State v. Stroeve

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-NOV-2023
08:09 AM
Dkt. 110 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,
v.
ERIC STROEVE, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge and Nakasone, J.,
with Hiraoka, J., concurring and dissenting separately)

Self-represented Defendant-Appellant Eric Stroeve1
appeals from the "Judgment of Conviction and Sentence" entered by
the Circuit Court of the First Circuit on December 5, 2022.2 For
the reasons explained below, we vacate and remand.
In the early morning hours of May 10, 2021, someone set
fire to Ali#iōlani Hale, a state historical building that houses
the Hawai#i Supreme Court. Stroeve was indicted by a grand jury
on May 14, 2021. He was charged with Arson in the First Degree,

1
According to Stroeve, his last name "is pronounced like scuba.
It's Dutch[.]"
2
The Honorable Kevin A. Souza presided. An amended judgment was
entered on December 20, 2022, effective nunc pro tunc December 5, 2022. The
amended judgment corrected a typographical error in the amount of credit for
time served.
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in violation of Hawaii Revised Statutes (HRS) § 708-8251(1)(b).3
He pleaded not guilty.
The State filed a motion to determine voluntariness of
statements Stroeve made to a Honolulu Police Department (HPD)
officer. The circuit court entered "Findings of Fact,
Conclusions of Law, and Order Granting State's Motion to
Determine Voluntariness" on June 6, 2022.
Jury trial began on July 12, 2022. The State adduced
evidence that Stroeve was identified as the person shown in a
surveillance video lighting a fire near the koa doors of the
Judiciary History Center entrance, located at the front of the
Hawai#i Supreme Court building. The fire caused smoke damage,
damage to the koa doors, and damage to parts of the interior
carpet, for a total amount of $815,637.40.4
The jury found Stroeve guilty as charged. The Judgment
was entered on December 5, 2022. Stroeve was sentenced to twenty
years in prison, with credit for time served. A Free Standing
Order of Restitution of $115,721.45 was entered on December 7,
2022. This appeal followed.
Stroeve contends that the circuit court erred by:
(1) admitting into evidence footage from the body-worn camera of
HPD officer Timothy Massie during the hearing on the State's
motion to determine voluntariness; (2) granting the State's
motion to determine voluntariness; (3) "suppressing" Officer
Massie's body-worn camera footage on July 8 and 13, 2022; and
(4) admitting "false testimony" from a trial witness.5
(1) Stroeve contends that the circuit court erred by
admitting footage from Officer Massie's body-worn camera into
evidence during the hearing on the State's motion to determine

3
HRS § 708-8251(1)(b)(2014) provides: "(1) A person commits the
offense of arson in the first degree if the person intentionally or knowingly
sets fire to or causes to be burned property and: . . . (b) Knowingly or
recklessly damages the property of another, without the other's consent, in an
amount exceeding $20,000."
4
$815,637.40, the total amount of damages introduced at trial,
consisted of $55,500.00 to repair the koa doors; new carpet, $7,894.00; air
duct cleaning, $30,235.34; and smoke remediation, $722,008.06.
5
Stroeve did not appeal his sentence or the restitution order.

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voluntariness. The hearing was held on May 17, 2022. Stroeve
watched Officer Massie's body-worn camera video on the circuit
court's monitor. Stroeve initially declined to stipulate the
video into evidence. The State called Officer Massie as a
witness. Officer Massie identified Stroeve as the person he
arrested on May 11, 2021. Officer Massie authenticated State's
Exhibit No. 1 as a compact disc containing video footage from his
body-worn camera depicting his interaction with Stroeve on
May 11, 2021. The State moved Exhibit No. 1 into evidence. The
circuit court asked Stroeve if he had any objection. Stroeve
said, "No, Your Honor." The court then admitted State's Exhibit
No. 1 into evidence "for the purposes of this motion only." The
court did not err in so doing. See Hawaii Rules of Evidence
Rule 103(a)(1) ("Error may not be predicated upon a ruling which
admits . . . evidence unless . . . a timely objection . . .
appears of record[.]"); Tabieros v. Clark Equip. Co., 85 Hawai#i
336, 379 n.29, 944 P.2d 1279, 1322 n.29 (1997) (noting that
"complete failure to object will waive the point" concerning
admissibility of evidence).
(2) Stroeve contends that the circuit court erred by
granting the State's motion to determine voluntariness. During
the hearing on the motion, Officer Massie testified that Stroeve
made three statements after he was handcuffed and patted down:
"Not a survivor left tomorrow morning[,]" "All the courtrooms
burned to the ground[,]" and "Courts of bullshit." Stroeve
argues that "the Miranda warning was never provided" and he
"never waived his Fifth Amendment right against self-
incrimination." Whether a person's constitutional right against
self-incrimination was violated is a question of law reviewed de
novo under the right/wrong standard. State v. Kazanas,
138 Hawai#i 23, 33, 375 P.3d 1261, 1271 (2016).
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme
Court held that a suspect must be warned "that he has the right
to remain silent, that anything he says can be used against him
in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be

