State v. Badiang

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-JUN-2022
07:58 AM
Dkt. 85 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
RUBIN IKOA CASUGAY BADIANG, also known as
RUBIN CASUGAY, Defendant-Appellant

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

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

Defendant-Appellant Rubin Ikoa Casugay Badiang, aka
Rubin Casugay (Badiang), appeals from the "Judgment of Conviction
and Sentence" filed on September 9, 2019, by the Circuit Court of
the First Circuit (Circuit Court).1 On June 25, 2019, after a
three-day jury trial, the jury convicted Badiang of Robbery in
the First Degree pursuant to Hawaii Revised Statutes (HRS) § 708-
840(1)(b)(i) and/or (b)(ii) (2014) (Robbery First).2 On

1
The Honorable Paul B.K. Wong presided.
2
HRS § 708-840 provides, in relevant part:

§708-840 Robbery in the first degree. (1) A
person commits the offense of robbery in the first
degree if, in the course of committing theft or
non-consensual taking of a motor vehicle:
. . .
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

September 9, 2019, Badiang was sentenced to an indeterminate term
of imprisonment of twenty years with credit for time served.
On appeal, Badiang asserts two points of error: (1) the
Circuit Court erred in failing to instruct the jury on eyewitness
identification; and (2) defense trial counsel failed to provide
effective assistance which resulted in a withdrawal and
substantial impairment of a potentially meritorious defense.
Specifically, Badiang contends his trial counsel failed to
provide effective assistance by (a) admitting that Badiang is
depicted in Walmart surveillance photographs; (b) failing to
object to Plaintiff-Appellee State of Hawai#i's (State) request
to admit into evidence still photographs taken from surveillance
videos from Paalaa Kai Bakery, Jack in the Box, and Walmart; and
(c) failing to object to Honolulu Police Department (HPD) Officer
Bryce Kim's (Officer Kim) testimony as to what he saw in the Jack
in the Box surveillance video.
For the reasons discussed below, we affirm.
I. Background
This case arises from an incident which took place in
the early morning of April 10, 2017. Edward Tamayo (Tamayo) and
Eljoe Agnes (Agnes) were employees at Paalaa Kai Bakery in
Waialua on the North Shore of O#ahu. Agnes and Tamayo were on
break at 3:30 a.m., when a female approached and asked them for
the time. After they told her it was 3:30 in the morning, a male
"wearing a mask, like a t-shirt" approached them from behind the

(...continued)
(b) The person is armed with a dangerous
instrument or a simulated firearm and:
(i) The person uses force against the
person of anyone present with intent
to overcome that person's physical
resistance or physical power of
resistance; or
(ii) The person threatens the imminent
use of force against the person of
anyone present with intent to compel
acquiescence to the taking of or
escaping with the property[.]

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

female. Agnes testified some guy came at them and said "don't
move[,]" but Agnes could not say from how far away because Agnes
was facing Tamayo and the guy approached Agnes from behind. The
masked male then grabbed the back neckline of Agnes' t-shirt, and
pointed a gun into Agnes' back. The female took Agnes' cell
phone, vape, and cigarettes, and Tamayo's cell phone and wallet.
The female also saw Tamayo's vehicle, had him open it, took
Tamayo's car keys, and drove away in the vehicle. The male
walked away from Agnes and Tamayo to the side of the mini-mart
adjacent to the Paalaa Kai Bakery and left separately.
On December 27, 2018, Badiang was charged with
committing Robbery First against Tamayo and/or Agnes on April 10,
2017, in the City and County of Honolulu.
During opening statements, the State informed the jury
that although the male wore a mask at the robbery, there is
visual evidence showing Badiang at Walmart after the robbery
wearing the same shoes, shorts, and wearing the t-shirt the male
robber used as a mask. During his opening statement, Badiang
asserted that this case is about the deal the female robber,
Tonygirl Cataluna (Cataluna or Tonygirl) made in exchange for her
statement and drew the jury's attention to Cataluna's motive in
identifying Badiang as the male robber which no one else could
corroborate. Badiang's counsel stated:
It's all about motive. It's all about interest. It's all
about looking in the mirror and telling yourself how the
heck am I going to get out of this thing? How the heck will
I get out? It's all about self-preservation. The evidence
will show you there was a deal in place. She was looking at
20 years. She got probation. She was in custody. As soon
as the deal got in place, she was released.

