Staet v. Tolentino

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
05-JUN-2025
07:48 AM
Dkt. 85 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
HENRY K. TOLENTINO, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)

Defendant-Appellant Henry K. Tolentino (Tolentino)

appeals from the "Judgment of Conviction and Sentence"

(Judgment), filed on March 9, 2022 in the Circuit Court of the

First Circuit (circuit court).1

1 The Honorable Rowena A. Somerville presided.
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On October 17, 2019, the State of Hawaiʻi (State)

charged Tolentino, via grand-jury indictment, with assault

against a law enforcement officer in the first degree, in

violation of Hawaii Revised Statutes (HRS) § 707-712.5(1)(a)

(2014).2 On December 10, 2021, a jury found Tolentino "[g]uilty

of the included offense of Assault Against a Law Enforcement

Officer in the Second Degree." The sentencing hearing took

place in March 2022, and the circuit court entered the Judgment.

This appeal followed.

Tolentino raises five points of error on appeal: (1)

the circuit court erred when it allowed the State to use

Tolentino's out-of-court statement at trial; (2) "[t]he [circuit

c]ourt erred where it denied [Tolentino's] motion in limine"

which sought to exclude evidence "that [Tolentino] consumed

alcohol just prior to the incident" and when it allowed the

State to "make the legal conclusion" during closing arguments

that Tolentino was drunk despite insufficient evidence; (3)

"[t]he [circuit c]ourt erred where it denied [Tolentino's]

2 The Indictment states, in relevant part:

On or about September 21, 2019, in the City and
County of Honolulu, State of Hawaiʻi, HENRY K. TOLENTINO did
intentionally or knowingly cause bodily injury to [Officer]
Kenneth Fontes Jr. [(Officer Fontes)], a law enforcement
officer who was engaged in the performance of duty, thereby
committing the offense of Assault Against a Law Enforcement
Officer in the First Degree, in violation of Section 707-
712.5(1)(a) of the Hawaiʻi Revised Statutes.

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request for an extra peremptory [challenge]" after the circuit

court denied Tolentino's challenge of a juror for cause; (4)

"[t]he [circuit c]ourt erred by sustaining [Tolentino's]

'reckless' conviction despite insufficient evidence supporting

'reckless' conduct"; and (5) "[Tolentino's] lower court counsel

[(defense counsel)] was ineffective for failing to move for a

judgment [of acquittal] where there was insufficient evidence to

sustain a conviction for 'reckless' assault on a police

officer."

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we resolve Tolentino's points of error as follows:

(1) Tolentino first contends that the circuit court

committed a "[f]ailure of [p]rocess" when it ruled that the

State could present evidence of Tolentino's out-of-court

statement,3 which could be construed as a confession or an

inculpatory statement, without first conducting a voluntariness

hearing.

"It is well established that a criminal conviction may

not be based on an involuntary confession." State v. Goers,

61 Haw. 198, 199, 600 P.2d 1142, 1143 (1979) (citation omitted).

3 The out-of-court statement is "I'm sorry, I was trying to get a
Zip Pac."

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HRS § 621-26 (2016) provides that "[n]o confession[4] shall be

received in evidence unless it is first made to appear to the

judge before whom the case is being tried that the confession

was in fact voluntarily made." HRS § 621-26 does not expressly

require the trial judge to hold a voluntariness hearing, but the

trial judge must make a voluntariness determination before the

statement is admitted and without the jury present. See

State v. Hopkins, No. CAAP-XX-XXXXXXX, 2021 WL 4167382, at *3

(Haw. App. Sept. 14, 2021) (SDO); State v. Green, 51 Haw. 260,

264, 457 P.2d 505, 508 (1969).

Here, the circuit court made a voluntariness

determination at trial before evidence of the out-of-court

statement was admitted and outside the presence of the jury.5

Therefore, the circuit court did not err by not conducting a

separate voluntariness hearing.6

4 This court has held that HRS § 621-26 also applies to inculpatory
statements. State v. Hewitt, 149 Hawaiʻi 71, 76, 481 P.3d 713, 718 (App.
2021).

