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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              11-DEC-2015
                                                              09:25 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

        SCOTT A. ABREGANO, Petitioner/Defendant-Appellant.


                             SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-XX-XXXXXXX; FC-CR. NO. 12-1-01963)

                            DECEMBER 11, 2015

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                       OPINIONS OF THE COURT
  Part I (By:   Recktenwald, C.J., with whom Nakayama, McKenna,
                  Pollack, and Wilson, JJ., join)
  Part II (By: McKenna, J., with whom Pollack and Wilson, JJ.,
  join, and Recktenwald, C.J., dissenting separately, with whom
                        Nakayama, J., joins)


        PART I:    HAWAI#I RULES OF PENAL PROCEDURE RULE 48

           The central issue is whether the family court erred in

finding that a delay due to the trial judge’s illness was
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excluded as “good cause” from the calculation of the time for

commencing defendant’s trial under Rule 48 of Hawai#i Rules of

Penal Procedure (HRPP).

            Defendant Scott A. Abregano was charged with violation

of a protective order, under which Abregano was the respondent

and his wife, KA, was the petitioner.1         Before Abregano’s trial

began, the date of the trial was continued for one month because

the trial judge was ill.       Although HRPP Rule 482 requires that a


      1
            Specifically, Abregano was charged with violating HRS § 586-11
(Supp. 2012) which provides, in relevant part: “When an order for protection
is granted pursuant to this chapter, a respondent or person to be restrained
who knowingly or intentionally violates the order for protection is guilty of
a misdemeanor.”
      2
            HRPP Rule 48 (2015) (“Dismissal”) provides, in relevant part:

            (b) By Court. Except in the case of traffic offenses
            that are not punishable by imprisonment, the court
            shall, on motion of the defendant, dismiss the charge,
            with or without prejudice in its discretion, if trial
            is not commenced within six months:

                  (1) from the date of arrest if bail is set or
                  from the filing of the charge, whichever is
                  sooner, on any offense based on the same conduct
                  or arising from the same criminal episode for
                  which the arrest or charge was made; or

                  (2) from the date of re-arrest or re-filing of
                  the charge, in cases where an initial charge was
                  dismissed upon motion of the defendant; or
                  (3) from the date of mistrial, order granting a
                  new trial or remand, in cases where such events
                  require a new trial.

                  Clauses (b)(1) and (b)(2) shall not be
                  applicable to any offense for which the arrest
                  was made or the charge was filed prior to the
                  effective date of the rule.

            (c) Excluded Periods. The following periods shall be
            excluded in computing the time for trial commencement:

                                                                   (continued...)

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(...continued)
                 (1) periods that delay the commencement of trial
                 and are caused by collateral or other
                 proceedings concerning the defendant, including
                 but not limited to penal irresponsibility
                 examinations and periods during which the
                 defendant is incompetent to stand trial,
                 pretrial motions, interlocutory appeals and
                 trials of other charges;

                 (2) periods that delay the commencement of trial
                 and are caused by congestion of the trial docket
                 when the congestion is attributable to
                 exceptional circumstances;

                 (3) periods that delay the commencement of trial
                 and are caused by a continuance granted at the
                 request or with the consent of the defendant or
                 defendant’s counsel;

                 (4) periods that delay the commencement of trial
                 and are caused by a continuance granted at the
                 request of the prosecutor if:

                       (i) the continuance is granted because of
                       the unavailability of evidence material to
                       the prosecution’s case, when the
                       prosecutor has exercised due diligence to
                       obtain such evidence and there are
                       reasonable grounds to believe that such
                       evidence will be available at a later
                       date; or

                       (ii) the continuance is granted to allow
                       the prosecutor additional time to prepare
                       the prosecutor’s case and additional time
                       is justified because of the exceptional
                       circumstances of the case;

                 (5) periods that delay the commencement of trial
                 and are caused by the absence or unavailability
                 of the defendant;

                 (6) the period between a dismissal of the charge
                 by the prosecutor to the time of arrest or
                 filing of a new charge, whichever is sooner, for
                 the same offense or an offense required to be
                 joined with that offense;

                 (7) a reasonable period   of delay when the
                 defendant is joined for   trial with a codefendant
                 as to whom the time for   trial has not run and
                 there is good cause for   not granting a
                 severance; and
                                                                 (continued...)

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criminal defendant be tried within six months of the earlier of

his or her arrest or indictment, this continuance resulted in

Abregano’s trial not beginning until March 12, 2013--fourteen

days after the six-month period expired.           Before trial began,

Abregano filed a Rule 48 motion to dismiss, which the family

court denied based upon its conclusion that the period of delay

due to the trial judge’s illness was excluded from the HRPP Rule

48 period because it constituted “good cause” for delay under

HRPP Rule 48(c)(8).

             We conclude that under the circumstances in this case,

the family court erred in finding that the trial judge’s illness

constituted good cause to exclude one month under HRPP Rule 48.

Accordingly, we vacate the judgment on appeal of the Intermediate

Court of Appeals (ICA) and the family court’s judgment of

conviction and sentence, and remand to the family court to decide

whether to dismiss Abregano’s charges with or without prejudice.

Because this issue is dispositive, we do not address the other

issues raised by Abregano in his appeal except as noted below.

                               I. Background

A.   Pre-trial Proceedings

             On August 30, 2012, Abregano was arrested for violating

a protective order.       Abregano was charged as follows:


(...continued)
                   (8) other periods of delay for good cause.

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           On or about the 30th day of August, 2012, in the City
           and County of Honolulu, State of Hawai#i, SCOTT A.
           ABREGANO did intentionally or knowingly violate the
           Order for Protection issued in FC-DA No. 12-1-6011 on
           the 17th day of January, 2012 by the Honorable Lanson
           K. Kupau, Judge of the Family Court of the First
           Circuit, State of Hawai#i, pursuant to Chapter 586 of
           the Hawai#i Revised Statutes, thereby committing the
           offense of Violation of an Order for Protection in
           violation of Section 586-5.5 and Section 586-11(a) of
           the Hawai#i Revised Statutes.

          Abregano pleaded not guilty and requested a jury trial.

