State v. Buddemeyer

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-OCT-2023
10:02 AM
Dkt. 78 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
JODY BUDDEMEYER, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3PC16100331K)

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

This case arises from a March 1, 2015 incident
involving on-duty police officer, Defendant-Appellant Jody
Buddemeyer (Buddemeyer), striking and killing a bicyclist with
his police vehicle. On October 11, 2016, a Hawai#i County grand
jury indicted Buddemeyer on three charges: (1) Count One,
Negligent Homicide in the First Degree;1 (2) Count Two, Tampering
with Physical Evidence;2 and (3) Count Three, False Reporting to
Law Enforcement Authorities.3 On January 4, 2017, the Circuit
Court of the Third Circuit (Circuit Court)4 entered an order

1
Hawai#i Revised Statutes (HRS) § 707-702.5(1)(2014).
2
HRS § 710-1076(1)(2014).
3
HRS § 710-1015(1)(2014).
4
The Honorable Melvin H. Fujino presided.
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granting Buddemeyer's oral motion to suspend proceedings pending
completion of a three-panel examination of Buddemeyer's fitness
to proceed to trial, and Buddemeyer's cognitive or volitional
capacity at the time of the alleged conduct. See Hawai#i Revised
Statutes (HRS) §§ 704-404 (2014), -407.5 (2016). The Circuit
Court's order, in part, tasked the panel experts with reporting
their opinion (1) "as to the extent, if any, to which the
cognitive and/or volitional capacity of Defendant, i.e., the
capacity to appreciate the wrongfulness of Defendant's conduct
and/or to conform Defendant's conduct to the requirements of the
law, was impaired at the time of the conduct alleged" and (2) "as
to the capacity of Defendant to have a particular state of mind
which is required to establish an element of the offense
charged." On February 23, 2017, the Circuit Court entered an
order resuming the proceedings, after reviewing the panel
experts' reports and finding that Buddemeyer was fit to proceed
to trial.
A jury trial was held beginning October 2, 2018, and
verdicts were entered on October 12, 2018. The three court-
ordered panel experts testified at trial. The first expert,
psychiatrist Dr. Andrew Bisset, testified that no conclusions
could be drawn about Buddemeyer's volitional capacity because
Buddemeyer had no psychiatric history prior to the alleged
negligent homicide. The second expert, forensic psychologist Dr.
Frederic Manke, testified that at the time Buddemeyer struck the
bicyclist, he had no undiagnosed previous mental illness and that
Buddemeyer's volitional capacity was not impaired by the effects
of mental disease, disorder or defect; but Dr. Manke also
testified that he lacked the necessary qualifications in the
field of psychiatry to render any opinion whether Buddemeyer
suffered from a neurocognitive disorder, such as acute fatigue
work-shift disorder. The third expert, psychiatrist Dr. Henry H.
Yang (Dr. Yang), opined that Buddemeyer's "capacity to appreciate
the wrongfulness of his conduct was significantly impaired by a

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neurocognitive disorder, or the medical condition of [a] sleep
disorder" at the time of the alleged negligent homicide.5 The
jury found Buddemeyer (1) guilty as to Count One of the lesser-
included offense of Negligent Homicide in the Third Degree (NH3);
(2) not guilty as to Count Two; and (3) not guilty as to Count
Three.
Buddemeyer appeals from the Judgment, entered on
December 12, 2018, convicting him of the lesser-included offense
of NH3 in violation of HRS § 707-704 (2014).6 On appeal,
Buddemeyer contends the Circuit Court erred in denying his post-
verdict Motion for Acquittal.7 Specifically, Buddemeyer argues
the Circuit Court erred because the State presented no evidence

5
In addition to Dr. Yang's expert report, Dr. Yang attached a study
regarding sleep disorders in police officers, which the jury had access to for
its deliberations.
6
The offense of NH3 is set forth in HRS § 707-704 as follows:

§707-704 Negligent homicide in the third degree . (1)
A person is guilty of the offense of negligent homicide in
the third degree if that person causes the death of another
person by the operation of a vehicle in a manner which is
simple negligence.
(2) "Simple negligence" as used in this section:
(a) A person acts with simple negligence with
respect to the person's conduct when the person
should be aware of a risk that the person
engages in that conduct.
(b) A person acts with simple negligence with
respect to attendant circumstances when the
person should be aware of a risk that those
circumstances exist.
(c) A person acts with simple negligence with
respect to a result of the person's conduct when
the person should be aware of a risk that the
person's conduct will cause that result.
(d) A risk is within the meaning of this subsection
if the person's failure to perceive it,
considering the nature and purpose of the
person's conduct and the circumstances known to
the person, involves a deviation from the
standard of care that a law-abiding person would
observe in the same situation.
(3) Negligent homicide in the third degree is a
misdemeanor.
7
On October 12, 2018, the jury entered a guilty verdict against
Buddemeyer as to the NH3 charge. On October 22, 2023, Buddemeyer filed a
post-verdict Motion for Judgment of Acquittal.

