State v. Airey

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-AUG-2025
07:52 AM
Dkt. 116 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
MARTIN T. AIREY, Defendant-Appellant

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

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

Defendant-Appellant Martin T. Airey (Airey) appeals

from the "Judgment of Conviction and Probation Sentence"

(Judgment) filed on March 17, 2022 in the Circuit Court of the

First Circuit (circuit court).1

1 The Honorable Catherine H. Remigio presided.
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On March 16, 2020, the State of Hawaiʻi (State) filed a

Complaint alleging that Airey "knowingly cause[d] a false alarm

and/or did make a false complaint or a report of false

information in reckless disregard of the risk that a public

safety agency would respond by dispatching emergency services,"

thereby violating Hawaii Revised Statutes (HRS) § 710-

1014.5(1)(a) (2014) and/or (1)(b) (2014), after Airey called 911

alleging that a child was being sexually assaulted in the

neighboring apartment unit.

The jury found Airey guilty as charged, and Airey was

sentenced to one year of probation. The circuit court entered

the Judgment, and this appeal followed.

Airey raises eight points of error on appeal: (1) the

circuit court erred by denying Airey's motion for judgment of

acquittal without addressing whether there was sufficient

evidence for the jury to conclude that Airey acted knowingly;

(2) "[t]he [circuit c]ourt erred by denying [Airey's] motion for

judgment of acquittal despite no evidence being presented

showing that [Airey's] conduct constituted a 'gross deviation'";

(3) "[t]he [circuit c]ourt erred by entering [the Judgment]

despite insufficient evidence"; (4) "[t]he [circuit c]ourt erred

by denying [Airey's] motion to dismiss the charge under [State

v. Wheeler, 121 Hawaiʻi 383, 219 P.3d 1170 (2009)]"; (5) "[t]he

[circuit c]ourt erred by overruling [Airey's] objection to [the

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State's] misstatements of the law during [its rebuttal]

argument"; (6) "[t]he [circuit c]ourt erred by entering the

[Judgment] despite a non-unanimous jury process"; (7) "[Airey's]

constitutional right to competent counsel was violated where

[Airey's lower court] counsel [(defense counsel)] failed to

obtain a sound engineer specialist as a witness"; and (8) "[t]he

[circuit c]ourt erred where it denied admission of [Airey's]

audio/video recording showing a child screaming."

Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we resolve Airey's points of error as follows2:

(1) Airey contends that the circuit court violated his

constitutional right to a unanimous jury verdict. Airey

contends that the jury verdict was not unanimous because HRS

§ 710-1014.5(1) sets forth two ways of committing Misuse of 911

emergency telephone service (Misuse of 911), and the circuit

court did not ensure that all the jurors agreed as to whether

Airey "[k]nowingly cause[d] a false alarm" and/or "[made] a

false complaint or a report of false information in reckless

disregard of the risk that a public safety agency will respond

by dispatching emergency services." We review questions of

2 We consolidate and renumber Airey's points of error herein, to
the extent it makes sense to do so, for purposes of our analysis.

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constitutional law de novo under the right/wrong standard.

State v. Fields, 115 Hawaiʻi 503, 511, 168 P.3d 955, 963 (2007).

"The right of an accused to a unanimous verdict in a

criminal prosecution, tried before a jury in a court of this

state, is guaranteed by article I, sections 5 and 14 of the

Hawaiʻi Constitution." State v. Getz, 131 Hawaiʻi 19, 24, 313

P.3d 708, 713 (2013) (cleaned up). "The jury must unanimously

find that each material element of the offense has been proven—

the conduct, the attendant circumstances, and the result of

conduct—as well as the mental state requisite to each element."

Id. (citation omitted).

The defendant's right to a unanimous jury verdict,

however, is not implicated where the statute "provides

alternative means of establishing the same offense." State v.

Shinyama, 101 Hawaiʻi 389, 398-99, 69 P.3d 517, 526-27 (2003)

(cleaned up).

In an alternative means case, where a single offense may be
committed in more than one way, there must be jury
unanimity as to guilt for the single crime charged.
Unanimity is not required, however, as to the means by
which the crime was committed so long as substantial
evidence supports each alternative. In reviewing an
alternative means case, the court must determine whether a
rational trier of fact could have found each means of
committing the crime proved beyond a reasonable doubt.

Id. at 399, 69 P.3d at 527 (emphasis added) (citations omitted).

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We must therefore determine whether there is

sufficient evidence to support each alternative means of

committing Misuse of 911.3

We review the sufficiency of the evidence using the

following standard:

[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; the same standard applies whether the
case was before a judge or jury. The test on appeal is not
whether guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.

State v. Kalaola, 124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010)

(emphasis added) (citation omitted). "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."

Id. (cleaned up).