The State calculated that the deadline for Abregano’s trial under

Hawai#i Rules of Penal Procedure (HRPP) Rule 48 was February 26,

2013, so the court set Abregano’s trial for January 14, 2013.               On

January 14, 2013 the parties appeared in family court before

Judge Jeanette Castagnetti.      The State and Abregano both stated

that they were ready for trial, and the court scheduled the trial

to commence the next day.     The parties appeared before the family

court on January 15, 2013 and declared they were ready for trial.

The court continued the trial until February 11, 2013 “due to

court congestion.”    Neither party objected to this continuance.

          On February 11, 2013, the parties appeared before the

family court and both declared they were ready for trial.

However, Judge Castagnetti continued the trial until March 11,

due to her illness:
           As I informed the attorneys earlier during another
           matter, notwithstanding that both sides are declaring
           ready for trial, having gone through the part of this
           morning’s calendar call, uh, the court feels that it’s
           not going to be able to proceed to trial this week.
           It’s apparent to me that I’m coming down with a flu
           bug, and so I’m going to continue this matter due to
           the court’s unavailability for trial this week.


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                 So that means for you, Mr. Abregano, your next
           calendar call setting will be on March 11th at 8:30.

          Although Abregano did not formally object to this

continuance, the following exchange occurred between Abregano’s

counsel and the court:
           [DEFENSE COUNSEL]: And, Your Honor, it is my
           understanding that you won’t make any finding with
           respect to Rule 48; right?

           THE COURT:   Correct.

           [DEFENSE COUNSEL]: So any objection would not be
           relevant at this point?

           THE COURT: Well, you can -- I mean we’ll note that
           both sides are ready. And then, um, obviously there
           will be no waiver of Rule 48 speedy trial by defense
           given the circumstances, so we can note that as well.

           [DEFENSE COUNSEL]:      Thank you, Your Honor.

          On March 5, 2013, Abregano filed a “Motion to Dismiss

for Violation of HRPP Rule 48, and Speedy Trial.”           Abregano

argued that the Rule 48 six-month period began running on

August 30, 2012, the date of his arrest, that six months had

already elapsed by March 5, 2013, and that the reasons for

continuance beyond the six-month period did not fall into any of

the excluded periods provided by Rule 48.            Abregano argued that

for periods of delay caused by court congestion to be excluded

under Rule 48, there must be “exceptional circumstances,” which

require a showing that the congestion “deviat[ed] from the norm.”

Abregano argued that such congestion was not present here.

          Abregano also argued that the illness of the judge does

not constitute “exceptional circumstances,” because it is not a

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“unique, nonrecurring event.”         Abregano also contended that delay

due to a judge’s illness is not “good cause” because it does not

amount to a “substantial reason which affords a legal excuse.”

According to Abregano, his charges should have been dismissed

with prejudice.

            On March 11, 2013, the parties appeared in the family

court.3   The court heard the parties’ arguments on Abregano’s

motion to dismiss, and denied the motion, ruling that the

continuance due to Judge Castagnetti’s illness extended the Rule

48 trial deadline by one month to March 26, 2013:
            [DEFENSE COUNSEL]: In this case, Your Honor, this
            matter came before the court on February 11, 2013. At
            that time the court continued all the cases because
            the court was ill. She said she was ill and
            unavailable. Um, the defense believed that that is
            not a reason that Rule 48 should be told [sic]. It
            doesn’t fall within any of the exceptions under
            Subsection 48, 48B or 48C, Your Honor.

            THE COURT:   Isn’t there a catch-all provision?

            [DEFENSE COUNSEL]: Good cause?   Is that what the
            court is referring to?

            THE COURT:   Yes.

            [DEFENSE COUNSEL]: Good cause has been defined by the
            court as, um, I have it in my motion, substantial
            reason which -- substantial reason which affords a
            legal excuse. And under State v. Extencion [sic] the
            supreme court indicated there’s no substantial reason
            for delay when in that case the State lacked
            facilities to test the evidence and the crucial report
            that was missing that was received late and there was
            a shortage of experienced prosecutors. In this --

            THE COURT: Well, is there a case that says the
            judge being sick is not good cause?


      3
            The Honorable Dean E. Ochiai presided over this hearing and all
subsequent proceedings in this case.

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             [DEFENSE COUNSEL]: No, Your Honor. But as in this
             case we have to make a prima facie case indicating
             that Rule 48 – uh, that there was a triggering event
             where Rule 48 was violated. Then the state has to
             make, um -- has to negate the burden or show -- has to
             meet its burden of indicating that Rule 48 had not yet
             run. In this case it is not exceptional
             circumstances. It is not good cause. Merely because
             one judge in Circuit Court is ill when there are 21
             other judges, there are replacement judges. There
             are, um –

             THE COURT: No. I disagree with you one hundred
             percent. There are no replacement judges. And it’s
             just like you guys. When your client shows up and
             says I want P.D. Stanley who is my attorney, we
             routinely continue it so that we can protect the
             procedural rights of the defendant to say, yes, you
             have an assigned public defender. The court’s going
             to honor that.
                   If Judge Castagnetti was sick, she was sick.
             That’s not something that happens every day. I think
             that’s good cause. I’m going to rule March, 26, ‘13
             is the Rule 48 date. So we’ll pass this case. Put it
             in the queue.

             The family court then set the trial to commence the

next day, on March 12, 2013.

B.   Trial

             Abregano’s jury trial commenced on March 12, 2013, with

Judge Ochiai presiding.        The State presented its opening

statement, contending that the evidence would demonstrate that

Abregano had violated the protective order by coming too close to

his stepdaughter, HP, who was one of the “protected persons”

under the protective order, during a softball game in which HP

was playing.     Abregano, in his opening statement, acknowledged

that Abregano’s estranged wife (KA), was the “petitioner” under

the protective order, and that Abregano was prohibited from



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coming within 100 feet of KA or 100 yards of KA’s work or home.4

Abregano also contended, however, that the evidence would show

that no term of the protective order prohibited Abregano from

coming within 100 feet of HP or 100 yards of HP’s school or home.

           KA testified to the following.          On January 17, 2012, KA

petitioned for an order of protection in Family Court before

Judge Kupau.    The protective order designated KA as the

petitioner and Abregano as the respondent.               HP was also “covered”

under the order.     When the protective order was issued, Mr.

