State v. Cabos

• Court: Hawaii Intermediate Court of Appeals
• Decided: December 22, 2025
• Docket: CAAP-23-0000234
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 22-DEC-2025 08:33 AM Dkt. 72 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellant/Cross-Appellee, v. KEOLA CABOS, Defendant-Appellee/Cross-Appellant

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

SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, McCullen and Guidry, JJ.)

Plaintiff-Appellant/Cross-Appellee State of Hawai‘i

(State) appealed from the March 1, 2023 "Findings of Fact

[(FOFs)], Conclusions of Law [(COLs),] and Order Granting in

Part and Denying in Part [Defendant-Appellee/Cross-Appellant

Keola Cabos' (Cabos)] First Motion to Dismiss Indictment, Filed

on September 30, 2022" (First Order) entered by the Circuit NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Court of the Second Circuit (circuit court). 1 Cabos cross-

appealed from the circuit court's March 1, 2023 "[FOFs], [COLs,]

and Order Denying [Cabos'] Second Motion to Dismiss Indictment

Filed on September 30, 2022" (Second Order).

On May 16, 2022, the State charged Cabos by Indictment

with two counts of Promoting a Dangerous Drug in the First

Degree in violation of Hawaii Revised Statutes (HRS) § 712-

1241(1)(b)(ii)(A), (1)(b)(i) (2014 & Supp. 2016). Cabos pleaded

not guilty, and, on September 30, 2022, Cabos filed two motions

to dismiss the Indictment. On March 1, 2023, the circuit court

entered the First Order, granting Cabos' first motion to dismiss

on the basis that the State's failure to include the definition

of "continuing course of conduct" in the Indictment violated

Cabos' right to due process under article I, section 14 of the

Hawaiʻi Constitution. The First Order dismissed the Indictment

without prejudice. On the same day, the circuit court also

entered the Second Order, denying Cabos' second motion to

dismiss, and rejecting Cabos' contention that the use of hearsay

by the State during the grand jury proceedings was prejudicial

to Cabos.

The State contends on appeal that the circuit court

erred in granting in part Cabos' first motion to dismiss, and,

1 The Honorable Peter T. Cahill presided.

2 NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

relatedly, that FOFs 9 and 10 2 are clearly erroneous, and COLs 11

and 12 3 are wrong. Cabos contends on cross-appeal that the

circuit court erred in denying Cabos' second motion to dismiss.

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 the State and Cabos' points of error as follows:

(1) The State contends that the circuit court erred in

dismissing the Indictment, without prejudice, because "Cabos was

adequately informed of the nature of the charges against him."

(Formatting altered.) Cabos contends his constitutional right

to due process was violated because "continuing course of

conduct" was not defined in the Indictment.

2 FOFs 9 and 10 state,

9. The State did not provide to the grand jury a definition of what standard that they are to use to determine an aggregate weight.

10. The State did not specify in the Indictment what it meant by "continuing course of conduct."

3 COLs 11 and 12 state,

11. In the context of this case, the failure of the Indictment to set forth the definition of the term "continuing course of conduct" violated Cabos's constitutional right to due process under article I, section 14 of the Hawaiʻi Constitution. [State v.] Jardine, 151 Hawaiʻi [96,] 100, 508 P.2d [1182,] 1186 [2022].

12. Within the context of this case, the State should have specified in the charging document what it means by continuing course of conduct.

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The purpose of a charging document is "to safeguard an

accused's fundamental right to know what they must defend

against to avoid conviction." State v. Van Blyenburg, 152

Hawaiʻi 66, 74, 520 P.3d 264, 272 (2022). Pursuant to article I,

sections 5 and 14 of the Hawaiʻi Constitution, "charging

documents must include the elements of an offense and

sufficiently describe the nature and cause of the accusation."

State v. Aquino, 154 Hawaiʻi 388, 393, 550 P.3d 1246, 1251 (2024)

(citation omitted). "Put differently, the sufficiency of the

charging instrument is measured, inter alia, by whether it

contains the elements of the offense intended to be charged, and

sufficiently apprises the defendant of what he or she must be

prepared to meet." Jardine, 151 Hawaiʻi at 100, 508 P.3d at 1186

(cleaned up).

"Whether a charge sets forth all the essential

elements of a charged offense is a question of law, which we

review under the de novo, or right/wrong, standard." State v.

