***      FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER     ***




                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                03-JAN-2020
                                                                08:19 AM



             IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

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

                                      vs.

       PATRICK WILLIAMS, Petitioner/Defendant-Appellant.
________________________________________________________________

                               SCWC-XX-XXXXXXX

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                   (CAAP-XX-XXXXXXX; 1FC151000047)

                               JANUARY 3, 2020

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

                   OPINION OF THE COURT BY McKENNA, J.

                              I.   Introduction

       Patrick Williams (“Williams”) was charged with assault in

the second degree1 against his two-year-old son (“minor son”) in

violation of Hawaiʻi Revised Statutes (“HRS”) § 707-711(1)(a)


1
      HRS § 707-711 (2014) states: “Assault in the second degree. (1) A
person commits the offense of assault in the second degree if: (a) The person
intentionally or knowingly causes substantial bodily injury to another; (b)
The person recklessly causes serious or substantial bodily injury to another
. . . .”
***     FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER    ***


and/or § 707-711(1)(b),2 via an August 11, 2015 indictment in the

Family Court of the First Circuit (“family court”).3            On January

12, 2017, a jury found Williams guilty of the lesser included

offense of assault in the third degree, in violation of HRS §

707-712.4   On March 28, 2017, the family court5 entered its final

judgment, sentencing Williams to one year of probation.




2
      The indictment read:

            On or about September 21, 2014 to and including September
            22, 2014, in the City and County of Honolulu, State of
            Hawaiʻi, PATRICK WILLIAMS, being the parent or guardian or
            any other person having legal or physical custody of [minor
            son], did intentionally or knowingly cause substantial
            bodily injury to [minor child], and/or did recklessly cause
            substantial bodily injury to [minor son], a person less
            than eighteen years of age, thereby committing the offense
            of Assault in the Second Degree, in violation of Section
            707-711(1)(a) and/or Section 707-711(1)(b) of the Hawaiʻi
            Revised Statutes.
3
      The parties and the Intermediate Court of Appeals (“ICA”) refer to the
trial court as the “circuit court,” but the indictment and proceedings were
in the family court. At all times pertinent to this case (as well as now),
the family court had exclusive original jurisdiction “[t]o try any offense
committed against a child by the child’s parent or guardian or by any other
person having the child’s legal or physical custody” pursuant to
HRS § 571-14(a)(1) (2018).
4
      HRS § 707-712 (2014) states:

            Assault in the third degree. (1) A person commits the
            offense of assault in the third degree if the person:
                 (a) Intentionally, knowingly, or recklessly causes
            bodily injury to another person; or
                 (b) Negligently causes bodily injury to another
            person with a dangerous instrument.
                 (2) Assault in the third degree is a misdemeanor
            unless committed in a fight or scuffle entered into by
            mutual consent, in which case it is a petty misdemeanor.

      The jury instruction for the lesser included offense of Assault in the
Third Degree, the charge on which Williams was found guilty, read as follows:

                                                              (continued. . .)
                                      2
***     FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER    ***


      Williams appealed the family court’s final judgment to the

Intermediate Court of Appeals (“ICA”), arguing the family court

plainly erred by failing to strike certain improper opening

statements made by the deputy prosecuting attorney and by

admitting certain x-rays into evidence without the necessary




(. . .continued)

                  If and only if you find the defendant not guilty of
            the offense of Assault in the Second Degree, or you are
            unable to reach a unanimous verdict as to this offense,
            then you must consider whether the defendant is guilty or
            not guilty of the included offense of Assault in the Third
            Degree.

                  A person commits the offense of Assault in the Third
            Degree if he intentionally, knowingly, or recklessly causes
            bodily injury to another person.

                  There are four material elements of the offense of
            Assault in the Third Degree, each of which the prosecution
            must prove beyond a reasonable doubt.

                   These four elements are:

                  1. That, on or about September 21, 2014, to and
            including September 22, 2014, in the City and County of
            Honolulu, the defendant, Patrick Williams, was the parent,
            or guardian, or any other person having legal or physical
            custody of [minor son]; and

                  2. That the defendant, Patrick Williams, knew or
            reasonably should have known that [minor son] was less than
            eighteen years of age; and

                  3. That, on or about September 21, 2014, to and
            including September 22, 2014, the defendant, Patrick
            Williams, caused bodily injury to [minor son]; and

                  4. That the defendant, Patrick Williams, did so
            intentionally, knowingly or recklessly.
5
      The Honorable Rom A. Trader presided.