William, a staff member of Adult Client Services, read the order

aloud to Abregano.       Abregano stated that he did not understand

the order, so Judge Kupau read the order aloud, and Abregano then

stated that he understood and signed the proof of service.

           When, during Abregano’s trial, the State questioned KA

as to what Judge Kupau had told HP and Abregano about contact

between the parties under the protective order, the following

exchange occurred:
            [STATE]: Okay. Um, what did [Judge Kupau] -- what
            did he tell you and the defendant about contact
            between parties?

            [DEFENSE COUNSEL]:   Objection.   Hearsay.    This is
            hearsay.

            THE COURT:   Mr. Prosecutor, does the document not


     4
            In section B, titled “contact between parties,” the protective
order provided that “[t]he respondent is prohibited from coming or passing
within 100 yards of any residence or place of employment or school of the
Petitioner” and “[t]he Respondent is prohibited from coming or passing within
100 feet of the Petitioner at all other neutral locations.” (Emphases added).

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        speak for itself?      It is in evidence.

        [STATE]: All right. Um, then let’s specifically
        address Points 3 and Points 4 in Section 3B --

        THE COURT:     All right.

        [STATE]:     -- ‘cause that deals with contact between
        parties.

        [STATE]: [KA], um, Section 3 says “The respondent is
        prohibited from coming or passing within 100 yards of
        any residence or place of employment or school of the
        petitioner. The respondent must not violate this
        order even if the petitioner invites the respondent
        over.”

        [DEFENSE COUNSEL]:      Objection.   Is that a question?

        THE COURT: I think that is part of the question.        So
        overruled at this time.

        [STATE]: Do you remember Judge Kupau going over that
        portion Point 3B3 with you in open court and the
        defendant in open court?

        [KA]:   Yes.

        [STATE]: Okay. Now does 3 -- did he tell you 3B3,
        that section that I just read to you, does that apply
        -- did he tell the defendant and you that that applies
        only to you or to -- I mean -- or to you and the other
        people covered under the order of protection?

        [DEFENSE COUNSEL]:      Objection.   Hearsay.

        THE COURT:     Okay.   Sustained.

        [STATE]: Okay. For the contact between parties
        section, did Judge Kupau say that it went over -- that
        it covers both -- just you or you and the other people
        on the order for protection?

        [DEFENSE COUNSEL]:      Objection.   Hearsay.

        THE COURT:     Sustained.

        [STATE]:     Okay.

        THE COURT: Mr. Prosecutor, isn’t this covered on Page
        1 of Exhibit 1?

        [STATE]:     Okay.

        THE COURT: No, I’m just asking. I don’t mean to pre-
        empt your questioning, but isn’t it covered on Page 1?


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           [STATE]:     Yes.   Yes, Your Honor.   You are correct.

           THE COURT: Well, it’s in evidence. If you want to
           ask her who’s covered, I think you can publish that
           portion of the exhibit which is in evidence if you
           desire.

           [STATE]: Okay. So just to be clear, um, [KA], in
           addition to yourself as the petitioner that’s covered
           under this order for protection, um, again there’s
           three other people covered under this order; right?

           [DEFENSE COUNSEL]:      Objection.   Leading.

           THE COURT:     Overruled.

           [KA]:   Yes.

           [STATE]: Okay. So then who are those three people
           in addition to yourself covered under this order?

           [KA]: Uh, my daughter [HP], uh, my son . . . and our
           youngest daughter . . . .

           [STATE]:     Okay. Thank you, [KA].

           KA testified that on August 30, 2012, KA was at HP’s

softball game at HP’s high school.              HP told KA that Abregano was

at the game, and then KA saw Abregano, who she estimated was

around thirty to forty feet away from where KA was seated.                  KA

then called 911.

           HP testified to the following.             On August 30, 2012, she

was playing in a softball game at her high school.                   When HP was

jogging to the fence, she saw Abregano closer than a football

field away from her, and felt nervous, so she told her coach and

then KA that Abregano was present.              When HP was walking to the

bathroom during the game, she heard her name being called and

recognized Abregano’s voice, although she did not turn to look at

who was calling her name.

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           After HP testified, Abregano moved for judgment of

acquittal.   Abregano argued that the protective order did not

prohibit him from coming to HP’s school because HP was not listed

as a petitioner but as an additional protected person.                Abregano

acknowledged that the protective order prohibited him from

contacting specifically enumerated persons, which included HP,

but argued that whether he had attempted to contact HP was the

only issue that should go to the jury.           The court denied the

motion and made the following ruling from the bench:
           [Defense counsel], I have issued orders for protection
           myself in the District Court. When I say “other
           protected persons,” they have the same meaning as “the
           petitioner” in the court’s eyes. So -- otherwise they
           would not be listed as “other protected persons.”
           I’ve had situations in which people came in claiming
           to be other protected persons but they were not listed
           on the order for protection as other protected
           persons, so the court was powerless to do anything
           about it.
                 So as far as the court is concerned, other
           protected persons stand in the same shoes as the
           petitioner in this case. So if that’s your only
           basis, I’m going to flatly deny the motion for
           judgment of acquittal.

           Abregano also objected to the judge’s statements to the

prosecutor in the presence of the jury which, according to

Abregano, suggested to the jury that the identity of the

individuals covered by the protective order was already in

evidence on page 1 of exhibit 1.           Abregano moved for a mistrial,

and the family court denied his motion:
           [DEFENSE COUNSEL]:    I do object to the court talking
           with the prosecutor   during the trial and telling him -
           - indicating to him   where certain things in the
           document may be. I    do believe in front of the jury


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        when the jury is watching it is prejudicial.

        THE COURT: Okay. You have preserved your record.
        That document -- the court was commenting on a
        document that was already received into evidence.

        [DEFENSE COUNSEL]:   Yes, Your Honor.

        THE COURT:   Okay.

        [DEFENSE COUNSEL]: You did so in front of the jury
        and you were talking specifically to the prosecutor.
        And in that case we do believe that that shows that
        there is some camaraderie between –

        THE COURT: Watch yourself. Watch yourself very
        carefully before you make allegations. The court was
        facilitating the use of this document for a witness
        who was on the stand.

        [DEFENSE COUNSEL]: I understand, Your Honor, but in
        front of the jury. The jury was watching that
        exchange. They were watching you in -- I’m sorry,
        Your Honor. I have to make my record before the
        record goes up.

