State v. Pu

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-APR-2025
08:47 AM
Dkt. 130 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellee, v.
JAMES PU, Defendant-Appellant.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX(1))

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

Defendant-Appellant James Pu appeals from the Circuit

Court of the Second Circuit's September 8, 2022 "Amended

Judgment; Conviction and Probation Sentence; Terms and

Conditions of Probation; Notice of Entry" (September 8, 2022

Amended Judgment). 1 (Formatting altered.)

1 The Honorable Kirstin M. Hamman presided.

Pursuant to Hawai‘i Rules of Appellate Procedure (HRAP) Rule 4(b), we
treat Pu's appeal as following the circuit court's entry of its amended
judgment. See HRAP Rule 4(b)(1), (4) (deeming premature notices of appeal as
filed on the date the judgment or order is entered); Poe v. Hawaiʻi Lab. Rels.
Bd., 98 Hawai‘i 416, 419, 49 P.3d 382, 385 (2002) (explaining time for filing
notice of appeal runs from entry of the first amended judgment impacting a
party's rights or obligations).
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On appeal, Pu challenges (1) the failure to conduct a

colloquy, (2) the failure to conduct a competency examination,

and (3) the sufficiency of the evidence.

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 affirm.

On July 21, 2019, Jeffrey Funicello, his then-

girlfriend Elizabeth Kempton, and his two minor children, Son

and Daughter, (collectively, Funicellos) camped at Koki Beach in

Hāna, Maui. Camping is not allowed at Koki Beach. Pu, who

lives near Koki Beach, was returning home with friends, Mark

Mathes and Elijah Gold, when they saw the Funicellos' tent at

Koki Beach. Pu, Mathes, and Gold confronted the Funicellos, and

a brawl ensued.

Plaintiff-Appellee State of Hawai‘i charged Pu with

nine counts via indictment. 2 Following a trial, the jury found

2 A grand jury indicted Pu as a principal and/or accomplice on the
following offenses:

Count 1: Assault in the First Degree, in violation of Hawai‘i Revised
Statutes (HRS) § 707-710(1) (2014), as to Funicello, and
subject to an extended term of imprisonment as a hate crime in
accordance with HRS §§ 706-661 and -662(6) (2014);

Count 2: Criminal Property Damage in the First Degree, in violation of
HRS § 708-820(1)(a) (2014), as to Shawn Susa;

(continued . . .)

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Pu guilty of (1) the included offense of Attempted Assault in

the Second Degree (Count 1); (2) Terroristic Threatening in the

Second Degree (Count 4); and (3) Endangering the Welfare of a

Minor in the Second Degree (Counts 7 and 8).

The circuit court sentenced Pu to, inter alia, a four-

year term of probation for Count 1 and a one-year term of

probation for each of the remaining counts, with all terms to

run concurrently. Pu timely appealed, raising three points of

error.

(1) In his first point of error, Pu contends the

circuit court erred by holding three chambers conferences

(. . . continued)

Count 3: Unauthorized Entry into Motor Vehicle in the First Degree, in
violation of HRS § 708-836.5 (2014), as to the Nissan
Frontier;

Count 4: Terroristic Threatening in the Second Degree, in violation of
HRS § 707-717(1) (2014), as to Funicello;

Count 5: Assault in the Third Degree, in violation of HRS § 707-
712(1)(a) (2014), as to Shawn Susa;

Count 6: Terroristic Threatening in the Second Degree, in violation of
HRS § 707-717(1), as to Kempton and Funicello;

Count 7: Endangering the Welfare of a Minor in the Second Degree, in
violation of HRS § 709-904(2) (2014);

Count 8: Endangering the Welfare of a Minor in the Second Degree, in
violation of HRS § 709-904(2); and

Count 9: Harassment, in violation of HRS § 711-1106(1)(b) and/or (f)
(2014), as to Funicello.

Counts 2, 3, 5, and 9 were dismissed with prejudice. The jury found Pu not
guilty of Count 6.

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without conducting an on-the-record colloquy establishing a

waiver of his constitutional right to be present.

"Before accepting the waiver of a fundamental right, a

trial court must engage in an on-the-record colloquy with the

defendant." State v. Wilson, 144 Hawai‘i 454, 463, 445 P.3d 35,

44 (2019) (providing the right to counsel, the right to trial by

jury, and the right to testify as examples of fundamental rights

requiring an on-the-record colloquy). "A defendant in a

criminal case has a procedural and constitutional 'right to be

present whenever the court communicates with the jury.'" State

v. Pokini, 55 Haw. 640, 651, 526 P.2d 94, 105 (1974) (citations

and footnote omitted).

But "[w]hile the right to be present is 'an essential

condition of due process,' it is not absolute." United States

v. Montoya, 82 F.4th 640, 647 (9th Cir. 2023) (citation

omitted). Moreover, "[a] defendant need not be present" where

"the proceeding is a conference or argument upon a question of

law[.]" Hawai‘i Rules of Penal Procedure Rule 43(c)(2); State v.

