State v. D.B.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-JAN-2024
07:54 AM
Dkt. 52 SO

NOS. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
D.B., Defendant-Appellant

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

and
CAAP-XX-XXXXXXX
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
D.B., Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC161000051)

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

D.B. appeals from the orders of commitment entered by
the Circuit Court of the First Circuit on February 28, 2023.1 We
affirm both orders.
On January 13, 2016, D.B. was charged by felony
information with Assault in the Second Degree, in violation of

1
The Honorable Christine E. Kuriyama presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Hawaii Revised Statutes (HRS) § 707-711(1)(a) and/or (b)
and/or (d). On May 12, 2016, the circuit court found him unfit
to proceed. Proceedings were suspended and he was committed to
the Hawai#i State Hospital "for detention, care, and treatment
for so long as such unfitness shall endure." D.B. was also found
unfit to proceed on May 17, 2018, April 22, 2019, September 1,
2020, and September 14, 2022. The circuit court entered orders
authorizing treatment over D.B.'s objection on October 10, 2018,
March 3, 2020, and September 15, 2021.
On February 28, 2023, the circuit court found that D.B.
was: "(1) unfit to proceed and will probably remain unfit to
proceed; (2) mentally ill; (3) imminently dangerous to self and
others; and (4) in need of care and treatment and there is no
suitable alternative available through existing facilities and
programs which would be less restrictive than hospitalization."
The criminal case was dismissed under HRS § 704-406(7)(b), and
D.B. was committed to the custody of the Director of Health for
placement in an appropriate institution for detention, care, and
treatment.
On May 24, 2019, D.B. was charged by felony information
with Assault in the Second Degree, in violation of HRS § 707-
711(1)(g), for allegedly assaulting a Hawai#i State Hospital
employee. The circuit court found him unfit to proceed on
October 1, 2019, September 1, 2020, and September 13, 2022. The
circuit court entered orders authorizing treatment over D.B.'s
objection on March 3, 2020, and September 3, 2021.
On February 28, 2023, the circuit court found that D.B.
was: "(1) unfit to proceed and will probably remain unfit to
proceed; (2) mentally ill; (3) imminently dangerous to self and
others; and (4) in need of care and treatment and there is no
suitable alternative available through existing facilities and
programs which would be less restrictive than hospitalization."
The criminal case was dismissed under HRS § 704-406(7)(b), and
D.B. was committed to the custody of the Director of Health for
placement in an appropriate institution for care and treatment.

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D.B. appealed from both orders of commitment.2 We
consolidated the appeals.
D.B. was initially committed to the Hawai#i State
Hospital under HRS § 704-406(1). HRS § 704-406(7) (Supp. 2016)
provides, in relevant part:

(7) . . . Within a reasonable time following any
. . . commitment under subsection (1), the director of
health shall report to the court on whether the defendant
presents a substantial likelihood of becoming fit to proceed
in the future. The court, in addition, may appoint a panel
of three qualified examiners in felony cases . . . to make a
report. If, following the report, the court determines that
the defendant probably will remain unfit to proceed, the
court may dismiss the charge and:
. . . .
(b) Subject to section 334-60.2 regarding
involuntary hospitalization criteria, order the
defendant to be committed to the custody of the
director of health to be placed in an
appropriate institution for detention, care, and
treatment.

HRS § 334-60.2 (Supp. 2016) provides:

Involuntary hospitalization criteria. A person may be
committed to a psychiatric facility for involuntary
hospitalization, if the court finds:

(1) That the person is mentally ill or suffering
from substance abuse;

(2) That the person is imminently dangerous to self
or others; and

(3) That the person is in need of care or treatment,
or both, and there is no suitable alternative
available through existing facilities and
programs which would be less restrictive than
hospitalization.

D.B. does not contest the first criterion — that he is
mentally ill. But he argues that the circuit court erred by
finding he was imminently dangerous to himself or others, and
that there was no suitable alternative available through existing
facilities and programs that would be less restrictive than

2
D.B. does not challenge the circuit court's determinations that he
was unfit to proceed in his criminal cases.

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hospitalization. Those criteria must be established by "clear
and convincing evidence[.]" HRS § 334-60.5(j) (2022); In re JK,
149 Hawai#i 400, 404, 491 P.3d 1179, 1183 (App. 2021).
"Clear and convincing evidence" is:

an intermediate standard of proof greater than a
preponderance of the evidence, but less than proof beyond a
reasonable doubt required in criminal cases. It is that
degree of proof which will produce in the mind of the trier
of fact a firm belief or conviction as to the allegations
sought to be established, and requires the existence of a
fact be highly probable.

