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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-MAY-2026
08:00 AM
Dkt. 83 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
JAMES EDWARD PATRICK, Defendant-Appellant.

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CASE NO. 3FFC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and McCullen, JJ.)

Defendant-Appellant James Edward Patrick (Patrick)
appeals from the Judgment of Conviction and Probation Sentence
(Judgment) entered on March 1, 2024, by the Family Court of the
Third Circuit (Family Court).1/ Following a jury trial, Patrick
was convicted of: (1) Felony Abuse of Family or Household Member,
in violation of Hawaii Revised Statutes (HRS) § 709-906(1) and
(10) (Count 1); (2) Attempted Felony Abuse of Family or Household
Member, in violation of HRS § 705-500 and 709-906(1) and (9)(a)
(Count 2); and (3) Abuse of Family or Household Member, in
violation of HRS § 709-906(1) (Count 3).
On appeal, Patrick contends that the Family Court
erred: (1) in failing to instruct the jury on merger; (2) in
failing to instruct the jury that Counts 2 and 3 were included
offenses of Count 1; (3) in failing to conduct a hearing
regarding the competency of the minor complaining witness (MCW)
pursuant to Hawai#i Rules of Evidence (HRE) Rule 603.1; and (4)
admitting a 911 call with the adult complaining witness's (CW)

1/
The Honorable Robert D.S. Kim presided.
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statement without showing unavailability, in violation of
Patrick's constitutional confrontation right.2/
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
Patrick's contentions as follows.
(1) Patrick contends that the Family Court erred in
failing to instruct the jury on merger as to Counts 1, 2 and 3.
He argues that the conduct alleged in these counts "constitut[ed]
one continuous episode," and the jury was required to determine
whether there was "one intention, one general impulse, and one
plan to commit the offenses[,]" under State v. Lavoie, 145
Hawai#i 409, 432, 453 P.3d 229, 252 (2019).
HRS § 701–109 (2014) states, in relevant part:
(1) When the same conduct of a defendant may establish an
element of more than one offense, the defendant may be
prosecuted for each offense of which such conduct is an
element. The defendant may not, however, be convicted of
more than one offense if:

. . . .
(e) The offense is defined as a continuing course of
conduct and the defendant's course of conduct
was uninterrupted, unless the law provides that
specific periods of conduct constitute separate
offenses.

In Lavoie, the Hawai#i Supreme Court explained that
"only one crime is committed when '(1) there is but one
intention, one general impulse, and one plan, (2) the two
offenses are part and parcel of a continuing and uninterrupted
course of conduct, and (3) the law does not provide that specific
periods of conduct constitute separate offenses.'" 145 Hawai#i
at 431, 453 P.3d at 251 (quoting State v. Hoey, 77 Hawai#i 17,
38, 881 P.2d 504, 525 (1994)). Specifically, with regard to
domestic abuse offenses under HRS § 709-906, the supreme court
has also stated that multiple acts of abuse on a single occasion
may constitute a single continuous event susceptible to merger
under HRS § 701-109(1)(e). See State v. Decoite, 132 Hawai#i
436, 438 & n.3, 323 P.3d 80, 82 & n.3 (2014) ("[A] single violent

2/
We have reordered Patrick's first and second points of error.

2
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transaction comprised of, for example, several punches, may
constitute one continuous episode of domestic abuse. The episode
terminates when the perpetrator's physically abusive impulse
ends.").
The State concedes that "under the facts in this case,"
the Family Court erred in failing to instruct the jury regarding
the potential merger of Counts 1, 2, and 3. We agree. Because
these offenses were charged as occurring on the same day and CW
testified that they occurred near in time to one another, there
was a reasonable possibility that merger under a continuing
course of conduct theory applied. See Lavoie, 145 Hawai#i at
433, 453 P.3d at 253. The Family Court's failure to give the
jury a merger instruction in these circumstances was prejudicial
and plainly erroneous.
Although there was no merger instruction, a new trial
is not required. Under established case law, the State has the
option of dismissing two of the three counts and maintaining the
Judgment on one charge.3/ See State v. Martin, 146 Hawai#i 365,
391, 463 P.3d 1022, 1046, 1048 (2020); State v. Padilla, 114
Hawai#i 507, 517, 164 P.3d 765, 775 (App. 2007).
(2) In light of our decision above, we need not reach
Patrick's contention that the Family Court erred in failing to
instruct the jury that Counts 2 and 3 were included offenses of
Count 1. See State v. Bibbs, 157 Hawai#i 413, 423, 579 P.3d 110,
120 (App. 2025).
(3) Patrick contends that the Family Court erred in
failing to conduct a competency hearing under HRE Rule 603.1
"prior to exposing [MCW's] substantive testimony to the jury."
Under HRE Rule 603.1, "[a] person is disqualified to be a witness
if the person is (1) incapable of expressing oneself so as to be
understood, either directly or through interpretation by one who
can understand the person, or (2) incapable of understanding the
duty of a witness to tell the truth." Patrick relies on State v.
Kelekolio, 74 Haw. 479, 849 P.2d 58 (1993), in arguing that a
competency hearing was required here.

