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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-AUG-2024
07:54 AM
Dkt. 96 SO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
OSCAR KANOA, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)
Defendant-Appellant Oscar Kanoa (Kanoa) appeals from
the March 29, 2023 Judgment of Conviction and Sentence; Notice of
Entry (Judgment) entered by the Circuit Court of the First
Circuit (Circuit Court).1 After a jury trial, Kanoa was
convicted of Manslaughter under Hawaii Revised Statutes (HRS)
§ 707-702 (2014 & Supp. 2023).2 Kanoa also challenges the
1
The Honorable Rowena A. Somerville presided.
2
HRS § 707-702 states:
§ 707-702 Manslaughter. (1) A person commits the
offense of manslaughter if:
(a) The person recklessly causes the death of
another person; or
(continued...)
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Circuit Court's grant of the State's November 29, 2022 Motion to
Determine Voluntariness of Defendant's Statements to the Police
(Voluntariness Motion)3 and denial of Kanoa's December 27, 2022
Motion for Judgment of Acquittal (Motion for Judgment of
Acquittal).
Kanoa raises two points of error on appeal, contending
that the Circuit Court erred in: (1) granting the Voluntariness
Motion; and (2) denying the Motion for Judgment of Acquittal.
2
(...continued)
(b) The person intentionally causes another person
to commit suicide; provided that this section
shall not apply to actions taken under chapter
327L.
(2) In a prosecution for murder or attempted murder in
the first and second degrees it is an affirmative defense,
which reduces the offense to manslaughter or attempted
manslaughter, that the defendant was, at the time the
defendant caused the death of the other person, under the
influence of extreme mental or emotional disturbance for
which there is a reasonable explanation. The reasonableness
of the explanation shall be determined from the viewpoint of
a reasonable person in the circumstances as the defendant
believed them to be; provided that an explanation that is
not otherwise reasonable shall not be determined to be
reasonable because of the defendant's discovery, defendant's
knowledge, or the disclosure of the other person's actual or
perceived gender, gender identity, gender expression, or
sexual orientation, including under circumstances in which
the other person made an unwanted nonforcible romantic or
sexual advance toward the defendant, or in which the
defendant and the other person dated or had a romantic
relationship. If the defendant's explanation includes the
discovery, knowledge, or disclosure of the other person's
actual or perceived gender, gender identity, gender
expression, or sexual orientation, the court shall instruct
the jury to disregard biases or prejudices regarding the
other person's actual or perceived gender, gender identity,
gender expression, or sexual orientation in reaching a
verdict.
(3) Manslaughter is a class A felony.
3
The Voluntariness Motion sought determinations of voluntariness on
additional statements, including Kanoa's 911 call, statements to Emergency
Medical Services (EMS) and Honolulu Fire Departmart (HFD) personnel, and
utterances upon Kanoa's later arrest on August 18, 2022. However, the
admissibility of these other statements is not challenged on appeal and these
aspects of the motion are not discussed herein.
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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 Kanoa's points of error as follows:
(1) Kanoa argues that the Circuit Court erred in
granting the Voluntariness Motion because (a) his detention was
not a valid investigative stop because Honolulu Police Department
(HPD) officers detained him to attend to a medical emergency, not
because they suspected criminal activity, and (b) even if HPD
officers validly detained Kanoa to obtain medical information,
prolonging his detention for more than 47 minutes was longer than
necessary. Kanoa submits that his detention, initiated by HPD
Officer Alberto Yerena (Officer Yerena) at 3:53 a.m., was
invalid; thus, all statements made by Kanoa in response to
questions and statements directed toward him by the HPD officers
between 3:53 a.m. and approximately 4:40 a.m. (when Kanoa was
freed to leave) are inadmissible as fruit of the poisonous tree.
