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 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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