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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0001079
                                                              30-JUN-2017
                                                              08:04 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


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

                                    vs.

          SAMUEL EAGER, Petitioner/Defendant-Appellant.



                            SCWC-14-0001079

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-14-0001079; CR. NO. 13-1-0145)

                              JUNE 30, 2017

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

             OPINION OF THE COURT BY RECKTENWALD, C.J.

          This case requires us to consider whether a defendant’s

failure to take prescription medication can constitute self-

induced intoxication under Hawai#i Revised Statutes (HRS) § 702-

230, which precludes the defendant from relying on the defense of

lack of penal responsibility due to a physical or mental disease,

disorder, or defect.     We hold that it does not, and that the
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defense is therefore available in the circumstances presented

here.

          Defendant Samuel Eager was charged with assault in the

second degree after attacking a stranger at a bus stop, and a

bench trial was held in the Circuit Court of the First Circuit

(circuit court).1    Eager presented the defense of lack of penal

responsibility as a result of disease, disorder, or defect,
arguing that he was experiencing a psychotic episode at the time

of the attack.    The State did not dispute Eager’s psychosis, but

argued that he should nonetheless be held criminally responsible

because his psychosis stemmed from his failure to take prescribed

medication and from marijuana use.        The circuit court found Eager

guilty, concluding that “any disease, disorder, or defect the

Defendant may have been suffering from at the time of the assault

was self-induced and the product of the Defendant’s refusal to

take his prescribed medication and his use of marijuana.”             The

court sentenced Eager to five years’ incarceration.

          On appeal to the Intermediate Court of Appeals (ICA),

Eager argued that (1) he was deprived of a fair trial because one

expert witness, Dr. Wagner, improperly bolstered the opinion of

another expert witness, Dr. Jacobs, and (2) the circuit court

abused its discretion in sentencing Eager to five years’

imprisonment because there were strong mitigating factors, making



     1
          The Honorable Randal K.O. Lee presided.

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probation a more appropriate sentence.           The ICA rejected Eager’s

arguments and affirmed the circuit court’s judgment of

conviction.     Eager now raises the same arguments on certiorari

review here.

            We agree with the ICA’s reasoning regarding Eager’s

first point of error.       We need not consider Eager’s arguments

regarding his sentence, as we recognize plain error in the
circuit court’s holding that Eager’s psychotic behavior was the

result of self-induced intoxication.          HRS § 702-230(5) (1993)

defines “self-induced intoxication” as “intoxication caused by

substances which the defendant knowingly introduces into the

defendant’s body, the tendency of which to cause intoxication the

defendant knows or ought to know.”          Accordingly, the circuit

court’s holding that Eager’s failure to take his medication

caused his psychotic behavior is inconsistent with the plain

language of the statute, which requires the introduction of

substances into the body.        Thus, the circuit court’s conviction

of Eager was in error.

            We therefore vacate the ICA’s judgment on appeal and

the circuit court’s judgment of conviction, and remand for

further proceedings consistent with this opinion.

                               I.   Background

A.    Circuit Court Proceedings

            On February 1, 2013, the State charged Eager with one

count of assault in the second degree in violation of HRS

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§ 707-711(1)(b)2 for recklessly causing substantial bodily injury

to then-79-year-old Hua Zhao Liang (Liang), and subject to

sentencing under HRS § 706-660.23.

           Eager filed a “Motion for H.R.S. § 704-404[4]

Examination” to determine his fitness to proceed to trial and

     2
            HRS § 707-711(1)(b) (Supp. 2011) provides: “A person commits the
offense of assault in the second degree if . . . [t]he person recklessly
causes serious bodily injury to another[.]” Assault in the second degree is a
class C felony.
     3
           HRS § 706-660.2 (1993) provides, in relevant part:

           Notwithstanding section 706-669, a person who, in the
           course of committing or attempting to commit a felony,
           causes the death or inflicts serious or substantial
           bodily injury upon a person who is:
                 (1)   Sixty years of age or older;
                 . . .
           and such disability is known or reasonably should be
           known to the defendant, shall, if not subjected to an
           extended term of imprisonment pursuant to section 706-
           662, be sentenced to a mandatory minimum term of
           imprisonment without possibility of parole as follows:
                 . . .
                 (4)   For a class C felony--one year, eight
                       months.
     4
           HRS § 704-404 (Supp. 2008) provides in relevant part:

                 (1) Whenever the defendant has filed a notice of
           intention to rely on the defense of physical or mental
           disease, disorder, or defect excluding responsibility,
           or there is reason to doubt the defendant’s fitness to
           proceed, or reason to believe that the physical or
           mental disease, disorder, or defect of the defendant
           will or has become an issue in the case, the court may
           immediately suspend all further proceedings in the
           prosecution.