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appointed for him." Id. at 479. Under Hawai#i law, a defendant
objecting to admissibility of their statement must establish that
the statement resulted from (1) "interrogation" while they were
(2) "in custody." State v. Hewitt, 153 Hawai#i 33, 43, 526 P.3d
558, 568 (2023). There is no dispute that Stroeve was in custody
when he made the statements. The issue presented is whether he
was under interrogation.
The circuit court made findings of fact and conclusions
of law when granting the State's motion. Hawai#i Rules of
Appellate Procedure Rule 28(b)(4)(C) requires that Stroeve's
opening brief quote or reference any findings or conclusions
urged as error. Stroeve didn't do this, although he generally
contends the circuit court abused its discretion in finding
Officer Massie credible, in finding that Stroeve was not
questioned by police during his arrest, and ruling that the
statements in question were voluntary. To promote access to
justice, the supreme court instructs that self-represented
litigants shouldn't be automatically foreclosed from appellate
review because they fail to comply with court rules. Erum v.
Llego, 147 Hawai#i 368, 380-81, 465 P.3d 815, 827-28 (2020).
Accordingly, we review the circuit court's findings to determine
whether they were clearly erroneous, Est. of Klink ex rel. Klink
v. State, 113 Hawai#i 332, 351, 152 P.3d 504, 523 (2007).
The circuit court found:

6. Officer Massie was in the process of arresting
[Stroeve], checking for weapons, and attempting to get
on-scene booking information, such as name and birthday.
During this process, [Stroeve] did not give his booking
information.
7. While [Stroeve] was in custody, Officer Massie
asked [Stroeve] whether he had anything sharp with respect
to his pockets. Officer Massie did not ask [Stroeve] any
other questions.
8. At the time [Stroeve] made the three utterances,
[Stroeve] was not responding to any particular questions.
10.[6] The court finds Officer Massie's testimony to be
credible and reliable.

6
There was no finding of fact numbered 9.

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11. Through Officer Massie's testimony, [Stroeve]
spontaneously uttered the following statements: "not a
survivor left tomorrow. Every courtroom burned to the
ground." "Court of bullshit."

Based on our review of the record, including Officer
Massie's body-worn camera video, findings of fact nos. 6, 7, and
8 were supported by substantial evidence and were not clearly
erroneous. As to finding of fact no. 10, "[i]t is well-settled
that an appellate court will not pass upon issues dependent upon
the credibility of witnesses and the weight of evidence; this is
the province of the trier of fact." Fisher v. Fisher, 111
Hawai#i 41, 46, 137 P.3d 355, 360 (2006) (quoting In re Doe,
95 Hawai#i 183, 190, 20 P.3d 616, 623 (2001)).
Finding of fact no. 11, however, was clearly erroneous.
Officer Massie's body-worn camera video reflects that while
walking up to Stroeve, Officer Massie asks Stroeve to put down
his knife. Stroeve complies. Officer Massie asks Stroeve to
drop his scissors. Stroeve complies. Officer Massie asks
Stroeve, "can you give me your name and stuff now?"
Stroeve looks at a second police officer at the scene
and says, "you guys are back again."
The second officer tells Stroeve, "'kay right now we're
speaking to you because you're a suspect, that matches the
description, or your person matches the description of an arson
suspect, okay?"
Officer Massie asks what Stroeve has in his hand, and
says, "what is that, keys? Drop 'em please." Stroeve bends down
and Officer Massie says, "no, don't reach for stuff my man."
The second officer continues, "so that's why we're
talking to you . . ."
Stroeve says to Officer Massie, "you don't have to
worry about me doing anything."
Officer Massie replies, "well, you never know anymore
with people, right?"
Stroeve says, "You guys have to ask questions and
listen . . ."