Tamayo testified that the male used what looked like a
t-shirt to cover his head and Tamayo could "not really" see the
male's eyes. Tamayo described the male as "skinny." Tamayo
testified that he saw the male walk to the side of the mini-mart
after the female drove away in Tamayo's vehicle and heard an
engine start but Tamayo did not see the male drive away.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Agnes testified that he was facing Tamayo when the male
walked up from behind him so Agnes did not really see the male or
the mask. Agnes also testified the male's body type was similar
to his own but described the male as "more taller" and "more
skinny." Agnes testified that he was scared during the robbery
because the male had a gun, and that Agnes had four or five
seconds to observe the male.
Cataluna testified that she formally met Badiang
towards the end of 2016, about four months before the robbery and
that Cataluna was with Badiang's cousin the first time they met.
Cataluna also testified she met Badiang four times prior to their
fifth meeting on April 10, 2017, and described the prior
meetings. Cataluna stated her fourth meeting with Badiang was
about two weeks prior to April 10, 2017.
Cataluna testified that Badiang picked her up in a
white truck around midnight going into April 10, 2017, Badiang
asked if she wanted to make money, and that she got into
Badiang's truck because she was homeless and thought they were
going to break into cars to make money. Cataluna also testified
that she and Badiang first went to his grandmother's house where
they took a shower, ate, and left about thirty minutes later.
She and Badiang then drove around for about thirty minutes and
stopped at a red light a little bit after the bakery on their way
back to Wahiawa. Cataluna testified Badiang turned to her while
they were stopped and asked her "if [she] was down." She asked
him what he meant and Badiang said "it's a yes or no question, if
[she] was down or no, and [she] told him yes." Badiang then made
a U-turn, did not pull into the bakery parking lot, and instead
parked on the side of the building.
Cataluna testified Badiang told her to distract the two
guys who were sitting in front of the bakery, that Badiang
reached into a backpack behind Cataluna and pulled out a gun, and
that it was the first time Cataluna saw a gun.
Cataluna identified Badiang at trial, in the bakery
surveillance photograph as the male who had a shirt over his face

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

as he walked behind her with the gun, in Mililani Jack in the Box
drive-through surveillance photographs as the male driving a
white truck with Cataluna and a male as passengers, and in
Mililani Walmart surveillance photographs as the male leaving
with her.
Cataluna testified she was arrested and questioned on
April 15, 2017, she was asked if she wanted to make a statement
about the robbery, and Cataluna agreed to make a statement.
Cataluna also testified she did not want an attorney for the
interview because she "was willing to tell them what happened
because I don't -- I didn't want to get in trouble for something
I didn't know what was going on, meaning the gun." At this
interview, no "deals" were offered by the detective and Cataluna
did not ask for a deal.
Cataluna further testified that, in June 2017, she met
with a public defender, who recommended making a deal. About one
year later, on July 5, 2018, Cataluna gave a second statement as
part of a Cooperation Agreement she entered into on July 26,
2018, with the prosecuting attorney. In exchange for testifying
against Badiang, Cataluna's Robbery First charge would be reduced
to Theft in the Second Degree, and she would receive probation
and time served in lieu of incarceration.
On cross-examination, Cataluna testified that during
the second interview she told the detective that she had known
Badiang for "[p]robably a year." Cataluna also testified that
when she was arrested, the detectives told her "your partner
already told us what happened." Cataluna testified that in the
first interview, the detective asked if she had any kind of hate
or dislike for Badiang and Cataluna responded "[k]ind of at the
moment," and "he putting it all on me[,]" and when the detective
in the second interview asked if she was upset with Badiang,
Cataluna responded that she "was kind of upset at him."

