State v. Pereira II

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-DEC-2025
08:08 AM
Dkt. 81 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
ANTHONY F. PEREIRA II, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC161000973)

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

Anthony F. Pereira II appeals from the Judgment of
Conviction and Sentence entered by the Circuit Court of the First
Circuit on October 9, 2024.1 We affirm.
A grand jury indicted Pereira for (1) Murder in the
Second Degree of his mother, Barbara Pereira; (2) Carrying or Use
of Firearm in the Commission of a Separate Felony (murder);
(3) Kidnapping; (4) Carrying or Use of Firearm in the Commission
of a Separate Felony (kidnapping); (5) Terroristic Threatening in
the First Degree of Dodie Guzman; and (6) Promoting a Dangerous
Drug in the Third Degree (methamphetamine).
After a jury-waived trial, the court found Pereira
guilty as charged on Counts 1, 2, 5, and 6. Counts 3 and 4
merged with Count 1. Pereira was sentenced to life in prison
with the possibility of parole on Count 1; twenty years on

1
The Honorable Rowena A. Somerville presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Count 2; five years on Count 5; and five years on Count 6, all to
run concurrently. This appeal followed.
Pereira challenges only his conviction for Murder in
the Second Degree. He states a single point of error: "The
circuit court erred when it found [he] did not prove the
affirmative defense of extreme mental or emotional disturbance"
(EMED). He argues "the court erroneously required [him] to
demonstrate a total loss of self-control and failed to assess the
reasonableness of his disturbance from the subjective viewpoint."
The standard of review we apply to the trial court's
finding of guilt is:

Evidence adduced in the trial court must be considered
in the strongest light for the prosecution when the
appellate court passes on the legal sufficiency of such
evidence to support a conviction; the same standard applies
whether the case was before a judge or 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.

State v. Young, 93 Hawai#i 224, 230, 999 P.2d 230, 236 (2000)
(brackets omitted).
Barbara was killed on June 10, 2016. Hawaii Revised
Statutes (HRS) § 707-702 (2014) then provided:

Manslaughter. . . .

(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. . . .

(Emphasis added).
"EMED manslaughter has been characterized as voluntary
manslaughter because it involves the intentional or knowing
killing of another while under the influence of a reasonably
induced extreme mental or emotional disturbance causing a

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temporary loss of normal self-control." Young, 93 Hawai#i at
233, 999 P.2d at 239 (cleaned up) (emphasis added).
"It is insufficient for a criminal defendant merely to
allege that he or she was experiencing emotional distress at the
time of the charged offense. . . . [T]he mitigating EMED defense
focuses on the defendant's reaction to the stress, [that is], on
whether the defendant's reason was overborne." State v. Perez,
90 Hawai#i 65, 74, 976 P.2d 379, 388 (1999) (cleaned up). Under
HRS § 707-702(2), "[t]he disturbance was meant to be understood
in relative terms as referring to a loss of self-control due to
intense feelings." State v. Adviento, 132 Hawai#i 123, 150, 319
P.3d 1131, 1158 (2014). In other words, "loss of control is a
significant, even determining, factor in evaluating an EMED
claim." Young, 93 Hawai#i at 233, 999 P.2d at 239 (brackets
omitted).
Pereira argues he was "suffering from a profound
psychological collapse and overwhelming emotional distress" when
he killed his mother. The reasonable explanation for his
disturbance was, he claims, his belief that his mother had harmed
his wife and daughter based on images on his mother's phone he
believed depicted his wife and daughter with blood on their
faces.
When the trial court announced its decision, it
correctly stated the law:

In [State v. Perez] the Court held that presence or absence
of self control was a significant factor in deciding whether
defendant was under the influence of EMED in such a manner
as to mitigate culpability to manslaughter.
[Perez] was clear that it is insufficient for a
criminal defendant [merely] to allege that he was
experiencing emotional distress at the time of the charged
offense. A mitigating EMED defense instead focuses on the
defendant's reaction to the stress, whether the defendant's
reason was overborne. The key distinction is being
intentional or knowing and controllability respectively.

(Emphasis added.)

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The trial court then stated:

However, the question remains whether this belief had
a reasonable explanation. Defendant found out about the
photos on June 9, 2016, the same day he spoke to both his
wife and his daughter. It should be noted that these
alleged photos have not been admitted into evidence. There
is no history that Barbara Pereira and the defendant had any
negative incidents between them prior to this. To the
contrary, she would visit him twice a day and make sure that
he was okay. They had a great relationship. Barbara
Pereira was not shot until June 10, 2016, at the point when
she tried to leave the house.
At one point he was about to take Barbara Pereira for
medical assistance, two hours after he had shot her. But
unfortunately Barbara Pereira passed out, and he had a
change of plan. He was clearly thinking this through.
Therefore, there was no reasonable explanation for the EMED
disturbance at the time he shot Barbara Pereira in the leg.
There was also no evidence to show that he was suffering
from EMED when Dodie left. He shot Barbara Pereira in the
head two times and in the arm approximately 15 minutes after
Dodie left. For this there is no reasonable explanation.

The Court finds that the defendant has not proven the
elements of the affirmative defense by a preponderance of
the evidence. Therefore, defendant is guilty of murder in
the second degree.

(Emphasis added.)
Evidence of calculated actions can disprove an EMED
defense. Young, 93 Hawai#i at 233, 999 P.2d at 239. The trial
record contains substantial evidence to support the trial court's
finding that Pereira did not prove his EMED affirmative defense.
The October 9, 2024 Judgment of Conviction and Sentence
is affirmed.
DATED: Honolulu, Hawai#i, December 17, 2025.

On the briefs:
/s/ Keith K. Hiraoka
Harrison L. Kiehm, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Robert T. Nakatsuji, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Sonja M.P. McCullen
for Plaintiff-Appellee. Associate Judge

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