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The second officer continues, "so now I'm telling you
why we're speaking to you, because you match the description of
an arson suspect. Okay? You want to give us your information?"
Stroeve pauses, looks at the second officer, and says,
"Um, I want to give you the whole info."
"I'll take whatever you got," says the second officer.
Stroeve says, "Okay, April 4, 2012."
"No, I don't want to go that back far [sic]," says the
second officer.
"I am the victim of attempted murder by the Maui County
Police Department," says Stroeve.
The second officer replies, "Right now, we're only
talking about an arson case."
During this time Officer Massie is taking out his
handcuffs and asks Stroeve to turn around.
Stroeve asks, "Why are you putting me in cuffs?"
Officer Massie responds, "Because you're going to be
arrested for that now."
"For what?"
Officer Massie responds, "He just told you, the arson."
"Arson?" asks Stroeve, as he turns to face Officer
Massie.
"Stop trying to turn," says Officer Massie. The second
officer secures the handcuffs on Stroeve.
"Wait, somebody's alleging I arsoned a place?"
"Yes, that's exactly what it is," says Officer Massie.
"And you matched the description, the video, the clothing, so
right now you're going to be placed under arrest for the arson,
okay."
As the second officer informs dispatch that he has "one
custody," a third officer arrives at the scene.
Stroeve asks, "And you guys conspired to murder me how
many times since I got out of prison?"
"You know, I don't know what you're talking about,"
says the second officer.
"And take my hands?"

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Officer Massie responds, "No, would you like to give us
your information before you get into a blue-and-white, or will
you give us your information right now?"
"Well, I guess I'm going to talk to a detective."
Officer Massie asks the third officer to take photos of
Stroeve.
"You guys are forgetting that you tried to murder me
and take my hands, twice. Right. And, this is not a reasonable
seizure. You haven't even asked questions and investigated
anything."
"That's because we can't ask you the questions," says
Officer Massie.
"It's justified for me to go to war against you since
you guys declared war against me."
Officer Massie asks Stroeve, "Can you face this way
please?"
While being photographed, Stroeve says,

And you've been stalking me illegally, without a
warrant, this entire time. Unreasonable seizures.
[Unintelligible] You guys owe me like five hundred million
dollars. And you're going to keep going more and more in
the hole. You think you're in the right, and you're going
to put me in cuffs now. Once again. You're full of shit.
I don't give a fuck. You guys are so full of shit it ain't
even fuckin' possible. [Unintelligible] This is an
unreasonable seizure.

As Officer Massie instructs the other officers about
recovering evidence, Stroeve says, "Yeah, I want evidence against
every fucking cop that's been stalking me twenty-four seven.
Fucking assholes. Twice tried to take my hands. Murder
[unintelligible]."
Officer Massie asks Stroeve, "You got anything that's
going to poke me?"
Stroeve doesn't respond. Officer Massie searches
Stroeve's pockets. Stroeve says, "You're taking stuff out of my
pockets and moving it around."
Officer Massie explains, "Feels like you might have a
knife or some kind of weapon in here, that's why."

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"Ah, you could have asked and I would have told you no.
But you can't do that."
"We can."
"No you can't."
"'Kay, I gotta take this off you okay, this
right . . ."
"You can't arrest me. I own this fucking police
department."
"I heard that many a time."
Stroeve continues:

And the state of bullshit. You guys don't have enough
money to afford [unintelligible] fucking retarded. Hey, ah,
what happened to my dead kids? Ann Margaret that you
murdered? You guys murder people during the Arita
[phonetic] trial, and uh, covered it up and haven't told 'em
any kids [unintelligible]. Really. God I wonder. How long
ago did this happen? And your fucking needs. This is
awesome.

During this time, Officer Massie is searching through
Stroeve's many layers of clothing, pockets, and a bag attached to
his belt by a chain, while the other officers are standing by.
Officer Massie asks Stroeve, "Can you lift your hands please?
Thank you." Officer Massie continues searching through Stroeve's
clothing.
Stroeve then made the following underscored statements,
which the circuit court found to be spontaneous utterances:

Somebody please pull out a [unintelligible]. Not a
survivor left tomorrow morning. Every courtroom. Burned to
the ground. Court of bullshit. Broke every fucking rule of
law, been in violation of my rights for nine years now. And
counting. And keep on going. Takes a licking and keeps on
ticking. You guys are dead. Not by me, the whole world's
gonna come [unintelligible]. Twenty-two million dead,
murdered. But you couldn't stop. And never gave closure to
everybody on planet earth, they're all coming here to
fucking kill you.

