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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 19-FEB-2026 07:51 AM Dkt. 92 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee, v. NAINOA DAMON, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Leonard and Guidry, JJ.)
Defendant-Appellant Nainoa Damon (Damon) appeals from
the Circuit Court of the First Circuit's (circuit court)
"Judgment of Conviction [and] Sentence" (Judgment), entered on
August 22, 2024, and "Free Standing Order of Restitution"
(Restitution Order), entered on August 23, 2024. 1
On March 30, 2022, the State of Hawaiʻi (State) charged
Damon by Indictment with the following six counts: (1) Murder in
1 The Honorable Shanlyn A.S. Park presided. NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
the Second Degree, in violation of Hawaii Revised Statutes (HRS)
§§ 707-701.5 (Supp. 2019), 706-656 (2014); (2) Carrying or Use
of Firearm in the Commission of a Separate Felony, in violation
of HRS § 134-21 (2023); (3) Robbery in the First Degree, in
violation of HRS § 708-840(1)(b)(ii) (2014); (4) Carrying or Use
of Firearm in the Commission of a Separate Felony, in violation
of HRS § 134-21; (5) Place to Keep Pistol or Revolver, in
violation of HRS § 134-25 (2023); and (6) Terroristic
Threatening in the First Degree, in violation of HRS § 707-
716(1)(e) (2014).
A jury found Damon guilty on all counts, and found
that the HRS § 706-660.1 (2014) sentencing enhancement should be
imposed. The circuit court sentenced Damon to the following
prison terms: (1) on Count 1, to a life term with the
possibility of parole, with a mandatory term of 15 years; (2) on
Counts 2, 3, and 4, to an indeterminate term of 20 years; (3) on
Count 5, to an indeterminate term of 10 years; and (4) on Count
6, to an indeterminate term of 5 years. The circuit court
ordered all terms to be served concurrently. In its Restitution
Order, the circuit court also ordered Damon to pay $3,980.73 to
the family of the Decedent.
Damon raises the following points of error on appeal,
contending that the circuit court: (1) erred in denying "Damon a
right to a fair trial by failing to dismiss [a juror]"; (2)
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erred "in allowing [Federal Bureau of Investigation Special
Agent Andrew Masters (Agent Masters)] to testify as to his
updated opinions contained in his untimely updated report"; (3)
erred "in allowing Ridge Li[ʻ]i [(Liʻi)] and Andreas Schneider
[(Schneider)] to testify"; (4) "plainly erred in failing to give
a self-defense instruction"; and (5) "plainly erred in its
special interrogatory." (Formatting altered.) Damon also
contends, as point of error (6), that his trial counsel "was
ineffective and substantially impaired his defense," and, as
point of error (7), that "[t]he cumulative effect of the errors
deprived Damon of a right to a fair trial." (Formatting
altered.)
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 Damon's contentions of error as follows:
(1) Damon contends that the circuit court erred when
it failed to dismiss one of the jurors, following the juror's
exposure to an outside influence, thereby violating his right to
a fair trial. We review Damon's contention for abuse of
discretion. State v. Grewer, 157 Hawaiʻi 104, 111, 575 P.3d 737,
744 (2025) ("When a claim of juror misconduct arises, trial
courts first determine whether the alleged deprivation is of a
substantially prejudicial nature. In making this determination,
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trial courts look to the 'general nature' of the alleged
misconduct and whether it 'could' substantially prejudice the
defendant. Whether a juror's alleged misconduct 'could'
substantially prejudice the defendant is a question left to the
trial court's discretion.") (citations omitted).
The record reflects that, following a verbal outburst
in the gallery between two trial attendees, the circuit court
conducted an individual voir dire of each juror. The circuit
court asked each juror: (1) if they saw or heard anything of the
"outburst" in court; (2) if so, what they saw or heard; and (3)
whether what they saw or heard would affect their ability to be
fair and impartial. The circuit court also instructed each
juror to set aside what they saw or heard, and to not discuss
the "outburst" or voir dire with any other juror.
Damon contends that the circuit court erred by not
excluding a juror who testified that she saw "a gentleman
talking to another gentleman," and that she heard one man say to
the other "something about don't talk about him like that" and
"you're a good boy." Observing that the juror appeared "visibly
upset" during voir dire, the circuit court asked the juror: "Can
you tell me how this incident has affected you?" The juror
twice told the circuit court she is "a cry baby" and that she
"cr[ies] about everything." In response to the circuit court's
questions, the juror affirmed that she could be a fair and
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impartial juror in this case, that she would follow the circuit
court's "instruction to set this incident aside and just judge
this case solely based upon the witnesses here . . . and the
documents that come into evidence," and that she would not
discuss the incident or voir dire with the other jurors.
