State v. James

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-APR-2023
07:54 AM
Dkt. 45 SO

NO. CAAP-XX-XXXXXXX

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

STATE OF HAWAI‘I, Plaintiff-Appellant,
v.
DYLAN RIVER JAMES, Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and Chan, JJ.)

Plaintiff-Appellant State of Hawai‘i (State) appeals
from the March 28, 2022 Findings of Fact, Conclusions of Law
and Order (FOFs/COLs) Granting Motion to Suppress Text Messages
(Order Granting Motion to Suppress); and the April 4, 2022 Order
Denying State's Motion to Reconsider Ruling on Motion to
Suppress Text Messages (Order Denying Reconsideration),1 both

1 We do not have appellate jurisdiction over the Order Denying
Reconsideration, and thus do not address the State's fifth point of error
regarding this order. The appeal is from a pre-trial suppression order under
Hawaii Revised Statutes (HRS) § 641-13(7). In civil cases, a notice of
appeal is "deemed to appeal the disposition of all post-judgment motions that
are timely filed after entry of the judgment or order." Hawai‘i Rules of
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

filed by the Circuit Court of the Fifth Circuit (Circuit Court).2
In the underlying case, Defendant-Appellee Dylan River James
(James) was charged with five counts of first-degree sexual
assault against the complainant (CW) that occurred on July 2,
2015.
This appeal concerns the suppression of text messages
that were exchanged between James and CW, in which James made
admissions that he had sex with CW. On appeal, the State
contends that the Circuit Court: (1) erred by finding in FOF 7
that CW, "induced [James] via text message to admit that he had
sexually assaulted her"; (2) that "[e]ven assuming that [CW] was
in effect a government agent when she texted [James],"3 erred by
concluding in COL 4 that the detectives violated James's Miranda
rights where James was "not in police custody"; and (3) erred by
ultimately granting the suppression of the text messages.4
Upon review of the record on appeal and relevant legal
authorities, giving due consideration to the issues raised and
arguments advanced by the parties, we resolve the points of
error as follows, and affirm.

Appellate Procedure (HRAP) Rule 4(a)(3). There is no similar provision
deeming the inclusion of all post-judgment motions for a notice of appeal in
a criminal case, under HRAP Rule 4(b) (pertaining to "Appeals in criminal
cases"). Thus, this court does not have jurisdiction over the Order Denying
Reconsideration and has appellate jurisdiction under HRS § 641-13(7) over the
Order Granting Motion to Suppress, only.
2 The Honorable Randal G.B. Valenciano presided.
3 On appeal, the State does not challenge the Circuit Court's
determination that CW was acting as a "government agent" under the direction
of the detectives.
4 The State's points of error (POE) do not comply with HRAP Rule
28(b)(4), which requires that the POEs be set forth in "separately numbered
paragraphs." (Emphasis added). We have numbered POEs A, B, and D, as POEs
1, 2 and 4, and we address these three POEs out of the five POEs raised. In
light of our resolution infra, it is not necessary to address POE 3, which
deals with whether James's right to counsel was violated. We also do not
address POE 5 because we lack jurisdiction over the Order Denying
Reconsideration.

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

On December 21, 2021, James filed a Motion to Suppress
Text Messages (Motion to Suppress) requesting that the July 2,
20155 text messages between James and CW be suppressed on grounds
that CW, as a government agent, violated James's right to
privacy and "induce[d]" James to respond, and that the
detectives were required to obtain a waiver of those rights
prior to CW contacting James. James attached the following
exhibits to the Motion to Suppress: (1) a partial transcript of
the detectives' July 2, 2015 interview of CW; (2) July 2, 2015
text messages between CW and James; and (3) a partial transcript
of CW's testimony at the March 11, 2020 grand jury proceeding.
On February 4, 2022, the State filed its opposition to
the Motion to Suppress (Opposition), in which it argued, inter
alia, that even if CW was a government agent, James was not
"subjected to a search and seizure, nor a custodial
interrogation," and there was no "active deception or attempt to
circumvent [James]'s rights."
At the February 24, 2022 hearing on the Motion to
Suppress, no witnesses were called to testify. While the
exhibits attached to the Motion to Suppress were not entered
into evidence at the hearing, it is undisputed that the Circuit
Court considered the exhibits as constituting the evidentiary
record for the motion, and the parties do not contend otherwise.6
This record reflects the following.