HRS § 702-206(2) (2014) states that "[a] person acts

knowingly with respect to his conduct when he is aware that his

conduct is of that nature" and "acts knowingly with respect to a

result of his conduct when he is aware that it is practically

certain that his conduct will cause such a result." "[I]t is

not necessary for the prosecution to introduce direct evidence

3 Neither party contests on appeal that (1) Airey called 911, (2)
the police were dispatched to the neighboring apartment unit as a result of
his 911 calls, and (3) the police did not find evidence of child sexual
assault. Therefore, we will not address those elements of the offense.

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of a defendant's state of mind in order to prove that the

defendant acted . . . knowingly or recklessly." State v.

Eastman, 81 Hawaiʻi 131, 140-41, 913 P.2d 57, 66-67 (1996)

(citation omitted). "[P]roof by circumstantial evidence and

reasonable inferences arising from circumstances surrounding the

defendant's conduct is sufficient." Id. at 141, 913 P.2d at 67

(citation omitted).

Based on the testimonies presented, and viewing the

evidence in the light most favorable to the State, we conclude

that there was sufficient evidence to support the conclusion

that Airey both "[k]nowingly cause[d] a false alarm," and that

he "[made] a false complaint or a report of false information in

reckless disregard of the risk that a public safety agency will

respond by dispatching emergency services."

Airey testified that he heard a child screaming in the

neighboring apartment unit, and that he believed a crime was

occurring in that apartment unit because of his past

observations of prior tenants. However, Airey's 911 call went

well beyond the reporting of his actual beliefs or observations.

Airey told the 911 dispatch that a "gang-bang" was taking place

in the neighboring apartment unit. Airey admitted that he did

so "to get [the police's] attention," even though he had not

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observed anything that would support these allegations,4 and that

his representations were a "pure assumption." In reporting this

fabricated account to the 911 dispatch, Airey "[k]nowingly

cause[d] a false alarm," and/or "[made] a false complaint or a

report of false information in reckless disregard of the risk

that a public safety agency [would] respond by dispatching

emergency services."

We conclude that there is sufficient evidence in the

record to support both alternative means of committing Misuse of

911. Airey's constitutional right to a unanimous jury verdict

was not violated.

(2) Airey contends that the circuit court erred in

denying his motion for judgment of acquittal and entering the

Judgment because there was insufficient evidence.

4 During the trial, Airey testified as follows:

[State (Q)] Now, I wanna turn your attention to call
number 3 on January 5th, 2020. You used the term that a
three year old child was being gang-banged, right?
Okay. So why did you say a child was being gang-
banged?
[Airey (A)] Well, I -- because out of frustration
maybe. Um, I was just trying to get their attention and
get somebody there to stop this -- this child from being
abused.

. . . .

Q Okay. But, Mr. Airey, you didn't see anybody
enter into that residence on January 5th, 2020, correct?
A Correct.
Q And you didn't see anything that indicated a
gang-bang was going on, --
A Correct.

(Emphasis added.)

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We review the circuit court's decision on a motion for

judgment of acquittal using the following standard:

When reviewing a motion for judgment of acquittal, [the
court] employ[s] 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.

State v. Jhun, 83 Hawaiʻi 472, 481, 927 P.2d 1355, 1364 (1996)

(citations omitted). When reviewing the sufficiency of the

evidence on appeal, the test is "whether there was substantial

evidence to support the conclusion of the trier of fact."

Kalaola, 124 Hawaiʻi at 49, 237 P.3d at 1115 (citation omitted).

We concluded, in Section (1) supra, that there was

sufficient evidence to support the jury's finding that Airey

committed Misuse of 911; we likewise conclude, on this basis,

that the circuit court did not err in denying Airey's motion for

judgment of acquittal,5 and entering the Judgment.

We further conclude that Airey has waived his argument

that the circuit court erred in failing to address whether there

was sufficient evidence for the jury to find that Airey

"[k]nowingly" committed Misuse of 911 when it denied Airey's

5 Airey also challenges the circuit court's denial of his renewed
motion for judgment of acquittal for the same reasons. We conclude that the
circuit court did not err in denying Airey's renewed motion for judgment of
acquittal.

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first motion for judgment of acquittal.6 Airey did not raise

this issue when the circuit court made its ruling. Moreover,

Airey waived any error in the circuit court's denial of his

first motion for judgment of acquittal when he subsequently

testified. See State v. Halemanu, 3 Haw. App. 300, 303, 650

P.2d 587, 591 (App. 1982) (holding that the defendant's

introduction of evidence following the lower court's denial of

the defendant's motion for judgment of acquittal, made at the

close of the state's evidence, waived any error in the lower

court's prior denial).

(3) Airey contends that the circuit court erred when

it denied his motion to dismiss the charge. Airey contends that

the Complaint "failed to adequately apprise [him] of the charge"

because the Complaint did not define "public safety agency."

