State v. Ene

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-FEB-2024
10:46 AM
Dkt. 49 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
ANDREW K. ENE, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DCW-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting, C.J., and Wadsworth and Nakasone, JJ.)

Defendant-Appellant Andrew K. Ene (Ene) appeals from
the Judgment and Notice of Entry of Judgment (Judgment), entered
on July 22, 2019, in the District Court of the First Circuit,
Honolulu Division (District Court).1/ Ene was convicted of
Criminal Property Damage in the Fourth Degree, in violation of
Hawaii Revised Statutes (HRS) § 708-823(1).2/
On appeal, Ene contends that: (1) "[t]he [District]
Court abused its discretion by admitting evidence after [Ene]

1/
The Honorable Michael A. Marr presided.
2/
HRS § 708-823 (2014) states:
Criminal property damage in the fourth degree. (1) A
person commits the offense of criminal property damage in
the fourth degree if by means other than fire, the person
intentionally or knowingly damages the property of another
without the other's consent.
(2) Criminal property damage in the fourth degree is a
petty misdemeanor.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

waived [her3/] right to testify and closing arguments were given";
(2) "[E]ne's statements were allowed in without a voluntariness
hearing"; (3) "the court . . . erred by admitting hearsay
statements and double hearsay statements, and 'admissions by
silence' into evidence, outside of any exception"; and (4) "the
record is deficient as to evidence of all the elements of the
charge." (Capitalization altered.)
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Ene's contentions as follows and reverse the Judgment.
(1) Ene contends that the District Court abused its
discretion by admitting evidence – specifically, video footage
recorded by the responding officer's (Officer Nishimura) body
camera (body cam footage) – after Ene waived her right to testify
and closing arguments had begun. Ene argues, among other things,
that if she had been "aware this other evidence was going to be
used against [her], . . . that would have fundamentally affected
[her] thought processes on if [she] should testify or not
. . . ."
The State responds that "[u]nder the circumstances
unique to this case, [the State] cannot in good faith assert that
[Ene's] conviction should stand." The State thus concedes Ene's
first point of error.
Based on our review of the record, we conclude that the
State's confession of error is supported by the record and well-
founded in law, and that the District Court erred in admitting
the evidence at issue after Ene had waived her right to testify.
See State v. Veikoso, 102 Hawai#i 219, 221-22, 74 P.3d 575,
577-78 (2003); see also Tachibana v. State, 79 Hawai#i 226, 237,
900 P.2d 1293, 1304 (1995) ("[T]he defendant may not be in a
position to decide whether to waive the right to testify until
all other evidence has been presented."). We further conclude
that the District Court's error was not harmless beyond a

3/
Ene's answering brief refers to Ene by both he/him pronouns and
she/her pronouns. However, based on the trial record, including Ene's
counsel's statement correcting his own pronoun use, we use she/her pronouns to
refer to Ene in this order.

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reasonable doubt. See Tachibana, 79 Hawai#i at 240, 900 P.2d at
1307 ("Once a violation of the constitutional right to testify is
established, the conviction must be vacated unless the State can
prove that the violation was harmless beyond a reasonable
doubt."); State v. Hoang, 94 Hawai#i 271, 279, 12 P.3d 371, 379
App. 2000) ("In general, it is inherently difficult, if not
impossible, to divine what effect a violation of the defendant's
constitutional right to testify had on the outcome of any
particular case").
(2) Ene contends that the District Court, without
holding a voluntariness hearing under HRS § 621-26,4/ erroneously
admitted certain statements allegedly made by Ene following the
incident and recorded on the body cam footage, and that the
District Court erroneously relied on these improperly admitted
statements to convict Ene. Although Ene does not specifically
identify the statements at issue, based on the parties' briefs
and the trial record, they appear to comprise at least the
following statements, or synopses of statements, allegedly made
by Ene:
1. "[Y]ou lied to me. I did that because you
lied to me."

2. "I will pay for . . . your window."

3. "I will pay for your front windshield. I
will. I get paid on Friday and I will pay
for your windshield."

4. "I will take [inaudible] responsibility for
bashing in his window 'cause guaranteed I
will pay it off."