The circuit court recalled this juror for a second
voir dire when it came to the circuit court's attention, after
the initial voir dire, that the juror "had expressed concern for
her safety in the public, . . . in regard to being a juror in
this case." The juror informed the circuit court during this
second voir dire that she worked in sales and, through her work,
"encounter[s] everybody in the public" and "help[s] police
officers and . . . everybody." The circuit court again
questioned the juror as to her ability to perform her duties as
a juror, as follows:
THE COURT: [Juror], I need to be sure. Remember what I said. I have three functions as a judge, and one of those functions is to be sure that the process is fair. So I'm just asking you for your most honest answer. There's no right --
THE JUROR: Right.
THE COURT: -- or wrong answer. All right? I just want you to understand that. Given your strong emotions with respect to this incident this afternoon that you exhibited to me, would that affect your ability to focus on the evidence coming into this trial or would it affect -- do you believe that it would affect your ability to be fair and impartial to both the prosecution and the defense in this case?
THE JUROR: It will not affect my, uh --
THE COURT: Okay.
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THE JUROR: -- thinking.
THE COURT: All right. So you feel you can proceed forward as a juror even though you have these concerns?
THE JUROR: Yes.
(Formatting altered.)
Following this questioning, the circuit court
determined that the juror could be fair and impartial. 2
On this record, we conclude that the circuit court did
not abuse its discretion by allowing the juror to remain on the
jury.
(2) Damon contends that the circuit court erred in
"allowing Agent Masters to testify as to his updated opinions
contained in his untimely updated report," as this violated
Hawaiʻi Rules of Penal Procedure (HRPP) Rule 16. (Formatting
altered.) "Generally, the decision whether to admit expert
testimony rests in the discretion of the trial court." State v.
McDonnell, 141 Hawaiʻi 280, 289, 409 P.3d 684, 693 (2017)
(citation omitted). However, "to the extent that the trial
court's decision is dependent upon interpretation of court
rules, such interpretation is a question of law, which the
appellate court reviews de novo." Id. (cleaned up).
2 We note that Damon's trial counsel asked the circuit court to excuse the juror "out of an abundance of caution" based on his concerns that the juror's "founded belief that she's gonna get caught in the crossfire out there" would "kick back," but acknowledged that he thought the juror could "be fair and impartial."
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The record reflects that the State disclosed Agent
Masters' original report to Damon on August 23, 2023. Agent
Masters' report analyzed Damon's cell phone locations around the
time of the charged offenses. The State noticed its intent to
call Agent Masters as an expert "in the area of historical
cellular site analysis." After both parties had indicated their
readiness to go to trial on March 12, 2024, the State learned of
Agent Masters' amended report on March 20, 2024 and received the
amended report on March 21, 2024. 3 The State represents that it
disclosed the amended report to defense counsel on March 21,
2024, the same day that it received the amended report from
Agent Masters. Damon does not identify any pre-trial order that
was violated by the admission of this evidence, which was
disclosed more than a month before the May 1, 2024 trial. Nor
does he point to any evidence of bad faith or intentional
withholding.
In State v. Escobido-Ortiz, this court explained that,
[HRPP Rule 16(b)] requires the State to disclose material and information within the prosecutor's possession or control; it does not require the prosecution to discover relevant evidence by a particular deadline. Indeed, HRPP Rule 16(e)(2) contemplates that a prosecutor may discover and disclose relevant evidence during trial. By promptly disclosing the [evidence] upon learning of [the expert's] analysis, the prosecution complied with its HRPP Rule 16 obligations with respect to that evidence.
3 The amended report differed from the original report because, inter alia, it included a new "data session . . . that is a reliable indicator of [Damon's] phone's location."
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109 Hawaiʻi 359, 363-64, 126 P.3d 402, 406-07 (App. 2005)
(emphasis added) (cleaned up).
On this record, we conclude that the State's prompt
disclosure of the amended report complied with HRPP Rule
16(e)(2)'s continuing duty to disclose, and that the circuit
court did not abuse its discretion in allowing Agent Masters to
testify regarding his amended report.
(3) Damon contends that the circuit court erred in
admitting the testimonies of two State witnesses, Liʻi and
Schneider, because these witnesses were disclosed to Damon after
trial call in violation of HRPP Rule 16.