"Whether a charge sets forth all the essential elements of [the]

charged offense is a question of law" that the court reviews de

novo. Wheeler, 121 Hawaiʻi at 390, 219 P.3d at 1177 (cleaned

up).

Article I, section 14 of the Hawaiʻi Constitution

states that "[i]n all criminal prosecutions, the accused shall

6 In denying Airey's first motion for judgment of acquittal, the
circuit court only addressed whether there would be sufficient evidence for
the jury to find that Airey acted recklessly. It did not address whether
there would be sufficient evidence for the jury to find that Airey acted
knowingly.

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enjoy the right . . . to be informed of the nature and cause of

the accusation." In determining the sufficiency of a charging

instrument, the court looks at "whether it contains the elements

of the offense intended to be charged, and sufficiently apprises

the defendant of what [they] must be prepared to meet." Id. at

391, 219 P.3d at 1178 (citations omitted). It is not sufficient

that the charging document tracks the statute's language. Id.

at 393, 219 P.3d at 1180. The State, however, is not required

to "provide statutory definitions in every charge which tracks

the language of a statute that includes terms defined

elsewhere." State v. Mita, 124 Hawaiʻi 385, 391, 245 P.3d 458,

464 (2010). The State must allege the statutory definition of a

term if it (1) "creates an additional essential element of the

offense" and (2) "does not provide a person of common

understanding with fair notice of that element." Id. at 392,

245 P.3d at 465 (citation omitted).

The Complaint did not include the statutory definition

of "public safety agency" -- i.e., "any federal, state, or

county police, fire, emergency medical service, or emergency

management agency."7 HRS § 710-1014.5(3) (2014). The statutory

7 The Complaint reads as follows, in relevant part:

On or about January 5, 2020 in the City and County of
Honolulu, State of Hawaii, MARTIN T AIREY did knowingly
cause a false alarm and/or did make a false complaint or a
report of false information in reckless disregard of the
(continued . . .)

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definition of "public safety agency" did not, however, create an

additional element by "provid[ing] an inclusive, rather than

exclusive, list of examples of what the term may include." See

Mita, 124 Hawaiʻi at 391, 245 P.3d at 464. A person of common

understanding, moreover, would have fair notice that the term

"public safety agency" refers to "any federal, state, or county

police, fire, emergency medical service, or emergency management

agency." See id. at 392, 245 P.3d at 465; HRS § 710-1014.5(3).

We determine, therefore, that the circuit court did

not err in denying Airey's motion to dismiss for insufficient

notice of charge.

(4) Airey contends that the circuit court should not

have overruled his objection during the State's rebuttal

argument because the State misstated the law, and that the

State's misstatement of the law constituted prosecutorial

misconduct. We review allegations of prosecutorial misconduct

under the harmless beyond a reasonable doubt standard, which

requires the court to examine the record and determine "whether

there is a reasonable possibility that the error complained of

7(. . . continued)
risk that a public safety agency would respond by
dispatching emergency services, thereby committing the
offense of Misuse of 911 Emergency Telephone Service, in
violation of Section 710-1014.5(1)(a) and/or (1)(b) of the
Hawaii Revised Statutes.

(Emphasis added.)

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might have contributed to the conviction." State v. Austin,

143 Hawaiʻi 18, 28, 422 P.3d 18, 28 (2018) (citation omitted).

When reviewing allegations of prosecutorial

misconduct, the court must determine: "(1) whether the conduct

was improper; (2) if the conduct was improper, whether the

misconduct was harmless beyond a reasonable doubt; and (3) if

the misconduct was not harmless, whether the misconduct was so

egregious as to bar reprosecution." State v. Udo, 145 Hawaiʻi

519, 534-35, 454 P.3d 460, 475-76 (2019) (citation omitted).

The court must determine whether the State's

misstatement of the law "[has] caused prejudice to the

defendant's right to a fair trial." State v. Clark, 83 Hawaiʻi

289, 304, 926 P.2d 194, 209 (1996) (citation omitted). The

court must also view the statement in context and consider the

rebuttal argument in its entirety. See State v. Mars, 116

Hawaiʻi 125, 142, 170 P.3d 861, 878 (App. 2007). In general,

counsel's misstatements of the law, during argument, "are

subject to objection and to correction by the court," and

"improper comments by a prosecutor can be cured by the court's

instructions to the jury, and it will be presumed that the jury

adhered to the court's instructions." Austin, 143 Hawaiʻi at 42,

422 P.3d at 42 (citations omitted).

Airey appears to contend that the State misstated the

law by representing that the jury should not consider whether

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Airey "genuinely believe[d] that a crime was being committed,"

but should instead consider whether Airey's belief was a

"reasonable belief." The State asserts that it used "reasonable

belief" because the circuit court's jury instruction on defenses

uses the phrase "reasonably believe."8 However, it also appears

that the State used "reasonable belief" when it was discussing

the statutory definition for reckless, which does not expressly

use the phrase "reasonable belief" or state a standard to apply

to the defendant's belief.