The State argues that under the totality of the
circumstances, the officers' seizure of Kanoa was reasonable
because he was the only person on the scene, and the only witness
capable of providing statements to assist medical personnel in
administering care for an unresponsive person at the scene,
Bonnie Vierra (Vierra). The State argues that Kanoa was not in
custody because, inter alia, he was free to move, smoke
cigarettes, and make phone calls during the period of his
detention. The State contends that the officers' questions did
not amount to an interrogation because the questions were neither
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sustained nor coercive. The Circuit Court agreed with the
State's reasoning and stated:
[S]o was [Kanoa] in custody and was [Kanoa] under
interrogation?
. . . .
So looking at the totality of the circumstances, yes,
there was a discussion regarding whether [Kanoa] was a
suspect or not, and I believe that was in conjunction with
them discussing whether or not this was going to be an
unattended death, and if it was going to be an unattended
death, then they would have to get a statement from [Kanoa].
While probable cause is not the end-all be-all, there
was no probable cause in this case. As the -- State pointed
out, a criminal case was never initiated at this point and
an [injury cared for (ICF) report] was initiated instead. I
would also note that after . . . the officers discuss at the
back of the ambulance whether he's a possible suspect or
make him a suspect, the next inquiry is maybe we should
check his hands. So they go over and they ask him to show
their hands -- to show his hands, and they conclude that
there was nothing wrong with his hands. And at that point
he continues talking to -- talking to -- to the police
officers. At one point [Kanoa] does ask how long do I have
to sit in this spot, you're saying I cannot leave, and the
response was you have to sit there until whatever it takes.
And they were waiting for their boss to call back because
they needed him to make a statement.
At no time during this -- this 40 or 50 minutes of him
standing outside was he ever considered a suspect. There
was no probable cause. He was walking around, smoking
cigarettes, joking around with the police officers, making
phone calls. So with respect -- with respect to State
versus Ketchum, looking at the temporary detention and the
factors associated with it, he was not handcuffed, he was
not led to a different location, he was not subject to
booking procedures, there was no force, and there was no
show of authority beyond the inherent -- beyond that
inherent in the mere presence of the police officers.
So pursuant to State versus Sagapolutele-Silva,
Ketchum, and Ah Loo, I do find that while [Kanoa] may have
been detained, he was not in custody and they were --
although it was a 40- to 50-minute time frame, it was
temporary and they temporarily detained him for questioning,
and they did not pose any coercive questions to the detain
-- to [Kanoa]. They simply asked him to write a 252
[written statement].
Although the Circuit Court's analysis was based on
grounds in Hawai#i cases on custodial interrogation, Kanoa's
argument is that the Circuit Court erred in allowing his
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statements into evidence because they were obtained as a result
of an unlawful seizure. The Hawai#i Supreme Court has held:
Pursuant to article I, section 7 of the Hawai #i
Constitution, the people have a right to be free from
unreasonable searches, seizures, and invasions of privacy.
In order to determine whether a person can be lawfully
seized without first obtaining a warrant, we analyze the
following.
First, we determine whether the person was "seized"
within the meaning of the United States and Hawai #i
Constitutions. Second, if the person was seized, we
determine whether the seizure was lawful, i.e., whether the
police could have temporarily detained the individual
because "they have a reasonable suspicion based on specific
and articulable facts that criminal activity is afoot."
[State v. Tominiko, 126 Hawai#i 68, 77, 266 P.3d 1122, 1131
(2011)]. If the seizure was not supported by reasonable
suspicion, the seizure was unlawful, and any evidence
obtained as a result of the initial seizure is inadmissible
at trial.
. . . .
A person is seized if, given the totality of the
circumstances, a reasonable person would have believed
that he or she was not free to leave. Whether a
reasonable person would feel free to leave is
determined under an objective standard that this court
reviews de novo. A person is seized for purposes of
article I, section 7 of the Hawai#i Constitution, when
a police officer approaches that person for the
express or implied purpose of investigating him or her
for possible criminal violations and begins to ask for
information.
State v. Weldon, 144 Hawai#i 522, 531-32, 445 P.3d 103, 112-13
(2019) (quoting Tominiko, 126 Hawai#i at 77,
266 P.3d at 1131
(2011)).
Here, the State acknowledges that Kanoa was detained.4
The question remains if Kanoa was unlawfully detained or seized.