After additional conversation not relevant here, Stroeve was
placed in a marked police vehicle.
"[T]he touchstone in analyzing whether 'interrogation'
has taken place is whether the police officer should have known
that his or her words and actions were reasonably likely to

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elicit an incriminating response from the defendant." Kazanas,
138 Hawai#i at 38, 375 P.3d at 1276 (cleaned up). Although
Officer Massie only asked Stroeve for his "name and stuff," the
second police officer told Stroeve he resembled the suspect in an
arson case and asked, "You want to give us your information?" At
that time, the police officers knew they were going to arrest
Stroeve. When Stroeve responded, "Um, I want to give you the
whole info," the second officer should have realized that his
question to Stroeve was likely to elicit an incriminating
response. At that point, Stroeve should have been given the
Miranda warnings. He was not. Instead, the second officer said,
"I'll take whatever you got" and "right now, we're only talking
about an arson case." Under Kazanas, this constituted
interrogation. Stroeve's later statements should not have been
admitted at trial.
The circuit court erred by granting the State's motion
to determine voluntariness and allowing the admission of
Stroeve's un-Mirandized statements. We conclude that the error
was not harmless beyond a reasonable doubt.
At trial, Officer Massie was asked whether Stroeve said
anything after he was arrested, and testified to the statements
as follows:
He had said three things. They were -- the
first one was: Courts of bullshit. The second one
was: All courts burn to the ground. And then the
last thing he said was: Not a survivor left tomorrow
morning.

The gist of Stroeve's defense was twofold: (1) that he
lit a different fire at the same location three days before this
incident; and (2) that he did not intend for the fire he lit to
cause any damage at all, and certainly not in an amount exceeding
$20,000.00. Stroeve testified that "[he] was not there on May
10th", the date of the incident at issue, and stated: "I believe
100 percent that this incident occurred on Friday, May 7th."
Stroeve claimed that the surveillance video from the date of the
incident was forged using his image from three days before. He
lit the fire to "make an example of the capitol patrol sheriffs"

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who he claimed had robbed him "five weeks before." Stroeve
wanted to show that the capitol patrol sheriffs were "probably
too busy robbing people, that their building security [wa]s so
poor that somebody could potentially set up a fire at one of
their buildings and not get caught." Stroeve explained that he
"didn't have a motive to really damage the building at all[,]"
and that "this is a criminal conspiracy . . . to frame me for
damages and a crime that I did not commit . . . ." Stroeve
testified that "the first thing [he] lit on fire" were the "No
Trespassing" laminated cards, which Stroeve "placed on the
ground[,]" "not touching the doors." Stroeve claimed the "flames
were not going to touch the doors[,]" and the flames were "self-
extinguished." Stroeve then placed the stanchions over the
laminating cards but said "none of these stanchions are touching
the doors[,]" and explained that "even if these stanchions caught
fire, the doors are not going to catch fire." Stroeve "did not
believe that there was any risk of any damage at all." Stroeve
asserted that when he "got back with the trash bag, those two
laminating cards were no longer burning" and when he looked back
at the fire from nearby he believed that the fire "completely
went out" because "there was [sic] no more flickering lights
coming from the fire." Stroeve testified: "I concluded that the
fire self-extinguished itself [sic] like it should have.
Although I cannot confirm that it completely went out, I believe
that it did." Stroeve specifically denied any intention to cause
over $20,000 of damage, as follows:

[By standby counsel]: Let me ask you this, then,
Mr. Stroeve: Did you intend to cause more than $20,000 of
damage to the Judicial [sic] History Center?
[By Stroeve]: No, I did not.

Stroeve also maintained that he "had no motive to damage the
doors."
"Erroneously admitted evidence is evaluated under the
harmless beyond a reasonable doubt standard." State v. Jones,
148 Hawai#i 152, 170, 468 P.3d 166, 184 (2020) (quoting State v.
Matsumoto, 145 Hawai#i 313, 327, 452 P.3d 310, 324 (2019)). "The

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erroneous admission of evidence is not harmless when there is a
reasonable possibility that the error might have contributed to
the conviction." State v. Baker, 147 Hawai#i 413, 435, 465 P.3d
860, 882 (2020) (emphasis added) (citing State v. McCrory,
104 Hawai#i 203, 210, 87 P.3d 275, 282 (2004)).
Here, the record reflects that there is a reasonable
possibility that the erroneous admission of Stroeve's statements
might have contributed to his Arson in the First Degree
conviction. See id. The element of proof at issue, based on
Stroeve's testimony, was whether the State proved Stroeve's state
of mind with respect to the result of his conduct, of damage "in
an amount exceeding $20,000." HRS § 708-8251(1)(b). The State
had to prove that Stroeve acted at least recklessly with respect
to the resulting amount of damage, i.e. that Stroeve "consciously
disregard[ed] a substantial and unjustifiable risk that his
conduct will cause such a result." HRS § 702-206(3)(c) (2014).
Stroeve's defense minimized the scope of the fire he admitted
lighting as "no longer burning"; that it "completely went out";
and that there was no "risk of any damage at all" to the building
because neither the lit laminated cards nor the stanchions he
later placed on top of the cards were "touching the doors."
Stroeve's defense attempted to show that any risk that the doors
would catch fire causing over $20,000 in damage was not
"substantial and unjustifiable" and that even if such level of
risk was shown by the evidence, he did not "consciously
disregard" that risk. See id.
Stroeve's statements of "Every courtroom. Burned to
the ground" such that "Not a survivor [would be] left tomorrow
morning"–-contradicted Stroeve's defense that he never intended
the fire to damage the doors or the building in an amount over
$20,000. The statements on their face indicated that Stroeve had
motive against the "[c]ourts," which he felt were "bullshit,"
that he intended to cause catastrophic damage to, and loss of
life by burning "[a]ll courtrooms" "to the ground" with "[n]ot a
survivor left." The statements contradicted Stroeve's testimony
in which he denied any "motive to really damage the building at