5 July 2, 2015 is also the date of the charged offenses.
6 At the February 24, 2022 hearing on the Motion to Suppress, the
Circuit Court indicated that it had reviewed the motion and the attached
exhibits. The FOFs/COLs refer to statements in these exhibits, i.e. FOFs 4-6
(restating CW's and the detectives' statements in the July 2, 2015 interview
transcript); FOF 7 (referring to the July 2, 2015 text messages between CW
and James); and FOF 8 (quoting CW's testimony from the March 11, 2020 grand
jury transcript).

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

On July 2, 2015, Kaua‘i Police Department detectives

Ray M. Takekawa (Detective Takekawa) and Darren Rose (Detective
Rose) (collectively, Detectives) interviewed CW, who alleged
that James had sexually assaulted her. That same day, CW also
had an exam done by a nurse. After the interview, the
Detectives instructed CW to contact James, and CW asked the
Detectives, "So, like, first I should just, like, get him to
admit that we, like, had sex and then after that be, like, well,
I was like – [sic]." CW attempted to call James twice, but
James did not pick up. Detective Takekawa stated: "You want to
try a text?" Detective Rose stated: "Give it a few minutes,
about five minutes, and we'll try one more time." CW testified
before the grand jury that at the "direction of Detective
Takekawa," she texted James, and that "the detective told me
just to try to get some sort of comment – comment on what had
happened out of him, so I texted him that I was thinking about
the night before." The following text messages were exchanged
between CW and James:7
[CW:] Sup,[8] just thinking about the other night haha.

[James:] Lol,[9] that was fun [(winking face emoji)10]

7 The text messages are quoted verbatim with footnotes throughout
to clarify terms, abbreviations, and symbols used, as may be necessary.
8 "Sup" is an "informal greeting equivalent to 'What's up?'" Sup,
Merriam-Webster, https://www.merriam-webster.com/dictionary/sup (last visited
Apr. 6, 2023).
9 "Lol" is an abbreviation for "laugh out loud." LOL, Merriam-
Webster, https://www.merriam-webster.com/dictionary/LOL/ (last visited Mar.
24, 2023).
10 "Emoji" is defined as "various small images, symbols, or icons
used in text fields in electronic communication . . . to express the
emotional attitude of the writer, convey information succinctly, [or]
communicate a message playfully without using words[.]" Emoji, Merriam-
Webster, https://www.merriam-webster.com/dictionary/emoji (last visited Mar.
24, 2023). Each emoji has a different meaning and can be found at the
following site. freeCodeCamp, https://www.freecodecamp.org/news/all-emojis-
emoji-list-for-copy-and-paste/ (last visited Mar. 23, 2023).
4
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

[CW:] Haha what part, the bonfire? Lol

[James:] Yeah, that too

And the skinny dippin [sic]

And something else crazy happened, tryin [sic] to remember
wat [sic] it was...

[CW:] Hahahah hmmm... Seems like there were two other
things... Got a little rough [(winking face emoji)] does
that ring a bell?

[James:] Hmmm its kind of coming back to me... I do
remember it being very rough [(smirking face emoji)]

[CW:] Tell me your favorite part

[James:] How bout [sic] I show you some time soon [(winking
emoji)]

[CW:] Hahaha not too soon though, I'm still sore lol

Just tell me your favorite part in the mean time to tide me
over [(winking face with tongue emoji)]

[James:] Sore!? That was just a warm up!

And it was that you did what I told you to do... What was
yours?

[CW:] The semi public locations haha. Never done that in a
hamock [sic] before lol. I mean mostly sore from the part
where I was screaming and trying to crawl away... You
really don't take no for an answer lol. So idk[11] I feel
kinda wierd [sic] about that part.

[James:] Woah! I couldnt [sic] tell if you were serious or
no [sic] to be honest... Thought it was some kind of 'role
playin' or something? Sorry about that, i [sic] was a lil[12]
confused about that as well [(flushed face emoji)]

Not*

[CW:] Wait during which part?