If so, then all evidence gathered as a result of the unlawful
seizure must be suppressed as fruit of the poisonous tree. Id.
at 534, 445 P.3d at 115; see also State v. Iona, 144 Hawai#i 412,
416,
443 P.3d 104, 108 (2019).
4
At about 3:53 a.m., Officer Yerena told Kanoa he was not free to
leave.
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Given these constitutional protections, warrantless
searches or seizures are presumed "invalid unless and until
the prosecution proves that the search or seizure falls
within a well-recognized and narrowly defined exception to
the warrant requirement." State v. Prendergast, 103 Hawai #i
451, 454, 83 P.3d 714, 717 (2004). "If the prosecution
fails to meet this burden, the evidence obtained from the
illegal search will be suppressed as 'fruit of the poisonous
tree.'" Id. (quoting State v. Fukusaku, 85 Hawai #i 462,
475, 946 P.2d 32, 45 (1997)).
Iona, 144 Hawai#i at 416,
443 P.3d at 108 (footnote omitted).
To be clear, the State does not contend that Kanoa's
detention was based on the HPD officers' reasonable suspicion
that criminal activity was afoot. Instead, the State argues that
Kanoa's seizure was reasonable because he was the only person on
the scene, and his statements were needed for the purpose of
gathering information for Vierra's medical treatment and
clarifying the circumstances surrounding her condition for the
ICF police report. Kanoa had called 911, and Kanoa voluntarily
answered questions posed by EMS and HFD first responders upon
their arrival. Vierra had visible injuries, bruising, and was
unconscious and in an apparent critical condition. HPD Corporal
Jonathan Kendrick (Corporal Kendrick) testified that a written
statement from Kanoa was requested because his oral statements
were not clear; he had several versions of the events leading up
to Vierra's injuries. The State contends that the duration of
the seizure was caused by the inconsistent information provided
by Kanoa, and that under the circumstances, they needed a written
statement in order to make a clear ICF police report.
As the supreme court has often stated, a seizure
without a warrant is generally presumed invalid unless the State
proves that the seizure falls within an exception to the warrant
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requirement of article I, section 7 of the Hawai#i Constitution,
such as the "temporary investigative stop" based on a reasonable
suspicion. However, as discussed above, the State does not rely
on that exception. Rather, the State argues that it was
reasonable to detain Kanoa until he told them more clearly what
happened to Vierra to aid in her medical treatment, and until
Kanoa provided a written statement so they could make a clear ICF
police report. We note, however, EMS and HFD personnel had
already questioned Kanoa about Vierra's injuries, and she was
loaded into the ambulance prior to Kanoa being told that he could
not leave.
Even assuming, based upon the totality of the
circumstances, that a brief detention by police was reasonably
supported by Vierra's critical medical condition, the State cites
no "medical emergency" authority supporting Kanoa's continued
detention based on his inconsistent statements and/or based on
the HPD's desire to nail down a written statement from Kanoa in
aid of a clear ICF police report. We conclude that Kanoa was
unlawfully seized at about 3:53 a.m. on August 13, 2022, when
Officer Yerena told him that he could not leave and that the
evidence gathered as a result of the unlawful seizure, i.e., the
oral and written statements Kanoa made to the HPD officers
between approximately 3:53 a.m. and when he was allowed to leave
at 4:40 a.m., were obtained as a result of that unlawful seizure.
The Circuit Court, however, did not decide the
Voluntariness Motion based on whether or not Kanoa was unlawfully
seized. Rather, as set forth above, the Circuit Court determined
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that Kanoa was neither in custody nor interrogated; therefore