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

II. Discussion
A. The Circuit Court did not err in withdrawing an
instruction on eyewitness identification

In his first assertion of error, Badiang argues the
Circuit Court erroneously failed to instruct the jury on
eyewitness identification because identification was the sole
issue at trial. Badiang contends that without the instruction on
eyewitness testimony, set out in Hawaii Criminal Jury Instruction
(HAWJIC) 3.19 (2014),3 there is a reasonable probability that the
error contributed to Badiang's conviction. Badiang also asserts

3
HAWJIC 3.19 Eyewitness Testimony provides:
The burden of proof is on the prosecution with
reference to every element of a crime charged, and
this burden includes the burden of proving beyond a
reasonable doubt the identity of the defendant as the
person responsible for the crime charged.
You must decide whether an eyewitness gave
accurate testimony regarding identification.
In evaluating identification testimony, you may
consider the following factors:
The opportunity of the witness to observe the
person involved in the alleged criminal act;
The stress, if any, to which the witness was
subject at the time of the observation;
The witness's ability, following the
observation, to provide a description of the
person;
The extent to which the defendant fits or does
not fit the description of the person previously given
by the witness;
The cross-racial or ethnic nature of the
identification;
The witness's capacity to make an
identification;
Evidence relating to the witness's ability to
identify other participants in the alleged criminal
act;
Whether the witness was able to identify the
person in a photographic or physical lineup;
The period of time between the alleged criminal
act and the witness's identification;
Whether the witness had prior contacts with the
person;
The extent to which the witness is either
certain or uncertain of the identification and whether
the witness's assertions concerning certainty or
uncertainty are well-founded;
Whether the witness's identification is in fact
the product of his/her own recollection; and
Any other evidence relating to the witness's
ability to make an identification.

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

that Defendant's Supplemental Instruction #1 (Identification)4
should also have been given, but the Circuit Court refused it
because the court believed the remaining instructions were
adequate. We conclude the circuit court did not err in its
decision not to instruct the jury with HAWJIC 3.19 and
Defendant's Supplemental Instruction #1.
"When jury instructions or the omission thereof are at
issue on appeal, the standard of review is whether, when read and
considered as a whole, the instructions given are prejudicially
insufficient, erroneous, inconsistent, or misleading." Stanley v.
State, 148 Hawai#i 489, 500, 479 P.3d 107, 118 (2021) (emphasis
omitted).
Erroneous instructions are presumptively harmful and are a
ground for reversal unless it affirmatively appears from the
record as a whole that the error was not prejudicial. Error
is not to be viewed in isolation and considered purely in
the abstract. It must be examined in the light of the entire
proceedings and given the effect which the whole record
shows it to be entitled. In that context, the real question
becomes whether there is a reasonable possibility that error
might have contributed to conviction. If there is such a
reasonable possibility in a criminal case, then the error is
not harmless beyond a reasonable doubt, and the judgment of
conviction on which it may have been based must be set
aside.

Id. at 500-01, 479 P.3d at 118-19 (citing State v. Holbron, 80
Hawai#i 27, 32, 904 P.2d 912, 917 (1995)).

4
Defendant's Supplemental Instruction #1 states:
DEFENDANT'S SUPPLEMENTAL INSTRUCTION #1
(Identification)

The Defendant has pled "Not Guilty" to the charge
against him. The burden of proving the identity of the
person who committed the offenses is upon the State. The
State must prove beyond a reasonable doubt that this
defendant is the person who committed the offense. The
defendant has neither the burden nor the duty to show that
the offenses, if committed, were committed by someone else,
or to prove the identity of that other person. You must
determine, therefore, not only whether the State has proved
each and every element of the offenses charged beyond a
reasonable doubt, but also whether the State has proved
beyond a reasonable doubt that this defendant is the person
who committed them.
State v. Cabinatan, 132 Haw. 63, 319 P.3d 1071 (Haw., 2014).