[James:] When you were screaming and crawling away by the
lifeguard tower... Couldnt [sic] tell if you were serious

11 "Idk" is an abbreviation for "I don't know." Idk, Merriam-
Webster, https://www.merriam-webster.com/dictionary/IDK/ (last visited
Mar. 23, 2023).
12 "Lil" is an abbreviation of the word "little." Lil,
Dictionary.com, https://www.dictionary.com/e/slang/lil/ (last visited
Mar. 23, 2023).

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

or wat [sic] was goin.[13] [sic] I was pretty confused... And
sorry to put you in that situation, wasnt [sic] my
intention at the time [(flushed face emoji)]

(Footnotes added).
At the conclusion of the hearing, the Circuit Court
orally ruled that CW was acting as a "government agent" and that
James's rights were violated:

So in this case the Court finds that the police
actively recruited the complaining witness. The Court also
finds that the police directed the complaining witness. And
part of the reason for that is they were telling her what
to do, including when the phone -- when phone calls weren't
answered, why don't you send a text and that type of
detailed direction. The complaining witness didn't receive
payment for services.

So when you look at the factors, the three remaining
factors from Boynton -- because I'm taking out the
motivation factor pursuant to the cases that the Court read
-- the Court finds that the complaining witness was acting
as a government agent. And so because the complaining
witness was acting as a government agent, then there were a
violation of the rights of Mr. James.

And so the Court is going to grant the motion to
suppress text messages.

On March 28, 2022, the Circuit Court filed its
FOFs/COLs, in which the Circuit Court made the following
pertinent FOFs and COLs:

FINDINGS OF FACT

1. The incident in this case is alleged to have occurred on
July 2, 2015.

2. On July 2, 2015, commencing at 5:55 p.m., Kauai Police
Department Detective Ray M. Takekawa and Detective Darren
Rose conducted an interview of the [CW].

3. At the conclusion of the interview, Detective Takekawa
and Detective Rose directed CW to contact [James] and to
discuss the incident upon which this case is based with
him.

13 "Goin" is an abbreviation for the word "going." Goin,
NoSlang.com, https://www.noslang.com/search/goin (last visited Mar. 23,
2023).
6
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

4. In the transcript of a recording designated "[CW]
Pretext," CW is recorded as stating, "Wait. So, like,
first I should just, like, get him to admit that we, like,
had sex and then after that be, like, well, I was like –"

5. James did not answer CW's first call. In the transcript
of a recording designated "[CW] Pretext Call 2," CW calls
[James]'s phone and when the voicemail comes on CW asks the
detectives, "Do I leave a message?" Detective Takekawa
responded, "You want to try a text?" and Detective Rose
adds, "Give it a few minutes, about five minutes, and we'll
try one more time."

6. In the transcript of a recording designated as "[CW]
Pretext 2," CW makes another call to James and the
voicemail again comes on.

7. Subsequently CW contacted [James] via text message.
Pursuant to the detectives' directions when she attempted
to call [James], CW induced [James] to acknowledge that
they had sex and that it was "rough" as well as other
statements about the incident.

8. At the Grand Jury CW was asked by the deputy prosecuting
attorney "And after the incident, did you text message
[James]?" CW responded "Yes, at the direction of Detective
Takikawa [sic]." CW then went on to state "Well, the
detective told me just to try to get some sort of comment –
comment on what had happened out of him, so I texted him
that I was thinking about the night before."

CONCLUSIONS OF LAW
. . . .

3. Under the totality of the circumstances, the
governmental involvement in this case was significant and
extensive enough to render CW an instrumentality of the
State, i.e. a government agent, when she called and texted
[James]. Kahoonei, 83 Hawai‘i at 132, 925 P.2d at 302. In
particular, CW was actively recruited by the detectives to
call and then text [James]. Further, CW was directed by
the detectives to text [James] and to induce him to discuss
the incident. After CW was unable to reach [James] via a
phone call, the detectives asked CW if she wanted to text
[James]. The detectives then told CW to induce James to
admit that they had sex. CW did not receive compensation
from the detectives.