        THE COURT: You can make your record, but choose your
        words carefully.

        [DEFENSE COUNSEL]:   You were --

        THE COURT:   Okay.

        [DEFENSE COUNSEL]: -- talking to the prosecutor while
        in front of the jury with respect to the order and you
        were telling where on the order things were. This is
        specifically prejudicial in this case because the
        order itself, as you can see our entire defense is
        that he did not know that HP was a -- was a petitioner
        as HP is not listed. So by the court indicating, oh,
        it’s on Page 1, the first paragraph, the court is
        telling the jury in addition to the prosecutor that my
        entire argument (inaudible).

        THE COURT: Ms. Stanley, the document speaks for
        itself. Had you attempted to argue that these people
        were not protected persons under this order for
        protection issued by Judge Kupau in your closing
        argument, I would shut you down to say that is a
        misstatement of the law and a misstatement of this
        document even if I had to call Judge Kupau to come in
        here and clarify this. So don’t –

        [DEFENSE COUNSEL]:   Your Honor, that is –

        THE COURT: Don’t try to confuse the issue here. This
        was already in evidence, and the court merely was

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            saying where it is so that questioning of the witness
            could be facilitated so that we wouldn’t be here for
            two hours groping in the dark to get to the same
            place. Okay. So –

            . . . .

            [DEFENSE COUNSEL]:   And the defense does move for a
            mistrial.

            THE COURT:   Well, that’s denied also.[5]

            After Abregano testified in his own defense, Abregano

again moved for judgment of acquittal, which the court denied.

            The jury found Abregano guilty, and the family court

sentenced him to two years probation with the conditions of

forty-eight hours incarceration, completion of the domestic

violence intervention and parenting programs, and compliance with

the terms of the protective order.           Abregano timely filed a

notice of appeal.




      5
            Abregano argues in his application for writ of certiorari that the
family court’s comments were improper and warrant a new trial because they
constituted an improper comment upon the evidence. Specifically, Abregano
takes issue with the family court’s comment that the identity of the persons
covered by section III(B)(3) of the protective order was “covered on page 1 of
Exhibit 1,” since Abregano’s defense was that section III(B)(3) did not apply
to HP. However, as set forth below, we resolve this appeal on the HRPP Rule
48 issue. We note, however, that judicial comments that may rationally be
perceived by a jury as being a comment on the evidence may constitute
reversible error. See Hawai#i Rules of Evidence Rule 1102 (1993) (“The court
shall instruct the jury regarding the law applicable to the facts of the case,
but shall not comment upon the evidence. It shall also inform the jury that
they are the exclusive judges of all questions of fact and the credibility of
witnesses.”) (emphasis added). Such errors can be avoided by directing the
comment to counsel at the bench or when the jury is not present.

            Further, we note that when counsel attempts to make an argument,
the court must allow counsel a fair opportunity to state the argument for the
record. Here, on more than one occasion, the court appeared to interject and
thereby prevented defense counsel from fully expressing her arguments in
support of Abregano’s motions for acquittal and new trial.

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C.   Appeal to the ICA

             In his appeal, Abregano argued that the family court

erred in denying Abregano’s Motion to Dismiss for violation of

HRPP Rule 48.

             Abregano argued that the “good cause” provision under

HRPP Rule 48(c) is not a “catch-all” provision, and that the

court has a duty of due diligence to ensure that a defendant’s

trial begins within the six months required by Rule 48.              Abregano

argued that to constitute “good cause,” a reason for delay must

be a “substantial reason which affords a legal excuse,” and that

for court congestion to excuse a delay, there must be

“exceptional circumstances” caused by “unique, non-recurring

events.”     Abregano argued that Hawai#i Revised Statutes (HRS) §§

603-3 and 603-41 require there to be twenty-five circuit court

judges in the first circuit, and allow for substitute retired

judges or judges from other circuits in the case of court

congestion.     Therefore, according to Abregano, the lack of

findings by the trial court as to why no replacement judges were

available to replace Judge Castagnetti during her illness meant

the court “failed to fulfill its duty of due diligence” to find a

replacement.     Abregano also contended that the length of delay

resulting from Judge Castagnetti’s illness--four weeks--was

unnecessarily long.

             The ICA affirmed the family court’s judgment of

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conviction.   The ICA, relying on two federal cases, United States

v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977), and United States v.

Ferris, 751 F.2d 436, 441-42 (1st Cir. 1984), held that a trial

judge’s illness is properly excludable under the “good cause”

provision of HRPP Rule 48.       The ICA disagreed with Abregano that

the family court had any duty of due diligence to find a

replacement judge, but stated that even if it did, the court in

this case made efforts to hear Abregano’s case expeditiously.

           Abregano timely filed an application for writ of

certiorari.

                        II.    Standard of Review

           This court reviews a trial court’s denial of HRPP Rule

48 motion to dismiss under both the “clearly erroneous” and

“right/wrong” tests:
           A trial court’s findings of fact (FOFs) in deciding an
           HRPP 48(b) motion to dismiss are subject to the
           clearly erroneous standard of review. An FOF is
           clearly erroneous when, despite evidence to support
           the finding, the appellate court is left with the
           definite and firm conviction that a mistake has been
           committed. However, whether those facts fall within
           HRPP 48(b)’s exclusionary provisions is a question of
           law, the determination of which is freely reviewable
           pursuant to the “right/wrong” test.

State v. Samonte, 83 Hawai#i 507, 514, 928 P.2d 1, 8 (1996)

(quoting State v. Hutch, 75 Haw. 307, 328-29, 861 P.2d 11, 22

(1993)).

                              III.   Discussion

           Because Judge Castagnetti continued Abregano’s trial

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for one month due to her illness, this court must determine

whether that illness constituted an excluded period of delay as

“good cause” under HRPP Rule 48(c)(8) and, specifically, whether

a four-week delay was reasonable under the circumstances of this

case.

           Abregano argues that in the event of a trial judge’s

illness or court congestion, the family court has a duty of due

diligence to find a replacement judge.         Abregano thus argues that

it was error for the family court to deny his HRPP Rule 48 motion

to dismiss without making any findings as to whether any

alternative judges were available.        For example, Abregano argues

that the family court made no findings that “none of the other

twenty-four circuit court judges . . . [were] available” or that

“a family district court judge could not have been assigned to

sit as a family court judge . . .”        Abregano also argues that

even if Judge Castagnetti’s illness justified the exclusion of

some time from the Rule 48 period, it did not warrant delay for

as long as four weeks.