                 (2) Upon suspension of further proceedings in
           the prosecution, the court shall appoint three
           qualified examiners in felony cases . . . to examine
           and report upon the physical and mental condition of
           the defendant. In felony cases the court shall
           appoint at least one psychiatrist and at least one
           licensed psychologist. The third member may be a
           psychiatrist, licensed psychologist, or qualified
           physician[.]

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whether he would be held penally responsible for his conduct.

The circuit court appointed a three-member panel of examiners:

Dr. Leonard Jacobs, Dr. Duke Wagner, and Dr. Olaf Gitter.

            Each doctor submitted a report to the court.          The

doctors all determined that Eager was fit to proceed, but

differed with regard to penal responsibility.          Dr. Jacobs and Dr.

Wagner concluded that Eager’s cognitive and volitional capacities
were not substantially impaired at the time of the alleged

assault.    Dr. Gitter concluded that Eager’s capacities were

substantially impaired due to an “acute manic episode.”

            The court issued a “Judicial Determination of Fitness

to Proceed and Order,” finding that Eager was fit to stand trial.

            Eager waived his right to a jury, and his case

proceeded to a bench trial.      Liang testified that on January 29,

2013, he got off the bus and was walking to the food bank when

“on the left side of me suddenly someone hit me on my head and

then I fainted.”    He testified that he lost consciousness and did

not see the person who hit him.       An ambulance took Liang to

Queen’s Medical Center (Queen’s), where he received eighteen

stitches.    A passerby testified that on the morning of

January 29, 2013, she saw Eager stomping on the head of an

elderly man laying motionless on the ground, leading her to call

911 in response.    A “Stipulation as to Testimony” was filed in

open court, which indicated that Liang’s injuries included a

major laceration of the skin on his forehead, a facial bone

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fracture, and a serious concussion.

          The State’s witnesses also included two Honolulu Police

Department officers who interacted with Eager following his

arrest several hours after the attack, and the detective who

investigated the incident.      The arresting officer testified that

Eager was “compliant” and attentive at the time of arrest.

          Dr. Gitter, an expert in clinical psychology, testified
for the defense that he reviewed Eager’s medical records from

Queen’s, where he was treated on January 8-10 and 26-27, 2013,

and O#ahu Community Correctional Center (OCCC), where he was

examined following the alleged assault.

          Dr. Gitter testified that the Queen’s and OCCC records

showed that Eager exhibited signs of mental illness, including an

acute manic episode, auditory and visual hallucinations, and

bipolar disorder.    Dr. Gitter also stated that on Eager’s January

26-27 visit to Queen’s, “drug testing showed that he tested

positive for marijuana only.”

          When questioned about Eager’s marijuana use, Dr. Gitter

testified that “cannibus [sic] psychotic disorder” exists, but

that he “seriously doubt[ed]” that marijuana triggered Eager’s

acute manic episode.

          The defense then asked Dr. Gitter about Eager’s mental

state at the time of the incident, and Dr. Gitter answered that

“he was suffering from a bipolar disorder mix type of depressive

and manic features and that it was so severe that he was also

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psychotic at the time.”     When asked if he thought Eager was

penally responsible for the assault, Dr. Gitter opined that

Eager’s cognitive and volitional capacities were “substantially

impaired by an exacerbation of his mental disorder.”

          On cross-examination, Dr. Gitter testified that

although he could not say what exactly triggered Eager’s manic

episode at the time of the incident,
          my opinion is that he still was suffering just two
          days after having been discharged from Queen’s Medical
          Center. He had not been given any medication that
          typically would have been given to deal with the
          psychosis. He was only given, I believe Ambien, which
          is a sleep medication. And, the way he described the
          assault to me was that he was clearly psychotic asking
          the gentleman whether he believed in Jesus and then
          assaulting him to drive out the demons. Plus, two
          days later when he was at OCCC again he was noted to
          be manic and psychotic.