4. At the point when CW called and texted [James], he was
the only suspect and the investigation had focused on him.
If the detectives had sought to question [James] at that
point they would have been required to advise him of his
rights, including his right to remain silent and his right
to an attorney, and obtain a waiver of those right [sic]
prior to proceeding with the questioning. Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); State v.
Santiago, 53 Haw. 254, 266, 492 P.2d 657, 665 (1971).
7
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

5. As CW was acting as a government agent when she called
and texted [James], the actions of the detectives violated
James['s] right to an attorney under the Sixth amendment to
the U.S. Constitution and article I, section 14 of the
Hawai‘i Constitution and [James]'s right to remain silent
under the Fifth Amendment and article I, section 10.

6. Due the violation of [James]'s rights under both the
U.S. and Hawai‘i constitutions, [James]'s statements are
inadmissible in the instant case. State v. Eli, 126 Hawai‘i
510, 521, 273 P.3d 1196, 1207 (2012).

This appeal followed.
(1) The State argues that the finding in FOF 7, that
"CW induced [James] to acknowledge they had sex" was clearly
erroneous because there was no finding or evidence that CW "had
power over [James] to induce him to acknowledge, against his
free will, that they had sex . . . ."
The State's argument presumes, without support in the
record, that the word "induce," as used by the Circuit Court,
meant that CW "had power" over James to overcome "his free
will[.]" However, "induce" means "to move by persuasion or
influence[,] to call forth or bring about by influence or
stimulation[.]" Induce, Merriam-Webster, https://www.merriam-
webster.com/dictionary/induce (last visited Mar. 24, 2023).
"Government inducement" may involve "threats, coercive tactics,"
and may include "persuasion, fraudulent representations . . . ."
United States v. Mack, 53 F.Supp.3d 179, 187 (D.D.C. 2014)
(citation omitted).
A finding of fact is clearly erroneous when, despite
evidence to support the finding, the appellate court is
left with the definite and firm conviction in reviewing the
entire evidence that a mistake has been committed. A
finding of fact is also clearly erroneous when the record
lacks substantial evidence to support the finding.

Birano v. State, 143 Hawai‘i 163, 181, 426 P.3d 387, 405 (2018)
(internal quotation marks and citations omitted). Unchallenged
FOFs and COLs are binding. See State v. Rodrigues, 145 Hawai‘i

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

487, 494, 454 P.3d 428, 435 (2019) (citation omitted); Kelly v.
1250 Oceanside Partners, 111 Hawai‘i 205, 227, 140 P.3d 985, 1007
(2006).
Here, the Detectives "directed CW to contact [James] and
to discuss the incident . . . ." FOF 3. In unchallenged COLs 3
and 5, the Circuit Court determined that CW was a government
agent. The transcripts of the recordings show that CW also asked
for and received direction and clarification from the Detectives
about what she was supposed to "get him [(James)] to admit,"
whether she should leave a message on James's voicemail, whether
she should attempt a text message, and whether she should try one
more time to call James. FOFs 4-6. Viewing the full context of
the Circuit Court's findings in FOFs 3-6, where all of CW's
actions to contact James and to obtain an admission from him were
orchestrated by the Detectives, there was substantial evidence to
support FOF 7's specific finding that when CW "induced" James to
admit that they had sex, it was "[p]ursuant to the detectives'
directions[.]" Thus, FOF 7 was not clearly erroneous. See
Birano, 143 Hawai‘i at 181, 426 P.3d at 405.
(2) The State argues that COL 4 was wrong because
James was not entitled to Miranda warnings prior to CW text
messaging James, where James was not "in custody." The State
asserts that James cannot be "in custody" when he "was nowhere
near" the Detectives physically during the text messaging. The
State also urges that the existence of probable cause does not
dispositively entitle a suspect to Miranda warnings pursuant to
State v. Sagapolutele-Silva, 151 Hawai‘i 283, 287, 511 P.3d 782,
786 (2022), recently overruled by State v. Hewitt,