In re JK, 149 Hawai#i at 409, 491 P.3d at 1188 (quoting Masaki v.
Gen. Motors Corp., 71 Haw. 1, 15, 780 P.2d 566, 574 (1989)).
When we review whether a fact has been proved by clear
and convincing evidence, we look to see whether the record
contains substantial evidence from which a reasonable factfinder
could have found it highly probable that the fact was true. In
re JK, 149 Hawai#i at 409, 491 P.3d at 1188. We must view the
record in the light most favorable to the prevailing party below
and give deference to how the trier of fact may have evaluated
the credibility of witnesses, resolved conflicts in the evidence,
and drawn reasonable inferences from the evidence. Id. at 409-
10, 491 P.3d at 1188-89. We do not reweigh the evidence; we must
accept the factfinder's resolution of conflicting evidence, and
we may not evaluate witness credibility. Id. at 410, 491 P.3d
at 1189. The question is not whether we find the evidence clear
and convincing; it is whether a reasonable trier of fact could
have regarded the evidence as satisfying that standard of proof.
Id.
(1) The circuit court found that D.B. was imminently
dangerous to himself or others based primarily on reports written
by Nikita Hay, Psy.D., Duke E. Wagner, Ph.D., and Martin Blinder,
M.D. D.B. argues that Dr. Blinder opined he wasn't dangerous.
Dr. Blinder examined D.B. on February 8, 2023. Six days later,
D.B. assaulted another Hawai#i State Hospital patient, and had to
be placed in mechanical restraints.

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Dr. Hay (a psychologist with the state Department of
Health) reported the assault, which happened the day she examined
D.B. She opined that D.B. presented a high risk of harm to
others, himself, and property, and was likely to be physically
violent toward others if discharged into the community, with or
without treatment services.
Dr. Wagner noted that D.B. regularly showed poor
judgment and threatening and aggressive behavior, seemed to have
little respect for normative behavior within a social context,
violated the boundaries of others, and wasn't capable of
self-managing his medication or overall treatment needs.
Dr. Wagner opined that D.B.'s risk of danger to himself, others,
and property would increase to high if he was released into the
community.
Both Dr. Hay and Dr. Wagner recommended that D.B.
continue to be committed to the Hawai#i State Hospital. The
circuit court also took judicial notice of the record in both of
D.B.'s cases. The records include many reports from D.B.'s
examiners and care providers including Jane Caplan, M.D., Aubrey
Pat Chambers, M.D., Arif Husain, M.D., Barrett Levine, M.D.,
Kenneth Luke, M.D., Khalid Memon, M.D., Rhodelynn Ramos, M.D.,
Richard Rovin, M.D., Elena Sharipova, M.D., and Melissa
Vargo, Psy.D. The records also contain the orders authorizing
treatment over D.B.'s objection. This was all substantial
evidence from which a reasonable factfinder could have found it
highly probable that D.B. was imminently dangerous to himself and
others.
(2) D.B. did not argue about alternatives to continued
hospitalization during the circuit court hearing. He argues we
should recognize plain error. But he stated to the circuit court
that he did not contest Dr. Hay's and Dr. Wagner's reports, which
recommended continued commitment to the Hawai#i State Hospital.
Under these circumstances, we decline to recognize plain error.
See In re JK, 149 Hawai#i at 406-07, 491 P.3d at 1185-86 (noting
that plain error will not be recognized if consideration of the

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issue not raised requires additional facts, or its resolution
will affect the integrity of the trial court's findings of fact).
For these reasons, the "Order[s] of Dismissal and
Commitment" entered by the circuit court on February 28, 2023,
are affirmed.
DATED: Honolulu, Hawai#i, January 31, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Lars Robert Isaacson, Presiding Judge
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Loren J. Thomas, Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu, /s/ Karen T. Nakasone
for Plaintiff-Appellee. Associate Judge

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