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Badiang relies on State v. Cabagbag, 127 Hawai#i 302,
277 P.3d 1027 (2012), for the Hawai#i Supreme Court's holding
that:
(1) in criminal cases, the circuit courts must give the jury
a specific eyewitness identification instruction whenever
identification evidence is a central issue in the case, and
it is requested by the defendant, (2) a circuit court may,
in the exercise of its discretion, give the instruction if
it believes the instruction is otherwise warranted in a
particular case[.]

Id. at 304, 277 P.3d at 1029 (emphases added, footnote omitted).
In Cabagbag, the Hawai#i Supreme Court considered the challenges
associated with unreliable eyewitness identification testimony
resulting in misidentification and the concern that "exclusion of
'reliable' eyewitness testimony might result in the 'guilty going
free.'" 127 Hawai#i at 309-10, 277 P.3d at 1034-35 (quoting
Manson v. Brathwaite, 432 U.S. 98, 112 (1977)). The supreme
court referred to researched findings of variables that affect
the accuracy and, hence, reliability,5 of eyewitness
identification, such as "passage of time, witness stress,
duration of exposure, distance, 'weapon focus' (visual attention
eyewitnesses give to a perpetrator's weapon during crime), and
cross-race bias (eyewitness more accurate at identifying persons
of their own race)." Id. at 310-11, 277 P.3d at 1035-36
(footnotes omitted).
Badiang's reliance on Cabagbag is misplaced. Tamayo
and Agnes testified they could not identify Badiang as the masked
robber. Therefore, instruction on whether an eyewitness gave
accurate testimony regarding identification is unnecessary in
this case where identification was not made by an eyewitness.
Instead, the only person who identified Badiang as the masked
male and in the security photographs was the female robber,
Cataluna, who based her identification on their prior
acquaintance and her testimony that Badiang picked her up in the

5
But see Cabagbag, 127 Hawai#i at 322, 277 P.3d at 1047 (noting in
dissent that "credibility is different from reliability.") (Acoba, J.,
dissenting in part).

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

early morning of April 10, 2017, and that after they robbed the
men at Paalaa Kai Bakery, they picked up another person, went to
the Mililani Jack in the Box drive-through and Mililani Walmart.
Moreover, the reliability of the identification was not
Badiang's "sole defense" or "the sole issue" at trial, as urged
in the opening brief. Rather, the primary issue was Cataluna's
credibility and motive in identifying Badiang, not the
reliability or accuracy of her identification of Badiang. In its
opening statement, the defense declared: "What this case is all
about is what we talked about earlier: motive, interest, self-
preservation" and, "[t]his is not about who you're going to
believe, this is about whether Tonygirl can be believed and
whether her statements that she makes is free and clear or with a
legit purpose or legitimate purpose."
In Cataluna's cross-examination, Badiang established
that when Cataluna was arrested on April 15, 2017, Cataluna was
not informed as to what she was being arrested for, and was told
"[she] should know what [she] did." Badiang also established
that at some point upon Cataluna's arrest, she was told "your
partner already told us what happened[,]" that during her two
interviews, Cataluna expressed animus towards Badiang, and told
the detective that "[t]he only thing that I'm mad about is that
I'm sitting in jail for him, you know what I mean." The
pertinent issue in this case was whether Cataluna was a credible
witness given her implication in the incident, and not whether
she was a reliable eyewitness in identifying Badiang given the
concerns expressed in Cabagbag.
Finally, Badiang does not provide any specific argument
regarding the Circuit Court's decision not to instruct the jury
with Defendant's Supplemental Instruction #1. Rather, he argues
generally that the jury should have been instructed on Cataluna's
ability to identify Badiang because considering the instructions
as a whole, "the jury could come to only one conclusion: there is
no doubt at all that Cataluna could identify Mr. Badiang in the
photos" which "improperly bolstered Cataluna's credibility[,]

