conditions of visitation including how and when Murakami
could have visitation with the children.
At the conclusion of the bench trial, the Family Court
made findings of fact and Murakami does not dispute any of the
findings. The unchallenged findings of fact are thus binding on
appeal. State v. Rodrigues, 145 Hawai#i 487, 497, 454 P.3d 428,
438 (2019) (citation omitted).
April 5, 2016 Incident
With regard to the incident on April 5, 2016, the
Family Court found that Murakami entered the Community Center to
use the bathroom. Farnsworth was already inside the Community
Center with the children and testified that they were at the
Community Center for the children's aikido class. The Family
Court found that Murakami directed the comment "fucking thief" at
Farnsworth as she entered the Community Center and headed to the
bathroom. Farnsworth took a video recording of Murakami as she
left the Community Center showing that as Murakami was leaving,
she turned to look at Farnsworth. Farnsworth testified that he
believed she was at the Community Center to harass and intimidate
him and the children.
Murakami then re-entered the Community Center,
purportedly to wash her hands. The Family Court found that based
on the video taken by Farnsworth of Murakami re-entering the
Community Center, "another parent thought that the situation was
tense enough to have to intervene[;]" the parent followed
Murakami out for what appeared to be for the purpose of
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preventing her from coming back in a third time; the parent asked
Murakami if she was angry at something; and the "vibe" from
Murakami was enough for a neutral person to become concerned
either for their own welfare or for others at the Community
Center.
The Family Court found that even if Murakami did not
know her family was there and just happened to be uttering a
sound as she walked in, Murakami's "actions on video shows [sic]
that she clearly made eye contact with the person who was
shooting the film. And that that is Mr. Farnsworth. And she did
have a stare down, if you will." The Family Court found that
Murakami made contact with Farnsworth, that it was intentional,
knowing, and "[t]hat it was [Murakami's] intention to make a
nonverbal and/or verbal statement to Mr. Farnsworth that she was
not happy with something[.]" Farnsworth took a video recording
of Murakami leaving the Community Center the first time, which
was entered into evidence as exhibit 8. Farnsworth also recorded
the second time Murakami exited the building and the verbal
altercation Murakami had with the other parent, which was entered
into evidence as exhibit 9.
April 19, 2016 Incident
With regard to the incident on April 19, 2016, the
Family Court found that by this time, "Murakami [knew] for sure
that . . . her children are likely to be [at the Community
Center] at an aikido class[.]" The Family Court also found that
Murakami's presence at the Community Center was intentional
conduct. Farnsworth testified that as he left the Community
Center with the children after their aikido class, Farnsworth saw
Murakami in the parking lot of the Community Center in her
vehicle. Farnsworth testified that Murakami's vehicle was parked
nearly adjacent to his vehicle, she arrived after Farnsworth did,
and that she is aware of what type of vehicle he drives. As
Farnsworth was walking to his vehicle, he heard Murakami yelling
or screaming "die bitch die" with her windows up. Farnsworth
testified that the children were with him when he heard Murakami
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yell "die bitch die" and that he felt threatened. The Family
Court found Farnsworth's testimony that Murakami made the comment
"die bitch die" to be credible and found that the comment was
directed at Farnsworth, and that the statement was intentionally
and knowingly uttered.
May 24, 2016 Incident
With regard to the incident on May 24, 2016, the Family
Court found that Murakami chose to be at the Community Center
during the time she believed Farnsworth and the children would be
there and waited for them to leave in their vehicle. Farnsworth
testified that while he and his son were in the vehicle, Murakami
drove up to them in her vehicle. Farnsworth testified that,
"[Murakami] was making noise again. Ah, ah, there were -- it was
strange noises. It was loud music. Ah, and also conversation
talking. And then a strange voice that sounded like a child
crying. It was being played apparently on her player inside the
car."
Farnsworth later left the Community Center with his
children and Murakami followed them out of the parking lot. As
Farnsworth was driving, the children took a video of Murakami,
which was entered into evidence as exhibit 10. In the video,
Murakami can be seen taking her hands off the steering wheel and
yelling "why don't you take a picture, asshole" multiple times
while driving next to Farnsworth. Farnsworth also testified that
Murakami seemed to accelerate to catch up to Farnsworth's
vehicle, which was in the left lane preparing to make a left
turn. Murakami then drove alongside him in the right lane.
Farnsworth had his passenger side windows down and Murakami's
window was also down. Murakami was yelling at Farnsworth and the
children as she came up beside their vehicle. Farnsworth
testified that Murakami's driving was dangerous and erratic, and
he was concerned that she might hit them.
The Family Court found that Murakami directed the
comment "why don't you take a picture asshole" at the children,
who were taking the video while Farnsworth was driving. The
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Family Court also found that Murakami initiated the contact "by
being where she should not be for the purpose of harassing or
getting her point across that she's upset at something," and that
the contact was intentional and knowing.
June 7, 2016 Incident
With regard to the incident on June 7, 2016, the Family
Court found that despite the three prior incidents, Murakami
showed up at the Community Center in a different vehicle.
Farnsworth approached Murakami to take photographs of the vehicle
so that he could be aware if Murakami showed up again. The
Family Court found that although it was difficult to make out
what was being said in the video recording, Murakami was yelling
in the car while Farnsworth was recording, and the yelling was
directed at Farnsworth. The Family Court also found that
Murakami had the option of leaving the area to avoid contact with
Farnsworth so as not to be in violation of the Protective Order
and questioned why Murakami was present at the Community Center
parking lot at that time. The Family Court stated that if
Murakami "was just sitting in the car and nothing was said[,]
that the Court could not find that any violation [had] occurred."
However, the court found that Murakami recognized that Farnsworth
was in the parking lot, decided to yell and scream at him, and
Murakami's yelling and screaming violated the Protection Order.
Two video recordings of the incident were entered into evidence
as exhibits 11 and 12.
July 12, 2016 Incident
Finally, with regard to the incident on July 12, 2016,
Farnsworth testified that he and his son were walking on the
sidewalk near the Community Center when Murakami approached them
in her vehicle, drove past them, and went to the lower parking
lot of the Community Center. Murakami then drove back around
with her window down, slowed to a stop, and yelled at Farnsworth
and his son. Farnsworth took a video of when Murakami came back
around which was entered into evidence as exhibit 13. The Family
Court found that Murakami intentionally slowed her vehicle down
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to make inappropriate comments "in probably the loudest voice she
could muster" at Farnsworth who was standing on the sidewalk with
their son. The Family Court found that there was no other
legitimate purpose of the violation and even if Farnsworth could
not understand what Murakami was screaming, she was not allowed
to scream at Farnsworth.
The Family Court found that in each incident, Murakami
wanted Farnsworth to be uncomfortable and wanted him to know that
she was there.
Based on the record and the unchallenged findings by
the Family Court, and considering the evidence in the light most
favorable to the prosecution, there is sufficient evidence to
support the Family Court's conviction of Murakami on all five
counts for violation of an order for protection.
Based on the foregoing, we affirm the Amended Judgment
and Sentence of the Court entered by the Family Court of the
Second Circuit on May 30, 2018.
DATED: Honolulu, Hawai#i, July 28, 2023.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Richard D. Gronna,
for Defendant-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Karen T. Nakasone
for Plaintiff-Appellee Associate Judge
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