State v. Brewer

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUL-2025
06:21 AM
Dkt. 71 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
DENVER BREWER, also known as DENVER BUCHANAN,
Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Guidry, JJ.)

Denver Brewer, also known as Denver Buchanan, appeals
from the Judgment of Conviction and Sentence entered by the
Circuit Court of the First Circuit.1 We affirm.
Brewer was charged by felony information with Assault
in the Second Degree in violation of Hawaii Revised Statutes
(HRS) § 707-711(1)(a) and/or (d). He pleaded not guilty. He
waived his right to a jury trial. The Circuit Court found him
guilty as charged.2 He was sentenced to five years in prison.
The Judgment of Conviction and Sentence was entered on June 25,
2024. This appeal followed.
Brewer states four points of error: (1) the Tachibana
colloquy was inadequate; (2) he did not voluntarily waive his

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The Honorable Alvin K. Nishimura entered the judgment.
2
The Honorable James S. Kawashima presided over the trial.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

right to a jury trial; (3) the evidence was insufficient to
support a conviction for assault in the second degree; and
(4) self-defense was not disproved beyond a reasonable doubt.
(1) Brewer challenges the sufficiency of the trial
court's Tachibana colloquy. We review using the right/wrong
standard. State v. Martin, 146 Hawai#i 365, 377, 463 P.3d 1022,
1034 (2020).
Brewer chose to not testify. The trial court had to
engage him in an on-the-record colloquy to ensure his waiver of
the right to testify in his own defense was knowing, intelligent,
and voluntary. Tachibana v. State, 79 Hawai#i 226, 236, 900 P.2d
1293, 1303 (1995). It "should elicit responses as to whether the
defendant intends to not testify, whether anyone is forcing the
defendant not to testify, and whether the decision to not testify
is the defendant's." Martin, 146 Hawai#i at 378–79, 463 P.3d at
1035–36.
Brewer argues the trial court erred by never asking him
"if anyone was forcing him not to testify." We "look to the
totality of the facts and circumstances to determine whether a
waiver of the right to testify was voluntarily and intelligently
made." Martin, 146 Hawai#i at 379, 463 P.3d at 1036.
The trial court asked Brewer, "do you wanna testify?"
Brewer answered, "No, Your Honor."
The court asked, "the important thing is do you feel
that this is your decision?"
"Yes," said Brewer.
The court asked, "no one can force you to remain
silent. If you wanna testify, you can do it even if your lawyer
thinks you shouldn't. Do you understand?"
Brewer answered, "Ye -- yes."
The court asked, "you understand if you remain silent,
no one can force you to testify either, right? No one can force
you to say, no, I'm gonna say as the judge you have to come up
here. No one can do that, right?"
"Right[,]" said Brewer.

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

Here, as in Martin, "although the circuit court did not
the [sic] use precise terminology, 'Is anyone forcing you not to
testify?' the circuit court's questioning was tantamount to
eliciting that information." Id. at 380, 463 P.3d at 1037.
Here, as in Martin, the Tachibana colloquy was adequate.
(2) Brewer contends he did not voluntarily waive his
right to a jury trial. We review "the totality of the
circumstances surrounding the case," using the right/wrong
standard. State v. Gomez-Lobato, 130 Hawai#i 465, 469-70, 312
P.3d 897, 901-02 (2013). "Where it appears from the record that
a defendant has voluntarily waived a constitutional right to a
jury trial, the defendant carries the burden of demonstrating by
a preponderance of the evidence that his/her waiver was
involuntary." Id. at 469, 312 P.3d at 901 (cleaned up).
Brewer signed a written Waiver of Trial by Jury on
March 5, 2024. Although not always required, trial courts are
advised to conduct a Duarte-Higareda colloquy to determine
whether the defendant's waiver of the right to a jury trial was
voluntary, knowing, and intelligent. Gomez-Lobato, 130 Hawai#i
at 470, 312 P.3d at 902 (referencing United States v.
Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997)). In a
Duarte-Higareda colloquy, the trial court informs the defendant
that "(1) twelve members of the community compose a jury, (2) the
defendant may take part in jury selection, (3) a jury verdict
must be unanimous, and (4) the court alone decides guilt or
innocence if the defendant waives a jury trial." Id. at 470 n.6,
312 P.3d at 902 n.6.
The Waiver of Trial by Jury that Brewer signed
addressed the Duarte-Higareda components. The trial court also
engaged Brewer in an extensive colloquy on each Duarte-Higareda
component. Brewer argues his waiver "was not knowing or
intelligent because the Court did not inform him of his right to
peremptory challenges as set forth in HRS § 635-30 and HRPP Rule
24(b)[.]" The Waiver of Trial by Jury that Brewer signed told
him:

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5. I have the right to consult with and assist my
attorney in selecting the twelve jurors and making
requests to excuse one or more jurors for cause or
otherwise.

On the record before us, we hold that the trial court
was right to conclude that Brewer knowingly, voluntarily, and
intelligently waived his right to a jury trial.
(3) Brewer contends the evidence was insufficient to
support a conviction for Assault in the Second Degree.
"[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 a jury." State v. Sheffield, 146 Hawai#i 49, 53, 456
P.3d 122, 126 (2020).
On the date of Brewer's offense the elements of Assault
in the Second Degree were:

(1) A person commits the offense of assault in the second
degree if the person:

(a) Intentionally, knowingly, or recklessly causes
substantial bodily injury to another; [or]

. . . .

(d) Intentionally or knowingly causes bodily injury
to another with a dangerous instrument[.]

HRS § 707-711 (Supp. 2022).
The trial court described the trial evidence in great
detail when it announced its decision. That evidence included a
security video of the incident, photographs of the complaining
witness's injuries, and testimony by the complaining witness that
the trial court found credible. On this record, we conclude the
evidence was sufficient to support the conviction for Assault in
the Second Degree.
(4) Brewer contends the State did not disprove self-
defense beyond a reasonable doubt. The trial evidence, including
the security video and the complaining witness's testimony,

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

considered in the strongest light for the prosecution, was
sufficient to support the trial court's conclusion "that self-
defense has been disproven beyond a reasonable doubt[.]"
The Judgment of Conviction and Sentence entered by the
Circuit Court on June 25, 2024, is affirmed.
DATED: Honolulu, Hawai#i, July 29, 2025.

On the briefs:
/s/ Katherine G. Leonard
Emmanuel G. Guerrero, Presiding Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Loren J. Thomas, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Kimberly T. Guidry
for Plaintiff-Appellee. Associate Judge

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