Wheeler, 121 Hawaiʻi 383, 390, 219 P.3d 1170, 1177 (2009)

The Indictment charged Cabos with a continuing course

of conduct from March 1, 2018 through June 30, 2018 under HRS §

712-1241(1)(b):

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Count One: . . .

That on or about the period of March 1, 2018, through June 30, 2018, inclusive, in a continuing course of conduct, in the County of Maui, State of Hawaii, [Cabos] did knowingly distribute one or more preparations, compounds, mixtures, or substances of an aggregate weight of one-eighth ounce or more, containing methamphetamine or any of its salts, isomers and salts of isomers, thereby committing the offense of Promoting a Dangerous Drug in the First Degree in violation of Section 712-1241(1)(b)(ii)(A) of the [HRS].

. . . .

Count Two: . . .

That on or about the period of March 1, 2018, through June 30, 2018, inclusive, in a continuing course of conduct, in the County of Maui, State of Hawaii, [Cabos] did knowingly distribute twenty-five (25) or more capsules, tablets, ampules, dosage units, or syrettes containing one or more dangerous drugs, to wit, oxycodone, thereby committing the offense of Promoting a Dangerous Drug in the First Degree in violation of Section 712-1241(1)(b)(i) of the [HRS].

(Emphasis added.) At the time Cabos was indicted, HRS § 712-

1241(1)(b) stated, in relevant part,

(1) A person commits the offense of promoting a dangerous drug in the first degree if the person knowingly:

(b) Distributes:

(i) Twenty-five or more capsules, tablets, ampules, dosage units, or syrettes containing one or more dangerous drugs; or

(ii) One or more preparations, compounds, mixtures, or substances of an aggregate weight of:

(A) One-eighth ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers[.]

(Emphasis added.)

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When comparing the charged language in the Indictment

to the statutory language of HRS § 712-1241(b), the Indictment

contains all elements of the charged offense.

As to the specific term "continuing course of

conduct," this term is not defined by statute or case law.

Cabos thus maintains that the State was required to include in

the Indictment the definition of "continuing conduct" set forth

by the Hawaiʻi Supreme Court in State v. Decoite, 132 Hawaiʻi

436, 438, 323 P.3d 80, 82 (2014).

In State v. Shaw, the Hawaiʻi Supreme Court held a

third-degree Computer Fraud indictment insufficient for not

containing language that the defendant possessed the intent to

commit third-degree theft "through a continuing course of

conduct over the four-month period" set forth in the indictment.

150 Hawaiʻi 56, 63-64, 497 P.3d 71, 78-79 (2021). Because "the

State aggregated the theft amounts from separate victims to

reach the $250.00 threshold" for third-degree theft, the State

was required to prove "multiple thefts committed pursuant to a

common scheme or course of conduct because none of the

individual thefts met the $250.00 statutory threshold." Id.

The court held that "[an] indictment must allege that the

defendant acted pursuant to a scheme or course of conduct" when

the offense alleged is "based on an aggregation theory because

scheme or course of conduct is an attendant circumstances

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element that the State must prove." Id. The Shaw court did not

state that any language beyond the attendant circumstances

element of "continuing course of conduct" was required in an

indictment where an aggregation theory is utilized.

It appears that the Hawaiʻi Supreme Court has used the

term "continuing course of conduct" synonymously with

"continuing conduct" and "continuous offense." "Continuous

offense" is defined in Decoite as "a continuous, unlawful act or

series of acts set on foot by a single impulse and operated by

an unintermittent force, however long a time it may occupy."

Decoite, 132 Hawaiʻi at 438, 323 P.3d at 82 (cleaned up). We are

unaware, however, of any case law that requires the charging

document to provide the common law definition of "continuous

offense" in a criminal indictment charging a "continuing course

of conduct."

Thus, the failure to include a definition for

"continuing course of conduct," "continuing conduct," or

"continuous offense" did not render the Indictment insufficient.

Moreover, this court may "consider other information

in addition to the charge that may have been provided to the

defendant during the course of the case up until the time [the]

defendant objected to the sufficiency of the charges against

him." Wheeler, 121 Hawai‘i at 396, 219 P.3d at 1183.