          The court asked Dr. Gitter if marijuana could

indirectly trigger a psychotic episode by altering Eager’s

perception of reality, to which Dr. Gitter replied, “it could.”

When the court asked Dr. Gitter if Eager was psychotic from the

time he was discharged from Queen’s until he was admitted to

OCCC, Dr. Gitter said yes.

          The State presented two rebuttal witnesses, Dr. Jacobs

and Dr. Wagner, who also examined Eager at OCCC prior to trial.

          Dr. Jacobs, an expert in psychiatry, opined that

Eager’s judgment was impaired due to a combination of self-

induced prescription drug withdrawal and marijuana use.            Dr.

Jacobs diagnosed Eager with “a personality disorder and somatic

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symptom disorder with predominant pain persistent and severe.”5

Dr. Jacobs testified that Eager was prescribed the sleep aid

Ambien, the anti-inflammatory medication Meloxicam, and the

painkiller Percocet.      Dr. Jacobs also testified that Eager

reported that he had “not taken any of his drugs, except

marijuana, for three days” prior to the incident.            Dr. Jacobs

opined that ceasing to take Ambien would cause “severe insomnia,
agitation, and feeling very uncomfortable,” and that stopping

Percocet, an opiate, “can cause severe problems with withdrawal.”

            Dr. Jacobs testified that Eager “did not have any

psychosis at the time I interviewed him” and, according to the

Queen’s reports and Eager himself, he was not intoxicated but

rather “probably suffering from withdrawal symptoms” at the time

of the assault.6     Dr. Jacobs further testified that despite his

personality disorder, Eager “knows right from wrong.”

            On cross-examination, Dr. Jacobs agreed that, at the

time of the incident, Eager’s psychotic episode rendered him

incapable of appreciating the wrongfulness of his actions.

            The State then called Dr. Wagner, an expert in



      5
            Dr. Jacobs testified that, according to Eager’s medical records,
previous doctors “gave [Eager] a diagnosis of cannabis withdrawal, opiate
withdrawal, sedative hypnotic anxiolytic withdrawal, cannabis use disorder
severe, opiate use disorder severe, sedative hypnotic anxiolytic disorder
moderate, substance medication induced psychotic disorder with delusions
versus a substance withdrawal delirium.”
      6
            When asked if there was any indication that Eager was addicted to
his prescription medications, Dr. Jacobs opined that he was “addicted to all
of them.”

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psychology, who testified that his “diagnostic impressions at the

time of the alleged offense” were “post-traumatic stress disorder

and cannabis abuse versus dependence.”         The State asked Dr.

Wagner about the possible effects of marijuana use:

           [Deputy Prosecuting Attorney]: [A]s a psychologist
           were you able to say whether or not the intake of a
           type of cannabis, for instance, marijuana, could that
           lead to psychosis?

           [Dr. Wagner]: Well, I think the literature indicates
           that there is that possibility, yes. That has
           happened, I believe, in instances with many different
           types of illicit drugs, we found that to be true. And
           I think marijuana, although not maybe as frequently
           as, let’s say, other drugs, like crystal
           methamphetamine, but still, I think there’s been an
           indication that that has happened.

           Dr. Wagner described Eager’s account of the incident as

follows:

           [Eager] was walking along the sidewalk, and he
           evidently asked the male individual, from what he
           reported to me, whether or not he believed in Jesus,
           and the individual replied, No, and laughed and said
           something else. Then he got angry, and he grabbed the
           individual, threw him down, started kicking him.

           Dr. Wagner opined, “to me [there] is not enough

evidence to indicate that he is suffering from severe psychotic

symptoms and a psychotic disorder such that he doesn’t know that

it’s inappropriate to hit someone or pull someone to the ground

and -- and can’t control his behavior.”

           The State asked Dr. Wagner several questions about Dr.

Jacobs’ report, two of which the circuit court disallowed because

the State appeared to be “asking Dr. Wagner to testify as to the


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credibility of another witness.”7         The court permitted questions

regarding whether Dr. Jacobs’ report changed Dr. Wagner’s

opinion, and Dr. Wagner answered that Dr. Jacobs’ report

“provides additional information about the use of prescribed

medication,” but “doesn’t change the final opinion as far as

penal responsibility.”

