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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-FEB-2026
07:51 AM
Dkt. 92 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
NAINOA DAMON, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and Guidry, JJ.)

Defendant-Appellant Nainoa Damon (Damon) appeals from

the Circuit Court of the First Circuit's (circuit court)

"Judgment of Conviction [and] Sentence" (Judgment), entered on

August 22, 2024, and "Free Standing Order of Restitution"

(Restitution Order), entered on August 23, 2024. 1

On March 30, 2022, the State of Hawaiʻi (State) charged

Damon by Indictment with the following six counts: (1) Murder in

1 The Honorable Shanlyn A.S. Park presided.
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the Second Degree, in violation of Hawaii Revised Statutes (HRS)

§§ 707-701.5 (Supp. 2019), 706-656 (2014); (2) Carrying or Use

of Firearm in the Commission of a Separate Felony, in violation

of HRS § 134-21 (2023); (3) Robbery in the First Degree, in

violation of HRS § 708-840(1)(b)(ii) (2014); (4) Carrying or Use

of Firearm in the Commission of a Separate Felony, in violation

of HRS § 134-21; (5) Place to Keep Pistol or Revolver, in

violation of HRS § 134-25 (2023); and (6) Terroristic

Threatening in the First Degree, in violation of HRS § 707-

716(1)(e) (2014).

A jury found Damon guilty on all counts, and found

that the HRS § 706-660.1 (2014) sentencing enhancement should be

imposed. The circuit court sentenced Damon to the following

prison terms: (1) on Count 1, to a life term with the

possibility of parole, with a mandatory term of 15 years; (2) on

Counts 2, 3, and 4, to an indeterminate term of 20 years; (3) on

Count 5, to an indeterminate term of 10 years; and (4) on Count

6, to an indeterminate term of 5 years. The circuit court

ordered all terms to be served concurrently. In its Restitution

Order, the circuit court also ordered Damon to pay $3,980.73 to

the family of the Decedent.

Damon raises the following points of error on appeal,

contending that the circuit court: (1) erred in denying "Damon a

right to a fair trial by failing to dismiss [a juror]"; (2)

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erred "in allowing [Federal Bureau of Investigation Special

Agent Andrew Masters (Agent Masters)] to testify as to his

updated opinions contained in his untimely updated report"; (3)

erred "in allowing Ridge Li[ʻ]i [(Liʻi)] and Andreas Schneider

[(Schneider)] to testify"; (4) "plainly erred in failing to give

a self-defense instruction"; and (5) "plainly erred in its

special interrogatory." (Formatting altered.) Damon also

contends, as point of error (6), that his trial counsel "was

ineffective and substantially impaired his defense," and, as

point of error (7), that "[t]he cumulative effect of the errors

deprived Damon of a right to a fair trial." (Formatting

altered.)

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 Damon's contentions of error as follows:

(1) Damon contends that the circuit court erred when

it failed to dismiss one of the jurors, following the juror's

exposure to an outside influence, thereby violating his right to

a fair trial. We review Damon's contention for abuse of

discretion. State v. Grewer, 157 Hawaiʻi 104, 111, 575 P.3d 737,

744 (2025) ("When a claim of juror misconduct arises, trial

courts first determine whether the alleged deprivation is of a

substantially prejudicial nature. In making this determination,

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trial courts look to the 'general nature' of the alleged

misconduct and whether it 'could' substantially prejudice the

defendant. Whether a juror's alleged misconduct 'could'

substantially prejudice the defendant is a question left to the

trial court's discretion.") (citations omitted).

The record reflects that, following a verbal outburst

in the gallery between two trial attendees, the circuit court

conducted an individual voir dire of each juror. The circuit

court asked each juror: (1) if they saw or heard anything of the

"outburst" in court; (2) if so, what they saw or heard; and (3)

whether what they saw or heard would affect their ability to be

fair and impartial. The circuit court also instructed each

juror to set aside what they saw or heard, and to not discuss

the "outburst" or voir dire with any other juror.

Damon contends that the circuit court erred by not

excluding a juror who testified that she saw "a gentleman

talking to another gentleman," and that she heard one man say to

the other "something about don't talk about him like that" and

"you're a good boy." Observing that the juror appeared "visibly

upset" during voir dire, the circuit court asked the juror: "Can

you tell me how this incident has affected you?" The juror

twice told the circuit court she is "a cry baby" and that she

"cr[ies] about everything." In response to the circuit court's

questions, the juror affirmed that she could be a fair and

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impartial juror in this case, that she would follow the circuit

court's "instruction to set this incident aside and just judge

this case solely based upon the witnesses here . . . and the

documents that come into evidence," and that she would not

discuss the incident or voir dire with the other jurors.