5 Specifically, the circuit court determined, on the evidence
before it, that "there was no coercion, and there was no question asked by
Officer Fontes when [Tolentino] made the unsolicited excited utterance." The
circuit court made a similar determination when it heard the parties' motions
in limine.

6 Tolentino also asserts that the circuit court erred in allowing
the out-of-court statement because the State had requested to exclude the use
of Tolentino's out-of-court statements in its motion in limine. We note that
the State requested to "[e]xclude and preclude from use at trial any out-of-
court statements made by [Tolentino] which may be elicited by the defense and
which are inadmissible under the 'admission by party opponent' exception to
the hearsay rule." (Emphasis added.) It did not move to exclude statements
that it would introduce at trial. Thus, this argument lacks merit.

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(2) Tolentino next contends that the circuit court

erred in partially denying his motion in limine when it allowed

the State to present evidence that Tolentino consumed alcohol

prior to his encounter with Officer Fontes. We review the

circuit court's ruling on a motion in limine for abuse of

discretion. State v. Kealoha, 95 Hawaiʻi 365, 379, 22 P.3d 1012,

1026 (App. 2000). "An abuse of discretion occurs when the court

clearly exceeds the bounds of reason or disregards rules or

principles of law to the substantial detriment of a party

litigant." State v. Cordeiro, 99 Hawaiʻi 390, 404, 56 P.3d 692,

706 (2002) (cleaned up).

Hawaii Rules of Evidence (HRE) Rule 404(b) states that

"[e]vidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in

conformity therewith." The rule, however, allows such evidence

when it "is probative of another fact that is of consequence to

the determination of the action, such as proof of motive." HRE

Rule 404(b).

Here, it appears that testimonial evidence that

Tolentino consumed alcohol was not introduced to prove

Tolentino's character, but rather to support the State's theory

that Tolentino assaulted Officer Fontes in his attempt to evade

arrest because he did not want to be caught drinking and

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driving. Therefore, the circuit court did not abuse its

discretion in denying Tolentino's motion on this basis.

Tolentino further contends that such evidence should

not have been admitted, under HRE Rule 403, because "its

probative value [was] outweighed by the prejudicial effect of

the evidence." We review the circuit court's "balancing of the

probative value of prior bad act evidence against the

prejudicial effect of such evidence under HRE Rule 403" under

the abuse of discretion standard. State v. Feliciano, 149

Hawaiʻi 365, 372, 489 P.3d 1277, 1284 (2021) (citations omitted).

When weighing the probative value of the evidence against its

prejudicial effect, the circuit court considers the following

factors:

(1) the strength of the evidence as to the commission of
the other crime[;] (2) the similarities between the
crimes[;] (3) the interval of time that has elapsed between
the crimes[;] (4) the need for the evidence[;] (5) the
efficacy of alternative proof[;] and (6) the degree to
which the evidence probably will rouse the jury to
overmastering hostility.[7]

Id. at 376-77, 489 P.3d at 1288-89 (cleaned up).

Here, it appears the circuit court found a sufficient

need to admit evidence that Tolentino consumed alcohol when it

stated that such evidence would go to Tolentino's "state of mind

7 These factors are meant only to provide guidance, and the court's
overall evaluation must be "whether the probative value of the evidence of
prior acts is substantially outweighed by its potential for unfair
prejudice." Feliciano, 149 Hawaiʻi at 377, 489 P.3d at 1289 (citation
omitted). "Each factor must therefore be considered in light of the purpose
for which the evidence was offered[.]" Id. (citation omitted).