            The court asked Dr. Wagner whether “the cannabis abuse
or dependence [would] heighten [Eager’s] sensitivity to post-

traumatic stress disorder.”       Dr. Wagner said that he thought the

cannabis was an “additive factor,” but he did not know the extent

that “it pushed him over the edge here in this situation.”

            Eager elected not to testify.

            In its closing argument, the State explained that it

did not dispute that Eager was psychotic at the time of the

incident, but rather argued that the psychosis was self-induced.

The State noted that Dr. Wagner testified that marijuana could

cause psychosis, and Dr. Jacobs “also built on this viewpoint.”

The State also noted that Dr. Jacobs had testified that

“withdrawals of opiates can also cause psychosis.”            Thus, because

Eager’s behavior was due to “the withdrawal of his pills and the

usage of the marijuana,” Eager was criminally responsible.

      7
            Specifically, the circuit court disallowed the following
questions: “Now, based on your expertise and your knowledge in your sphere,
how did you take away, you know, with Dr. Jacobs’ opinion?”; and, “Now, would
you agree with [Dr. Jacobs’] expert opinion? Is it consistent, I guess,
consistent in your examining this defendant in this case?”



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            The defense’s closing argument focused on Dr. Gitter’s

testimony, noting that Dr. Gitter had considered marijuana-

induced psychosis and “outright rejected it.”            Defense counsel

further stated that “we dispute the fact that it could have been

marijuana that induced the psychosis, [but] even if that were

true that would fall into the realm of pathological intoxication

and would still result in a defense.”
            The circuit court found Eager guilty of assault in the

second degree.8

            The circuit court filed its “Findings of Fact,

Conclusions of Law, and Order,” in which it made the following

conclusions regarding Eager’s mental state:

                  18. Section 702-230 HRS further defines
            “Self-induced intoxication” as “. . . intoxication
            caused by substances which the defendant knowingly
            introduces into the defendant’s body, the tendency of
            which to cause intoxication the defendant knows or
            ought to know . . .”

                  . . . .

                  20. As applied, the Hawaii Supreme Court has
            held that, “. . . mental disability excusing criminal
            responsibility must be the product of circumstances
            beyond the control of the defendant . . .
            [s]elf-induced intoxication is not such a disability.”
            See State v. Freitas, 62 Haw. 17, 20, 608 P.2d 408,
            410 (1980).

                  . . . .

                  28.   The issue at hand is whether, at the time


      8
            The court found that there was insufficient evidence that Eager
knew that Liang was at least 60 years old, and thus was not eligible for the
mandatory minimum sentence under HRS § 706-660.2.

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       of the offense, the Defendant was suffering from a
       mental disease, disorder, or defect that was the
       product of circumstances beyond the control of the
       defendant.

             . . . .

             30. [T]he evidence in this case is clear that
       prior to the incident in question, the Defendant was
       not taking his prescribed medication and was smoking
       marijuana.

             . . . .

             32. The Court further finds and concludes that
       any disease, disorder or defect the Defendant may have
       been suffering at the time of the assault was self
       induced and the product of the Defendant’s refusal to
       take his prescribed medication and his use of
       marijuana.

             33. Although Doctor Gitter testified and opined
       that the marijuana may not have been the cause of the
       Defendant’s psychotic behavior, the Court finds and
       concludes that the evidence presented at trial
       supports the opinions and conclusion of Doctor Jacobs
       and Doctor Wagner who concluded that the Defendant’s
       capacity to appreciate the wrongfulness of his conduct
       or conform his conduct to the requirements of the law
       was not substantially impaired as a result of a mental
       or physical disease, disorder or defect.

             . . . .

             37. Given the Defendant’s history of behavior
       leading up to and after the assault of Mr. Liang, the
       Court can only find and conclude that the Defendant’s
       psychotic and delusional behavior resulted from his
       refusal to take his medication and knowingly smoke
       marijuana.

             38. Therefore, the Court finds and concludes
       that on January 29, 2013, the Defendant’s psychotic
       and delusional behavior was as a result of the
       Defendant’s decision not to take his prescribed
       medication, the subsequent withdrawal from prescribed
       medication, and knowingly smoking marijuana.

