State v. Thompson

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-AUG-2025
08:53 AM
Dkt. 52 SO

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

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee, v.
MICHAEL K. THOMPSON, Defendant-Appellant.

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NOS. 5FFC-XX-XXXXXXX, 5FFC-XX-XXXXXXX,
5FFC-XX-XXXXXXX, and 5FFC-XX-XXXXXXX)

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

Defendant-Appellant Michael K. Thompson appeals from

the Circuit Court of the Fifth Circuit's February 23, 2023

judgments of conviction in four cases, which were consolidated

on appeal. 1 On appeal, Thompson challenges his sentence,

asserting the circuit court considered uncharged allegations and

imposed an illegal geographic restriction. We vacate the

portion of Thompson's sentence establishing a geographic

1 The Honorable Randal G.B. Valenciano presided.
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restriction and remand with instructions to establish a

restriction that complies with this summary disposition order.

For a brief procedural background, Plaintiff-Appellee

State of Hawai‘i charged Thompson with one count of Abuse of

Family or Household Members (5FFC-22-59). Stemming from that

abuse incident, a temporary restraining order (TRO), and then a

two-year order for protection, was issued against Thompson.

Thompson violated those orders resulting in six additional cases

— two for violating the TRO (5FFC-22-54, -58) and four for

violating the protective order (5FFC-22-55, -56, -57, -60).

Thompson and the State reached a plea agreement under

which Thompson would plead guilty or no contest to Assault in

the Third Degree for the abuse charge (5FFC-22-59) and plead

guilty or no contest to Criminal Contempt of Court in the two

TRO cases (5FFC-22-54, -58) and one of the protective order

cases (5FFC-22-56). In return, the State would dismiss the

three remaining protective order cases (5FFC-22-55, -57, -60),

agree to a one-year term of probation and credit for time

served, and not object to transferring probation supervision to

Utah and a deferral.

In conformance with the agreement, the circuit court

sentenced Thompson to a one-year term of probation in each case,

with all terms running concurrently. However, the circuit court

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deviated from the plea agreement in that it included, as

conditions of probation, three days in jail 2 and "a geographic

restriction whereby [Thompson was] not to pass the intersection

of Puhi Road and [Kaumualiʻi] Highway in [Līhuʻe]." Thompson

appealed.

On appeal, Thompson contends the circuit court "erred

in considering the unproven, uncharged allegations in

determining its sentence and in imposing a geographic

restriction which was unconstitutional and illegal."

(Formatting altered.)

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below and vacate in part.

(1) Thompson contends the circuit court erred in

considering "unproven, uncharged allegations" made by Thompson's

wife at sentencing and by Thompson's wife and her former

employer, Teresa Daher, in the presentence report.

A presentence report must include, among other things,

"[a]n analysis of the circumstances attending the commission of

the crime[,]" and "[i]nformation made available by the victim or

2 The circuit court sentenced Thompson on February 23, 2023, and
ordered Thompson be "confined in jail" with release set for February 26,
2023, at 5:00 p.m.

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other source concerning the effect that the crime committed by

the defendant has had upon said victim, including but not

limited to, any physical or psychological harm or financial loss

suffered[.]" Hawaiʻi Revised Statutes (HRS) § 706-602(1)(a), (c)

(2014) (emphasis added). These factors, however, "constitute a

minimum of the information which should be before the sentencing

judge" and "[a]dditional matters may be included by the

presentence investigator." HRS § 706-602 cmt.

"A defendant is protected against the inclusion of

unfounded facts, derogatory information, statements and

conclusions by the provision of [HRS § 706-604 (Supp. 2022)]

providing for notice and opportunity to controvert." Id.; HRS

§ 706-604. "[A] court may not rely on information, even when it

is contained in a presentencing report, which is false or lacks

sufficient indicia of reliability." State v. Kahawai, 103

Hawai‘i 462, 466, 83 P.3d 725, 729 (2004); see also United States

v. Safirstein, 827 F.2d 1380, 1387 (9th Cir. 1987) ("A sentence

must be vacated if the district court demonstrably relies upon

false or unreliable information.").

"It is well established that a judge is presumed not

to be influenced by incompetent evidence[.]" State v. Barros,

105 Hawai‘i 160, 171, 95 P.3d 14, 25 (App. 2004) (quoting State

v. Antone, 62 Haw. 346, 353, 615 P.2d 101, 107 (1980)). And

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"the normal rule is that if there is sufficient competent

evidence to support the judgment or finding below, there is a

presumption that any incompetent evidence was disregarded and

the issue determined from a consideration of competent evidence

only." Id. (quoting State v. Gutierrez, 1 Haw. App. 268, 270,

618 P.2d 315, 317 (App. 1980)).

Here, Thompson pled no contest to disobeying the TRO

on two occassions and disobeying the protective order on one

occassion, all after causing his wife bodily injury. Following

the change of plea, the court ordered a presentence report be

prepared. The presentence report included a letter from

Thompson's wife and a letter from Daher.

At sentencing, the court asked if Thompson and his

counsel had an adequate opportunity to review the presentence

report, to which Thompson's counsel replied, "Yes, Your Honor."

The court asked if there were any additions or corrections

needed, and Thompson's counsel replied, "No corrections, Your

Honor."

The circuit court then raised a concern regarding

Daher's letter trying to usurp the court's authority; Thompson's

counsel moved to strike Daher's letter, and the court denied the

motion:

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[Circuit Court]: . . . I'm looking at the
[presentence report], which included the statement from
Ms. Thompson and somebody else. I'm not sure who that
person is. I'm not even sure why they allowed that person
to submit that report. And so somebody named Daher.

[Thompson's Counsel]: I -- I don't see why that's
included as well. I don't think that person is a party.