The circuit court recalled this juror for a second

voir dire when it came to the circuit court's attention, after

the initial voir dire, that the juror "had expressed concern for

her safety in the public, . . . in regard to being a juror in

this case." The juror informed the circuit court during this

second voir dire that she worked in sales and, through her work,

"encounter[s] everybody in the public" and "help[s] police

officers and . . . everybody." The circuit court again

questioned the juror as to her ability to perform her duties as

a juror, as follows:

THE COURT: [Juror], I need to be sure. Remember what I
said. I have three functions as a judge, and one of those
functions is to be sure that the process is fair. So I'm just
asking you for your most honest answer.
There's no right --

THE JUROR: Right.

THE COURT: -- or wrong answer. All right? I just want you
to understand that.
Given your strong emotions with respect to this incident
this afternoon that you exhibited to me, would that affect your
ability to focus on the evidence coming into this trial or would
it affect -- do you believe that it would affect your ability to
be fair and impartial to both the prosecution and the defense in
this case?

THE JUROR: It will not affect my, uh --

THE COURT: Okay.

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THE JUROR: -- thinking.

THE COURT: All right. So you feel you can proceed forward
as a juror even though you have these concerns?

THE JUROR: Yes.

(Formatting altered.)

Following this questioning, the circuit court

determined that the juror could be fair and impartial. 2

On this record, we conclude that the circuit court did

not abuse its discretion by allowing the juror to remain on the

jury.

(2) Damon contends that the circuit court erred in

"allowing Agent Masters to testify as to his updated opinions

contained in his untimely updated report," as this violated

Hawaiʻi Rules of Penal Procedure (HRPP) Rule 16. (Formatting

altered.) "Generally, the decision whether to admit expert

testimony rests in the discretion of the trial court." State v.

McDonnell, 141 Hawaiʻi 280, 289, 409 P.3d 684, 693 (2017)

(citation omitted). However, "to the extent that the trial

court's decision is dependent upon interpretation of court

rules, such interpretation is a question of law, which the

appellate court reviews de novo." Id. (cleaned up).

2 We note that Damon's trial counsel asked the circuit court to
excuse the juror "out of an abundance of caution" based on his concerns that
the juror's "founded belief that she's gonna get caught in the crossfire out
there" would "kick back," but acknowledged that he thought the juror could
"be fair and impartial."

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The record reflects that the State disclosed Agent

Masters' original report to Damon on August 23, 2023. Agent

Masters' report analyzed Damon's cell phone locations around the

time of the charged offenses. The State noticed its intent to

call Agent Masters as an expert "in the area of historical

cellular site analysis." After both parties had indicated their

readiness to go to trial on March 12, 2024, the State learned of

Agent Masters' amended report on March 20, 2024 and received the

amended report on March 21, 2024. 3 The State represents that it

disclosed the amended report to defense counsel on March 21,

2024, the same day that it received the amended report from

Agent Masters. Damon does not identify any pre-trial order that

was violated by the admission of this evidence, which was

disclosed more than a month before the May 1, 2024 trial. Nor

does he point to any evidence of bad faith or intentional

withholding.

In State v. Escobido-Ortiz, this court explained that,

[HRPP Rule 16(b)] requires the State to disclose material
and information within the prosecutor's possession or
control; it does not require the prosecution to discover
relevant evidence by a particular deadline. Indeed, HRPP
Rule 16(e)(2) contemplates that a prosecutor may discover
and disclose relevant evidence during trial. By promptly
disclosing the [evidence] upon learning of [the expert's]
analysis, the prosecution complied with its HRPP Rule 16
obligations with respect to that evidence.

3 The amended report differed from the original report because,
inter alia, it included a new "data session . . . that is a reliable
indicator of [Damon's] phone's location."

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109 Hawaiʻi 359, 363-64, 126 P.3d 402, 406-07 (App. 2005)

(emphasis added) (cleaned up).

On this record, we conclude that the State's prompt

disclosure of the amended report complied with HRPP Rule

16(e)(2)'s continuing duty to disclose, and that the circuit

court did not abuse its discretion in allowing Agent Masters to

testify regarding his amended report.

(3) Damon contends that the circuit court erred in

admitting the testimonies of two State witnesses, Liʻi and

Schneider, because these witnesses were disclosed to Damon after

trial call in violation of HRPP Rule 16.