These alleged statements are inculpatory statements
that tended to establish guilt for the offense. HRS § 621-26
"applies to inculpatory statements as well as confessions."
State v. Hopkins, No. CAAP-XX-XXXXXXX, 2021 WL 4167382, at *2
(Haw. App. Sept. 14, 2021) (SDO) (quoting State v. Hewitt, 149

4/
HRS § 621-26 (2016) states:
No confession 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.

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Hawai#i 71, 76, 481 P.3d 713, 718 (App. 2021), rev'd on other
grounds, 153 Hawai#i 33, 526 P.3d 558 (2023)). As we stated in
Hopkins:
Under HRS § 621-26, "[t]he trial judge has a duty to
determine the admissibility of an inculpatory statement
. . . ." State v. Green, 51 Haw. 260, 264, 457 P.2d 505,
508 (1969) (citation omitted). A defendant has both a
"constitutional and statutory right to a judicial
determination of the voluntariness of his confession" or
inculpatory statement. State v. Goers, 61 Haw. 198, 201,
600 P.2d 1142, 1144 (1979); see State v. Eli, 126 Hawai #i
510, 520 n.17, 273 P.3d 1196, 1206 n.17 (2012)
("[C]onstitutional due process, based on article 1, section
5 of the Hawai#i Constitution, requires a statement to be
'voluntary' in order to be admissible.") (citation omitted).
While HRS § 621-26 does not expressly require a trial
court to conduct a separate voluntariness hearing, the
statute requires that the trial judge must determine "that
the confession was in fact voluntarily made." (Emphasis
added). Thus, the judge presiding over the trial must make
a factual determination of voluntariness before the
admission of the statement. See Green, 51 Haw. at 264, 457
P.2d at 508; Hewitt, 149 Hawai#i at 76, 481 P.3d at 718.

Id. at *2-3.
Here, as the State concedes, the District Court did not
hold a hearing or make a factual determination of the
voluntariness of Ene's alleged statements before admitting them
into evidence.5/ This was error. Given that the court expressly
referenced Ene's "admissions" in rendering its finding of guilt,
we further conclude that the error was not harmless beyond a
reasonable doubt.
(3) Given our disposition of Ene's first and second
points of error, we need not address Ene's third point of error.
(4) Ene contends that the evidence is insufficient to
support her conviction.
We review the sufficiency of the evidence based on
admissible evidence; in other words, we must review the remaining
evidence without considering Ene's inculpatory statements and
"admissions by silence." See State v. Wallace, 80 Hawai#i 382,
413-15, 910 P.2d 695, 726-28 (1996) (holding that review for

5/
Nonetheless, the State, relying on State v. Ikaika, 67 Haw. 563,
566, 698 P.2d 281, 284 (1985), argues that "statements made by [Ene] that were
spontaneous utterances would seem to be voluntary, and as such, the trial
court did not err in admitting such statements." The State's reliance on
Ikaika is misplaced, as that case did not address the requirements of HRS
§ 621-26.

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evidentiary sufficiency is based on "substantial and admissible
evidence"). Evidence must be considered in the "strongest light
for the prosecution[,]" and 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. Matavale, 115 Hawai#i 149, 157-58, 166 P.3d
322, 330-31 (2007).
Here, the only evidence presented at trial was the
testimony of Officer Nishimura, who did not witness the alleged
offense, and the body cam footage. In rendering its decision,
the District Court described the case as "close[,]" but concluded
that "the body cam video puts into context everything that was
said, gives statements context, and . . . the State has proven
this case beyond a reasonable doubt because the statements in the
[trial] memorandum by the State are admissions." However, the
purported "admissions" were inadmissible. Absent these
admissions, there was no substantial evidence supporting the
conclusion that Ene "intentionally or knowingly damage[d] the
property of another without the other's consent." HRS § 708-823.
Accordingly, Ene's conviction for Criminal Property Damage in the
Fourth Degree must be reversed.
For the reasons discussed above, the Judgment and
Notice of Entry of Judgment, entered on July 22, 2019, in the
District Court of the First Circuit, Honolulu Division, is
reversed.

DATED: Honolulu, Hawai#i, February 6, 2024.

On the briefs:
/s/ Katherine G. Leonard
Marcus L. Landsberg IV Acting Chief Judge
(Landsberg Law Office),
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Donn Fudo, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge

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