Wagner v. Hood

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-MAY-2025
07:50 AM
Dkt. 64 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JASMINE K. WAGNER, Petitioner-Appellee, v.
CARL E. HOOD, Respondent-Appellant

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

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and Guidry, JJ.)

Carl E. Hood appeals from the December 6, 2022 Order
for Protection (OFP) entered by the Family Court of the First
Circuit.1 It expires on December 6, 2042. We affirm.
Jasmine K. Wagner petitioned for protection from Hood
on July 29, 2022. A temporary restraining order against Hood was
entered the same day. Trial began on October 17, 2022, and
continued on December 6, 2022. The family court heard testimony
from Wagner and Hood, and admitted several exhibits into
evidence. The OFP was entered on December 6, 2022. Hood
appealed. The family court entered findings of fact (FOF) and
conclusions of law (COL) on April 4, 2023, consistent with
Hawai#i Family Court Rule 52(a) and Hawai#i Rules of Appellate
Procedure Rule 10(f).

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The Honorable Rebecca A. Copeland presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Hood states a single point of error: "The Family Court
erred in holding that Hood was limited in questioning and in
presenting testimony and evidence only to matters directly
related to Wagner's allegations in her Petition." He challenges
47 FOFs he contends were clearly erroneous because they "were
premised on the Family Court's incorrect assessment of
credibility which was based on the court's error in precluding
Hood from adducing testimony and evidence which would have
discredited Wagner's testimony and supported Hood's testimony."
He also challenges five COLs he contends "were wrong as they were
based on its clearly erroneous FOFs."

[D]ifferent standards of review must be applied to trial
court decisions regarding the admissibility of evidence,
depending on the requirements of the particular rule of
evidence at issue. When application of a particular
evidentiary rule can yield only one correct result, the
proper standard for appellate review is the right/wrong
standard. However, the traditional abuse of discretion
standard should be applied in the case of those rules of
evidence that require a "judgment call" on the part of the
trial court.

State v. Su, 147 Hawai#i 272, 282, 465 P.3d 719, 729 (2020).
We initially note the family court's findings that Hood
head-butted Wagner on July 28, 2022, causing her nose to bleed
from cuts on the bridge and discoloration of her right eye, are
supported by Wagner's testimony and by photographs of her face,
to which Hood didn't object. Those findings are not clearly
erroneous. And Hood doesn't challenge FOF no. 58, which states
"[Wagner] went to the hospital because of the injury the same
evening the incident occurred, and was told she had a nasal
fracture that required surgery; the surgery took place on
November 1, 2022."
Wagner claimed that Hood exercised coercive control
over her. Hood's defense seemed to be that Wagner coercively
controlled him. When Hood's attorney cross-examined Wagner, this
happened:

Q. Okay. On the other hand, you did not want
[Hood] to go out, correct?

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[WAGNER'S ATTORNEY]: Objection, relevance.

[HOOD'S ATTORNEY]: Coercive control. If she's
controlling, Judge.

[WAGNER'S ATTORNEY]: The issue is whether he is, not
whether she is.

THE COURT: Okay. Objection sustained.
. . . .
Q. Did you have no problem with him going out with
his friends?
[WAGNER'S ATTORNEY]: Your Honor . . . I'm going to
object again. Relevance.

. . . .
[HOOD'S ATTORNEY]: Again, Judge, it's -- when you talk
coercive control and controlling behavior, we believe we are
going to be able to establish that it is [Wagner] who
exhibits a track record, a documented track record of
threatening, controlling when Mr. -- when [Hood] does
anything she doesn't like.

. . . .

THE COURT: . . . So based on that explanation, the
objection is sustained.

. . . .
Q. Okay. And, in fact, you -- you -- you have, on
prior occasion, sworn and yelled at him in front of other
people in public, correct?

A. No.

Q. No? How about at the . . . the Kapiolani
swimming boat?

[WAGNER'S ATTORNEY]: Your Honor, I'm going to object.
Relevance. This is -- this is not -- we are -- the petition
covers two very specific dates.
. . . .
THE COURT: As far as the cross-examination, it needs
to stay relevant to the allegations in the petition. I
don't have allegations against him by her, I only have the
other way around. So you need to explain to me why you
believe it's relevant that I should hear the other way
around, otherwise I'm going to keep sustaining the
objection.

[HOOD'S ATTORNEY]: And -- well, my overall offer of
proof on this general topic area, since I have a lot more on
this, again, Judge, she is claiming she is dominated, she's
under coercive control during these time periods, from 2017

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to present, or at the very least our offer of proof is she
moved in I call it the -- the June -- A, the June 29th she
moved back in the house after approximately a year, two
weeks before that, up to a month later, the July 28th
incident.
Even in between there we have public yelling, swearing
at him, with him having no response, and that's an offer of
proof I made with a witness ready to come forward, and the
Court said no on that. But you can't pick and choose
coercive control. I'm under -- I'm being dominated, I'm
being threatened, and all of a sudden -- and then say --
[Hood] cannot describe what their living situation and life
is like because he did not choose to lie and file the TRO
against her. He is allowed to say this is not what it was
like, this is what life was like.
And if the Court wants me to expand on that, I will,
but that's basically -- there -- there's nothing in the
rules that say he has to file something. Those rules are
designed to give us notice of her accusations against us,
rather [Wagner]'s accusations against [Hood], but [Hood] is
allowed to say, no, this is what life was like.