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to contradict expert testimony allegedly supportive of
Buddemeyer's affirmative defense of lack of penal responsibility
for reason of mental disease, disorder, or defect.8 See HRS
§ 701-115 (2014);9 HRS § 704-402 (2014).10 Therefore, Buddemeyer
contends, "the jury could not have concluded that [Buddemeyer]
maintained sufficient mental capacity as a matter of law" to be

8
At trial, Buddemeyer asserted as an affirmative defense that his
"capacity to appreciate the wrongfulness of his conduct was significantly
impaired by a neurocognitive disorder or the medical condition of sleep
disorder."
9
HRS § 701-115 provides, in relevant part:

§701-115 Defenses. (1) A defense is a fact or set of
facts which negatives penal responsibility.
(2) No defense may be considered by the trier of fact
unless evidence of the specified fact or facts has been
presented. If such evidence is presented then:

. . .

(b) If the defense is an affirmative defense, the
defendant is entitled to an acquittal if the
trier of fact finds that the evidence, when
considered in light of any contrary prosecution
evidence, proves by a preponderance of the
evidence the specified fact or facts which
negative penal liability.
(3) A defense is an affirmative defense if:
(a) It is specifically so designated by the Code or
another statute[.]
10
HRS § 704-402 provides:

HRS § 704-402. Physical or mental disease, disorder,
or defect excluding responsibility is an affirmative
defense; form of verdict when finding of irresponsibility is
made. (1) Physical or mental disease, disorder, or defect
excluding responsibility is an affirmative defense.
(2) When the defense provided for by subsection (1)
is submitted to a jury, the court shall, if requested by the
defendant, instruct the jury as to the consequences to the
defendant of an acquittal on the ground of physical or
mental disease, disorder, or defect excluding
responsibility.
(3) When the defendant is acquitted on the ground of
physical or mental disease, or defect excluding responsibility,
the verdict and the judgment shall so state.

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convicted of NH3 pursuant to HRS § 707-704.11
For the reasons discussed below, we affirm.
I. Discussion
The Circuit Court did not err in denying Buddemeyer's
Motion for Judgment of Acquittal. When reviewing the grant or
denial of a post-verdict motion for a judgment of acquittal,
we employ the same standard that a trial court applies to
such a motion, namely, whether, upon the evidence viewed in
the light most favorable to the prosecution and in full
recognition of the province of the trier of fact, the
evidence is sufficient to support a prima facie case so that
a reasonable mind might fairly conclude guilt beyond a
reasonable doubt. Sufficient evidence to support a prima
facie case requires substantial evidence as to every
material element of the offense charged. Substantial
evidence as to every material element of the offense charged
is credible evidence which is of sufficient quality and
probative value to enable a person of reasonable caution to
support a conclusion. Under such a review, we give full
play to the right of the fact finder to determine
credibility, weigh the evidence, and draw justifiable
inferences of fact.
State v. Timoteo, 87 Hawai#i 108, 112-13, 952 P.2d 865, 869-70
(1997) (quoting State v. Jhun, 83 Hawai#i 472, 481, 927 P.2d
1355, 1364 (1996)).
Furthermore, we note that when a defendant claims lack
of penal responsibility as an affirmative defense, they bear "the
burden of going forward with the evidence to prove facts
constituting the defense and of proving such facts by a
preponderance of the evidence." State v. Uyesugi, 100 Hawai#i
442, 456, 60 P.3d 843, 857 (2002) (quoting State v. Fukusaku, 85
Hawai#i 462, 481, 946 P.2d 32, 51 (1997)). When a jury finds a
defendant guilty, it is an indication that the defendant did not
meet their burden of proving their affirmative defense. See id.
at 459, 60 P.3d at 860 (explaining that the jury must first

11
Conviction for NH3 under HRS § 707-704 requires, inter alia, simple
negligence for which the statute provides a mental state that "the person
should be aware of a risk" regarding the person's conduct, the attendant
circumstances, and that the person's conduct will cause the specified result.
See HRS § 707-704(2)(a)-(c). Further, HRS § 707-704(2)(d) sets forth the
meaning of "risk" for purposes of that subsection.