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and his motive for trying to get away [from the police] at all

costs." Considering the difficulty of establishing a

defendant's state of mind by direct evidence, the circuit court

here did not err in finding that the probative value of evidence

that Tolentino consumed alcohol substantially outweighed any

unfair prejudice. See State v. Eastman, 81 Hawaiʻi 131, 141,

913 P.2d 57, 67 (1996).

Tolentino also contends that the circuit court erred

in allowing the State to "make the legal conclusion" during

closing arguments that Tolentino was "drunk" despite

insufficient evidence. We first note that the circuit court did

not rule that the State could "make the legal conclusion" that

Tolentino was drunk. The circuit court ruled that the State

could argue during its closing argument that Tolentino was drunk

"[a]s long as the facts support[ed] it."8 We review the circuit

court's ruling for abuse of discretion. See State v. Nofoa,

135 Hawai‘i 220, 227-28, 349 P.3d 327, 334-35 (2015).

Closing arguments are not evidence, nor an opportunity

for counsel to introduce new evidence. State v. McGhee,

140 Hawaiʻi 113, 119, 398 P.3d 702, 708 (2017). Prosecutors,

however, are given "wide latitude" during closing arguments "to

8 We further note that the State's witnesses did not state during
their testimonies that Tolentino was "drunk" or "legally intoxicated." They
testified about Tolentino's appearance and behavior, and that Tolentino
smelled of "consumed alcohol."

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draw reasonable inferences from the evidence." Id. (citations

omitted). Therefore, the circuit court did not err in ruling

that the State could argue during its closing argument that

Tolentino was drunk so long as the facts supported that

inference.9

(3) Tolentino appears to contend that the circuit

court erred in denying Tolentino's challenge of Juror Number 32

for cause. "We review the [circuit] court's decision to pass a

juror for cause under the abuse of discretion standard." State

v. Richie, 88 Hawaiʻi 19, 35, 960 P.2d 1227, 1243 (1998)

(citation omitted).

"[W]hen a juror is challenged on grounds that [they

have] formed an opinion and cannot be impartial, the test is

whether the nature and strength of the opinion are such as in

law necessarily raise the presumption of partiality." State v.

Iuli, 101 Hawaiʻi 196, 204, 65 P.3d 143, 151 (2003) (cleaned up).

However, "a person with preconceived notions about a case [may

still] serve as a juror if [they] can lay aside [their]

9 Moreover, there was sufficient evidence supporting the State's
"reasonable inference" that Tolentino was drunk. The State presented
testimonial evidence that Tolentino (1) had "red, watery, glassy, and
bloodshot" eyes, (2) smelled of consumed alcohol, and (3) "stumbled" and
moved in a non-linear manner during the incident. See State v. McQueen,
No. CAAP-XX-XXXXXXX, 2022 WL 4483362, at *7-8 (Haw. App. Sept. 27, 2022)
(mem. op.) (holding that, in closing argument, "characterizing [the
defendant] as 'a drunk' and 'that drunk person' was a reasonable inference
within the wide latitude afforded to prosecutors" where evidence was adduced
of the defendant stumbling, mumbling, slurring, and smelling of alcohol).

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impression or opinion and render a verdict based on the evidence

presented in court." Id. (cleaned up).

Here, Tolentino challenged Juror Number 32 for cause

after Juror Number 32 disclosed that he had a friend who was a

law enforcement officer, and because, as Tolentino asserts,

Juror Number 32 did not give an unequivocal answer as to whether

he could be fair and impartial. The circuit court denied

Tolentino's challenge because when it asked Juror Number 32

whether "[a]nything about [his] relationship with [his] friend

who's a police officer would affect [his] ability to be fair and

impartial," Juror Number 32 answered "No." Although the court

is "not bound by a prospective juror's statement that [they]

will be fair and impartial," none of Juror Number 32's responses

or comments raised the presumption of partiality.10 See State v.

Carroll, 146 Hawaiʻi 138, 151-52, 456 P.3d 502, 515-16 (2020)

(citation omitted) (holding that the juror's responses raised

the presumption of partiality where the juror expressed that she

could not presume the defendant's innocence). Therefore, the

circuit court did not abuse its discretion in denying

Tolentino's challenge of Juror Number 32 for cause.