THE COURT: Okay. Well, to the extent that that -- any
of that may or may not be factually accurate, the fact of
the matter is I don't have a TRO by him. And just
anecdotally, people can be abusive to each other. I'm not
saying these two people were abusive to each other, but that
is, in fact, something that can happen in the world, okay,
between people who are together.

I am only going to consider the allegations by --
against him by her. If -- if she has allegedly coercively
controlled him, then he can certainly file his own TRO and
obtain a protective order against her to prevent any such
coercive control. But in the context of this trial, I am
not going to consider it because the Court does not consider
it to be relevant. Okay?

[HOOD'S ATTORNEY]: I understand.
. . . .
. . . But I do note it also goes to credibility
purposes, and that's another offer. But I believe your
ruling probably covered that.
THE COURT: I would agree.

. . . .
Q. (By [Hood's attorney]) You -- you -- you openly
tell [Hood] that -- and -- or get mad at [Hood] when he
wants to hang out with friends, including if the kids are
there, or even have friends over at the house?

[WAGNER'S ATTORNEY]: Objection. Same objection,
relevance, as earlier.

THE COURT: Sustained.

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Q. (By [Hood's attorney]) Okay. When you're mad
at [Hood], do you throw dishes?
[WAGNER'S ATTORNEY]: Objection, relevance.

THE COURT: Sustained.

(Emphasis added.)
The family court's rulings on the relevance objections
were right. The issue for trial was whether Hood exercised
coercive control over Wagner. See Hawaii Revised Statutes (HRS)
§§ 586-1, -5.5(a) (Supp. 2021). Whether Wagner was coercive or
controlling had no "tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
Rule 401, Hawaii Rules of Evidence (HRE), Chapter 626, HRS
(2016). "Evidence which is not relevant is not admissible." HRE
Rule 402 (2016).
As to credibility, HRE Rule 608 (2016) applies:

Evidence of character and conduct of witness. . . .

(b) Specific instances of conduct. Specific
instances of the conduct of a witness, for the purpose of
attacking the witness' credibility, if probative of
untruthfulness, may be inquired into on cross-examination of
the witness[.]

The supreme court has held:

under the plain language of HRE Rule 608(b), admissibility
of evidence under HRE Rule 608(b) involves a two-step
inquiry: (1) whether the specific conduct evidence proffered
for the purpose of attacking the witness's credibility is
probative of untruthfulness, and, if so, (2) whether the
probative value of the evidence of the specific conduct is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence pursuant to HRE
Rule 403. An appellate court reviews the trial court's
two-step admissibility determination under the right/wrong
standard as to the first step, and under the abuse of
discretion standard as to the second step.
Thus, under the first step, a witness may generally be
cross-examined about specific instances of conduct probative
to credibility, if probative of untruthfulness. A trial
court's decision to allow or preclude cross-examination on
specific instances of conduct, based upon relevance under

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HRE Rules 401 and 402, is thus reviewed under the
right/wrong standard.

Su, 147 Hawai#i at 283, 465 P.3d at 730 (emphasis added)
(footnotes omitted).
Whether Wagner was coercive or controlling isn't
probative of her truthfulness. Compare State v. Stanley, 110
Hawai#i 116, 128, 129 P.3d 1144, 1156 (App. 2005) (complaining
witness sticking middle finger at defendant "had nothing to do
with dishonesty") with State v. Estrada, 69 Haw. 204, 219, 738
P.2d 812, 823 (1987) (false statements on police officer's
employment application were relevant to credibility and should
have been admitted under HRE Rule 608(b)). The family court was
right to sustain Wagner's objections.
Hood's opening brief also argues — for the first time —
that his questions were relevant to Wagner's bias, interest, or
motive, under HRE Rule 609.1. He did not make that argument to
the family court, or in his offer of proof. An offer of proof
should include "a description of the evidence and a theory of
admissibility." Addison M. Bowman, Hawaii Rules of Evidence
Manual § 103-3 (2020 ed.). Hood's argument is waived.
The family court found:

40. In determining whether to issue a protective
order, this Court found [Wagner]'s testimony credible in
full. This Court did not find [Hood]'s testimony credible.

. . . .
41. Petitioner credibly testified that, as alleged
in Allegation 5A of the Petition, Respondent subjected her
to physical harm, extreme psychological abuse, and coercive
control.

. . . .
48. Petitioner credibly testified that, as alleged
in Allegation 5B of the Petition, Respondent subjected her
to physical harm, extreme psychological abuse, and coercive
control.

. . . .
76. While the totality of the testimony of the
parties is not set forth verbatim herein, the court heard

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and considered all of the testimony, and found Petitioner
credible and Respondent not credible.

"It 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).
The Order for Protection entered by the family court on
December 6, 2022, is affirmed.
DATED: Honolulu, Hawai#i, May 27, 2025.

On the briefs:
/s/ Keith K. Hiraoka
David M. Hayakawa, Presiding Judge
for Respondent-Appellant.
/s/ Karen T. Nakasone
Associate Judge

/s/ Kimberly T. Guidry
Associate Judge

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