           We conclude that although a trial judge’s illness may

constitute good cause for some period of delay, under the

circumstances of this case, where there is an absence in the

record of any attempt to find a replacement judge or reassign

Abregano’s case, there was no good cause to exclude a four-week

period.

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            HRPP Rule 48 (b) provides, in part:        “the court shall,

on motion of the defendant, dismiss the charge, with or without

prejudice in its discretion, if trial is not commenced within six

months:   (1) from the date of arrest if bail is set or from the

filing of the charge, whichever is sooner[.]”          HRPP Rule 48(c)

describes periods that are excluded from the computation of time

for the commencement of trial.       These include HRPP Rule 48(c)(2):

“periods that delay the commencement of trial and are caused by

congestion of the trial docket when the congestion is

attributable to exceptional circumstances,” and (c)(8):            “other

periods of delay for good cause.”

            HRPP Rule 48(c) does not give any guidance on what good

cause means, but this court has held that the good cause

provision “is provided to take care of unanticipated

circumstances,” State v. Gillis, 63 Haw. 285,288, 626 P.2d 190,

192 (1981), and that good cause means “a substantial reason that

affords legal excuse,”      State v. Senteno, 69 Haw. 363,368, 742

P.2d 369, 373 (1987) (citing Estencion, 63 Haw. at 267, 625 P.2d

at 1043).    However, “Rule 48(c)(8) is not to be used to excuse a

lack of diligence on the part of the government to comply with

Rule 48.”    Gillis, 63 Haw. at 288, 626 P.2d at 193.

            Although this court has never addressed the question of

whether a trial judge’s illness is good cause for delay of a

trial, we have found good cause for a delay of five months where

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the defendant was without local counsel following the grant of

the defendant’s counsel’s motion to withdraw.             See Senteno, 69

Haw. at 368, 742 P.2d at 373.          While not a finding of “good

cause,” this court has also affirmed the exclusion of a period of

delay of ninety-seven days under HRPP Rule 48(c)(2) after finding

that a shortage of judges due to two resignations and “a marked

increase in jury demands” was a “unique, nonrecurring event,”

which constituted “exceptional circumstances” under the rule.

See State v. Baron, 80 Hawai#i 107, 114, 905 P.2d 613, 620

(1995).

              This court has found there was not good cause where the

prosecutor had an increased workload because, while not

anticipated, the increased workload was not reasonably

unforeseeable.       Hanawahine, 69 Haw. at 630-31, 755 P.2d at 469-

70.     In addition, there was no good cause where the delay was

caused by the State’s late filing of the complaint and

difficulties in securing the attendance of witnesses, because

these were not “unanticipated circumstances.”             Gillis, 63 Haw. at

288, 626 P.2d at 192.        There was also no good cause where the

State argued that the delay was caused by
              an absence of facilities in Hawai#i County for the
              police criminalist to conduct a test of the evidence,
              requiring the evidence to be sent to Honolulu for
              testing; that the written report of the criminalist
              was not completed until November 24, 1978, and did not
              reach the prosecutor until January 3, 1979 . . . .
              and a shortage of experienced prosecutors in the
              Hawai#i County prosecutor’s office.


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Estencion, 63 Haw. at 267, 625 P.2d at 1042.

           Accordingly, a period is excludable as good cause under

HRPP Rule 48(c)(8) if the events causing the delay are

unanticipated and not reasonably foreseeable.          The illness of a

judge such that the court is unavailable is an unanticipated

event.   Although it may be foreseeable that judges will, on

occasion, become ill, when this might happen is generally not

reasonably foreseeable.

           Courts in other jurisdictions have found that the

illness of a trial judge may constitute good cause for delay.

See State v. Hoyt, 806 P.2d 204, 208 (Utah App. 1991) (there was

no constitutional violation where the trial was delayed one

hundred twenty-four days due, in part, to the judge’s illness);

Commonwealth v. Thompson, 701 A.2d 1367, 1371 (Pa. 1997) (a

backlog caused by the judge’s illness and a data entry error by

the court constituted good cause to justify a delayed

sentencing); Evans v. State, 742 So.2d 1205, 1208 (Miss. Ct. App.

1999) (a continuance due to the judge’s illness did not count

towards the statutory speedy trial deadline); Lane, 561 F.2d at

1078 (there was no abuse of discretion where the court denied a

Federal Rules of Criminal Procedure Rule 48(b) motion to dismiss

because the delay was due to “institutional factors” such as the

“illness of a judge and the unavailability of a replacement”);


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Ferris, 751 F.2d at 441-42 (under the federal Speedy Trial Act,

18 U.S.C. § 3161, “a relatively short period of delay due to a

judge’s illness . . . should be treated as a continuance whether

or not a continuance order issues.          The delay due to the judge’s

illness is, therefore, properly excludable time”).

           We thus conclude that the illness of a trial judge may

constitute “good cause” for some period of delay.           However, even

in the two cases relied upon by the ICA in this case, Lane and

Ferris, there were limitations on the amount of time that could

justifiably be excused as “good cause.”          In Lane, for example,

the court noted that the delay was justified not just by the

judge’s illness, but by the judge’s illness “and the

unavailability of a replacement.”          Lane, 561 F.2d at 1078.

Similarly, in Ferris, the First Circuit noted that “a relatively

short period of time” may be excluded from the speedy trial

period due to a judge’s illness.          Both of these courts thus

appeared to recognize that, even if a judge’s illness may

constitute “good cause” for delay, it is not without limits.                We

must therefore determine what those limits are, and whether they

were exceeded by the delay in this case.

           Whether a period of time is excludable as “good cause”

under HRPP Rule 48(c)(8) is dependent on the facts of each case.