Kanoa's rights were not violated by the 47 minutes of questioning
without Miranda warnings after he asked if he could leave and the
police said no. Although the circumstances were factually
distinct, State v. Hewitt, 153 Hawai#i 33, 526 P.3d 558 (2023),
provides useful guidance. In Hewitt, like in this case, there
was no bright-line trigger of probable cause and it was necessary
to conduct a totality of circumstances analysis. See
id. at 45-
46,
526 P.3d at 570-71.
There was no probable cause to arrest Kanoa. However,
when EMS arrived on the scene, Vierra was lying in a bed,
unresponsive, with injuries to her face, bruising to her eyes,
swelling to the left side of her face, and blood in her nose and
mouth. Kanoa was the only other person at the scene. With
respect to how she got her injuries, Kanoa told the EMS paramedic
"something about wrestling." When the HFD captain arrived and
tried to talk to Kanoa to find out what happened to Vierra, Kanoa
mentioned at one point that "he got into an argument with her
about text messages and that he may have pushed her." Another
firefighter testified when they were trying to figure out what
happened so they could treat Vierra, Kanoa declined to say what
his relationship was with Vierra, but stated that they were
drinking and "they got into an argument and then there might have
been a shove, . . . and then she was not conscious."
The police officers questioned Kanoa outside of
Vierra's home while EMS personnel worked on Vierra inside the
ambulance, continuing after the ambulance left. The three
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officers at the scene noted the injuries to Vierra's face, with
HPD Officer Giancarlo Gines (Officer Gines) observing that both
eyes were black and blue and her whole face was swollen. The
police officers examined Kanoa's hands for visible injuries.
Officer Gines noticed that Kanoa had little cuts and some
swelling on the tops of his hands (Corporal Kendrick confirmed
seeing a photo an officer snapped of swollen knuckles). One HPD
officer at the scene testified he knew that Vierra and Kanoa were
in a boyfriend-girlfriend relationship. One officer testified
that Kanoa was not arrested that night because the police "didn't
have any information or deem –- was able to deem him a suspect to
be arrested." Officer Gines testified that he did not arrest
Kanoa that night because the police did not believe that there
was "enough probable cause to arrest him for any crime at that
time." Corporal Kendrick testified that before he got there, he
was called by Officer Gines and told that the injuries reported
did not seem to match the injuries the victim had sustained.
Corporal Kendrick testified that when he arrived, Kanoa "was not
initially a suspect at that time" and that he was just a witness.
The totality of the circumstances also included that,
although Kanoa was informed by the police that he was not free to
leave, he was not handcuffed, he was allowed to talk on his
telephone, and he was allowed to move freely around in front of
Vierra's house.
We conclude that, even though the HPD officers did not
have probable cause to arrest Kanoa, he was in custody at the
point that he asked to leave and he was told that he was not free
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to leave. An important factor here is that the totality of the
circumstances, objectively appraised, demonstrate that Kanoa was
the focus of a criminal investigation, even if the initial report
was categorized as a noncriminal ICF police report. See Hewitt,
153 Hawai#i at 46, 526 P.3d at 571 (citing State v. Patterson,
59
Haw. 357, 361,
581 P.2d 752, 755 (1978)). HPD officers discussed
that Vierra's life-threatening injuries did not match Kanoa's 911
call. Kanoa was the only one there; he said something about
wrestling, shoving her; he had injuries on the back of his hands,
swollen knuckles. He was the boyfriend. His statements to first
responders were careful, not detailed, inconsistent. The police
discussed whether he was a suspect, but decided they did not have
enough probable cause to arrest him that night. Objectively
viewed, of course he was a suspect, even if the police did not
yet have probable cause to arrest him.
Other relevant circumstances include "the place and
time of the interrogation, the length of the interrogation, the
nature of the questions asked, [and] the conduct of the
police[.]" Hewitt, 153 Hawai#i at 45, 526 Hawai#i at 570 (citation
omitted). The questioning took place outside of Vierra's home –
not a particularly coercive setting – but was conducted in the
early morning hours with Kanoa saying he needed to go because he
had to get to work. The length of the interrogation, nature of
questions asked, and conduct of police went beyond any
objectively reasonable means to assist EMS in treating Vierra and
clearly were directed toward law enforcement objectives – one
officer even told Kanoa during questioning that they had to get
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his statement about what happened because "if it was just minor
injuries or whatever, then she wouldn't have went to Punchbowl .