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

[a]nd relying on Cataluna's credibility was problematic because
her version of the events was disputed by the evidence." To the
contrary, we conclude that considering the jury instructions as a
whole, the Circuit Court properly instructed the jury, including
with regard to its role in assessing the evidence and the
credibility of the witnesses.
With regard to the weight of evidence and the
credibility of witnesses, the Circuit Court instructed the jury
as follows:
While you must consider all of the evidence in determining
the facts in this case, this does not mean that you are
bound to give every bit of evidence the same weight. You are
the sole and exclusive judges of the effect and value of the
evidence and of the credibility of the witnesses.

It is your exclusive right to determine whether and to what
extent a witness should be believed and to give weight to
his or her testimony accordingly. In evaluating the weight
and credibility of a witness's testimony, you may consider
the witness's appearance and demeanor; the witness's manner
of testifying; the witness's intelligence; the witness's
candor or frankness, or lack thereof; the witness's
interest, if any, in the result of this case; the witness's
relation, if any, to a party; the witness's temper, feeling
or bias, if any has been shown; the witness's means and
opportunity of acquiring information; the probability or
improbability of the witness's testimony; the extent to
which the witness is supported or contradicted by other
evidence; the extent to which the witness has made
contradictory statements, whether in trial or at other
times; and all other circumstances surrounding the witness
and bearing upon his or her credibility.

Inconsistencies or discrepancies in the testimony of a
witness, or between the testimony of different witnesses,
may or may not cause you to discredit such testimony. In
weighing the effect of inconsistencies or discrepancies,
whether they occur within one witness's testimony or as
between different witnesses, consider whether they concern
matters of importance or only matters of unimportant detail,
and whether they result from innocent error or deliberate
falsehood.

(Emphases added.)

The Circuit Court also instructed:
If you find that a witness has deliberately testified
falsely to any important fact or deliberately exaggerated or
suppressed any important fact, then you may reject the
testimony of that witness except for those parts which you
nevertheless believe to be true.

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The Circuit Court gave further instructions regarding
the testimony of an alleged accomplice as follows:
The testimony of an alleged accomplice should be examined
and weighed by you with greater care and caution than the
testimony of ordinary witnesses. You should decide whether
the witness's testimony has been affected by the witness's
interest in the outcome of the case, or by prejudice against
the defendant, or by the benefits that the witness stands to
receive because of his/her testimony, or by the witness's
fear of retaliation from the government.

The jury is presumed to have followed the circuit
court's instructions. State v. Cordeiro, 99 Hawai#i 390, 413, 56
P.3d 692, 715 (2002). Badiang's concern that Cataluna's
credibility was improperly bolstered was addressed by the Circuit
Court's instructions to the jury that the testimony of an alleged
accomplice should be examined and weighed with greater care and
caution than that of ordinary witnesses.
The jury instruction on the variables addressed in
Cabagbag and HAWJIC 3.19 is not applicable to Tamayo and Agnes'
inability to identify Badiang, and Cataluna's identification of
Badiang in this case instead raised issues about the credibility
and motive of an accomplice who had prior dealings with the
defendant and was also facing criminal charges. Further, the
Circuit Court properly instructed the jury on its role in
assessing the evidence and credibility of witnesses.
Accordingly, the Circuit Court did not err in withdrawing HAWJIC
3.19 and not instructing on Defendant's Supplemental Instruction
#1.
B. Defense counsel did not provide ineffective assistance
at trial

In his second point of error, Badiang asserts that his
defense counsel essentially admitted to the jury that Badiang
committed the robbery and failed to object to the admission of
hearsay and other evidence, thus providing Badiang ineffective
assistance at trial.6

6
We note the State argues that a Hawai#i Rules of Penal Procedure
(HRPP) Rule 40 hearing is the proper method to address ineffective assistance
(continued...)