Damon moved to preclude Liʻi and Schneider's
testimonies, and the circuit court held an evidentiary hearing
at which Honolulu Police Department Detective Justin Higa
(Detective Higa) testified. Detective Higa testified that
neither Liʻi nor Schneider had initially come forward to give
statements to the police, and that he was not able to interview
them until March 11, 2024. Among other things, while it appears
that Detective Higa lacked Liʻi and Schneider's contact
information, the circuit court's April 23, 2024 "Findings of
Fact, Conclusions of Law, and Order Denying Defendant's Motion
to Preclude Evidence Filed April 2, 2024" (Order Denying
Preclusion) noted that Detective Higa included the names of
these two witnesses as "Ridge" and "Andreas" in his November 25,
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2022 closing report. 4 Detective Higa testified that he disclosed
Liʻi and Schneider's March 11, 2024 recorded interviews to the
State "right away." The State promptly disclosed Detective
Higa's supplemental report with these additional witness
statements in March 2024, which was over a month before the
May 1, 2024 trial.
Damon does not identify any evidence demonstrating the
State knew that Detective Higa intended to interview Liʻi and
Schneider prior to receiving their recorded interviews in March
2024, or that the State failed to promptly disclose the
recordings of Liʻi and Schneider's interviews. See State ex rel.
Kaneshiro v. Huddy, 82 Hawaiʻi 188, 195, 921 P.2d 108, 115 (1996)
("HRPP Rule 16(b)(1)(i) does not obligate the prosecution to
disclose the name and address of, or statements made by, any
person, unless and until the prosecution intends to call that
person as a witness in the presentation of the evidence in
chief.") (emphasis added) (footnote omitted).
not abuse its discretion in admitting Liʻi and Schneider's
testimonies. 5
4 The findings of fact are unchallenged.
5 In conjunction with point of error (3), Damon challenges conclusions of law 1 through 5 in the Order Denying Preclusion. We conclude that conclusions of law 1 through 5 are not wrong. See State v. Lavoie, 145
(continued . . .)
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(4) Damon contends that the circuit court plainly
erred by failing to sua sponte instruct the jury as to self-
defense. 6 "When jury instructions or the omission thereof are at
issue on appeal, the standard of review is whether, when read
and considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading." State v. Culkin, 97 Hawaiʻi 206, 213, 35 P.3d 233,
240 (2001).
"Criminal defendants are entitled to jury instructions
on every defense or theory of defense having any support in the
evidence." Id. at 214, 35 P.3d at 241 (citations omitted).
However, "where evidentiary support for an asserted defense, or
for any of its essential components, is clearly lacking, it
would not be error for the trial court to refuse to charge on
the issue or to instruct the jury not to consider it." State v.
Tuaolo, No. CAAP-XX-XXXXXXX, 2023 WL 4044583, at *2 (Haw. App.
June 16, 2023) (SDO) (cleaned up).
Pursuant to HRS § 703-304(2) (2014), "[t]he use of
deadly force is justifiable under this section if the actor
believes that deadly force is necessary to protect himself
5(. . .continued)
Hawaiʻi 409, 421, 453 P.3d 229, 241 (2019) ("Conclusions of law are reviewed de novo under the right/wrong standard of review.") (citation omitted).
6 Damon withdrew his self-defense and justifiable use of force instruction.
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against death, serious bodily injury, kidnapping, rape, or
forcible sodomy." The record does not reflect any evidence to
refute the State's theory that Damon was the initial aggressor,
or to establish Damon's reasonable belief that shooting the
Decedent was necessary to his self-defense.
We therefore conclude that the circuit court's jury
instructions were not prejudicially insufficient, erroneous,
inconsistent, or misleading.
(5) Damon contends that the circuit court committed
plain error because its special interrogatory failed to instruct
the jury on the "state of mind as to possession" required to
impose a mandatory minimum term of imprisonment pursuant to HRS
§ 706-660.1. 7 "Because special interrogatories are another way
in which trial courts instruct juries as to their deliberations
and decisions, we review a trial court's special
interrogatories, or the lack thereof, as we would its jury
7 HRS § 706-660.1 states, in pertinent part,
(1) A person convicted of a felony, where the person had a firearm in the person's possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, may in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:
(a) For murder in the second degree and attempted murder in the second degree--up to fifteen years[.]