. she [got] critical injuries, so we gotta investigate it like, .
. . possibly she could end up dying from her injuries." While
Kanoa had relative freedom compared to a person under arrest, and
he was not threatened by the police, he was told he could not
leave when he asked to go, and he was not allowed to leave the
scene until he answered their questions and gave a written
statement. Under the totality of the circumstances, Kanoa was in
custody.
The Circuit Court also concluded that there was no
interrogation because Kanoa was not asked any "coercive
questions." However, "the touchstone in analyzing whether
interrogation has taken place is whether the police officer
should have known that his [or her] words and actions were
reasonably likely to elicit an incriminating response from the
defendant." State v. Kazanas, 138 Hawai#i 23, 38, 375 P.3d 1261,
1276 (2016) (citation and internal quotation marks omitted).
Relying upon Rhode Island v. Innis,
446 U.S. 291 (1980), Kazanas
reiterated that "interrogation consists of any express question –
or, absent an express question, any words or conduct – that the
officer knows or reasonably should know is likely to elicit an
incriminating response."
Id. (citation and internal quotation
marks omitted). An incriminating response is any response,
either inculpatory or exculpatory. Innis,
446 U.S. at 301 n.5.
Here, multiple police officers asked Kanoa, inter alia,
what happened, what was his relationship with Vierra, what was
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Vierra's condition when Kanoa arrived, whether she talked to him,
what did she say, whether anybody else was there or if it was
just Vierra and Kanoa, did Vierra have a seizure, and was she
dizzy. Kanoa's post-seizure statements were obtained as a result
of these questions. While a number of these questions pertained
to what might have caused or contributed to Vierra's condition,
the police officers knew or should have known that their words or
actions were reasonably likely to elicit an incriminating
response. The Circuit Court erred in concluding that the HPD
officers' questioning of Kanoa did not constitute custodial
interrogation. At no point was Kanoa advised of his Miranda
rights.
In sum, we conclude that the Circuit Court erred in
granting the Voluntariness Motion with respect to Kanoa's oral
and written statements made to the HPD officers from the time
that Officer Yerena told him that he was not free to leave, which
was approximately 3:53 a.m., until when he was allowed to leave
at 4:40 a.m., on August 13, 2022.
We necessarily consider whether there is a reasonable
possibility that the error of admitting Kanoa's challenged
statements might have contributed to his conviction. See State
v. Haili, 103 Hawai#i 89, 100, 79 P.3d 1263, 1274 (2003). As the
State argues, the other evidence at trial, including other
unchallenged, admissible, incriminating statements made by Kanoa,
is substantial. Kanoa's challenged statements to the police
regarding key issues were in direct contradiction to other
evidence. For example he said, when he arrived, Vierra was "all
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[f—ed] up already" whereas video evidence from her home security
system showed her uninjured prior to his arrival, with no one
else coming in or out. His statements to police concerning
Vierra and his relationship with Vierra – while she was lying
nearby in an ambulance suffering from life-threatening injuries -
- cast Kanoa in an extremely negative light. He referred to her
as his "side tap," said (repeatedly), "I just come here, unload
my load, and then go home." He talked about how his wife caught
him there. His statement regarding whether he had sex with
Vierra that night contradicted what he had told first responders
only a short time earlier. His statements concerning Vierra's
condition were inconsistent. Even in light of the entire record,
we cannot conclude that there is no reasonable possibility that
the error contributed to Kanoa's conviction.
While we conclude that the Circuit Court erred in
granting the Voluntariness Motion, we must nevertheless determine
whether there was substantial evidence to support Kanoa's
conviction because the double jeopardy clause bars retrial should
we conclude the proffered evidence is legally insufficient. See
State v. Davis, 133 Hawai#i 102, 118, 324 P.3d 912, 928 (2014).
(2) Kanoa argues that there was insufficient evidence
adduced at trial to prove that Kanoa committed the offense of
reckless manslaughter by omission in violation of HRS §§ 707-
702(1)(a), 702-203,5 702-206 (2014),6 and 663-1.6(a) (2016)7
5
HRS § 702-203 provides:
§ 702-203 Penal liability based on an omission .