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unanimously determine whether the prosecution met its burden of
proof before proceeding to unanimously determine whether the
defendant met their burden in proving the affirmative defense).12
First, we address Buddemeyer's contention that the
State was required to produce contrary evidence to undermine the
court-ordered expert opinion of psychiatrist Dr. Yang, as to
Buddemeyer's incapacity to appreciate the wrongfulness of his
conduct due to an alleged sleep disorder. We note that
Buddemeyer fails to cite to any authority in his opening brief or
elsewhere to support this contention. See Hawai#i Rules of
Appellate Procedure (HRAP) Rule 28(b)(7).13 To the extent
Buddemeyer's argument is based on the plain language of HRS
§ 701-115(2)(b) regarding affirmative defenses, the argument
lacks merit. The plain language of HRS § 701-115(2)(b) provides:
"[i]f the defense is an affirmative defense, the defendant is
entitled to an acquittal if the trier of fact finds that the
evidence, when considered in the light of any contrary
prosecution evidence, proves by a preponderance of the evidence

12
In explaining the order in which a jury must consider a defendant's
affirmative defense during its deliberations, the Hawai #i Supreme Court has
instructed that:

The jury must unanimously determine whether the prosecution
met its burden of proof. Only then should the jury proceed
to a determination of whether the defendant met his or her
burden in proving the affirmative defense. Whether the
defendant met his or her burden must be determined by a
unanimous decision of the jury. If the jury has
successfully proceeded this far in its deliberations, it may
then consider the proper verdict. If the jury fails to
reach unanimity as to the affirmative defense, the circuit
court must declare a mistrial due to a hung jury.

Uyesugi, 100 Hawai#i at 459, 60 P.3d at 860 (emphasis added).
13
HRAP 28(b)(7) provides that an appellant's opening brief must
include: "[t]he argument, containing the contentions of the appellant on the
points presented and the reasons therefor, with citations to the authorities,
statutes and parts of the record relied on." (Emphasis added). Further, under
HRAP 28(b)(7), "[p]oints not argued may be deemed waived."

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the specified fact or facts which negative penal liability." The
plain language of HRS § 701-115(2)(b) does not require that the
prosecution provide rebuttal evidence, it merely acknowledges the
trier of fact is to consider such evidence, if any, in its
deliberations. Thus, under the plain language of the statute the
prosecution was not required to produce rebuttal or contrary
evidence as to Buddemeyer's affirmative defense that he lacked
volitional capacity to be convicted of negligent homicide.
Furthermore, to the extent Buddemeyer's argument is
premised on the weight the jury gave to the parties' conflicting
evidence and/or the credibility of the expert witnesses, we note
that ordinarily, the weight a jury gives to evidence is not
subject to review. "[T]his court will not attempt to reconcile
conflicting evidence, or interfere with a jury decision based on
the credibility of witnesses or the weight of the evidence. The
jury's finding of the requisite elements of the crime charged is
clearly reflected in its verdict." State v. Gabrillo, 10 Haw.
App. 448, 457, 877 P.2d 891, 895 (App. 1994) (internal quotation
marks, citations, brackets, and ellipses omitted). "Verdicts
based on conflicting evidence will not be set aside where there
is substantial evidence to support the trier of fact's findings."
State v. Sua, 92 Hawai#i 61, 69, 987 P.2d 959, 967 (1999)
(brackets omitted) (quoting Aga v. Hundahl, 78 Hawai#i 230, 237,
891 P.2d 1022, 1029 (1995)). Here, given the conflicting
testimony of the experts and because the jury unanimously found
Buddemeyer guilty of NH3, this indicates that the jury found he
did not meet his burden of proving his affirmative defense. See
Uyesugi, 100 Hawai#i at 459, 60 P.3d at 860; State v. Young, 93
Hawai#i 224, 231-32, 999 P.2d 230, 237-38 (2000); State v.
Lanoza, No. CAAP-XX-XXXXXXX, 2017 WL 2800025, at *3-4 (Haw. App.
June 28, 2017) (mem. op).

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Indeed, the jury was asked the following "Special
Interrogatory as to Count 1 the Included offense of Negligent
Homicide in the Third Degree":
If you find the defendant Guilty as to the offense of
Negligent Homicide in the Third Degree, then you must answer
the following. Your answer to each question must be
unanimous. Did the defendant prove the following by a
preponderance of the evidence:

1. At the time of the charged offense, the defendant was
suffering from a physical or mental disease, disorder,
or defect; and

2. As a result of such physical or mental disease,
disorder, or defect, defendant lacked substantial
capacity either to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements
of the law?

The jury answered this interrogatory in the negative.
Finally, because Buddemeyer's sole contention on appeal
is regarding the State's failure to provide rebuttal evidence to
Buddemeyer's affirmative defense, we need not address the
sufficiency of the evidence beyond our discussion above.
II. Conclusion
Based on the foregoing, we affirm the Circuit Court's
"Judgment of Conviction and Probation Sentence; Notice of Entry
of Judgment" entered December 10, 2018, and the Circuit Court's
denial of Appellant's Motion for Judgment of Acquittal entered
November 30, 2018.
DATED: Honolulu, Hawai#i, October 31, 2023.

Brian J. De Lima, /s/ Lisa M. Ginoza
Jeremy J.K. Butterfield, Chief Judge
for Defendant-Appellant
/s/ Katherine G. Leonard
Stephen L. Frye, Associate Judge
Deputy Prosecuting Attorney,
for Plaintiff-Appellee /s/ Karen T. Nakasone
Associate Judge

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