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all." The erroneously admitted statements constituted powerful
evidence against Stroeve's credibility and logically headlined
the State's closing argument as follows:
THE COURT: . . . Ms. [Prosecutor], you may get set up,
and then when you're ready, let us know, and you may begin
your closing argument.

[The State]: Not a survivor left tomorrow. All courts
burned to the ground. Court of bullshit. These were
[Stroeve]'s statements to Officer Massie. What courtroom?
You heard testimony that the Supreme Court is a historical
building. It's in the City and County of Honolulu. It is
one where tourists flock to to take photos. It houses the
Judiciary History Center. There was testimony that there
are very intricate areas in that building. And most
importantly, there were koa wooden doors.

This is the Hawaii Supreme Court building. This is
what [Stroeve] burned. He burned the koa doors at the
Judiciary History Center on May 10th, 2021.

(Emphases added.) See State v. Lora, 147 Hawai#i 298, 310-11,
465 P.3d 745, 757-58 (2020) (holding that based on "the manner in
which [an erroneous admission] was presented by the DPA, and the
reliance upon it during closing argument" rendered the error
"highly prejudicial" and not harmless beyond a reasonable doubt);
see also State v. Williams, 149 Hawai#i 381, 393-94, 491 P.3d
592, 604-05 (2021) (holding that the prosecutor's opening
statement introduction of out-of-court communications–-that had
previously been barred by the defense's motion in limine–-
constituted prosecutorial misconduct that was not harmless beyond
a reasonable doubt because it "greatly undermined [the
defendant]'s credibility"). Here, the State's prominent reliance
on Stroeve's improperly admitted statements to undercut Stroeve's
credibility and his defense of lack of the requisite state of
mind and motive to cause damage exceeding $20,000 was "highly
prejudicial." See Williams, 149 Hawai#i at 393-94, 491 P.3d at
605-05 (2021). On this record, there is a reasonable possibility
that the erroneous admission of the statements might have
contributed to Stroeve's arson conviction, and the error was not
harmless beyond a reasonable doubt. See Baker, 147 Hawai#i at
435, 465 P.3d at 882 (citing State v. McCrory, 104 Hawai#i at
210, 87 P.3d at 282.)

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(3) Stroeve contends that the circuit court erred by
"suppressing" Officer Massie's body-worn camera footage on July 8
and 13, 2022.
On July 8, 2022, the circuit court conducted a trial
status conference and heard motions in limine. Toward the end of
the proceeding, Stroeve asked, "in trial, are we going to get to
see the body-worn camera data that comes from the [Axon
evidence.com] website?" The circuit court informed Stroeve, "as
your own attorney in this case, if you believe that the State is
proffering certain items of evidence that is inappropriate or
objectionable, it will be your duty and responsibility, then, to
object, state your reason for the objection. And the Court will
rule upon that objection." Stroeve acknowledged, "Okay." The
circuit court did not "suppress" anything during the July 8, 2022
proceeding.
On July 13, 2022, the second day of trial was held.
The State did not offer Officer Massie's body-worn camera footage
into evidence. Neither did Stroeve. The circuit court did not
"suppress" the footage during the second trial day.
Stroeve argues that during the second trial day, he
"makes a reasonable request . . . for the court to produce
[Officer Massie's body-worn camera] video to 'prove [Officer
Massie was] committing perjury.'" The transcript of Stroeve's
cross-examination of Officer Massie doesn't support his argument:

Q. Twice you stated in your arrest affidavit
that I refused to give you any information. And if
you were going to testify before the grand jury on May
14th, 2021, and state under oath that I made three
statements to you that you are alleging is
information, why would you write that I gave you no
information in your arrest report and in your
affidavit?
A. Because the information provided was done
after the fact.