                                       3
***      FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER      ***


foundation.     Williams also argued there was insufficient

evidence to sustain his conviction.

      In its summary disposition order (“SDO”), the ICA concluded

the points of error alleged by Williams lacked merit.              The ICA

ruled: (1) although the deputy prosecuting attorney’s comments

in his opening statement were improper, the family court had

instructed the jury to refrain from considering the comments as

evidence so, therefore, the error was harmless; (2) there was no

reasonable possibility that any error in admitting the contested

x-rays into evidence contributed to Williams’s conviction; and

(3) viewing the evidence in the light most favorable to the

State, there was sufficient evidence that Williams at least

recklessly caused minor son to suffer bodily injury.              See State

v. Williams, No. CAAP-XX-XXXXXXX, at 4–6 (App. June 15, 2018)

(SDO).    The ICA then entered its judgment on appeal affirming

the family court’s final judgment.

      Williams’s certiorari application asks that this court

address the three issues he had presented to the ICA:

             Whether the ICA gravely erred in holding that: (1) the
             prosecutor’s improper comments constituted harmless error;
             (2) the [family] court did not err in admitting the x-rays
             into evidence without the improper [sic] foundation; and
             (3) there was sufficient evidence to sustain Williams’s
             conviction.

      We hold that Williams’s conviction on the charge of assault

in the third degree must be vacated because the deputy


                                       4
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


prosecuting attorney’s elicitation of evidence regarding Child

Welfare Services involvement in violation of a defense motion in

limine was improper and not harmless beyond a reasonable doubt.

      As we set aside the conviction, we also address the

evidentiary foundation issue regarding the x-rays not addressed

by the ICA, and hold there was insufficient foundation for

admission of the contested x-rays into evidence because the

physician through whom the x-rays were introduced was not a

custodian or “other qualified witness” able to lay a foundation

pursuant to Hawaiʻi Rules of Evidence (“HRE”) Rule 803(b)(6)

(2002).   We also hold, however, that Williams’s conviction on

the charge of assault in the third degree was supported by

substantial evidence.

      Accordingly, we vacate the family court’s March 28, 2017

final judgment as well as the ICA’s September 25, 2018 judgment

on appeal and remand this case to the family court for further

proceedings consistent with this opinion.

                             II.   Background

A.    Child Welfare Services Issue

      In his January 3, 2017 motion in limine, Williams included

a request to exclude “[a]ny reference to an investigation and

case by the Child Welfare Services, Department of Human

Services, State of Hawai[ʻ]i and any legal issues stemming from

                                     5
***     FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER    ***


said investigation and case” as item 2.c.          At the January 9,

2017 hearing on Williams’s motions in limine, the family court

granted this request.

      Williams’s jury trial took place on January 9, 11, and 12,

2017.   Before the parties’ opening statements, the family court

explained, “Please remember that what the attorneys say is not

evidence.    What actually counts is the sworn testimony of the

witnesses and the exhibits or other things that are received as

evidence.”

      During opening statements on January 9, the deputy

prosecuting attorney stated:

            [Y]ou will find out that [minor son] is subsequently
            transferred to another family and reunited with his mother.

                  You’ll meet Detective Melvin Raquedan, who assists
            with the transfer of custody. You’ll also meet social
            worker Robert Asato, who aids in the transfer from Tripler
            Army Medical Center after [minor son] is treated and
            released and how he is ultimately reunited down the road
            with his mother.

Williams did not raise a specific objection to these statements.

      On January 11, Wiliams’s deputy public defender requested

an offer of proof regarding what testimony the deputy

prosecuting attorney expected to elicit from witnesses Melvin

Raquedan of the Honolulu Police Department (“Detective

Raquedan”) and social worker Robert Asato.           The deputy

prosecuting attorney indicated that both witnesses were being

called to establish “a material element” of “custody of the

                                      6
***     FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER    ***


child, who was formerly or solely in the defendant’s care, and

the transfer out of that care.”           After the deputy public

defender objected to any evidence regarding “care out of Mr.