Damon moved to preclude Liʻi and Schneider's

testimonies, and the circuit court held an evidentiary hearing

at which Honolulu Police Department Detective Justin Higa

(Detective Higa) testified. Detective Higa testified that

neither Liʻi nor Schneider had initially come forward to give

statements to the police, and that he was not able to interview

them until March 11, 2024. Among other things, while it appears

that Detective Higa lacked Liʻi and Schneider's contact

information, the circuit court's April 23, 2024 "Findings of

Fact, Conclusions of Law, and Order Denying Defendant's Motion

to Preclude Evidence Filed April 2, 2024" (Order Denying

Preclusion) noted that Detective Higa included the names of

these two witnesses as "Ridge" and "Andreas" in his November 25,

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2022 closing report. 4 Detective Higa testified that he disclosed

Liʻi and Schneider's March 11, 2024 recorded interviews to the

State "right away." The State promptly disclosed Detective

Higa's supplemental report with these additional witness

statements in March 2024, which was over a month before the

May 1, 2024 trial.

Damon does not identify any evidence demonstrating the

State knew that Detective Higa intended to interview Liʻi and

Schneider prior to receiving their recorded interviews in March

2024, or that the State failed to promptly disclose the

recordings of Liʻi and Schneider's interviews. See State ex rel.

Kaneshiro v. Huddy, 82 Hawaiʻi 188, 195, 921 P.2d 108, 115 (1996)

("HRPP Rule 16(b)(1)(i) does not obligate the prosecution to

disclose the name and address of, or statements made by, any

person, unless and until the prosecution intends to call that

person as a witness in the presentation of the evidence in

chief.") (emphasis added) (footnote omitted).

On this record, we conclude that the circuit court did

not abuse its discretion in admitting Liʻi and Schneider's

testimonies. 5

4 The findings of fact are unchallenged.

5 In conjunction with point of error (3), Damon challenges
conclusions of law 1 through 5 in the Order Denying Preclusion. We conclude
that conclusions of law 1 through 5 are not wrong. See State v. Lavoie, 145

(continued . . .)

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(4) Damon contends that the circuit court plainly

erred by failing to sua sponte instruct the jury as to self-

defense. 6 "When jury instructions or the omission thereof are at

issue on appeal, the standard of review is whether, when read

and considered as a whole, the instructions given are

prejudicially insufficient, erroneous, inconsistent, or

misleading." State v. Culkin, 97 Hawaiʻi 206, 213, 35 P.3d 233,

240 (2001).

"Criminal defendants are entitled to jury instructions

on every defense or theory of defense having any support in the

evidence." Id. at 214, 35 P.3d at 241 (citations omitted).

However, "where evidentiary support for an asserted defense, or

for any of its essential components, is clearly lacking, it

would not be error for the trial court to refuse to charge on

the issue or to instruct the jury not to consider it." State v.

Tuaolo, No. CAAP-XX-XXXXXXX, 2023 WL 4044583, at *2 (Haw. App.

June 16, 2023) (SDO) (cleaned up).

Pursuant to HRS § 703-304(2) (2014), "[t]he use of

deadly force is justifiable under this section if the actor

believes that deadly force is necessary to protect himself

5(. . .continued)

Hawaiʻi 409, 421, 453 P.3d 229, 241 (2019) ("Conclusions of law are reviewed
de novo under the right/wrong standard of review.") (citation omitted).

6 Damon withdrew his self-defense and justifiable use of force
instruction.

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against death, serious bodily injury, kidnapping, rape, or

forcible sodomy." The record does not reflect any evidence to

refute the State's theory that Damon was the initial aggressor,

or to establish Damon's reasonable belief that shooting the

Decedent was necessary to his self-defense.

We therefore conclude that the circuit court's jury

instructions were not prejudicially insufficient, erroneous,

inconsistent, or misleading.

(5) Damon contends that the circuit court committed

plain error because its special interrogatory failed to instruct

the jury on the "state of mind as to possession" required to

impose a mandatory minimum term of imprisonment pursuant to HRS

§ 706-660.1. 7 "Because special interrogatories are another way

in which trial courts instruct juries as to their deliberations

and decisions, we review a trial court's special

interrogatories, or the lack thereof, as we would its jury

7 HRS § 706-660.1 states, in pertinent part,

(1) A person convicted of a felony, where the person had a
firearm in the person's possession or threatened its use or
used the firearm while engaged in the commission of the
felony, whether the firearm was loaded or not, and whether
operable or not, may in addition to the indeterminate term
of imprisonment provided for the grade of offense be
sentenced to a mandatory minimum term of imprisonment
without possibility of parole or probation the length of
which shall be as follows:

(a) For murder in the second degree and attempted
murder in the second degree--up to fifteen years[.]