Even if the State misstated the law during its

rebuttal argument, the circuit court correctly instructed the

jury (1) on the "choice of evils" defense, (2) on the statutory

definition of "[r]ecklessly" under HRS § 702-206(3) (2014), and

(3) that "[i]n the event that a statement or argument made by a

lawyer contradicts or misstates these instructions, [they] must

disregard that statement or argument and follow [its]

instructions." Defense counsel correctly restated the standard

for recklessness in closing argument. We conclude on this

record that the State's error, if any, did not substantially

prejudice Airey's right to a fair trial as it was harmless

beyond a reasonable doubt. See id. at 42-43, 422 P.3d at 42-43;

8 The State does not specify which defense it was referencing. It
does, however, include an excerpt of the circuit court's jury instructions on
the "choice of evils" and mistake of fact defenses in its Answering Brief,
and the "choice of evils" defense uses the phrase "reasonably believe[]."

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State v. Klinge, 92 Hawaiʻi 577, 595-96, 994 P.2d 509, 527-28

(2000) (holding that the prosecutor's misstatements of the law,

which the defendant objected to, was harmless in light of the

lower court's proper instructions to the jury on the charge).

(6) We next address Airey's contention that the

circuit court erred by excluding Airey's audio recording of a

child screaming. The circuit court ruled that the recording

would not be admitted because it (1) was not relevant due to its

timing, as it was made months after the night of the offense,

and (2) would be prejudicial, "in the sense that it would

confuse the jury."

The court reviews evidentiary decisions based on

Hawaii Rules of Evidence (HRE) Rule 401 de novo under the

right/wrong standard. State v. Pulse, 83 Hawaiʻi 229, 247, 925

P.2d 797, 815 (1996). We conclude that the circuit court did

not err by excluding Airey's recording because the recording was

not relevant pursuant to HRE Rule 401.9

Here, Airey sought to admit an audio recording of what

he perceived to be the neighbor's child screaming. Airey

testified that he had recorded the audio in July or August of

2020, which was several months after Airey's 911 call. "Events

9 HRE Rule 401 provides that evidence is relevant if it has "any
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." HRE Rule 402 provides that "[e]vidence which is not
relevant is not admissible."

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occurring after a contested event are generally not relevant."

State v. Ortiz, 93 Hawaiʻi 399, 408, 4 P.3d 533, 542 (App. 2000)

(citation omitted). Moreover, the record reflects that the

neighbor and the neighbor's child were no longer living in the

neighboring apartment unit in July 2020. We conclude that the

recording would not have made it more or less probable that

Airey heard the neighbor's child screaming on the night of the

offense. The recording was therefore not relevant, and was

properly excluded by the circuit court.

(7) Airey contends that defense counsel was

ineffective in "fail[ing] to obtain a sound engineer specialist

as a witness to enhance [Airey's audio] recording," which Airey

sought to introduce at trial. We review questions of

constitutional law de novo under the right/wrong standard.

Fields, 115 Hawaiʻi at 511, 168 P.3d at 963.

Defendants have a right to effective assistance of

counsel. Haw. Const. art. I, § 14; State v. Tetu, 139 Hawaiʻi

207, 215, 386 P.3d 844, 852 (2016). "When reviewing a claim of

ineffective assistance of counsel, [the] court looks at whether

defense counsel's assistance was within the range of competence

demanded of attorneys in criminal cases." State v. DeLeon, 131

Hawaiʻi 463, 478, 319 P.3d 382, 397 (2014) (citation omitted).

The defendant must show: "1) that there were specific errors or

omissions reflecting counsel's lack of skill, judgment, or

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diligence; and 2) that such errors or omissions resulted in

either the withdrawal or substantial impairment of a potentially

meritorious defense." Id. at 478-79, 319 P.3d at 397-98

(citation omitted).

We concluded, in Section (6) supra, that the circuit

court did not err in excluding the audio recording. On this

basis, we conclude that Airey's counsel was not ineffective by

failing to obtain a sound engineer specialist as a witness, as

this did not "result[] in either the withdrawal or substantial

impairment of a potentially meritorious defense." See id. at

479, 319 P.3d at 398 (citation omitted); State v. Silva, 75 Haw.

419, 438, 864 P.2d 583, 592 (1993) ("[A] decision on other

issues in the appellate court may effectively moot an

ineffective assistance claim.").

For the foregoing reasons, we affirm the Judgment.

DATED: Honolulu, Hawaiʻi, August 22, 2025.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Kai Lawrence,
for Defendant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Donn Fudo,
Deputy Prosecuting Attorney /s/ Kimberly T. Guidry
City and County of Honolulu, Associate Judge
for Plaintiff-Appellee.

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