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

No. SCWC-XX-XXXXXXX, 2023 WL 2523652 (Mar. 15, 2023).14 The
State's argument lacks merit.
"Whether an accused's right against self-incrimination
under the Hawai‘i constitution was protected through the use of a
Miranda warning is a question of constitutional law, which this
court reviews de novo under the right/wrong standard." State v.
Kazanas, 138 Hawai‘i 23, 33, 375 P.3d 1261, 1271 (2016) (citing
State v. Jenkins, 93 Hawai‘i 87, 100, 997 P.2d 13, 26 (2000)).
Miranda warnings are required when the defendant is
(1) under interrogation and (2) in custody. State v. Ah Loo,
94 Hawai‘i 207, 210, 10 P.3d 728, 731 (2000) (citation omitted).
In Hewitt, the Hawai‘i Supreme Court recently held that the
"Ketchum rule remains in effect: Miranda warnings are required
by article I, section 10 of the Constitution of the State of
Hawai‘i when probable cause to arrest has developed." 2023 WL

2523652, at *10 (citing Ketchum, 97 Hawai‘i at 126, 34 P.3d at
1025).
COL 4 provides:
4. At the point when CW called and texted [James], he was
the only suspect and the investigation had focused on him.
If the detectives had sought to question [James] at that
point they would have been required to advise him of his
rights, including his right to remain silent and his right
to an attorney, and obtain a waiver of those right [sic]
prior to proceeding with the questioning. . . .

14 In Sagapolutele-Silva, the Hawai‘i Supreme Court overruled State
v. Ketchum, 97 Hawai‘i 107, 34 P.3d 1006 (2001) and held that "the existence
of probable cause [was] relevant, [but was] not dispositive in every case."
151 Hawai‘i at 291, 511 P.3d at 790. Rather, the courts were required to
"consider the totality of the circumstances." Id. On March 20, 2023, the
State filed a statement of supplemental authority, stating that the supreme
court "overruled" Sagapolutele-Silva in Hewitt, where the supreme court
"reaffirmed the 'bright-line' rule articulated in" Ketchum that Miranda
warnings are required when probable cause to arrest has developed. 2023 WL
2523652, at *10.
10
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

The State does not dispute that the text messages constituted
"interrogation" under the circumstances of this case. The State
does not challenge the factual finding within COL 4 that James
"was the only suspect" and the investigation had "focused on
him." Thus, at the point the text messages were sent by the
Detectives' agent, CW, the Detectives had probable cause to
arrest James; and Miranda warnings were required before the
Detectives could question James. See Hewitt, 2023 WL 2523652,
at *10. Instead, however, the Detectives covertly engaged in an
un-Mirandized interrogation of James, by having CW send
suggestive text messages to James, using her personal mobile
device to elicit intimate details of the incident.
The State's position that the text messages should not
be suppressed because James received the text messages through
CW rather than law enforcement is inconsistent with the purposes
of Hawai‘i's exclusionary rule: "(1) judicial integrity, (2) the
protection of individual privacy, and (3) deterrence of illegal
police misconduct." State v. McKnight, 131 Hawai‘i 379, 398,
319 P.3d 298, 317 (2013) (citation omitted). Allowing the
circumvention of Miranda warnings by permitting law enforcement
to engage in the undercover interrogation of suspects by
directing the sending of, and dictating the content of, text
messages using a government agent's personal mobile device does
not preserve judicial integrity, protect individual privacy, and
deter illegal police misconduct. See id.
We conclude that the Circuit Court was not wrong in
COL 4 that James's constitutional rights were violated when,
after he was the focus of the investigation, he was interrogated
through text messages sent by CW, a government agent, without
Miranda warnings. See Kazanas, 138 Hawai‘i at 33, 375 P.3d at
1271.

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

(3) In light of our disposition, the Circuit Court's
suppression of the text messages as inadmissible evidence for
trial was also not erroneous. See id.
For the foregoing reasons, we affirm the March 28,
2022 Findings of Fact, Conclusions of Law and Order Granting
Motion to Suppress Text Messages, filed by the Circuit Court of
the Fifth Circuit.
DATED: Honolulu, Hawai‘i, April 20, 2023.
On the briefs:
/s/ Keith K. Hiraoka
Tracy Murakami,
Associate Judge
Deputy Prosecuting Attorney
for Plaintiff-Appellant.
/s/ Karen T. Nakasone
Associate Judge
David M. Hayakawa,
for Defendant-Appellee.
/s/ Derrick H.M. Chan
Associate Judge

12