3/
The lack of a merger instruction does not affect the maximum
sentence for Patrick's conviction on these three charges.

3
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In Kelekolio, the supreme court held that a trial court
commits plain error when a complainant's competency to testify is
reasonably called into question and the trial court does not
engage in an independent inquiry and make express findings as to
competency. 74 Haw. at 528, 849 P.2d at 80. There, the
defendant driver was convicted of kidnapping and sexually
assaulting his passenger, a woman with Down's Syndrome and "the
cognitive level of a four- to seven-year-old child." Id. at
486-87, 849 P.2d at 62-63. The court noted that the trial court
made no finding of competency despite the complainant's
competency to testify being reasonably called into question
because:
(1) when asked whether lying was good or bad, the
complainant responded, "Good"; (2) the complainant was
unable to identify [the defendant], who was present in
court, although she repeatedly referred to him in her
testimony by name; and (3) the complainant did not appear to
understand the meaning of particular sexual and other terms
(i.e., "rape" and "kidnap") that she employed in her
testimony.

Id. at 528, 849 P.2d at 80.
Here, in contrast, MCW's competency was not reasonably
called into question. Patrick made no objection to MCW's
qualification to testify, and nothing in the record suggests that
MCW did not understand relevant concepts or terms during her
trial testimony at the age of fifteen. See HRE Rule 603.1.
Similarly, nothing in the record suggests that MCW suffered from
any cognitive impairment that would limit her understanding of
her duty to tell the truth. Accordingly, the Family Court found:

Court finds that in viewing the testimony of the
15-year-old witness, that the witness was lucid, was able to
answer each question competently, that there was no issue
raised regarding the competency by Mr. Patrick, who is her
farther [sic]. And should he know of any issues regarding
her voracity [sic] or ability to discern truth from falsity,
he would have raised it.

Because CW's competency had not been reasonably called
into question, a competency hearing was not required. Thus, the
Circuit Court did not plainly err.
(4) Patrick contends that the Family Court erred in
admitting a 911 call audio recording containing CW's hearsay
statement without first making a finding of her unavailability.

4
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Patrick is correct in identifying the recording as a
nontestimonial out-of-court statement that implicates the
confrontation clause of the Hawai#i Constitution. He is also
correct in asserting that the Circuit Court misstated the holding
of State v. Nofoa, 135 Hawai#i 220, 349 P.3d 327 (2015), when it
stated that "whether the declarant is available or unavailable is
immaterial to that analysis." In fact, "a nontestimonial out-of-
court statement is admissible if '(1) the declarant is
"unavailable," and (2) the statement bears some indicia of
reliability.'" Nofoa, 135 Hawai#i at 235, 349 P.3d at 342
(quoting State v. Fields, 115 Hawai#i 503, 528, 168 P.3d 955, 980
(2007)).
Nonetheless, Patrick waived this issue by failing to
make a specific and timely objection to the introduction of the
911 recording on this ground. Patrick's only stated objection to
the admission of the 911 recording was essentially a relevance
objection, which was correctly overruled. Moreover, at the time
the State actually offered the 911 call recording into evidence,
Patrick stated that he had no objection. On this record, we deem
the issue waived. See State v. Wallace, 80 Hawai#i 382, 410, 910
P.2d 695, 723 (1996); see also State v. Ildefonso, 72 Haw. 573,
584, 827 P.2d 648, 655 (1992) (constitutional due process
challenge waived where not raised at trial).
For the reasons discussed above, we vacate the Judgment
of Conviction and Probation Sentence entered on March 1, 2024, by
the Family Court of the Third Circuit and remand the case for
further proceedings consistent with this summary disposition
order.
DATED: Honolulu, Hawai#i, May 7, 2026.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Sara K. Haley,
Deputy Public Defender,
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Nathan A. Wersal,
Deputy Prosecuting Attorneym
County of Hawai#i, /s/ Sonja M.P. McCullen
for Plaintiff-Appellee. Associate Judge