See State v. Herrera, 63 Haw. 405, 409, 629 P.2d 626,629 (1981)

(“‘Exceptional circumstances,’ like ‘good cause,’ is dependent on

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the facts of each case.      The evidence, based upon all legitimate

inferences and deductions, facts admitted or known, and matters

which judicial notice may properly be taken, supports [the trial

judge’s] findings.     Findings of the trial court will not be

disturbed unless clearly erroneous.”).         Similarly, the

determination of how long a period can be excluded due to a trial

judge’s illness is dependent on the facts of each case.            As the

Lane and Ferris courts recognized, the delay cannot be

indefinite, and it cannot exceed the amount of time necessary for

the sick judge to recover, or for an alternative judge to be

found.

           Thus, to determine whether a period of time was

properly excluded under HRPP Rule 48(c)(8), a reviewing appellate

court must consider several factors.

           First, we must consider the reason for the delay and

whether it was unanticipated and not reasonably foreseeable.

See, e.g., Gillis, 63 Haw. at 288, 626 P.2d at 192 (stating that

the good cause provision of HRPP Rule 48 “is provided to take

care of unanticipated circumstances”).

           Second, we must consider the period of absence due to

the illness of the judge.      See, e.g., Ferris, 751 F.2d at 441-42

(holding that under the federal Speedy Trial Act, “a relatively

short period of delay due to a judge’s illness” is “properly

excludable time”) (emphasis added).

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           Third, we must consider the efforts taken and stated on

the record to find a replacement judge or reassign the case.

See, e.g., State v. Bellah, 252 P.3d 357, 363 (Or. Ct. App. 2011)

(holding that the trial court erred in denying the defendant’s

motion to dismiss because the record did not “disclose how the

particular length . . . of delay was required by the lack of

available judges or whether the court or the state made a

reasonable effort to reset the case for an earlier trial date”);

State v. Lee, 228 P.3d 609, 612-13 (Or. Ct. App. 2010)

(illustrating the kind of evidence that is helpful to assess the

delays that are due to a lack of available judges:           of the

possible alternative judges, the record demonstrated that “one

judge was screened from the case, one had show-cause hearings

scheduled, a third had a doctor’s appointment, and a fourth

already had a primary trial scheduled.”         The court held in part

that the defendant’s right to speedy trial was not violated

because “the reasons for each portion of the delay are well-

established in the record.”)

           Finally, we must consider the complexity of the case

and whether it was such that it was not reasonable to ask an

alternative judge to step in on short notice.          See, e.g.,

Williams v. State, 651 S.E.2d 674, 677-78 (Ga. 2007) (“The delay

that can be tolerated for an ordinary street crime is

considerably less than for a serious, complex conspiracy

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charge.”) (quoting Barker v. Wingo, 407 U.S. 514 530-31 (1972));

United States v. Murillo, 288 F.3d 1126 (9th Cir. 2002) (holding

that the defendant’s right to a speedy trial was not violated by

a thirteen-month delay given the complexity of the case, which

involved an appeal in a complex murder case in which the death

penalty was a consideration).

            Regarding the first factor, the reason for the delay,

we conclude that a trial judge’s illness is sufficiently

unforeseeable to warrant some period of delay.           The issue here is

thus how long a delay was warranted, which requires consideration

of the other three factors.

            The family court ruled that Judge Castagnetti’s illness

justified an exclusion of a period of four weeks from Abregano’s

HRPP Rule 48 trial date calculation, extending his trial deadline

from February 26, 2013 to March 26, 2013.          Judge Castagnetti’s

illness may have constituted good cause to delay the trial for a

few days, even if no action was taken to attempt to find a

replacement judge.6     Here, however, Abregano’s trial was delayed

for four weeks.     The record is silent on whether Judge

Castagnetti actually remained ill for that period, but even if

she did, when the trial is delayed for that long due to the

      6
            We note that in the present case, on February 11, 2013, Judge
Castagnetti continued Abregano’s trial for one month, until March 11, 2013.
Abregano’s HRPP Rule 48 trial deadline was February 23, 2011. Thus, on
February 11, 2013, Judge Castagnetti could have continued Abregano’s trial for
up to twelve days without implicating the HRPP Rule 48 deadline.

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judge’s illness, and the case is not complex, efforts must be

made to reassign the case to avoid delay.          Abregano’s case was

not complex enough to warrant waiting four weeks for the same

judge to become available again.          This case involved a simple

misdemeanor charge with uncomplicated facts and did not involve

extensive pre-trial evidentiary motions or hearings.7              As such,

the family court was obligated to make efforts to reassign the

case to a different judge.

            On March 11, 2013, when the parties appeared before the

family court after the one-month continuance due to Judge

Castagnetti’s illness, the court heard Abregano’s arguments

regarding his motion to dismiss on HRPP Rule 48 grounds.

Abregano argued that a trial judge’s illness does not fall under

any of the HRPP Rule 48 exceptions, and that the good cause

exception did not apply here because there were twenty-one other

circuit court judges that could have replaced Judge Castagnetti.

The family court rejected Abregano’s arguments:
            THE COURT: No. I disagree with you one hundred
            percent. There are no replacement judges. And it’s
            just like you guys. When your client shows up and
            says I want P.D. Stanley who is my attorney, we
            routinely continue it so that we can protect the
            procedural rights of the defendant to say, yes, you
            have an assigned public defender. The court’s going
            to honor that.
                  If Judge Castagnetti was sick, she was sick.
            That’s not something that happens every day. I think


      7
            When there has been extensive pre-trial evidentiary rulings by the
same judge, this would weigh in favor of excluding a longer period of delay in
a HRPP Rule 48 calculation due to the judge’s illness.

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            that’s good cause. I’m going to rule March, 26, ‘13
            is the Rule 48 date. So we’ll pass this case. Put it
            in the queue.

(Emphasis added).

            Thus, the only evidence in the record that any efforts

were made to find a replacement judge or reassign Abregano’s case

was the family court’s comment that “[t]here are no replacement

judges.”    However, rather than demonstrating that efforts had

been made to reassign the case, this exchange appears to indicate

that no efforts had been made and that the court believed it was

under no obligation to make any efforts.          The family court

compared the situation to that in which proceedings are continued

to allow a defendant to be represented by a particular public

defender who is temporarily unavailable.          However, the illness of

a trial judge and the temporary unavailability of a public

defender are not analogous.       There is no reason, in a non-complex

case such as this, that the defendant should have to wait for the

same judge to become available beyond the defendant’s HRPP Rule

48 trial deadline.      Rather, efforts should be made to minimize

the trial delay as much as possible by, at minimum, inquiring

into the availability of other judges.          Further, such efforts

should be stated on the record to allow meaningful review on

appeal.8

      8
            At minimum in this case, the family court should have explained
the circumstances that led it to the conclusion that “there are no replacement
                                                                (continued...)