Q. It was after the arrest; correct?
A. It was found out after the arrest, when I
rewatched the body camera.

Q. Weren't these statements added to the body
camera?

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A. They were not.
Q. You're sure about that?

A. A hundred percent positive.
Q. You realize that you're under oath right now?

A. Yes, sir.
Q. And we could show the body camera and prove
that you are committing perjury?

THE COURT: I'm going to strike that last
question as being argumentative.
Next question, Mr. Stroeve.
MR. STROEVE: I am going to pass for cause.

THE COURT: No further questions, you mean?
Mr. Stroeve, no further questions?

MR. STROEVE: No further questions, Your Honor.

Stroeve never requested that the circuit court
"produce" Officer Massie's body-worn camera footage, which was
Exhibit 1 for the hearing for the State's motion to determine
voluntariness. Stroeve never offered the footage into evidence,
nor does he point to any part of the record showing that he
objected or raised an issue to the circuit court about not being
able to use the footage at trial. Because Stroeve never requested
or offered it, the circuit court cannot be said to have
"suppressed" it. Stroeve's third argument is without merit.
(4) In light of our disposition, it is not necessary
to reach Stroeve's last point of error.
For the reasons explained above, the December 5, 2022
"Judgment of Conviction and Sentence" entered by the circuit
court is vacated, and we remand for a new trial.
DATED: Honolulu, Hawai#i, November 29, 2023.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Eric M. Stroeve,
Self-Represented Defendant- /s/ Karen T. Nakasone
Appellant. Associate Judge

Stephen K. Tsushima,
Deputy Prosecuting Attorney
for Plaintiff-Appellee.

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OPINION BY HIRAOKA, J.
CONCURRING IN PART AND DISSENTING IN PART

I concur with parts (1) and (3) of the majority's
summary disposition order. I also concur with the portion of
part (2) holding that the trial court erred by granting the
State's motion to determine voluntariness, and by allowing
Officer Massie to testify about Stroeve's statements at trial.
But I respectfully disagree with the majority's conclusion that
the error was not harmless beyond a reasonable doubt.
Trial error is not to be viewed in isolation or
considered in the abstract; it must be examined in light of the
entire proceeding and given the effect to which the whole record
shows it is entitled. State v. McDonnell, 141 Hawai#i 280,
297–98, 409 P.3d 684, 701–02 (2017) (citation omitted). We must
determine whether there is a reasonable possibility the error
might have contributed to the conviction. Id. "[E]ven if the
trial court erred in admitting evidence, a defendant's conviction
will not be overturned if the error was harmless beyond a
reasonable doubt." State v. Veikoso, 126 Hawai#i 267, 276, 270
P.3d 997, 1006 (2011) (cleaned up). "Where there is a wealth of
overwhelming and compelling evidence tending to show the
defendant guilty beyond a reasonable doubt, errors in the
admission or exclusion of evidence are deemed harmless." Id.
(cleaned up).
As acknowledged by the majority, Stroeve asserted two
defenses at trial: (1) he didn't light the fire shown in the
surveillance video because he actually lit a different fire at
the same location three days before, and the video shown at trial
was "forged" using his image from three days before; and (2) he
didn't intend for the fire he lit to cause any damage at all, and
certainly not in an amount exceeding $20,000. The majority
concludes that Stroeve's incriminating statements contradicted
Stroeve's defense that he never intended the fire to cause any
damage, much less cause more than $20,000 in damage.
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But "intention" is not a state of mind applicable to
the results-of-conduct element7 of Arson in the First Degree.
HRS § 708-8251 (2014) provides, in relevant part:

(1) A person commits the offense of arson in the first
degree if the person intentionally or knowingly sets
fire to or causes to be burned property and:

. . . .
(b) Knowingly or recklessly damages the property of
another, without the other's consent, in an
amount exceeding $20,000.

(Emphasis added). "A person acts recklessly with respect to a
result of his conduct when he consciously disregards a
substantial and unjustifiable risk that his conduct will cause
such a result." HRS § 702-206(3)(c) (2014).
The jury was instructed, without objection:

The Defendant, ERIC STROEVE, is charged with the
offense of Arson in the First Degree.

A person commits the offense of Arson in the First
Degree if he intentionally or knowingly sets fire to or
causes to be burned property and knowingly or recklessly
damages the property of another, without the other's
consent, in an amount exceeding $20,000.

There are six material elements of the offense of
Arson in the First Degree, each of which the prosecution
must prove beyond a reasonable doubt.