Penal liability may not be based on an omission
unaccompanied by action unless:
(continued...)
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(2016). Specifically, Kanoa argues that the State presented (1)
no evidence that Vierra's life could have been saved with earlier
medical intervention, and (2) no evidence that Kanoa failed to
call for medical intervention at the first sign that she was
suffering from serious physical injury.
The Circuit Court instructed the jury as to the
elements of the offense, consistent with the statutory framework,
as follows:
Reckless Manslaughter (Omission)
As to the second alternative, a person commits the
offense of Reckless Manslaughter (Omission) if he causes the
death of another person by recklessly failing to obtain or
attempt to obtain aid from law enforcement or medical
personnel for a person suffering from serious physical harm
due to a crime, a duty imposed by law upon him while present
5
(...continued)
(1) The omission is expressly made a sufficient
basis for penal liability by the law defining
the offense; or
(2) A duty to perform the omitted act is otherwise
imposed by law.
6
HRS § 702-206 provides, in pertinent part:
§ 702-206 Definitions of states of mind.
. . . .
(3) "Recklessly"
. . . .
(c) A person acts recklessly with respect to a
result of his conduct when he consciously
disregards a substantial and unjustifiable risk
that his conduct will cause such a result.
7
HRS § 663-1.6 provides, in pertinent part:
§ 663-1.6 Duty to assist. (a) Any person at the
scene of a crime who knows that a victim of the crime is
suffering from serious physical harm shall obtain or attempt
to obtain aid from law enforcement or medical personnel if
the person can do so without danger or peril to any person.
Any person who violates this subsection is guilty of a petty
misdemeanor.
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at the scene of a crime if he could do so without danger or
peril to any person, and the reckless disregard that the
failure to perform that duty would cause the death of the
other person.
In the second alternative, there are five material
elements of the offense of Reckless Manslaughter (Omission),
each of which the prosecution must prove beyond a reasonable
doubt.
These five elements are:
1. That on or about August 12th, 2022, to and
including August 13th, 2022, in the City and County of
Honolulu, the defendant, Oscar Kanoa, was present at the
scene of a crime; and
2. That the defendant knew that Bonnie Vierra was the
subject of a crime and was suffering from serious physical
harm; and
3. That the defendant recklessly failed to obtain or
attempt to obtain aid from law enforcement or medical
personnel, and he could do so without danger or peril to any
person; and
4. That the defendant failed to perform that duty in
reckless disregard that the defendant's failure would cause
the death of Bonnie Vierra; and
5. That the defendant's failure to perform that duty
caused the death of Bonnie Vierra.
Kanoa does not contend that there was insufficient
evidence as to the first element or to establish that he knew
Vierra was the subject of a crime, although he argues that there
is no evidence that he failed to call for medical intervention at
the first sign that Vierra was suffering from serious physical
injury.
We review the sufficiency of evidence as follows:
[E]vidence adduced in the trial court must be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to
support a conviction; the same standard applies whether the
case was before a judge or jury. The test on appeal is not
whether guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.
Substantial evidence as to every material element of the
offense charged is credible evidence which is of sufficient
quality and probative value to enable a person of reasonable
caution to support a conclusion.
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State v. Kalaola, 124 Hawai#i 43, 49, 237 P.3d 1109, 1115 (2010)
(cleaned up). With respect to the evidence sufficient to
establish a defendant's state of mind, the supreme court has
held:
Given the difficulty of proving the requisite state of mind
by direct evidence in criminal cases, we have consistently
held that proof by circumstantial evidence and reasonable
inferences arising from circumstances surrounding the
defendant's conduct is sufficient. Thus, the mind of an
alleged offender may be read from his acts, conduct and
inferences fairly drawn from all the circumstances.
State v. Batson 73 Haw. 236, 254,
831 P.2d 924, 934 (1992)
(cleaned up); State v. Jhun, 83 Hawai#i 472, 482,
927 P.2d 1355,
1365 (1996) (same).