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instructions, or the lack thereof[.]" State v. Sanford, 97

Hawaiʻi 247, 256, 35 P.3d 764, 773 (2001).

In State v. Smith, the Hawaiʻi Supreme Court held that,

"a sentencing enhancement under HRS § 706-660.1 is not an

element of an underlying offense within the meaning of HRS §

702-205." 157 Hawaiʻi 1, 10, 575 P.3d 634, 643 (2025).

Importantly, HRS § 706-660.1 does not establish an
'offense' for possession of a firearm during the commission
of a felony. . . . HRS § 706-660.1 establishes factors for
imposing a mandatory minimum term during sentencing,
following a predicate conviction.

Id. at 9, 575 P.3d at 642. The Smith court rejected the

challenge that an indictment had to allege a state of mind for a

HRS § 706-660.1 sentencing enhancement. Id. at 8, 575 P.3d at

642. Here, Damon's HRS § 706-660.1 sentencing enhancement was

imposed pursuant to his predicate conviction for Murder in the

Second Degree (Count 1). In finding Damon guilty as to Count 1,

the jury found that Damon "intentionally or knowingly engaged in

conduct" and "by engaging in that conduct, [Damon] intentionally

or knowingly caused the death of [the Decedent]." Because a HRS

§ 706-660.1 sentencing enhancement is not an element of the

predicate murder conviction in Count 1, the special

interrogatory on the enhancement was not required to include a

state of mind. We therefore conclude that the special

interrogatory as to Count 1 was not erroneous.

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(6) Damon contends, for the first time on appeal, that

his trial counsel was ineffective. "When a defendant first

raises the issue of ineffective assistance of counsel on direct

appeal, the appellate court may consider the merits of the

appeal de novo if the record is sufficiently developed to

determine whether there has been ineffective assistance of

counsel." State v. Salavea, 147 Hawaiʻi 564, 575, 465 P.3d 1011,

1022 (2020) (cleaned up).

In addressing Damon's ineffective assistance of

counsel claim, we consider whether when, "viewed as a whole,"

trial "counsel's assistance was within the range of competence

demanded of attorneys in criminal cases." State v. DeLeon,

131 Hawaiʻi 463, 478-79, 319 P.3d 382, 397-98 (2014) (citation

omitted). Damon must establish "that there were specific errors

or omissions reflecting counsel's lack of skill, judgment, or

diligence," and "that such errors or omissions resulted in

either the withdrawal or substantial impairment of a potentially

meritorious defense." State v. Richie, 88 Hawaiʻi 19, 39, 960

P.2d 1227, 1247 (1998) (citations omitted).

On this record, we conclude Damon does not establish

that his counsel was ineffective in failing to cross-examine

witnesses about the Decedent's alleged gang membership, drug

dealing, and gun use. Nor does he establish that his counsel

was ineffective for failing to object to Agent Masters' amended

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report being admitted into evidence. See Lussier v. Mau-Van

Dev., Inc., 4 Haw.App. 359, 393, 667 P.2d 804, 826 (App. 1983)

("[O]bjections need not be renewed if the prior ruling on the

motion in limine amounted to an unequivocal holding concerning

the issue raised.") (citation omitted).

The record is insufficient for us to determine whether

trial counsel was ineffective by not requesting a continuance

after the circuit court denied Damon's motions to preclude Agent

Masters' amended report and Liʻi and Schneider's testimonies.

Damon contends that a continuance would have provided time for

defense counsel to consider the retention of an expert to refute

Agent Masters' testimony, and to look into whether there were

any issues that could have affected Liʻi and Schneider's

credibility. It is unclear whether defense counsel weighed

these considerations, such that proceeding without a continuance

was part of the defense's trial strategy. We therefore affirm

Damon's conviction without prejudice to Damon filing an HRPP

Rule 40 petition on this point.

(7) Damon contends that the cumulative impact of the

alleged points of error deprived him of his right to a fair

trial. For the reasons discussed supra, Damon's points of error

(1) through (6) lack merit, and there is therefore no

"cumulative" error.

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For the foregoing reasons, we affirm the circuit

court's Judgment and Restitution Order.

DATED: Honolulu, Hawaiʻi, February 19, 2026.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Audrey Stanley,
/s/ Katherine G. Leonard
for Defendant-Appellant.
Associate Judge
Stephen K. Tsushima,
/s/ Kimberly T. Guidry
Deputy Prosecuting Attorney,
Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.