These six elements are:
1. That, on or about May 10, 2021, in the City and
County of Honolulu, the Defendant, ERIC STROEVE, set fire to
or caused to be burned property of another; to wit the State
of Hawaii; and

2. That the Defendant did so intentionally or
knowingly; and
3. That the Defendant knowingly or recklessly
damaged the property of another; to wit the State of Hawaii
by such conduct; and

4. That the Defendant did so without the consent of
the State of Hawaii; and

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HRS § 702-205 (2014) defines the elements of an offense as
"(1) conduct, (2) attendant circumstances, and (3) results of conduct[.]"

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5. That the Defendant was aware that the damage
exceeded $20,000 or consciously disregarded a substantial
and unjustifiable risk that the damage exceeded $20,000; and

6. That the damage to the property exceeded
$20,000.

. . . .
A person acts knowingly with respect to a result of
the person's conduct when the person is aware that it is
practically certain that the person's conduct will cause
such a result.

. . . .
A person acts recklessly with respect to a result of
the person's conduct when the person consciously disregards
a substantial and unjustifiable risk that the person's
conduct will cause such a result.
A risk is substantial and unjustifiable if,
considering the nature and purpose of the person's conduct
and the circumstances known to the person, the disregard of
the risk involves a gross deviation from the standard of
conduct that a law abiding person would observe in the same
situation.

(Emphasis added.)
Stroeve's testimony was:

Well, I can talk about what -- what I observed, because I am
the only witness in this case, and I was there at the scene.
And so I've seen a lot of versions of the surveillance
video. I really don't want to go through it anymore. I
think the jury's going to have an opportunity to view this
video when they deliberate.

. . . .

And what they're going to see is that I did -- the
first thing that I lit on fire was some plastic laminating
cards that said "No Trespassing." And the video's going to
show that they self-extinguished. And what I intended to do
with those, there was a few of them placed in the
windowsill. There were two stanchions placed near them, and
it damaged some of the paint on the stanchions.

Then I'm going to carry two of these burning
laminating cards to the door. And I wanted to check for a
draft because there was a gap underneath that door. I
wanted to see if there was any air going in and out, and
there wasn't. There's no wind happening. And you will
notice that these laminating cards were placed on the
ground. They were not touching the doors. The flames were
not going to touch the doors.
Then I'm going to go get another stanchion. And I'm
going to lay it parallel to the doors and set it directly

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over the burning laminating cards. And that stanchion is
not going to catch fire because these stanchions are
painted. So first, a fire would have to burn through the
paint. And then I am going to get three more stanchions.

So there's a pattern of these stanchions where one is
laying down. The next one goes across the first one. Third
one's going to go across the second one. The last one that
is perpendicular to the doors is the top stanchion. And
none of these stanchions are touching the doors. So even if
these stanchions caught fire, the doors are not going to
catch fire.
Even if -- so when I go get this trash bag of
discarded mail and I'm walking back to the Supreme Court,
I'm actually in shock that nobody has arrived. I really
didn't plan on being able to succeed at bringing that bag
back, because I already lit these two fires that are going
out. And you will notice that I don't go back onto the
step. I dump it where the two stanchions are. They're the
farthest away from the doors. And when I light this paper
on fire, it is the farthest away from the doors, on the edge
of the step.

And so there has to be a chain of events that is going
to happen here. And this is the first deviation from the
truth in the surveillance video. All the fires of paper,
wood, are going to be yellow flames. What you're going to
see in this video is flames that become white, and you can't
see through them.

And you will notice the two laminating cards that I
lit and brought to the door are going to burn out. So
you're going to see now these small yellow flames, where
it's flickering. So imagine now this paper fire. It's not
one big fire. It's a bunch of individual paper letters.
They were going to burn very quickly, and then they're going
to all self-extinguish. So what you should see is a lot of
little flames at the end of this, burning out.
But you will notice that once this fire starts, it's
going to turn white. It's going to become massive, and it's
never going to stop burning. Now, this fire's going to
continue to burn for some time. Then the video's going to
stop.

(Emphasis added.) Stroeve also admitted he used a "high butane
lighter" to light the paper he got from the trash bin at the post
office.
State's Exhibit 34 is the Judiciary's security camera
video of Stroeve and the fire. It was admitted into evidence
without objection. It shows Stroeve lighting the cards in a
windowsill. Stroeve places the burning cards at the base of the
Judiciary History Center's koa doors. Stroeve goes in and out of
the frame, returning each time with stanchions. He puts them, as