Williams’ hands,” the deputy prosecuting attorney stated that he

would not “get into what happened to the child.            It’s

essentially to establish the parent, guardianship care and

custody.”

      The next day, the State called Detective Raquedan as a

witness.    During his direct examination, the following exchanged

occurred:

            [DEPUTY PROSECUTING ATTORNEY]: And in order to explain the
            next steps you took, what did dispatch request your
            assistance with?

            [WITNESS]: Assist in taking police custody of a minor.

            [DEPUTY PUBLIC DEFENDER]: Objection, Your Honor. Violates
            the motion.[6]

            THE COURT: No speaking objections. At the bench please.
            (The following proceedings had at the bench:)

            THE COURT: All right. So the objection is violates the
            motions in limine?

            [DEPUTY PUBLIC DEFENDER]: Yes, Your Honor. The concern
            raised yesterday on record.

            THE COURT: All right. At the end of the day in terms of
            what was discussed at court, I believe I only permitted
            testimony with respect to what the status of the child and
            relative to the defendant having care and custody of the




6
      This was presumably the granted motion in limine prohibiting “[a]ny
reference to an investigation and case by the Child Welfare Services,
Department of Human Services, State of Hawai[ʻ]i and any legal issues stemming
from said investigation and case,” as well as the discussions that had taken
place the day before regarding the nature of the evidence to be elicited.

                                      7
***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER    ***


          child versus transfer of custody. I believe that was
          precluded. So where do you intend to go with this?

          [DEPUTY PROSECUTING ATTORNEY]: Yes. The prosecution intends
          to show that in order to have the transfer of custody from
          the father’s care to the State, there needs to be a two-
          party assistance, and he responded to that in order to work
          with Mr. Asato. That is what he was given via dispatch and
          that’s all he’s going to testify to with respect to
          assisting in the transfer of the custody.

          THE COURT: Okay.

          [DEPUTY PROSECUTING ATTORNEY]: But that’s what it is. And
          the State does not intend to get into the details anywhere.
          But he was the responding officer.

          THE COURT: All right. [DEPUTY PUBLIC DEFENDER].

          [DEPUTY PUBLIC DEFENDER]: Your Honor, I think that’s highly
          prejudicial -- the fact that two witnesses are needed to
          establish one of the elements. I think the route that the
          State is taking is unnecessary and it sheds Mr. Williams in
          a different light than it would otherwise need to do to
          establish that same element. I think they can do it in a
          multiple number of other ways, and I think it still does
          violate. I don’t think –-

          THE COURT: All right.

          [DEPUTY PROSECUTING ATTORNEY]: With respect to the
          establishment, Detective Raquedan is expected to testify
          that he actually completed and filled out the protective
          custody form. On that form [minor son] is known by another
          name. So he is a necessary material witness to establish
          that this child was present. And he as well as Robert Asato
          signed the protective custody –-

          . . . .

          THE COURT: So why is it that you can’t simply ask the
          witness that as part of his duties, did he come into
          contact with these individuals -- the complainant, and
          during the course of his investigation or what he did, he
          ascertained defendant as the parent?

          [DEPUTY PROSECUTING ATTORNEY]: Okay. And the State will
          just proceed that way.

          THE COURT: That would essentially permit you to have him
          testimony [sic] to things that are within his knowledge but
          without necessarily going beyond what’s necessary to
          establish the elements of the offense. Because what
          happened with the child happened, which really has no


                                    8
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER        ***


           relevance. And while the defense is claiming that it is
           highly prejudicial, I’m not so sure that’s the case.

           [DEPUTY PROSECUTING ATTORNEY]: I’ll proceed. I’ll move on.

           THE COURT: The objection’s sustained. And you may proceed
           as I’ve indicated.[7]

           [DEPUTY PROSECUTING ATTORNEY]: Understood. Thanks.

           [DEPUTY PUBLIC DEFENDER]: Thank you, Your Honor.

           . . . .

           [DEPUTY PROSECUTING ATTORNEY]: And did you ultimately work
           in tandem with Mr. Asato on behalf of the Department of
           Human Services?