11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

"The standard for determining the adequacy of counsel's
representation is whether, when viewed as a whole, the assistance
provided is 'within the range of competence demanded of attorneys
in criminal cases.'" State v. Salavea, 147 Hawai#i 564, 576, 465
P.3d 1011, 1023 (2020) (quoting Cordeiro, 99 Hawai#i at 405, 56
P.3d at 707).
First, a defendant must show that there were specific errors
or omissions reflecting counsel's lack of skill, judgment,
or diligence. [State v. ]Antone, 62 Haw. [346,] 348, 615
P.2d [101,] 104 [(1980)]. Second, the defendant must
establish that these errors or omissions resulted in either
the withdrawal or substantial impairment of a potentially
meritorious defense. Id. at 348-49, 615 P.2d at 104; State
v. DeLeon, 131 Hawai#i 463, 478-79, 319 P.3d 382, 397-98
(2014).
Id.
The second prong is satisfied if the defendant shows a
possible impairment of a potentially meritorious defense and the
defendant need not show the impairment was probable nor prove
that the defendant suffered actual prejudice. Id. (citing
DeLeon, 131 Hawai#i at 479, 319 P.3d at 398). "Specific actions
or omissions that are alleged to be erroneous but that had an
obvious tactical basis for benefitting the defendant's case will
not be subject to further scrutiny." Id. (citing State v.
Pacheco, 96 Hawai#i 83, 93, 26 P.3d 572, 582 (2001)). "If,
however, the alleged error or omission had no obvious basis for
benefitting the case and resulted in the withdrawal or impairment
of a potentially meritorious defense, then the assistance of
defendant's counsel was constitutionally inadequate." Id. (citing
State v. Smith, 68 Haw. 304, 309-11, 712 P.2d 496, 500-01
(1986)).
Badiang contends that defense counsel's first mistake
was in admitting that Badiang was the robber and in making

6
(...continued)
of counsel claims and because no hearing was conducted, the record is void as
to the basis of defense counsel's actions. We disagree as the record is
sufficient to address Badiang's argument. See State v. Silva, 75 Haw. 419,
439, 864 P.2d 583, 592 (1993) (refusing to adopt general rule that ineffective
assistance of counsel claims cannot be raised for the first time on appeal
when there is a sufficiently developed trial record).

12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

irreconcilable arguments in opening and closing statements. In
his opening statements, defense counsel admits to Badiang being
in videos taken from Jack in the Box and Walmart, but not to
being the robber at the bakery:
Yes, Jack in the Box you'll see the video that the
driver was Mr. -- was Rubin. He was driving, that was
his -- he was driving, there's no dispute to that. At
4:38 -- 4:18 in the morning, that was him. Sometime
thereafter they go to Wal-Mart and, yes, that is him.
The video shows him. Doesn't lie. Pictures don't
lie. They may be a different interpretation, but it
doesn't lie. It's there. It cannot be altered. It
cannot -- it cannot change.

In closing argument, Defense counsel responded to the
State's closing argument that the male in the bakery surveillance
photographs is the same person at Walmart with Cataluna as
follows:
The issue is not the time as to where Tony Cataluna was. The
issue is where was Rubin? Rubin was not in the photographs.
That's not Rubin in the photographs. I was going to show it
to you, but you know what, I'm not going to, because you'll
see it again. You've seen it already. Person is tall and
skinny. Not only by Eljoe, Tamayo, the detectives, the
officers, person was tall and skinny. Only person who said
that person, that unknown person, the only person who said
that that's Rubin is Tonygirl.

