State v. Pokipala

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-MAR-2024
07:49 AM
Dkt. 54 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
DAVID J. POKIPALA, Defendant-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and Nakasone, JJ.)

Defendant-Appellant David J. Pokipala (Pokipala)
appeals from the Judgment of Conviction and Sentence; Notice of
Entry (Judgment), entered on January 10, 2019, in the Circuit
Court of the First Circuit (Circuit Court).1/ Following a jury
trial, Pokipala was convicted of Assault in the Third Degree, in
violation of Hawaii Revised Statutes (HRS) § 707-712(1)(a)
(2014).2/

1/
The Honorable Edward H. Kubo, Jr. presided.
2/
HRS § 707-712 provides, in pertinent parts:
Assault in the third degree. (1) A person commits
the offense of assault in the third degree if the person:
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person[.]
. . . .

(2) Assault in the third degree is a misdemeanor
unless committed in a fight or scuffle entered into by
mutual consent, in which case it is a petty misdemeanor.
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On appeal, Pokipala contends that: (1) the Circuit
Court erred in denying his motion for mistrial, "when a
prosecution witness [i.e., the complaining witness's (CW)
daughter (Daughter)] in a non-responsive answer to questioning
testified about seeking a [temporary restraining order] against
[Pokipala]"; (2) the Circuit Court erred in denying Pokipala's
motion for judgment of acquittal at the end of the prosecution's
case and again on renewed motion after the defense rested;3/ (3)
there was insufficient evidence to convict Pokipala; and (4) a
deputy prosecuting attorney (DPA) for Plaintiff-Appellee State of
Hawai#i (State) "engaged in improper vouching by interjecting his
personal intent to prove his case in his opening statement, . . .
and by personally exhorting jury members to convict in his
closing argument."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Pokipala's contentions as follows, and affirm.
(1) Pokipala contends that the Circuit Court abused
its discretion in denying his motion for a mistrial after
Daughter made non-responsive statements during her testimony.
Specifically, Pokipala cites two instances in Daughter's
testimony which he claims prejudiced the jury against him and
warranted granting a mistrial: (1) when Daughter testified that
the day after the incident, she "came down to Honolulu to go file
a restraining order" (First Statement); and (2) when Daughter
testified that later the same day, when she "came to [her] dad's
house[,]" Pokipala "approached [her] . . . car" (Second
Statement).
"The denial of a motion for mistrial or new trial 'is
within the sound discretion of the trial court and will not be
upset absent a clear abuse of discretion.'" State v. Pasene, 144
Hawai#i 339, 365, 439 P.3d 864, 890 (2019) (quoting State v.
Furutani, 76 Hawai#i 172, 178-79, 873 P.2d 51, 57-58 (1994)).

3/
The defense rested without calling any witnesses.

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Here, regarding the First Statement, the record shows
that Pokipala quickly objected when it was made, after which the
Circuit Court immediately sustained the objection, struck the
testimony at issue, and instructed the jury "to disregard the
statement of the witness as to what she did." After the jury was
released for the day, Pokipala moved for a mistrial based on the
First Statement, which the Circuit Court denied. Following the
close of evidence, when instructing the jury, the Circuit Court
confirmed that each juror had a copy of the instructions and
specifically instructed, "You must disregard entirely any matter
which the court has ordered stricken."
A jury is presumed to follow the instructions it is
given by the court. State v. Acker, 133 Hawai#i 253, 278, 327
P.3d 931, 956 (2014). On this record, we conclude that the
Circuit Court did not abuse its discretion in denying the motion
for mistrial based on the First Statement.
Regarding the Second Statement, although Pokipala
appears to have objected to it as it was being made, he did not
move to strike the testimony at issue, and he did not move for a
mistrial based on the Second Statement. We thus deem waived
Pokipala's argument that the Circuit Court abused its discretion
in denying a purported motion for mistrial based on the Second
Statement. See State v. Wilson, 141 Hawai#i 385, 391, 410 P.3d
865, 871 (App. 2017).
(2) Pokipala contends that the Circuit Court erred in
denying his motions for judgment of acquittal because "a
reasonable mind would not fairly conclude guilt beyond a
reasonable doubt that . . . Pokipala committed the offense he was
charged with – assault in the third degree, a misdemeanor."
Pokipala argues that "[t]he evidence most favorable to the
prosecution clearly indicates that the offense allegedly
committed was . . . a mutual affray – a petty misdemeanor – a
fight or scuffle entered into by mutual consent."

"The standard to be applied by the trial court in
ruling upon a motion for a judgment of acquittal is whether,
upon the evidence viewed in the light most favorable to the

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prosecution and in full recognition of the province of the
trier of fact, a reasonable mind might fairly conclude guilt
beyond a reasonable doubt." [State v. ]Keawe, 107 Hawai #i
[1,] 4, 108 P.3d [304,] 307[ (2005)]. This court employs
the same standard of review in reviewing a motion for a
judgment of acquittal. Id.