           [WITNESS]: Yes.

           [DEPUTY PUBLIC DEFENDER]: Objection, Your Honor.

           THE COURT: Sustained. Court will strike that last response.
           You will not consider it for any purpose whatsoever, ladies
           and gentlemen.

      Although the family court sustained the deputy public

defender’s objection and struck Detective Raquedan’s reference

to the “Department of Human Services,” of which Child Welfare

Services is a part, the State later called social worker Robert

Asato to testify, and elicited the following evidence:

           [DEPUTY PROSECUTING ATTORNEY]: Good morning, sir. Can you
           please tell us your name and occupation for the record.

           [WITNESS]: Robert Jason Asato. I’m an investigative
           social worker, Child Welfare Services.

           [DEPUTY PUBLIC DEFENDER]: Objection, Your Honor.

           THE COURT: Overruled.




7
      Although the family court sustained the objection, it did not strike
the response that prompted the objection, that Detective Raquedan had been
requested by dispatch to “[a]ssist in taking police custody of a minor.”

                                      9
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER     ***


           [DEPUTY PROSECUTING ATTORNEY]: You can respond. I’m sorry.
           Tell us your name and occupation again.

           [WITNESS]: Robert Jason Asato. Investigative social
           worker, Child Welfare Services.

           [DEPUTY PROSECUTING ATTORNEY]: Thank you. And Mr. Asato, I
           just have several questions for you. On September 24th,
           2014, were you involved or did you come across [minor son]?

           [WITNESS]: Yes.

           [DEPUTY PROSECUTING ATTORNEY]: And with respect to [minor
           son], were you able -- during the course of your
           investigation, able to determine who was the sole caretaker
           of [minor son] on that date?

           [WITNESS]: Yes.

           [DEPUTY PROSECUTING ATTORNEY]: And the sole caretaker
           according to your investigation -- would it be fair to say
           was his father, Patrick Williams?

           [WITNESS]: Yes.

           [DEPUTY PROSECUTING ATTORNEY]: And just to clarify,
           September 24th 2014, was that the first day that you were
           assigned and came across [minor son]?

           [WITNESS]:   Yes.

      In addition, during the testimony of Dr. Jennifer Doerrige

(“Dr. Doerrige”), whose testimony is further discussed in the

next section, the deputy prosecuting attorney asked, “[D]id you

alert authorities after treating [minor son],” to which Dr.

Doerrige responded, “Yes. CPS was contacted. That’s Child

Protective Services.”8




8
      Although the official term is “Child Welfare Services,” it appears
“Child Protective Services” or “CPS” is still often used in common parlance.

                                     10
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


B.    Other Trial Evidence Relevant to Issues on Certiorari

      The trial also included the following evidence relevant to

the issues on certiorari.

      1.   Testimony of Nurse Santana

      Around 9:30 a.m. on September 22, 2014, Williams brought

minor son to Wahiawa General Hospital.         That day happened to be

minor son’s second birthday.

      Nurse Santana, who triaged minor son upon his arrival at

the hospital, testified she saw an “obvious deformity” in minor

son’s left femur and that minor son appeared distressed.

Williams told her he saw minor son jump off the bed the night

before around 10:30 p.m. and that minor son’s leg looked more

swollen that morning.     At around 10:03 a.m., Nurse Santana

administered fentanyl, a drug which can cause sleepiness and a

dulling of the senses, to minor son.

      2.   Testimony of Nurse Blakey

       Nurse Blakey then assessed minor son at 10:30 a.m. and

noted that he was alert and comfortable lying in bed, with

Williams at his bedside, and exhibited “no apparent distress”

after Nurse Santana had administered fentanyl.          Because minor

son’s condition had stabilized, at around noon, Nurse Blakey

assisted in discharging him.       Minor son then went to Tripler

Army Medical Center (“Tripler”) for further treatment.


                                     11
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER     ***


      3.    Testimony of Dr. Doerrige

      Dr. Doerrige was the emergency room physician who treated

minor son at Wahiawa General Hospital on September 22, 2014.

She conducted a basic physical examination of minor son, and

noticed a deformity in his left leg with soft tissue swelling.