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            Without any additional facts or representations in the

record, the family court’s statement lacked the necessary basis

to support a finding that there were no other judges available.

Thus, we conclude that the record is not sufficient to support a

finding of good cause to exclude a four-week delay due to the

trial judge’s illness.      As a result, the family court erred in

denying Abregano’s HRPP Rule 48 motion to dismiss.

                              IV.   Conclusion

            For the foregoing reasons, we vacate the judgment on

appeal of the ICA and the family court’s judgment of conviction

and sentence, and remand the case to the family court to decide

whether to dismiss Abregano’s charge with or without prejudice.9

                                          /s/ Mark E. Recktenwald
                                          /s/ Paula A. Nakayama
                                          /s/ Sabrina S. McKenna
                                          /s/ Richard W. Pollack
                                          /s/ Michael D. Wilson


(...continued)
judges.” In cases where this court has affirmed the exclusion of periods of
time under HRPP Rule 48 as “exceptional circumstances” due to court
congestion, we have required some explanation as to what those circumstances
are. For example, in Baron, this court affirmed the circuit court’s exclusion
of a ninety-seven day period for “exceptional circumstances” because, in
denying the Rule 48 motion, the circuit court explained that there was a lack
of replacement judges because of “the reassignment of two judges; the
retirement of one judge; the temporary reassignment of one judge to another
court; the vacations of potential replacement judges; and a marked increase in
jury trial demands.” 80 Hawai#i at 110, 114, 905 P.3d at 616, 620. However,
no such explanation was given in the present case.
      9
            “[T]he court shall, on motion of the defendant, dismiss the
charge, with or without prejudice in its discretion, if trial is not commenced
within six months.” HRPP Rule 48(b) (emphasis added).

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            PART II:    IMPROPER COMMENT ON THE EVIDENCE

           The second question in Abregano’s application for

certiorari asks:
           Whether the ICA gravely erred in holding that the
           [family court] did not assume the role of an advocate
           for the prosecution and did not exhibit bias when [the
           family court] improperly commented on the evidence.

           The dissent states that it is not necessary to reach

the second question because we have remanded for a new trial on

the first question.     The right to an impartial judge is a due

process right under article I, section 5 of the Hawai#i

Constitution, however, and a judge should not express opinions as

to the merits of a case in front of a jury, State v. Silva, 78

Hawai#i 115, 117, 118, 890 P.2d 702, 704, 705 (App. 1995)

(citations omitted), abrogated on other grounds by Tachibana v.

State, 79 Hawai#i 226, 900 P.2d 1293 (1995).         In addition, it is

not unusual for our appellate courts to provide guidance on

remand.   See, e.g., State v. Basham, 132 Hawai#i 97, 112, 319

P.3d 1105, 1120 (2014) (providing guidance on remand regarding

claims of prosecutorial misconduct); Nelson v. Univ. of Haw., 97

Hawai#i 376, 385 n.6, 38 P.3d 95, 104 n.6 (2001) (addressing

evidentiary issues to provide guidance to the court on remand);

State v. Pacheco, 96 Hawai#i 83, 88, 26 P.3d 572, 577 (2001)

(vacating conviction and remanding for new trial based on

prosecutorial misconduct and addressing additional issues on



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erroneously admitted evidence, ineffective assistance of counsel,

and choice of evils defense “[i]n order to provide guidance to

the circuit court and the parties on remand. . . .”); State v.

Davia, 87 Hawai#i 249, 252, 953 P.2d 1347, 1350 (1998) (vacating

conviction and remanding for new change of plea hearing based on

district court’s failure to establish that defendant’s plea was

knowing and voluntary, but addressing defendant’s remaining

points of error “in order to provide guidance to the district

court and the parties on remand”).

           We therefore address the second question.                The trial

transcript passage in Section I(B) provides the background:
           [STATE]: Okay. Um, what did [Judge Kupau] –- what did he
           tell you and the defendant about contact between parties?

           [DEFENSE COUNSEL]: Objection.     Hearsay.   This is hearsay.

           THE COURT: Mr. Prosecutor, does the document not speak for
           itself? It is in evidence.

           [STATE]: All right. Um, then let’s specifically address
           Points 3 and Points 4 in Section 3B –

           THE COURT.    All right.

           [STATE]:     –- ‘cause that deals with contact between parties.

           [STATE]: [KA], um Section 3 says[,] “The respondent is
           prohibited from coming or passing within 100 yards of any
           residence or place of employment or school of the
           petitioner. The respondent must not violate this order even
           if the petitioner invites the respondent over.”

           [DEFENSE COUNSEL]: Objection.     Is that a question?

           THE COURT: I think that is part of the question.        So
           overruled at this time.

           [STATE]: Do you remember Judge Kupau going over that portion
           of Point 3B3 with you in open court and the defendant in
           open court?



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        [KA]: Yes.

        [STATE]: Okay. Now does 3 –- did he tell you 3B3, that
        section that I just read to you, does that apply –- did he
        tell the defendant and you that that applies only to you or
        to –- I mean –- or to you and the other people covered under
        the order of protection?

        [DEFENSE COUNSEL]: Objection.    Hearsay.

        THE COURT: Okay.   Sustained.

        [STATE]: Okay. For the contact between parties section, did
        Judge Kupau say that it went over –- that it covers both -–
        just you or you and the other people on the order for
        protection?

        [DEFENSE COUNSEL]: Objection.    Hearsay.

        THE COURT: Sustained.

        [STATE]: Okay.

        THE COURT.   Mr. Prosecutor, isn’t this covered on Page 1 of
        Exhibit 1?

        [STATE]: Okay.

        THE COURT: No, I’m just asking. I don’t mean to preempt
        your questioning, but isn’t it covered on Page 1?

        [STATE]: Yes.    Yes, Your Honor.   You are correct.

        THE COURT: Well, it’s in evidence. If you want to ask her
        who’s covered, I think you can publish that portion of the
        exhibit which is in evidence if you desire.