             39.   The Court further finds and concludes that

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            on January 29, 2013, the Defendant was not suffering
            from a mental or physical disease, disorder, or defect
            that substantially impaired his ability to appreciate
            the wrongfulness of his conduct or conform his conduct
            to the requirements of the law.

            The circuit court thus sentenced Eager to five years’

incarceration and ordered him to pay restitution.

B.    ICA Proceedings

            On appeal to the ICA, Eager raised two points of error.
First, Eager asserted that he was deprived of a fair trial

because Dr. Wagner considered the opinion of Dr. Jacobs, which

improperly bolstered Dr. Jacobs’ credibility.

            Second, Eager argued that the circuit court abused its

discretion when it sentenced him to five years’ imprisonment

because there were strong mitigating factors present to sentence

him to probation.      Eager argued that probation would have been

appropriate because he showed remorse for his actions and would

benefit from mental health treatment.

            The ICA found both of Eager’s arguments to be without

merit.    First, the ICA determined that “Dr. Wagner testified

about whether Dr. Jacobs’ report changed Dr. Wagner’s opinion; he

did not provide any impermissible testimony on the subject of Dr.

Jacobs’ credibility.”       Second, the ICA concluded that the circuit

court did not abuse its discretion in sentencing Eager to five

years’ imprisonment instead of probation, noting that the court

“emphasized the nature and circumstances of Eager’s offense, his

prior criminal history, and the danger he posed to the

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community.”     The ICA thus affirmed the circuit court, and

judgment on appeal was filed on August 2, 2016.

                          II. Standards of Review

A.    Admissibility of Opinion Evidence

            “In Hawaii, admission of opinion evidence is a matter

within the discretion of the trial court, and only an abuse of

that discretion can result in reversal.”           State v. Tucker, 10
Haw. App. 73, 89, 861 P.2d 37, 46 (1993) (citation omitted).

“However, when there can only be one correct answer to the

admissibility question, or when reviewing questions of relevance

under Hawai#i Rules of Evidence (HRE) Rules 401 and 402, [the

appellate] court applies the right/wrong standard of review.”

Kealoha v. County of Hawai#i, 74 Haw. 308, 319, 844 P.2d 670, 676

(1993).

B.    Conclusions of Law

            This court reviews the trial court’s conclusions of law

[COLs] de novo.      Bhakta v. Cnty. of Maui, 109 Hawai#i 198, 208,

124 P.3d 943, 953 (2005) (citation omitted).

                              III.   Discussion

            In his application for writ of certiorari, Eager

repeats his arguments asserted at the ICA and presents the

following questions:

            (1) [Whether] Petitioner was deprived of a fair trial
            because Dr. Wagner “considered the expert opinion of
            Dr. Jacobs in his opinions,” which, Petitioner argues,
            improperly bolstered Dr. Jacob’s testimony, and



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            (2) [Whether] [t]he trial court abused its discretion
            in sentencing Petitioner to five years’ imprisonment
            because there were strong mitigating factors to
            withhold a prison sentence and instead sentence
            Petitioner to probation.

            We conclude that the ICA correctly determined that Dr.

Wagner’s testimony did not improperly bolster Dr. Jacobs’

opinion.

            However, the circuit court plainly erred in improperly
characterizing Eager’s failure to take his medication as self-

induced intoxication, thus negating his incapacity defense.

Accordingly, we vacate the circuit court’s judgment and remand

this case for further proceedings consistent with this opinion.9

A.    Dr. Wagner’s Testimony

            Eager asserts that he was deprived of a fair trial

because Dr. Wagner bolstered Dr. Jacobs’ expert opinion by

commenting on it.      Eager appears to suggest10 that Dr. Wagner’s

testimony was improper because HRS § 704-404(3) provides that,

during the examination process to determine a defendant’s fitness

to stand trial, the experts are required to “render diagnoses and

opinions upon the physical and mental condition of the defendant

independently from the other examiners.”           (Emphasis added.)

      9
            Since we are remanding for further proceedings consistent with
this opinion, we do not address Eager’s argument that the circuit court abused
its discretion in sentencing him.
      10
             As noted by the ICA, “Eager’s argument makes no attempt to connect
the facts of the case to the law he presents, which means that we may
‘disregard [the] particular contention [because he] makes no discernible
argument in support of that position.’” (Quoting Kakinami v. Kakinami, 127
Hawai#i 126, 144 n.16, 276 P.3d 695, 713 n.16 (2012).)