After discovering an “obvious” left femur fracture, she ordered

x-rays and a whole body x-ray called a babygram.           Dr. Doerrige

diagnosed minor son with a left transverse slightly angulated

significantly displaced fracture of the left femur as well as

some soft tissue swelling at the site of the fracture.

      Dr. Doerrige also opined that, had minor son not been

treated, the fracture could have caused serious permanent

disfigurement or protracted loss or impairment of the function

of his left leg, and that one leg would have been significantly

shorter than the other, which would have prevented minor son

from running, jumping, hopping, and skipping.          Dr. Doerrige

further opined that minor son’s injury was not consistent with

jumping and falling off of a bed onto a carpeted floor.            She

testified that the femur is a very strong bone that is difficult

to break.    She testified:

            The story wasn’t very consistent because, one, most kids
            . . . learn to jump between ages of 24 months and 36
            months. So the jumping aspect was a little suspect. He
            might be advanced for his age. And then the fact that it
            probably would be greater force than that. Not like a two-
            story bed, but a two-story building that would have that
            kind of force to generate that kind of fracture.

                                     12
***      FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***




Dr. Doerrige also testified that femur fractures are notoriously

painful and that most children would be crying; in a great deal

of distress; and unable to walk, stand, or sleep through the

night.

      Dr. Doerrige also related that while she treated minor son

for his injury, Williams was apathetic, “[v]ery aloof and was

off to the side.      Was texting on his cell phone.”         She also

observed Williams giving minor son fist bumps when minor son was

crying after coming back from being x-rayed.

      Dr. Doerrige then testified State’s Exhibits 10, 11, and 12

showed differing views of a femur fracture, the femur fracture

in those exhibits was consistent with her diagnosis and

examination of minor son, and the x-rays were a “fair and

accurate depiction[] . . . of the left femur fracture sustained

by [minor son].”      Dr. Doerrige testified the upper left corner

of the x-rays noted minor son’s name.           When the State attempted

to move these exhibits into evidence, however, the family court

sustained the defense’s objection based on lack of foundation,

and these x-rays were never received in evidence.

      Although Dr. Doerrige had testified she contacted “Child

Protective Services” as noted earlier, during cross-examination

by the deputy public defender, she also testified she could not

rule out accidental trauma.
                                       13
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER     ***


      4.   Testimony of Dr. Polk

      Dr. Norman Polk (“Dr. Polk”) served as minor son’s

diagnostic radiologist at Wahiawa General Hospital.            Dr. Polk

had begun practicing medicine in Hawaiʻi during his residency at

Tripler in 1975, where he worked for about four years.

      Dr. Polk was on duty as a radiologist at Wahiawa General

Hospital on September 22, 2014.       His involvement in minor son’s

care consisted of viewing radiographs taken of minor son and

speaking with Dr. Doerrige regarding his findings.           He opined

that minor son had a left femur mid-shaft fracture that was

slightly angulated anteriorly.       Dr. Polk also testified there

was soft tissue swelling, but the babygram did not reveal any

prior fractures.

      After being stabilized at Wahiawa General Hospital, minor

son had been taken to Tripler for treatment.          The deputy

prosecuting attorney then began asking Dr. Polk whether he

previously had the opportunity to view several x-ray images

apparently taken at Tripler before coming to court that day.

Dr. Polk responded that he had seen “the post-treated injury

when [minor son] was at Tripler.”         The deputy prosecuting

attorney then asked Dr. Polk whether in his past experience, he

had viewed x-ray images from Tripler.         Dr. Polk then responded




                                     14
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


in the affirmative to this question as well as another question

regarding whether he relied on images from other hospitals.

      The deputy prosecuting attorney then handed State’s Exhibit

3 for identification to Dr. Polk and asked him to verify that

the name, date of birth, and date of the image was “in line”

with the x-rays he had previously reviewed regarding minor son.

Dr. Polk agreed that “[t]hey appear[ed] to correlate.”

      Dr. Polk then began testifying as to what State’s Exhibit 3

for identification showed even before it was received in

evidence.   In summary, he described State’s Exhibit 3 as showing

a left femur after it had been realigned.         Although Dr. Polk did

not testify that the image was of minor son’s left femur, he

stated it “look[ed] [like a] fair and accurate” depiction of

minor son’s fracture.