        [STATE]: Okay. So just to be clear, um, [KA], in addition
        to yourself as the petitioner that’s covered under this
        order for protection, um, again, there’s three other people
        covered under this order; right?

        [DEFENSE COUNSEL]: Objection. Leading.

        THE COURT: Overruled.

        [KA]: Yes.

        [STATE]: Okay. So then who are those three people in
        addition to yourself covered under this order?

        [KA]: Uh, my daughter [HP], uh, my son ... and our youngest
        daughter....

        [STATE]: Okay.   Thank you, [KA].



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            In front of the jury, in the passage quoted above, the

family court suggested that the State was correct in arguing that

Abregano could be found to have violated Sections III(B)(3) and

III(B)(4) of the protective order because “isn’t this covered on

Page 1 of Exhibit 1.”

            This suggestion by the family court was an improper

comment on the evidence under Hawai#i Rules of Evidence (“HRE”)

Rule 1102 (1993), which provides that “[t]he court shall instruct

the jury regarding the law applicable to the facts of the case,

but shall not comment upon the evidence.”          We have observed that

“the Commentary on Rule 1102 unequivocally states that the

present rule precludes comment on the evidence in all cases,

without limitation.”      State v. Hauge, 103 Hawai#i 38, 59, 79 P.3d

131,152 (2003) (internal brackets, quotation marks, and emphasis

deleted).    Thus, the prohibition against judicial comment on the

evidence applies throughout the proceedings and is not limited to

jury instructions.10     Id.   The rationale for HRE Rule 1102 is

that judicial comment on the evidence risks placing the judge in

the role of an advocate, and that analysis of the evidence is an

advocate’s function.      Addison Bowman, Hawai#i Rules of Evidence

Manual § 1102-1 (2014); State v. Nomura, 79 Hawai#i 413, 417, 903


      10
            The family court later explained that “the court was commenting on
a document that was already received into evidence,” and that, “[t]he court
was facilitating the use of this document for a witness who was on the stand.”


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P.2d 718, 722 (App. 1995).

           The record does not support Abregano’s assertion,

however, that the family court’s improper comment was based on

the court assuming the role of an advocate for the prosecution or

that it constituted an exhibition of bias; rather the record

suggests that the family court’s improper comment was based on a

misunderstanding of what was prohibited by the protective order.

For example, in denying Abregano’s motion for judgment of

acquittal, the family court stated its belief that “other

protected persons stand in the same shoes as the petitioner[.]”

Contrary to the family court’s commentary before the jury and its

statement during its ruling on the motion for judgment of

acquittal, under the protective order, other protected persons do

not stand in the same shoes as the petitioner, and Sections

III(B)(3) and III (B)(4) do not apply to conduct between Abregano

and HP.

           A redacted copy of the protective order is attached to

this concurring opinion as “Attachment 1,” with redactions noted

in brackets.    The protective order identifies Abregano as the

“Respondent.”    In and below the caption, it refers to KA as the

“Petitioner,” giving the “Year of Birth” of the “Petitioner.”

Below the “PETITIONER IDENTIFIERS” on the first page, HP is

included as an “Other Protected Person” with a “YOB” or “Year of

Birth.”   Below the “Other Protected Person” information, the

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protective order identifies “Respondent’s Relationship to

Petitioner” as “MARRIED.”      Obviously, this cannot be HP.

           The protective order is replete with additional

references to the “Petitioner” that make it clear that the only

“Petitioner” is KA.     For example, persons present at the court

hearing on the protective order are identified at the top of page

2, and notes that “Petitioner” was present.          HP was not at the

hearing.   Section III(D)(1) regarding “Temporary Custody and

Visitation” provides that the “Petitioner” shall have temporary

legal and physical custody of the parties’ minor children.

           The State asserts that Abregano violated Sections

III(B)(3) and (4) of the protective order by contacting HP, and

before the jury, the family court suggested that the State’s

assertion was correct.      These sections, however, only prohibit

conduct by Respondent as to the “Petitioner,” or KA.            A review of

the protective order makes clear that the “Petitioner” is KA, and

HP is an “Other Protected Person.”        The protective order’s only

prohibition on conduct between Abregano and HP appears in Section

III(B)(8), which prohibits Abregano from “contacting” HP.

           As this court recently reiterated in State v. Guyton,

135 Hawai#i 372, 351 P.3d 1138 (2015), a case alleging a

violation of a district court restraining order:
           [A] prerequisite to punishing a person for violating an
           injunction order . . . is a court order that is “clear and
           unambiguous,” so as to allow a person of ordinary
           intelligence to “ascertain from the four corners of the


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            order precisely what acts are forbidden[.]” This
            requirement is no more than a rule of reason because, as it
            is for statutes, fairness and due process dictate that a
            court order must be sufficiently particular and definite so
            as to clearly identify the conduct that it prohibits.

135 Hawai#i at 377-78, 351 P.3d 1143-44 (citations omitted).

            Thus, in addition to making an improper comment on the

evidence, the family court erred in suggesting before the jury

that the State correctly asserted that Abregano could be found to

have violated Sections III(B)(3) and III(B)(4) of the protective

order and in stating during its ruling on Abregano’s motion for

judgment of acquittal that “other protected persons stand in the

same shoes as the petitioner in this case.”           The record

indicates, however, that the family court’s improper comment

before the jury was based on a mistaken understanding of what was

prohibited by the protective order.         As a remand has already been

ordered for the Rule 48 violation, we need not address whether

any remedy is necessary for the improper comment.11
James S. Tabe                             /s/ Sabrina S. McKenna
for petitioner
                                          /s/ Richard W. Pollack
Loren J. Thomas                           /s/ Michael D. Wilson
for respondent




      11
            We therefore do not consider the extent of the prejudice by the
improper comment on the evidence, although we note that Communication No. 1
from the jury inquired as follows: “Does the term ‘Petitioner’ include the
‘Petitioner Identifiers’ on page 1 of Exhibit 1? We also do not address the
sufficiency of the evidence as this issue was not raised on appeal. See State
v. Davis, 133 Hawai#i 102, 120, 324 P.3d 912, 930 (2014) (“[A] reviewing court
is required under article I, section 10 of the Hawai#i Constitution to address
a defendant’s express claim of insufficiency of the evidence prior to
remanding for a new trial based on a defective charge.”).

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