State v. Tillman

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-MAR-2025
07:49 AM
Dkt. 109 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
SHERMAN TILLMAN, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NOS. 1CPC-XX-XXXXXXX and 1CPC-XX-XXXXXXX)

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

Defendant-Appellant Sherman Tillman (Tillman) appeals

from the Order of Resentencing, Revocation of Probation, Notice

of Entry (Resentencing Order), filed on August 24, 2023 in 1CPC-

XX-XXXXXXX, and the Amended Judgment of Conviction and Sentence,

Notice of Entry (Judgment of Conviction), filed on September 12,
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2023 in 1CPC-22-00012801 by the Circuit Court of the First

Circuit (circuit court).2

The State filed a Felony Information in October 2022,

charging that,

[Tillman] did intentionally or knowingly cause bodily
injury to Gene Spurgeon [complaining witness (CW)], a
person who is sixty years of age or older and the age of
[CW] was known or reasonably should have been known to
[Tillman], thereby committing the offense of Assault in the
Second Degree, in violation of Section 707-711(1)(m) of the
Hawaiʻi Revised Statutes [(HRS)].3 The bodily injury
alleged in this case is using two hands to shove [CW] in
the chest onto the ground. "Bodily injury" means physical
pain, illness, or any impairment of physical condition.

The jury found Tillman guilty of this charge, and the circuit

court entered the Judgment of Conviction.

1 Tillman improperly filed a single notice of appeal, in CAAP-23-
0000602, appealing the Judgment of Conviction entered in 1CPC-XX-XXXXXXX and
the Resentencing Order entered in a separate circuit court case, 1CPC-20-
0000176. Notwithstanding this procedural defect, we herein exercise this
court's discretion to address the points of error raised by Tillman in this
timely filed appeal. See Hawaiʻi Rules of Appellate Procedure Rule 3(a)
("Failure of an appellant to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal, but is ground
only for such action as the appellate court deems appropriate[.]"); see also
State v. Graybeard, 93 Hawai‛i 513, 518, 6 P.3d 385, 390 (App. 2000) ("[O]ur
appellate courts have ignored formal jurisdictional defects that are due to
the derelictions of a criminal defendant's attorney.") (citations omitted).

2 The Honorable Kevin A. Souza presided over 1CPC-XX-XXXXXXX and
1CPC-XX-XXXXXXX.

3 HRS § 707-711(1)(m) (Supp. 2021) provides, in relevant part,

(1) A person commits the offense of assault in the second
degree if the person:
. . . .
(m) Intentionally or knowingly causes bodily injury to a
person who is sixty years of age or older and the age of
the injured person is known or reasonably should be known
to the person causing the injury[.]

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Following Tillman's conviction in 1CPC-XX-XXXXXXX, the

State moved for revocation of Tillman's probation in 1CPC-20-

0000176. The State argued that Tillman violated the terms and

conditions of his probation by committing the offense for which

he was convicted in 1CPC-XX-XXXXXXX. The circuit court granted

the motion on this basis and entered the Resentencing Order.

On appeal, Tillman raises the following points of

error: (1) the prosecutor committed "harmful misconduct" during

closing argument and by "eliciting and introducing inadmissible

hearsay evidence" during trial; (2) the circuit court "committed

plain error in allowing inadmissible hearsay evidence into

evidence in violation of [Tillman's] constitutional right to

confrontation"; (3) Tillman's trial counsel violated his

constitutional right to effective assistance of counsel; and (4)

the circuit court "erred in utilizing Tillman's acquitted

conduct in sentencing and resentencing him to open terms of

imprisonment."4 Tillman also makes an additional argument, not

properly set forth as a point of error, that setting aside

Tillman's conviction in 1CPC-XX-XXXXXXX would void the

revocation of his probation in 1CPC-XX-XXXXXXX because his

conviction was the sole basis for his probation revocation.

4 While the State conceded error on point (4), it is not necessary
to reach the issue in light of our resolution of this appeal.

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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 Tillman's first contention, regarding prosecutorial

misconduct, which is dispositive, as follows.

Tillman contends that the prosecutor committed

misconduct during closing argument by "characterizing [Tillman]

as a 'mean,' 'nasty,' 'cruel' person, who she compared to a

'bully'" because these characterizations had "the sole purpose

of igniting and inflaming the passions and prejudices of the

jury against Tillman." Tillman did not object at trial, and we

therefore review the prosecutor's alleged misconduct for plain

error. "Because prosecutorial misconduct impacts the

fundamental right to a fair trial, there is no difference

between the plain error and harmless beyond a reasonable doubt

standards of review." State v. Hirata, 152 Hawai‛i 27, 31, 520

P.3d 225, 229 (2022) (citation omitted).