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instructions, or the lack thereof[.]" State v. Sanford, 97
Hawaiʻi 247, 256, 35 P.3d 764, 773 (2001).
In State v. Smith, the Hawaiʻi Supreme Court held that,
"a sentencing enhancement under HRS § 706-660.1 is not an
element of an underlying offense within the meaning of HRS §
702-205." 157 Hawaiʻi 1, 10, 575 P.3d 634, 643 (2025).
Importantly, HRS § 706-660.1 does not establish an 'offense' for possession of a firearm during the commission of a felony. . . . HRS § 706-660.1 establishes factors for imposing a mandatory minimum term during sentencing, following a predicate conviction.
Id. at 9, 575 P.3d at 642. The Smith court rejected the
challenge that an indictment had to allege a state of mind for a
HRS § 706-660.1 sentencing enhancement. Id. at 8, 575 P.3d at
642. Here, Damon's HRS § 706-660.1 sentencing enhancement was
imposed pursuant to his predicate conviction for Murder in the
Second Degree (Count 1). In finding Damon guilty as to Count 1,
the jury found that Damon "intentionally or knowingly engaged in
conduct" and "by engaging in that conduct, [Damon] intentionally
or knowingly caused the death of [the Decedent]." Because a HRS
§ 706-660.1 sentencing enhancement is not an element of the
predicate murder conviction in Count 1, the special
interrogatory on the enhancement was not required to include a
state of mind. We therefore conclude that the special
interrogatory as to Count 1 was not erroneous.
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(6) Damon contends, for the first time on appeal, that
his trial counsel was ineffective. "When a defendant first
raises the issue of ineffective assistance of counsel on direct
appeal, the appellate court may consider the merits of the
appeal de novo if the record is sufficiently developed to
determine whether there has been ineffective assistance of
counsel." State v. Salavea, 147 Hawaiʻi 564, 575, 465 P.3d 1011,
1022 (2020) (cleaned up).
In addressing Damon's ineffective assistance of
counsel claim, we consider whether when, "viewed as a whole,"
trial "counsel's assistance was within the range of competence
demanded of attorneys in criminal cases." State v. DeLeon,
131 Hawaiʻi 463, 478-79, 319 P.3d 382, 397-98 (2014) (citation
omitted). Damon must establish "that there were specific errors
or omissions reflecting counsel's lack of skill, judgment, or
diligence," and "that such errors or omissions resulted in
either the withdrawal or substantial impairment of a potentially
meritorious defense." State v. Richie, 88 Hawaiʻi 19, 39, 960
P.2d 1227, 1247 (1998) (citations omitted).
On this record, we conclude Damon does not establish
that his counsel was ineffective in failing to cross-examine
witnesses about the Decedent's alleged gang membership, drug
dealing, and gun use. Nor does he establish that his counsel
was ineffective for failing to object to Agent Masters' amended
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report being admitted into evidence. See Lussier v. Mau-Van
Dev., Inc., 4 Haw.App. 359, 393, 667 P.2d 804, 826 (App. 1983)
("[O]bjections need not be renewed if the prior ruling on the
motion in limine amounted to an unequivocal holding concerning
the issue raised.") (citation omitted).
The record is insufficient for us to determine whether
trial counsel was ineffective by not requesting a continuance
after the circuit court denied Damon's motions to preclude Agent
Masters' amended report and Liʻi and Schneider's testimonies.
Damon contends that a continuance would have provided time for
defense counsel to consider the retention of an expert to refute
Agent Masters' testimony, and to look into whether there were
any issues that could have affected Liʻi and Schneider's
credibility. It is unclear whether defense counsel weighed
these considerations, such that proceeding without a continuance
was part of the defense's trial strategy. We therefore affirm
Damon's conviction without prejudice to Damon filing an HRPP
Rule 40 petition on this point.
(7) Damon contends that the cumulative impact of the
alleged points of error deprived him of his right to a fair
trial. For the reasons discussed supra, Damon's points of error
(1) through (6) lack merit, and there is therefore no
"cumulative" error.
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For the foregoing reasons, we affirm the circuit
court's Judgment and Restitution Order.
DATED: Honolulu, Hawaiʻi, February 19, 2026.
On the briefs: /s/ Karen T. Nakasone Chief Judge Audrey Stanley, /s/ Katherine G. Leonard for Defendant-Appellant. Associate Judge Stephen K. Tsushima, /s/ Kimberly T. Guidry Deputy Prosecuting Attorney, Associate Judge City and County of Honolulu, for Plaintiff-Appellee.