Samuel, 74 Haw. 141, 155, 838 P.2d 1374, 1381 (1992) ("Several

cases have held that settling jury instructions is a 'conference

or argument upon a question of law.'" (citations omitted)).

Here, Pu challenges the circuit court's failure to

conduct an on-the-record colloquy where he was absent from

conferences addressing the following jury communications:

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(1) requesting a power cable and a large screen monitor;

(2) informing the court it would not be making a decision at the

end of the first day of deliberations; (3) asking, "Can

attempted assault (1, 2, or 3) be committed at different

starting points in a physical confrontation, not just at the

beginning of the incident"; and (4) requesting, "Please provide

the transcript of Officer Thomas Hifo's courtroom testimony."

(Formatting altered.)

As to the conferences regarding these jury

communications, Pu's counsel was present and the jury

communications involved immaterial requests (power cable and

monitor) or legal questions. And notably, Pu does not challenge

the circuit court's responses to the jury communications.

Based on the particular circumstances of this case, we

cannot say that the omission of an on-the-record colloquy for

Pu's absence during the chambers conferences requires this court

to vacate Pu's convictions. See, e.g., Montoya, 82 F.4th at

647; Samuel, 74 Haw. at 155, 838 P.2d at 1381.

(2) Pu also contends the "record lacks any foundation

with respect to the minor children's understanding the duty of a

witness to tell the truth[,]" and that the "trial court should

have, sua sponte, conducted a competency hearing of the child

witnesses to assure [they] had an understanding [of] the duty of

a witness to tell the truth." (Formatting altered.)

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As an initial matter, Pu fails to cite in his points

of error where in the record he brought the absence of a

competency examination to the circuit court's attention. Hawai‘i

Rules of Appellate Procedure Rule 28(b)(4). Thus, Pu waived any

challenge to the absence of a competency examination. See id.

Nonetheless, Hawai‘i Rules of Evidence (HRE) Rule 601

provides that "[e]very person is competent to be a witness

except as otherwise provided in these rules." The rules require

the witness have personal knowledge and take an oath to testify

truthfully. HRE Rules 602, 603. "A person is disqualified to

be a witness if the person is (1) incapable of expressing

oneself so as to be understood, . . . or (2) incapable of

understanding the duty of a witness to tell the truth."

HRE Rule 603.1.

"There is no precise age within which children are

excluded from testifying. Their competency is to be determined,

not by their age, but by the degree of their knowledge and

understanding." State v. Kelekolio, 74 Haw. 479, 525, 849 P.2d

58, 79 (1993) (cleaned up). "[T]he question of testimonial

competency must be determined on a case by case basis." Id. at

528, 849 P.2d at 80.

In Kelekolio, "there was an inadequate showing of

competency" where the witness responded "good" when asked if

lying was good or bad, the witness was unable to identify the

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defendant who was present in court, and the witness did not

appear to know the meanings of terms she used while testifying.

Id. The Hawai‘i Supreme Court thus held that "the issue of the

complainant's competency to testify was reasonably called into

question[,]" and "the trial court committed plain error in

failing to engage in an independent inquiry and make an express

finding as to" competency. Id.

In the points of error and argument sections of his

opening brief, Pu points to no part of Son's or Daughter's

testimony to show that their competency to testify should

reasonably be called into question. And our review of their

testimonies reveal no reasonable question as to their competency

to testify. Son and Daughter were present during the incident,

were duly sworn in prior to testifying, and provided responsive

answers to the questions asked.

Thus, the circuit court did not plainly err in

permitting Son and Daughter to testify without a competency

examination.

(3) Finally, Pu challenges the sufficiency of the

evidence.

(a) Attempted Assault in the Second Degree

A person commits assault in the second degree if they

intentionally, knowingly, or recklessly cause substantial bodily

injury to another. Hawaiʻi Revised Statutes (HRS) § 707-

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711(1)(a) (Supp. 2018). "Substantial bodily injury" is "bodily

injury which causes: (1) a major avulsion, laceration, or

penetration of the skin; (2) a burn of at least second degree

severity; (3) a bone fracture; (4) a serious concussion; or

(5) a tearing, rupture, or corrosive damage to the esophagus,

viscera, or other internal organs." HRS § 707-700 (2014)

(formatting altered). Attempt is summarized as "intentionally

[engaging] in conduct which is a substantial step in a course of

conduct intended or known to cause such a result":

When causing a particular result is an element of the
crime, a person is guilty of an attempt to commit the crime
if, acting with the state of mind required to establish
liability with respect to the attendant circumstances
specified in the definition of the crime, the person
intentionally engages in conduct which is a substantial
step in a course of conduct intended or known to cause such
a result.

HRS § 705-500(2) (2014) (formatting altered; emphasis added).