The record evidence includes conflicting testimony

that Tillman was, by one account, the aggressor, and, by

another, acting in self-defense. The CW testified that Tillman

was "[v]ery hostile and aggressive," and that Tillman's actions

were unprovoked. Tillman testified that he "nudged" the CW

because the CW was "drunk in [Tillman's] face," that the CW

"swung at [Tillman]" with his fist and "made contact with

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[Tillman's] right shoulder," and that Tillman's intent in

"nudging" the CW "was to stop [the CW] from harming [Tillman]

again or attempting to harm [Tillman] again."

Two surveillance videos — Exhibits 7 and 8 — were

introduced into evidence. The videos depict the incident from

two different viewpoints, and were referenced throughout trial,

including by the prosecutor during closing argument. Exhibit 7

shows Tillman using his hands to make contact with the CW's

upper body, causing the CW to stumble backwards through the

Maunakea Marketplace entrance area. Exhibit 8 shows the CW

stumbling backwards out of the entrance area and falling on the

sidewalk. The CW is then seen getting up, approaching the

entrance, pausing at the entrance for a brief time to talk with

Tillman (who appears briefly in camera view), and then walking

down the sidewalk away from the store and Tillman on his own

volition.

This court has previously observed that "to bully

someone" means "to intimidate by threats or to domineer."

State v. Faatea, No. CAAP-XX-XXXXXXX, 2018 WL 3199236, at *4

(Haw. App. June 29, 2018) (SDO) (cleaned up) (quoting Webster's

Third International Dictionary 295 (1961)). On this record, we

cannot conclude that the evidence presented at trial allowed for

a reasonable inference that Tillman was acting like a "bully,"

or that he was "mean," "nasty," or "cruel" to the CW. Tillman's

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actions do not automatically give rise to the inference that

Tillman meant to "intimidate by threats" or "to domineer" the

CW. See State v. Basham, 132 Hawai‛i 97, 112, 319 P.3d 1105,

1120 (2014) ("Whether the evidence bears a logical and proximate

connection to the point the prosecutor wishes to prove is

perhaps the most obvious consideration in determining whether an

inference is reasonable.") (cleaned up).

The words that the prosecutor used in closing argument

to describe Tillman carried connotations beyond what was

objectively supported by the evidence presented at trial. We

therefore conclude that the prosecutor's personal

characterization of Tillman as "mean," "nasty," "cruel," and

comparing Tillman to "a bully" constituted, whether intended or

not, an improper appeal to the passions of the jury. See

State v. Underwood, 142 Hawai‛i 317, 326, 418 P.3d 658, 667

(2018) ("[P]rosecutors, like all attorneys appearing before a

tribunal, are bound to refrain from expressing their personal

views as to a defendant's guilt or credibility of witnesses.")

(cleaned up); State v. Williams, 149 Hawai‛i 381, 394, 491 P.3d

592, 605 (2021) ("Even when the statements are not calculated to

inflame the passions or prejudices of the jury, when the likely

result is that the jury will be inflamed, the statements are

prejudicial.") (citation omitted).

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We further conclude that the prosecutor's misconduct

was not harmless beyond a reasonable doubt, and that the

Judgment of Conviction must therefore be vacated. See Hirata,

152 Hawaiʻi at 31, 520 P.3d at 229 ("After considering the nature

of the prosecuting attorney's conduct, promptness or lack of a

curative instruction, and strength or weakness of the evidence

against the defendant, a reviewing court will vacate a

conviction if there is a reasonable possibility that the conduct

might have affected the trial's outcome.") (citation omitted).

The surveillance videos, which are the only neutral,

objective evidence in the record, do not depict the

circumstances leading up to Tillman's physical contact with the

CW. Tillman and the CW gave conflicting testimony, in which

both claimed that the other was the aggressor and instigator of

the altercation. Under these circumstances, we cannot conclude

that there was no reasonable possibility that the prosecutor's

misconduct might have affected the trial's outcome. Therefore,

the Judgment of Conviction must be vacated and the case remanded

for a new trial.

Given our conclusion as to the prosecutor's misconduct

during closing argument, we decline to reach Tillman's

contentions as to hearsay, ineffective assistance of counsel,

and the circuit court's abuse of discretion in imposing his

sentence in 1CPC-XX-XXXXXXX.

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Because we vacate Tillman's Judgment of Conviction in

1CPC-XX-XXXXXXX, we also vacate the circuit court's Resentencing

Order in 1CPC-XX-XXXXXXX that revoked Tillman's probation on the

basis of his conviction in 1CPC-XX-XXXXXXX.

For the foregoing reasons, we vacate the Judgment of

Conviction and remand for a new trial in 1CPC-XX-XXXXXXX. We

vacate the Resentencing Order in 1CPC-XX-XXXXXXX and remand for

further proceedings consistent with this summary disposition

order.

DATED: Honolulu, Hawaiʻi, March 12, 2025.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Walter J. Rodby,
for Defendant-Appellant. /s/ Karen T. Nakasone
Associate Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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