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However, HRS § 704-404(4)(f) (Supp. 2008)11 provided that

“[a]fter all reports are submitted to the court, examiners may

confer without restriction.”        Accordingly, Eager’s citation to

HRS § 704-404 is inapposite.

            The Hawai#i Rules of Evidence (HRE) allow experts to

testify within their area of expertise in order to assist the

trier of fact.     See HRE Rule 702 (1992).       While experts may not
testify as to the credibility of other witnesses, expert

testimony nevertheless has the potential to indirectly bolster or

refute the credibility of another witness.          State v. Batangan, 71

Haw. 522, 558, 799 P.2d 48, 52 (1990).          However, this fact by

itself does not render such testimony inadmissible.            Id.   In

those cases, “[t]he pertinent consideration is whether the expert

testimony will assist the [trier of fact] without unduly

prejudicing the defendant.”       Id.

            Dr. Wagner testified that he and Dr. Jacobs had

different focuses in writing their reports, which is consistent

with the fact that Dr. Wagner is a psychologist and Dr. Jacobs is

a psychiatrist.     Additionally, Dr. Wagner never opined on Dr.

Jacobs’ truthfulness or his skills as a psychiatrist.             Further,

the court did not allow Dr. Wagner to testify regarding whether

he agreed with Dr. Jacobs’ report or thought it was accurate.

            Dr. Wagner’s testimony is therefore distinguishable


      11
            HRS § 704-404(4)(f) (Supp. 2008) has since been recodified as
§ 704-404(5)(d) (Supp. 2016).

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from prior cases in which we held that a witness improperly

bolstered another witness’s testimony.           See State v. Calara, 132

Hawai#i 391, 400-01, 322 P.3d 931, 940-41 (2014) (finding

inadmissible a police detective’s testimony that probable cause

was established to arrest the defendant); State v. Ryan, 112

Hawai#i 136, 141, 144 P.3d 584, 589 (2006) (finding inadmissible

police officers’ testimony that they did have any reason not to
believe the complaining witness); State v. Morris, 72 Haw. 527,

528-29, 825 P.2d 1051, 1052 (1992) (finding inadmissible an

expert’s testimony that clearly implied that he believed the

complaining witness); Batangan, 71 Haw. at 562, 799 P.2d at 54

(same).    Accordingly, the circuit court did not err in allowing

Dr. Wagner’s testimony, as it did not improperly bolster the

testimony of Dr. Jacobs.

B.    Self-Induced Intoxication

            Although Eager’s argument that Dr. Wagner improperly

bolstered the testimony of Dr. Jacobs is without merit, we

exercise plain error review with regard to the circuit court’s

application of HRS § 702-230.         “[W]here plain error has been

committed and substantial rights have been affected thereby, the

error may be noticed even though it was not brought to the

attention of the trial court.”         State v. Miller, 122 Hawai#i 92,

117, 223 P.3d 157, 182 (2010) (brackets and emphasis omitted)

(quoting State v. Kaiama, 81 Hawai#i 15, 25, 911 P.2d 735, 745

(1996)); see also Hawai#i Rules of Penal Procedure Rule 52(b)

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(1977).

          The circuit court appears to have impermissibly

considered Eager’s failure to take his medication as a basis for

his self-induced intoxication:

                37. Given the Defendant’s history of behavior
          leading up to and after the assault of Mr. Liang, the
          Court can only find and conclude that the Defendant’s
          psychotic and delusional behavior resulted from his
          refusal to take his medication and knowingly smoke
          marijuana.

                38. Therefore, the Court finds and concludes
          that on January 29, 2013, the Defendant’s psychotic
          and delusional behavior was as a result of the
          Defendant’s decision not to take his prescribed
          medication, the subsequent withdrawal from prescribed
          medication, and knowingly smoking marijuana.

(Emphasis added.)

          HRS § 704-400 (1993) provides:

          A person is not responsible, under this Code, for
          conduct if at the time of the conduct as a result of
          physical or mental disease, disorder, or defect the
          person lacks substantial capacity either to appreciate
          the wrongfulness of the person’s conduct or to conform
          the person’s conduct to the requirements of law.