. . . . We're not disputing that the person at the bakery
appears to be the same person at Wal-Mart. When we look at
it, although it's very grainy, they appear to be one in the
same.
But that's not the issue. The issue is who is that person? What
evidence have they presented? What evidence have they presented to
say that that is, beyond a reasonable doubt, that that was Rubin?
Nothing. The only thing they presented was Tonygirl, Tonygirl said
that was Rubin.
. . . .
But they're trying to tell you, the government is trying to
tell you look at the robbery photograph, look at the Jack in
the Box photograph, and look at the Wal-Mart photograph.
Rubin had a white shirt, therefore it has to be him, because
that person on the video – the snapshot and the bakery and
Wal-Mart, that person had a white shirt.
That person is someone else. It's clear because the only
person that tells you who that person is, that guy, Tony
Cataluna's friend, the only person that tells you that this
person with the hood, with a white shirt, the only person
that tells you who this is is Tonygirl.

13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

At Wal-Mart, you know, I looked at it myself, I think you
all did too, the police did too. Everyone here does. Person
in Wal-Mart appears to be the same person in the bakery. But
that's not the issue. The issue is how does it become --
where is the evidence showing that it's Rubin? It's the
source again, and she -- the source simply has too many. She
has motive, which is self-interest. She's clearly biased
because she was turned in, not by the people -- and that's
her bad luck. She wasn't even turned in by the people she
robbed, she was turned in by someone else, a friend. She was
turned in by Rubin, and she knows it.

(Emphases added.)
Contrary to Badiang's arguments, his trial counsel did
not admit that the person in the Jack in the Box and Walmart
photos is the robber. Instead, trial counsel argued the person
at the bakery was someone else; that the prosecution is arguing
it must be the same person in the robbery photo, the Jack in the
Box photo and the Walmart photo because the person in the photos
wore a white shirt; but that the only person to actually identify
the person at the bakery was Cataluna, who was not credible.
Trial counsel maintained throughout his opening and closing
arguments that, although Badiang is depicted at Jack in the Box
and Walmart, Cataluna's testimony is the only evidence presented
by the State tying Badiang to the robbery, and trial counsel
continued to direct the jury's attention to Cataluna's motive in
identifying Badiang as the male robber. Therefore, we do not
consider trial counsel's arguments irreconcilable.
Badiang contends that his trial counsel's second
purported mistake was in failing to object to the admission of
still photos of surveillance videos at the bakery, Jack in the
Box, and Walmart, where the State had possession of the
surveillance videos, in violation of Hawaii Rules of Evidence
(HRE) Rule 1002 (2016).7 However, still photographs of
surveillance videos are admissible as duplicates under HRE Rule

7

Rule 1002 Requirement of original. To prove
the content of a writing, recording, or photograph,
the original writing, recording, or photograph is
required, except as otherwise provided in these rules
or by statute.

14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

1003 (2016).8 See U.S. v. Perry, 925 F.2d 1077, 1082 (8th Cir.
1991) (holding a still photographic image made from a video
recording is a duplicate and thus admissible); see also, State v.
Kaoihana, No. CAAP-XX-XXXXXXX, 2012 WL 171615, at *2 (Haw. App.
Jan. 20, 2012) (holding a duplicate of original surveillance
video and still photographs therefrom are admissible under HRE
Rule 1003). Furthermore, the State adduced sufficient evidence
from its witnesses to support the Circuit Court's finding that
the contents therein are what the State claims. See HRE Rule
901(a), (b)(1), (b)(9) (2016).9 Tamayo testified as to the
contents of the photographs from the bakery surveillance video;
On Ting Wong (Wong), an IT technician employed by Blue Pacific
Management, which operates all Hawai#i Jack in the Boxes,
testified as to the photographs from the Mililani Jack in the Box
drive-through surveillance system; and Cataluna testified as to

8

Rule 1003 Admissibility of duplicates. A
duplicate is admissible to the same extent as an
original unless (1) a genuine question is raised as to
the authenticity of the original, or (2) in the
circumstances it would be unfair to admit the
duplicate in lieu of the original.
9
HRE Rule 901 provides, in pertinent part:

Rule 901 Requirement of authentication or
identification. (a) General provision. The
requirement of authentication or identification as a
condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the
matter in question is what its proponent claims.