Pu only challenges the sufficiency of the evidence

establishing the element of substantial bodily injury. Though,

for attempt, the State does not need to prove actual substantial

bodily injury. See HRS §§ 705-500(2), 707-711(1)(a).

Here, Funicello testified that while Pu had him in a

choke hold, the others "were taking their feet and stomping on

my face, kicking me in the temple, kicking me in the back of the

head, kicking me in the neck." Also, Kempton testified that she

saw Pu punch Funicello on the head or neck multiple times.

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The testimony of being struck in the head, when

considered in the strongest light for the prosecution, is

sufficient to show a substantial step in causing substantial

bodily injury (e.g., a serious concussion). See HRS §§ 705-

500(2), 707-700, 707-711(1)(a); State v. Keawe, 107 Hawai‘i 1, 4,

108 P.3d 304, 307 (2005) ("[E]vidence adduced in the trial court

must be considered in the strongest light for the prosecution

when the appellate court passes on the legal sufficiency of such

evidence to support a conviction[.]" (citation omitted)); State

v. Pulse, 83 Hawai‘i 229, 244, 925 P.2d 797, 812 (1996) ("The

testimony of one percipient witness can provide sufficient

evidence to support a conviction.").

Thus, there was sufficient evidence to establish the

element of substantial bodily injury for Attempted Assault in

the Second Degree.

(b) Terroristic Threatening in the Second Degree

HRS § 707-715(1) (2014) defines terroristic

threatening in pertinent part as follows:

A person commits the offense of terroristic threatening if
the person threatens, by word or conduct, to cause bodily
injury to another person . . . or to commit a felony[]
. . . [w]ith the intent to terrorize, or in reckless
disregard of the risk of terrorizing, another person[.]

Terroristic threatening in the second degree is committed when

"the person commits terroristic threatening other than as

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provided in section 707-716" (2014) for Terroristic Threatening

in the First Degree. HRS § 707-717(1) (2014).

Here, Funicello testified that Pu "said, you're going

to have to pay the piper, or something like that[,]" and "I

don't care about your kids, your kids are going to watch you

die[.]" Kempton testified that after Funicello "hit them and

they -- they ran immediately after him[,]" that Pu "said, I'm

going to kill you."

This testimony, when considered in the strongest light

for the prosecution, was sufficient to establish that Pu

recklessly disregarded the risk of terrorizing Funicello when he

threatened to cause him bodily injury (i.e., to kill him). See

Pulse, 83 Hawai‘i at 244, 925 P.2d at 812; Keawe, 107 Hawai‘i at

4, 108 P.3d at 307.

(c) Endangering Welfare of Minors

Pu argues there was insufficient evidence of

"violating or interfering with any legal duty of care or

protection owed such minor." Pu also argues that because he and

"his purported accomplices are not charged with 'the care and

custody' of Funicello's minor children, the statute is not, as a

matter of law, applicable to" him.

The offense of endangering the welfare of a minor is

applicable to any person, whether or not charged with a minor's

care or custody:

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A person commits the offense of endangering the welfare of
a minor in the second degree if, being a parent, guardian,
or other person whether or not charged with the care or
custody of a minor, the person knowingly endangers the
minor's physical or mental welfare by violating or
interfering with any legal duty of care or protection owed
such minor.

HRS § 709-904(2) (2014) (emphasis added).

The Commentary to HRS § 709-904 explains that the

"Code as adopted had limited this offense to a parent, guardian,

or other person charged with the care or custody of the minor."

HRS § 704-904 cmt. But in 1974, the offense "was broadened to

include persons who were not charged with the care or custody of

the minor." Id.

Here, Funicello is the father of Son and Daughter.

Funicello testified that he told Pu he had "two kids that [were]

watching from the tent[,]" and that Pu "said, I don't care about

your kids, your kids are going to watch you die[.]" Daughter

testified that she felt "[s]cared and threatened" at seeing her

"dad being assaulted." Son also testified that he was scared.

Considered in the strongest light for the prosecution,

Funicello's testimony indicates Pu was aware that two children

were present, that Funicello was the father of the two children,

and that it is "practically certain" witnessing the assault of

their father would endanger the children's mental welfare, of

which their father had a duty to care for or protect. See HRS

§ 702-206(2)(c) (2014) (defining knowingly as "aware[ness] that

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it is practically certain that his conduct will cause such a

result"); Pulse, 83 Hawai‘i at 244, 925 P.2d at 812; Keawe, 107

Hawai‘i at 4, 108 P.3d at 307.

Thus, Endangering the Welfare of a Minor is not

limited to those charged with the care or custody of a minor,

and there was sufficient evidence to support Pu's conviction of

Endangering the Welfare of Son and Daughter.

Based on the foregoing, we affirm the circuit court's

September 8, 2022 Amended Judgment.

DATED: Honolulu, Hawai‘i, April 21, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Hayden Aluli,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Gerald K. Enriques,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Plaintiff-Appellee.

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