Here, prior to Kanoa's arrival at Vierra's house,
Vierra was seen uninjured, both by her mother and on surveillance
footage; Vierra also did not complain to her Mother of any
injuries or health issues. Surveillance footage shows Kanoa
arrived at about 8:45 p.m. At about 9:02 p.m., Kanoa appeared to
get upset with Vierra at a text message (it was established at
trial she received a message from another man), Kanoa grabbed
Vierra's phone and shoved her, Vierra's slippers flew off, and
Kanoa pulled her into the house. Vierra was never seen moving on
the surveillance footage again. No one else, other than Kanoa,
appeared in the footage entering or leaving the house.
Evidence was adduced that Kanoa was approximately six
feet tall and 260 pounds; Vierra was about five foot two and 105
pounds. Medical evidence included that Vierra had an orbital
blowout fracture, which required a significant amount of force,
as well as, inter alia, a subdural hematoma, and multiple serious
cuts and bruises over her entire face and body. There was
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evidence that Vierra's head was struck against a kitchen cabinet
handle, which was broken, and had hair and blood stains on it.
Surveillance footage after the estimated time of the assault
shows Vierra on the couch, motionless, with her head resting on
the back of the couch. Kanoa was seen standing over her. He was
seen at one point (about 10:05 p.m.) removing a surveillance
camera, and at a later point (about 12:53 a.m.), putting it back
up, crooked, and in a different spot, facing out. Based on the
above, all of the other evidence adduced at trial, and the
reasonable inferences therefrom, we conclude that Kanoa's
argument that there was no evidence that he failed to call for
medical intervention at the first sign that Vierra was suffering
from serious physical injury is without merit, and we further
conclude there is substantial evidence to support the first four
elements of the offense.
Kanoa further argues that there is no evidence that
Vierra's life could have been saved with earlier medical
intervention. This pertains to the final element of the offense
at issue here. We conclude that there was substantial evidence
adduced at trial that Kanoa's failure to seek medical help for
over six hours after she sustained her injuries caused Vierra's
death. Dr. Jason Brill (Dr. Brill), a trauma and critical care
surgeon at Queen's Medical Center, was qualified to testify as an
expert in the medical field of trauma and trauma surgery, and
testified that he treated Vierra at about 4:00 a.m. on August 13,
2022, when she was brought in by EMS, already intubated, in
critical condition. She was given a CT scan. Dr. Brill
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testified that the CT scan revealed, among other things,
"bleeding within the brain matter itself, brain stem hemorrhages
and something called pending herniation, where the brain is
pressing on the brain stem." He explained that "herniation is a
process where the brain is swelling or is being pushed by blood
over from one side to another and to the point that some other
brain structure is being pressed on to the point that it becomes
nonfunctional." He stated that "the earlier that we can treat
bleeding within the brain, the better the outcome[,] but he could
not "give you an exact time parameter on that though." With
respect to Vierra's injuries, Dr. Brill opined, "[h]erniation
does not occur immediately after any sort of brain injury and so
she would've had to have sustained these injuries and then at
least a few hours would've had to have occurred between
sustaining the injury and when she presented to the trauma bay."
The medical examiner, who qualified as an expert in forensic
pathology, also testified with respect to what happened to
Vierra's brain when there was bleeding and swelling due to injury
and pressure gets higher and brain tissue starts dying, as
happened to Vierra. Dr. Brill also testified regarding his
consultation with another neurosurgeon, who opined that "he did
not believe that there was any surgery that could provide any
benefit [to Vierra] because she was far enough along in the brain
stem herniation." (Emphasis added). Viewing all of the evidence
in the light most favorable to the prosecution, we conclude that
there was substantial evidence to support every element of the
charged offense and thus to support Kanoa's conviction.
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For the foregoing reasons, the Circuit Court's March
29, 2023 Judgment is vacated, and the case is remanded to the
Circuit Court for further proceedings consistent with this
Summary Disposition Order.
DATED: Honolulu, Hawai#i, August 19, 2024.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Emlyn H. Higa,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.
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