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he testified, "directly over the burning laminating cards." The
video clearly shows that the cards didn't "self-extinguish."
Stroeve leaves the frame for a longer time. He returns with a
trash bag. The fire still hasn't gone out. He empties the bag
on the burning stanchions. He sets the trash on fire with his
high-butane lighter. He leaves the frame — for the last time —
while the fire is still burning. The video clearly shows none of
the fires he set "self-extinguished." After he leaves, the fire
becomes "massive." It doesn't go out until first responders
appear and extinguish the blaze. The video shows a large burned-
out hole in one of the doors. The hole wasn't there before the
fire. Firefighters enter the History Center but the external
security camera doesn't clearly show what they do inside.
Stroeve admitted intentionally setting fire to State
property — the "No Trespassing" cards.
The security video and Stroeve's testimony clearly
showed Stroeve either intentionally or knowingly caused other
State property — the stanchions — to burn by "set[ting] it
directly over the burning laminating cards."
The video also showed overwhelming and compelling
evidence that Stroeve's leaving the still-burning fire unattended
was at least reckless. In my view, no reasonable juror could
conclude that Stroeve's leaving the fire burning at the base of
the History Center's doors wasn't "a gross deviation from the
standard of conduct that a law abiding person would observe in
the same situation." Thus, it doesn't matter whether Stroeve
intended to cause more than $20,000 of damage to State property.
It is enough that Stroeve recklessly caused it.
The majority relies upon cases which, in my view, are
distinguishable. In State v. Lora, 147 Hawai#i 298, 465 P.3d 745
(2020) and State v. Williams, 149 Hawai#i 381, 491 P.3d 592
(2021), the improperly admitted evidence was the testimony of the
complaining witness. In both cases, the verdict hinged either
completely or largely upon the jury's evaluation of the
complaining witness's credibility. Lora, 147 Hawai#i at 311, 465

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P.3d at 758 ("The jury's verdict rested on it accepting the CW's
account as true, and the erroneously admitted testimony was
specifically used to bolster the credibility of her account.");
Williams, 149 Hawai#i at 397, 491 P.3d at 608 ("T.Y., the
complaining witness, was the only witness other than the
defendant who could describe the actual acts constituting the
offenses.").
Here, the only witnesses to the results-of-conduct
element were Stroeve and the videotape — which, in my view,
overwhelmingly and compellingly defeats both of Stroeve's
defenses and shows that Stroeve's leaving the fire when and where
he did was at least "a gross deviation from the standard of
conduct that a law abiding person would observe in the same
situation." In my view, the erroneous admission of Stroeve's
statements was harmless beyond a reasonable doubt.
Because of my conclusion, I must address Stroeve's
fourth point of error. Stroeve contends that Wayne Taniguchi
gave false testimony. Taniguchi is the Judiciary's Facility
Management Division manager. He testified at trial and also at
Stroeve's restitution hearing.
During the trial, Taniguchi authenticated State's
Exhibit No. 27F as an invoice for $722,008.06 from Eco Clean
Hawaii for fire and smoke remediation. The exhibit was received
in evidence without objection. Taniguchi explained that the
remediation process involved "cleaning up water damages and smoke
damages within the building[.]"
During the restitution hearing, Stroeve asked
Taniguchi, "during your testimony to the jury, you had testified
that the air conditioning was $730,000 in the trial. Is -- do
you -- do you recall making that statement?" (Emphasis added.)
Taniguchi testified, "I don't recall making that
statement, sir."
Stroeve asked, "You don't recall telling them that the
damages was [sic] over $700,000?"
Taniguchi responded, "Not at all."

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Stroeve argues Taniguchi's testimony during the
restitution hearing "represents fraud" because Taniguchi didn't
recall his testimony from the criminal trial five months earlier.
Taniguchi's testimony that he doesn't recall making the statement
was consistent with his trial testimony. The $722,008.06 paid to
Eco Clean Hawaii was for fire and smoke remediation, not air
conditioning. Stroeve asked Taniguchi whether the smoke would be
contained in the office by the fire. Taniguchi explained that
the heavy smell will travel through the air-conditioning system,
but Taniguchi didn't testify that the $722,008.06 was to repair
or remediate the air conditioning. Taniguchi didn't remember
testifying "that the air conditioning was $730,000" because he
never gave such testimony.
Stroeve also argues that Taniguchi's trial testimony
was false because the restitution documentation attached to the
presentence report "does not contain any invoice from Eco Clean
Hawaii for 'fire and smoke remediation[.]'" Stroeve didn't call
the person who prepared the restitution report as a witness to
ask why the State wasn't claiming an additional $722,008.06 in
restitution. The record contains no evidence that the Judiciary
did not actually incur that cost because of the arson committed
by Stroeve.
For these reasons, I would affirm the Judgment of
Conviction and Sentence.

/s/ Keith K. Hiraoka
Associate Judge

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