10 Moreover, none of Juror Number 32's responses and comments could
be construed as Juror Number 32 having serious doubts about his ability to be
fair and impartial, and thus, Juror Number 32 did not have to "assure the
[circuit] court that he would base his decision solely upon the evidence," as
Tolentino suggests. See Iuli, 101 Hawaiʻi at 205, 65 P.3d at 152 (citations
omitted).

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Tolentino also contends that the circuit court erred

in denying Tolentino's request for an additional peremptory

challenge after he was forced to use his last one on Juror

Number 32. We review the circuit court's decision to deny

Tolentino's request for an additional peremptory challenge for

abuse of discretion. See State v. Allen, No. 30332, 2013 WL

5926964, at *9 (Haw. App. Oct. 31, 2013) (mem. op).

Although "the denial or impairment of [a defendant's]

right [to exercise a peremptory challenge] is reversible error

not requiring a showing of prejudice," the court must first

determine whether a juror, on whom the defendant was forced to

use a peremptory challenge, "was improperly passed for cause."

State v. Kauhi, 86 Hawaiʻi 195, 198, 948 P.2d 1036, 1039 (1997)

(cleaned up). Because we concluded supra that Juror Number 32

was not improperly passed for cause, the circuit court,

accordingly, did not err in denying Tolentino's request for an

additional peremptory challenge.

(4) Tolentino next contends that the circuit court

erred in sustaining his conviction despite insufficient evidence

of reckless conduct. We review the sufficiency of the evidence

using the following standard:

[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

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whether there was substantial evidence to support the
conclusion of the trier of fact.

State v. Kalaola, 124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010)

(emphasis added) (citation omitted). "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."

Id. (cleaned up).

HRS § 702-206(3)(a) (2014) states that "[a] person

acts recklessly with respect to his conduct when he consciously

disregards a substantial and unjustifiable risk that [his]

conduct is of the specified nature." "[I]t is not necessary for

the prosecution to introduce direct evidence of a defendant's

state of mind in order to prove that the defendant acted

intentionally, knowingly[,] or recklessly." Eastman, 81 Hawaiʻi

at 140-41, 913 P.2d at 66-67 (citation omitted). "[P]roof by

circumstantial evidence and reasonable inferences arising from

circumstances surrounding the defendant's conduct is

sufficient." Id. at 141, 913 P.2d at 67 (citation omitted).

Here, Corporal Dannan Smith, one of the responding

officers, testified to "see[ing] [Tolentino] swing at Officer

Fontes with a closed fist," which he perceived as "a deliberate

swing." Officer Fontes also testified that, as he was trying to

detain Tolentino, Tolentino kicked, pushed, and punched him.

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Construing the evidence in the strongest light for the

prosecution, there is substantial evidence for a jury to

conclude that Tolentino "consciously disregarded a substantial

and unjustifiable risk" that his actions would result in bodily

injury to Officer Fontes. See id. (holding that slapping

someone on the side of the head involves a substantial and

unjustifiable risk). We therefore conclude that there was

substantial evidence to support the jury's verdict.

(5) Tolentino contends that defense counsel was

ineffective for failing to move for a judgment of acquittal

after the jury was discharged. To establish a claim of

ineffective assistance of counsel, the defendant must show: "1)

that there were specific errors or omissions reflecting

counsel's lack of skill, judgment, or diligence; and 2) that

such errors or omissions resulted in either the withdrawal or

substantial impairment of a potentially meritorious defense."

State v. DeLeon, 131 Hawaiʻi 463, 478-79, 319 P.3d 382, 397-98

(2014) (citation omitted).

In light of our ruling in section (4) supra, we

conclude that defense counsel's decision not to move for

judgment of acquittal after the jury was discharged "did not

rise to an error that resulted in either the withdrawal or

substantial impairment of a potentially meritorious defense."

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See State v. Brantley, 84 Hawaiʻi 112, 122, 929 P.2d 1362, 1372

(App. 1996).

For the foregoing reasons, we affirm the Judgment.

DATED: Honolulu, Hawaiʻi, June 5, 2025.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Kai Lawrence,
for Defendant-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Brian R. Vincent,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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