[Circuit Court]: That person almost like was trying
to usurp the Court's authority. And so I have issues with
that.

[Thompson's Counsel]: So I guess I would move to
strike it at this point.

[Circuit Court]: I'm going to leave it in, . . . but
I did have concern about the nature of the statement
received. I'm not even sure why that person was involved
in this.

(Formatting altered.)

The circuit court asked if Thompson himself had an

adequate opportunity to review the presentence report, and

Thompson replied he did. The circuit court asked if Thompson

wanted to make any additions or corrections, and Thompson

replied, "No, sir."

Thompson did not request changes to the presentence

report, except to strike Daher's letter, the denial of which he

does not challenge on appeal. Rightfully so, as HRS § 706-

602(1)(c) permits information from an "other source" regarding

the effects of the crime on a complaining witness.

The circuit court stated it read everything in the

presentence report. The circuit court did not err in reading

the entire presentence report.

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As Thompson points out, the circuit court also stated

it was concerned about "continuing contact," "continuing

violations," and "some of the allegations." Thompson was

convicted of contempt based on disobeying the TRO twice and

disobeying the protective order, both of which prohibited

contact with his wife and coming within 100 yards of her

residence or place of employment. These contacts were

"continuing contact" and "continuing violations." Thompson was

also convicted of assaulting his wife. Altogether, these

convictions were based on "allegations" made by Thompson's wife.

Thus, the convicted acts support the circuit court's statements.

Because the convicted acts support the circuit court's

statements, the presumption that the circuit court disregarded

incompetent evidence applies. And nothing in the record

expressly shows the circuit court considered uncharged

allegations. Thus, Thompson does not rebut the presumption that

the court disregarded any incompetent evidence.

(2) Thompson also contends the circuit court's

"geographic restriction which required [him] to move out of his

residence was illegal and unconstitutional." (Formatting

altered.) Thompson acknowledges the circuit court may impose

geographic restrictions as a condition of probation. But he

argues that, "in order to pass constitutional muster (i.e. not

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violate an individual's constitutional rights to freedom of

movement and freedom of association) restrictions such as

geographic restrictions must be 'narrowly tailored.'"

As a condition of probation, the circuit court may

order a defendant to "refrain from residing in a specified place

or area" and "[r]efrain from entering specified geographical

areas without the court's permission[.]" HRS § 706-624(2)(k),

(m) (Supp. 2016).

These conditions must be "reasonably related to the

factors set forth in section 706-606 [(2014)]" and "involve only

deprivations of liberty or property as are reasonably necessary

for the purposes indicated in section 706-606(2)[.]" HRS § 706-

624(2). HRS § 706-606 requires the court to consider certain

factors when imposing a sentence, including the offense

circumstances, the defendant's history, and the need to provide

deterrence and protection:

§ 706-606 Factors to be considered in imposing a sentence.

The court, in determining the particular sentence to
be imposed, shall consider:

(1) The nature and circumstances of the offense and the
history and characteristics of the defendant; [and]

(2) The need for the sentence imposed:

(a) To reflect the seriousness of the offense, to
promote respect for law, and to provide just
punishment for the offense;

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(b) To afford adequate deterrence to criminal
conduct; [and]

(c) To protect the public from further crimes of
the defendant[.]

HRS § 706-606 (formatting altered).

To summarize, we must consider whether the court

(1) specified the restricted area, (2) provided a means for

obtaining court permission to enter the restricted area if

needed, (3) set conditions that were reasonably related to the

HRS § 706-606 factors, and (4) narrowly tailored the conditions

to involve only deprivations reasonably necessary for the

purposes of HRS § 706-606(2).

First, the court did not establish the geographic

restriction with specificity. The written terms and conditions

of probation required Thompson "not to pass the intersection of

Puhi Road and [Kaumualiʻi] Highway in [Līhuʻe]." This is merely

one point on a map. One point on a map is insufficient to

establish a specific geographic area. Instead, the geographic

restriction should be "sufficiently definite such that the

average person is provided adequate notice of what behavior is

prohibited." State v. Stanford, 79 Hawai‘i 150, 154, 900 P.2d

157, 161 (1995).

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Second, the written terms and conditions of probation

did not provide a means for Thompson to obtain permission to

enter the restricted area should it be necessary.

Third, setting a geographic restriction appears

reasonably related to the HRS § 706-606 factors. The circuit

court considered the "continuing violations" and that Thompson's

wife resided and worked between Po‘ipū and Kalāheo. The circuit

court stated it was "trying to avoid a situation where we get

additional allegations of contact." The circuit court also

stated it needed "to find some way to assure that people are

safe" and to "maintain[] distance between [Thompson] and the

complaining witness." Based on these statements, the circuit

court demonstrated that a geographic restriction was reasonably

related to promoting respect for the law, affording adequate

deterrance from continued violations, and protecting Thompson's

wife.

Last, without a specific geographic area, we are

unable to determine whether the area was narrowly tailored to

"involve only deprivations of liberty or property as are

reasonably necessary for the purposes indicated in section 706-

606(2)[.]" HRS § 706-624(2).

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Thus, the circuit court abused its discretion as to

the geographic restriction.

Based on the foregoing, we vacate the portion of

Thompson's sentence establishing the geographic restriction and

remand with instructions to establish a geographic restriction

that complies with this summary disposition order. We otherwise

affirm.

DATED: Honolulu, Hawaiʻi, August 22, 2025.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Richard H.S. Sing,
for Defendant-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Tracy Murakami,
Deputy Prosecuting Attorney, /s/ Kimberly T. Guidry
County of Kaua‘i, Associate Judge
for Plaintiff-Appellee.

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