(b) Illustrations. By way of illustration only,
and not by way of limitation, the following are
examples of authentication or identification
conforming with the requirements of this rule:
(1) Testimony of witness with knowledge.
Testimony that a matter is what it
is claimed to be.
. . . .
(9) Process or system. Evidence
describing a process or system used
to produce a result and showing that
the process or system produces an
accurate result.

15
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

the still photographs from the Mililani Walmart. There is no
genuine question raised as to the authenticity of the
surveillance videos themselves and Badiang has not shown that it
was unfair to admit the photographs as duplicates in lieu of the
original videos. See HRE Rule 1003.
Further, although Badiang contends the entry of these
photographs was detrimental to his defense because the time
stamps on the photographs were used by the State to corroborate
Cataluna's testimony, Badiang's trial counsel sought to use the
time stamps to argue Badiang was not with Cataluna and to
challenge Cataluna's credibility. In particular, in closing
argument, Badiang's trial counsel argued that photographs from
Jack in the Box show Badiang going through the drive through at
4:01 a.m., that the photos do not show a girl in the vehicle with
Badiang, and that Cataluna was at Jack in the Box at 4:18 a.m.,
as reflected on a receipt from Jack in the Box that she testified
about. Badiang's trial counsel thus used the timing on the
photos to assert discrepancies that undermine Cataluna's timeline
of events. In the context of an ineffective assistance of
counsel claim, "[m]atters presumably within the judgment of
counsel, like trial strategy, will rarely be second-guessed by
judicial hindsight." DeLeon, 131 Hawai#i at 479, 319 P.3d at 398
(quoting State v. Richie, 88 Hawai#i 19, 39-40, 960 P.2d 1227,
1247-48 (1998)).
Finally, Badiang asserts that his trial counsel's third
purported mistake was in failing to object under HRE Rule 1002 to
Officer Kim's description of what he saw in the Jack in the Box
surveillance video (not the photographs thereof), when the videos
were not admitted into evidence by the State, thus rendering
Officer Kim's testimony inadmissible hearsay. Badiang argues
that through this inadmissible testimony, the State was able to
establish that the white truck Officer Kim observed in the Jack
in the box surveillance video was the same white truck Tamayo and

16
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Agnes saw near the mini-mart prior to the robbery.10 Badiang
argues Officer Kim's testimony was then used to corroborate
Cataluna's testimony that prior to the robbery, Badiang picked
her up in a white truck.
Even if we assume, without deciding, that Badiang's
counsel improperly failed to object to Officer Kim's testimony,
evidence about the white truck was presented to the jury by other
proper means. The still photographs from the surveillance video
at Jack in the Box were subsequently entered into evidence during
the State's direct examination of Wong, showing a white pickup
truck at a drive-through. Cataluna also testified about the
images from the Jack in the Box drive-through. Thus, Badiang's
challenge regarding his trial counsel's lack of objection to
Officer Kim's testimony does not demonstrate the possible
withdrawal or substantial impairment of a potentially meritorious
defense.
We thus conclude that, viewed as a whole, Badiang's
trial counsel did not provide ineffective assistance at trial.
III. Conclusion
Based on the foregoing, we affirm the Judgment of
Conviction and Sentence entered on September 9, 2019, by the
Circuit Court of the First Circuit.
DATED: Honolulu, Hawai#i, June 27, 2022.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Megan K. Kau,
Jessica A. Szemkow, /s/ Keith K. Hiraoka
for Defendant-Appellant Associate Judge

Stephen K. Tsushima, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee

10
Tamayo testified that while he and Agnes were eating in front of the
bakery, a white pickup truck arrived at the mini-mart, and Agnes testified he
saw a white truck parked by the mini-mart prior to the female walking up to
them.

17