          HRS § 702-230 (1993) provides that self-induced

intoxication is not a defense under HRS § 704-400:

          (1) Self-induced intoxication is prohibited as a
          defense to any offense, except as specifically
          provided in this section.

          (2) Evidence of the nonself-induced or pathological
          intoxication of the defendant shall be admissible to
          prove or negative the conduct alleged or the state of
          mind sufficient to establish an element of the
          offense. Evidence of self-induced intoxication of the
          defendant is admissible to prove or negative conduct
          or to prove state of mind sufficient to establish an
          element of an offense. Evidence of self-induced

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            intoxication of the defendant is not admissible to
            negative the state of mind sufficient to establish an
            element of the offense.

            (3) Intoxication does not, in itself, constitute a
            physical or mental disease, disorder, or defect within
            the meaning of section 704-400.

            (4) Intoxication which (a) is not self-induced or (b)
            is pathological is a defense if by reason of such
            intoxication the defendant at the time of the
            defendant’s conduct lacks substantial capacity either
            to appreciate its wrongfulness or to conform the
            defendant’s conduct to the requirements of law.

            (5) In this section:

            (a) “Intoxication” means a disturbance of mental or
            physical capacities resulting from the introduction of
            substances into the body;

            (b) “Self-induced intoxication” means intoxication
            caused by substances which the defendant knowingly
            introduces into the defendant’s body, the tendency of
            which to cause intoxication the defendant knows or
            ought to know, unless the defendant introduces them
            pursuant to medical advice or under such circumstances
            as would afford a defense to a charge of a penal
            offense;

            (c) “Pathological intoxication” means intoxication
            grossly excessive in degree, given the amount of the
            intoxicant, to which the defendant does not know the
            defendant is susceptible and which results from a
            physical abnormality of the defendant.

(Emphases added.)

            This court has stated that the purpose of HRS § 702-230

“is to prevent defendants who willingly become intoxicated and

then commit crimes from using self-induced intoxication as a

defense.”    State v. Souza, 72 Haw. 246, 248, 813 P.2d 1384, 1386

(1991).   Accordingly, self-induced intoxication that is not

pathological should not be considered a substantial factor in

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determining legal competency because it is not a mental disease,

disorder, or defect.     See HRS § 702-230 (3).

          In convicting Eager, the circuit court determined that

“any disease, disorder or defect the Defendant may have been

suffering at the time of the assault was self induced and the

product of the Defendant’s refusal to take his prescribed

medication and his use of marijuana.”         In other words, the court
appears to have determined that Eager did not have a defense

under HRS § 704-400 because his behavior was self-induced under

HRS § 702-230.

          The circuit court’s analysis does not comport with the

plain language of HRS § 702-230.         Self-induced intoxication

requires a defendant to have “knowingly introduce[d]” a substance

into his or her body.     See HRS § 702-230(5)(b).       However, the

circuit court found Eager criminally culpable for failing to take

his prescribed medication.      This conclusion was in error, as

failing to take medication cannot be characterized as

“introducing” a substance into his body.

          The State concedes that Eager’s “failure to take his

prescribed medication does not equate to ‘the introduction of

substances into the body’” per HRS § 702-230(5).           Nonetheless, it

argues that this failure “was a volitional act on his part and

should not absolve him of penal responsibility.”           In other words,

the State argues that even though Eager was psychotic at the time

of the incident, he should be held responsible because his

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psychosis stemmed from the “volitional act” of not taking

medication.    This argument is without merit.        The State’s

contention that such a “volitional act” can give rise to penal

responsibility has no basis in HRS § 702-230.          See HRS § 702-

230(5)(b) (“‘Self-induced intoxication’ means intoxication caused

by substances which the defendant knowingly introduces into the

defendant’s body[.]”) (emphasis added).         Moreover, the State
provides no other authority in support of its argument that a

defendant can be held criminally responsible for acts committed

while psychotic if the psychosis stems from a “volitional act”

resulting in the non-introduction of substances into the human

body, and we are aware of none.