State v. Walton, 133 Hawai#i 66, 90, 324 P.3d 876, 900 (2014)
(original brackets omitted).
In order to convict Pokipala for a violation of HRS
§ 707-712(1)(a), the State was required to prove beyond a
reasonable doubt that Pokipala "[i]ntentionally, knowingly, or
recklessly cause[d] bodily injury to" CW. HRS § 707-712(1)(a);
see id. § 707-700 ("'Bodily injury' means physical pain, illness,
or any impairment of physical condition."). At trial, CW
testified that when Pokipala entered CW's property and directly
approached CW "[f]ace-to-face" within inches of CW, CW only
"stood [his] ground" and "didn't move" – "just stood still, [did]
nothing." CW testified that Pokipala then head-butted him,
without CW having time to avoid the head-butt, resulting in a
painful injury, after which CW walked away. CW specifically
described the injury from the head-butt as "red, bruised . . .
[s]wollen" and that CW had pain for "probably maybe a week or
so." CW, Daughter, and Honolulu Police Department Officer
Vincent Tripi all testified to the appearance of CW's injury, and
multiple photographs showing CW's injury were entered into
evidence without objection. Pokipala points to no evidence that
CW was injured in a fight or scuffle entered into by mutual
consent.
Based on the evidence adduced at trial, viewed in the
light most-favorable to the State, a reasonable trier of fact
could conclude beyond a reasonable doubt that Pokipala
intentionally, knowingly, or recklessly caused bodily injury to
CW, committing the misdemeanor of Assault in the Third Degree.
See Walton, 133 Hawai#i at 90, 324 P.3d at 900. The Circuit
Court did not err in denying Pokipala's motions for judgment of
acquittal.
(3) Pokipala similarly contends there was insufficient
evidence adduced at trial to support his conviction. He argues

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that neither CW nor Daughter were credible, and their testimony
was so marked with bias against Pokipala as to negate any
probative value.
Sufficient evidence to support a conviction "requires
substantial evidence as to every material element of the offense
charged." State v. Grace, 107 Hawai#i 133, 139, 111 P.3d 28, 34
(App. 2005) (quoting State v. Ferrer, 95 Hawai#i 409, 422, 23
P.3d 744, 757 (App. 2001)). Substantial evidence is "credible
evidence which is of sufficient quality and probative value to
enable a person of reasonable caution to support a conclusion."
Id. (quoting Ferrer, 95 Hawai#i at 422, 23 P.3d at 757). The
evidence must be "viewed in the light most favorable to the
prosecution and in full recognition of the province of the trier
of fact," who must "determine credibility, weigh the evidence,
and draw justifiable inferences of fact." Id. (quoting Ferrer,
95 Hawai#i at 422, 23 P.3d at 757).
Upon review of the record, including the evidence
described above, we conclude there was substantial evidence that
Pokipala intentionally, knowingly, or recklessly caused bodily
injury to CW, committing the misdemeanor of Assault in the Third
Degree. Accordingly, on this record, the evidence was sufficient
to support Pokipala's conviction.
(4) Pokipala contends that the DPA "engaged in
improper vouching by interjecting his personal intent to prove
his case in his opening statement, . . . and by personally
exhorting jury members to convict in his closing argument."
Although Pokipala did not object at trial to the
statements he now challenges on appeal (quoted infra), in
prosecutorial misconduct cases, "there is no difference between
the plain error and harmless beyond a reasonable doubt standards
of review." State v. Hirata, 152 Hawai#i 27, 31, 520 P.3d 225,
229 (2022) (citing State v. Riveira, 149 Hawai#i 427, 431 n.10,
494 P.3d 1160, 1164 n.10 (2021)). "[O]nce the defense
establishes misconduct - objection or no objection - appellate
review is the same: 'After considering the nature of the
prosecuting attorney's conduct, promptness or lack of a curative

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instruction, and strength or weakness of the evidence against the
defendant, a reviewing court will vacate a conviction if there is
a reasonable possibility that the conduct might have affected the
trial's outcome.'" Id. (quoting Riveira, 149 Hawai#i at 431, 494
P.3d at 1164).
Pokipala challenges the following underscored
statements made by the DPA during his opening statement and
closing argument:
Opening Statement:

Hello, everyone. Thank you for your attention.
Again, my name is Kahlan Salina. And in this trial, I'm
going to prove to you quite a few things. But mainly, it's
about an incident that occurred on August 1st, 2017 which
was a Tuesday afternoon. On that day, . . . there was a
metal rod on the ground . . . and . . . Pokipala, picked up
that metal rod and started waving it at the 82-year-old
[CW]. He starts yelling profanities at him. He's clearly
angry. He gets in [CW]'s face. And at this point, he
headbutts him right in the eye. I'm going to prove to you
that that happened. [CW] received an injury from that
headbutt, was a black eye, was bruised. You're going to see
photos of that.

Closing argument:

Ladies and gentlemen of the jury, I ask you to, at the
conclusion of your deliberations and your conclusion of --
of reviewing the evidence, to come back with the only
verdict that is appropriate, guilty as charged.

(Formatting of Opening Statement altered.) Pokipala
characterizes these statements as the DPA's "personal view as to
the evidence he was presenting[.]"
We conclude that the challenged statements do not
constitute prosecutorial misconduct. In context, the two first-
person statements made during the opening describe what the State
intended to prove at trial. The lone first-person statement made
during the closing asserts the outcome the State was seeking
based on the evidence adduced at trial. In these circumstances,
the DPA's sporadic use of the first-person does not include him
vouching for the credibility of any witness, expressing a
personal opinion on Pokipala's guilt, or otherwise stating a
personal belief about the evidence. See State v. Basham, 132

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Hawai#i 97, 115, 319 P.3d 1105, 1123 (2014); Hirata, 152 Hawai#i
at 33, 520 P.3d at 231. Pokipala's contention is without merit.
For the reasons discussed above, the Judgment of
Conviction and Sentence; Notice of Entry, entered on January 10,
2019, in the Circuit Court of the First Circuit, is affirmed.

DATED: Honolulu, Hawai#i, March 25, 2024.

On the briefs:
/s/ Katherine G. Leonard
Richard S. Kawana Acting Chief Judge
for Defendant-Appellant.
Sonja P. McCullen, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
City & County of Honolulu,
for Plaintiff-Appellee.
/s/ Karen T. Nakasone
Associate Judge

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