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The record reflects that the parties stipulated into

evidence the Maui Police Department "Incident/Investigation

Report" (Report), which specified the dates and quantity of

drugs for each alleged transaction. 4 For the methamphetamine

charge, the Report detailed three buys:

• March 29, 2018 - 0.60 grams

• April 27, 2018 - 3.10 grams

• June 15, 2018 - 2.65 grams 5

For the oxycodone charge, the Report detailed five buys:

• March 23, 2018 - 15 Oxycodone 30 mg pills

• March 29, 2018 - 14 Oxycodone 30 mg pills

• April 24, 2018 - 15 Oxycodone 30 mg pills

• April 27, 2018 - 15 Oxycodone 30 mg pills

• June 15, 2018 - 8 Oxycodone 30 mg pills

Because any one transaction did not consist of the

requisite amount of drugs under HRS § 712-1241(1)(b), the State

needed to aggregate multiple transactions in order to reach the

4 The Report identified five "controlled buys" that allegedly occurred between March 23, 2018 and June 15, 2018, and specified the dosage units of Oxycodone and the weight of methamphetamine that Cabos allegedly distributed. Cabos does not challenge the circuit court's finding that "a copy of the [Report] . . . had been provided to Cabos by the State," nor does he contend that the State failed to provide this discovery prior to his sufficiency challenge.

5 HRS § 712-1241(1)(b)(ii)(A) criminalizes knowingly distributing "[o]ne-eighth ounce or more, containing methamphetamine." One ounce equals 28.35 grams. See State v. Mattiello, 90 Hawaiʻi 255, 257-58, 978 P.2d 693, 695-96 (1999); State v. Wallace, 80 Hawaiʻi 382, 407, 910 P.2d 695, 720 (1996).

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threshold amounts for Promoting a Dangerous Drug in the First

Degree (25 or more tablets of Oxycodone or 1/8 ounce or more of

crystal methamphetamine). And when reading the Indictment in

conjunction with the Report, Cabos did have fair notice of the

charges he faced, where the Indictment alleged each count as

occurring "in a continuing course of conduct" within the date

range corresponding to the dates in the Report.

We thus conclude the charging document adequately

informed Cabos "of the nature and cause of the charge and each

element." Aquino, 154 Hawaiʻi at 393, 550 P.3d at 1251 (cleaned

up). The Indictment was sufficient, the circuit court's FOFs 9

and 10 were clearly erroneous, and the circuit court's COLs 11

and 12 were wrong. We therefore vacate the circuit court's

First Order.

(2) We lack jurisdiction over Cabos' cross-appeal,

which is taken from the circuit court's Second Order denying

Cabos' second motion to dismiss the Indictment. Hawaiʻi Rules of

Appellate Procedure Rule 4.1(a)(1) provides that "[i]f a timely

notice of appeal is filed by a party, any other party may, if

allowed by law, file a cross appeal." A criminal defendant may

only appeal from a circuit court's judgment of conviction

pursuant to HRS § 641-11 (2016), a certified interlocutory order

pursuant to HRS § 641-17 (2016), or from an appealable order

pursuant to the collateral order doctrine. See State v.

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Kealaiki, 95 Hawaiʻi 309, 312, 316-17, 22 P.3d 588, 591, 595-96

(2001) (cleaned up).

Here, the circuit court has not entered a judgment of

conviction, nor has it entered an order certifying Cabos'

interlocutory appeal. Moreover, Cabos' cross-appeal from the

circuit court's order denying his second motion to dismiss is

not an appealable collateral order. See State v. Johnson, 96

Hawaiʻi 462, 470 n.12, 32 P.3d 106, 114 n.12 (App. 2001)

("Generally, the collateral order exception is applicable in

criminal cases only upon a denial of pretrial motions to reduce

bail, motions to dismiss based on double jeopardy grounds, and

motions to dismiss under the Speech and Debate Clause.").

For the foregoing reasons, we vacate the circuit

court's First Order, and remand for further proceedings

consistent with this summary disposition order.

DATED: Honolulu, Hawaiʻi, December 22, 2025.

On the briefs: /s/ Karen T. Nakasone Chief Judge Richard B. Rost, Deputy Prosecuting Attorney /s/ Sonja M.P. McCullen County of Maui Associate Judge for Plaintiff-Appellant/ Cross-Appellee. /s/ Kimberly T. Guidry Associate Judge Richard H.S. Sing, for Defendant-Appellee/ Cross-Appellant.