          The reasoning of Commonwealth v. Shin, 16 N.E.3d 1122

(Mass. App. Ct. 2014), provides additional support for the

outcome we reach here.     In Shin, the defendant, who had been

diagnosed with schizophrenia, was charged with indecent assault

and battery.    See id. at 1123-24.      At a bench trial, his primary

defense was “lack of criminal responsibility” based on his mental

illness and his inability to conform his conduct to the law.                See

id. at 1124-25.    The trial court found the defendant guilty,

determining that he “knew that if he didn’t take his medication

he was likely to commit further crimes and went ahead anyway and

stopped taking his medication.”       Id. at 1126 (internal quotation

marks omitted).

          The Appeals Court of Massachusetts held that the trial

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court erred by “inquiring [into] whether the defendant’s lack of

criminal responsibility was caused by his failure to take

prescribed medications.”      Id. at 1128.     The court distinguished

prior cases which considered whether a defendant was criminally

responsible for conduct resulting from the voluntary consumption

of drugs or alcohol:

          Obviously, here, the question is not whether the
          defendant knowingly and voluntarily consumed alcohol
          or drugs that exacerbated his inability to understand
          the wrongfulness of his behavior or undermined his
          capacity to conform his behavior to the requirements
          of the law, but whether his failure to take prescribed
          medication had those effects. It is not at all clear
          that the situations are analogous; mentally ill people
          fail to take prescribed medication for a myriad of
          reasons, including, for example, side effects that may
          be otherwise dangerous to their health. . . . In
          addition, some people are unable to obtain the
          appropriate medication because of lack of money or
          access to medical care, or problems with necessary
          paperwork such as may have occurred in this case. A
          decision not to take a prescribed medicine, though it
          may be ill-advised, is different in kind from a
          decision to ingest alcohol or drugs that are not
          prescribed. In addition, some medications work better
          than others, or take time to become effective, and the
          difficulty of discerning when, exactly, someone
          stopped taking medication and what his mental state
          was at that time would be challenging at best.

Id. at 1128-29.

          Unlike cases in which the ingestion of drugs or alcohol

caused the criminal behavior, the court observed, “[the

defendant’s] mental illness is not caused by his failure to take

medication, even though the medication might alleviate it

somewhat or even entirely.”      Id. at 1128 (emphasis in original).

Thus, the court determined that “[t]he appropriate analysis was

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simply whether, at the time of the incident, the defendant was

criminally responsible.”12      Id.

            As the Shin court similarly concluded, the failure to

take medication may not be considered in determining the defense

of lack of penal responsibility due to a mental disease,

disorder, or defect.      In this case, the circuit court based its

finding that Eager was criminally responsible on Eager’s having
smoked marijuana as well as his “decision not to take his

prescribed medication.”       The circuit court did not distinguish

the effects of marijuana use from ceasing to take prescription

medication, and thus we do not know whether the circuit court

would have concluded that Eager’s marijuana use, standing alone,

could support a finding of criminal responsibility due to self-

induced intoxication.      Moreover, when a defendant both a)

knowingly ingests an intoxicating substance, the tendency of

which to cause intoxication the defendant knows or ought to know,

and b) experiences mental disease, disorder, or defect, the trier

of fact must determine whether the mental disturbance would

excuse the defendant’s criminal conduct absent the influence of

the intoxicant.     See Freitas, 62 Haw. at 21, 608 P.2d at 411

(“[I]t was obligatory upon the trial court to disregard whatever

incapacitating effects were attributable to the defendant’s


      12
            Since the trial court did not determine whether the defendant
lacked the requisite capacity at the time of the crime due to a mental disease
or defect, the court concluded that the defendant was entitled to a new trial.
See Shin, 16 N.E.3d at 1128.

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voluntary ingestion of alcohol in determining whether, at the

time of the conduct charged, the accused was suffering from a

disability that would excuse his criminal conduct.”) (citing

United States v. Burnim, 576 F.2d 236 (9th Cir. 1978)).

          Because the circuit court failed to make the necessary

findings, we must remand for further proceedings consistent with

this opinion.
                            IV.   Conclusion

          Dr. Wagner’s testimony did not improperly bolster Dr.

Jacobs’ opinion.    However, the circuit court erred in its

determination that Eager was criminally responsible based on his

failure take prescription medication.        Thus, we vacate the ICA’s

August 2, 2016 judgment on appeal and the circuit court’s

June 30, 2014 judgment of conviction, and remand to the circuit

court for further proceedings consistent with this opinion.

Shawn A. Luiz                            /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Loren J. Thomas
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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