      The deputy prosecuting attorney then began asking about

another Tripler x-ray, a lateral view x-ray of a left femur that

had been realigned, marked as State’s Exhibit 4.           The deputy

public defender then objected that Dr. Polk had been testifying

regarding exhibits yet to be received in evidence, and also

asserted that no proper foundation had been laid for the

admission of the x-rays.      The family court disagreed and

admitted State’s Exhibit 3 into evidence.         The deputy public




                                     15
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER     ***


defender raised a running objection to the State’s other

exhibits.

      Dr. Polk then further explained what was depicted in

State’s Exhibit 3:

                  For the sake of discussion, this is the femur, or
            thigh bone is what people know it as. And this is the
            fracture here, the mid-portion. And these two pieces of
            bone have been separated. And if there’s no fracture the
            white line would be contiguous all the way through. The
            knee doesn’t have any obvious fracture. The tibia and
            fibula, which are the lower leg bones, don’t show any
            obvious fracture. This is the hip. There’s no
            displacement or fracture up here. Basically the fracture
            involves the midshaft. And now it looks like it’s well
            aligned for orthopedic purposes on this film.

                   The white lines out here are the plaster cast. And
            the swelling is -- it’s basically adjacent to the area of
            the fractures. You don’t see the same sort of swelling down
            below.

      After foundational questions were asked similar to those

asked of State’s Exhibit 3, State’s Exhibit 4 was also admitted

into evidence.

      Dr. Polk then also opined that minor son’s injury would be

consistent with jumping and falling off of a bed only “[i]f the

bed was on a second story of a building.”          He explained as

follows:

            Children’s bones are unlike old people[’s bones] . . . .
            Children[’s] . . . bones tend to bend. . . . So it takes a
            lot of force to take a young kid’s leg -- and the femur is
            . . . one of the largest and strongest bones in the body --
            to take it and actually break it in two pieces, snap it in
            two and to displace it, . . . that’s a lot of force.

He also testified that a broken femur in a two-year-old is a

“really unusual” injury, and is often related to non-accidental


                                     16
***      FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER    ***


trauma, such as an automobile accident, falling down the stairs,

or blunt force trauma.

      5.   Testimony of Dr. Happy

      Christopher Happy, M.D. (“Dr. Happy”), the chief medical

examiner for the City and County of Honolulu, testified for the

defense.     Dr. Happy testified he had “review[ed] . . . various

X-ray images in [minor son’s] case,” and opined that a toddler

could sustain a femur fracture from jumping and falling off of a

bed, even if jumping onto a carpeted surface.            He stated the

vast majority of femur fractures are accidental.

C.    Appeal to the ICA and Application for Writ of Certiorari

      On appeal to the ICA, Williams presented three points of

error:

             A.    The [family] court plainly erred in failing to strike
             improper statements made by the prosecutor in opening
             statement.

             . . . .

             B.    The [family] court erred in admitting the X-rays[9]
             into evidence without the necessary foundation.

             . . . .

             C.    There was insufficient evidence to sustain Williams’s
             conviction of Assault in the Third Degree.

      The ICA rejected the challenges.          As to the first issue,

the ICA applied a plain error analysis on the grounds that


9
      In his opening brief, Williams took issue with the admission of State’s
Exhibits 3, 4, 10, 11, and 12. However, the family court did not admit
State’s Exhibits 10, 11, and 12.

                                       17
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER      ***


Williams had not objected to this portion of the State’s opening

statements at trial.      See Williams, SDO at 2 (citing Hawaiʻi

Rules of Penal Procedure (“HRPP”) Rule 52(b); State v. Sanchez,

82 Hawaiʻi 517, 528, 923 P.2d 934, 945 (App. 1996)).10           The ICA

stated “the burden [is] on the defendant to show bad faith on

the part of the prosecutor, unless the fundamental rights of the

defendant were substantially prejudiced.”          Williams, SDO at 3

(quoting State v. Moore, 82 Hawaiʻi 202, 213, 921 P.2d 122, 133

(1996)) (alteration in original).         The ICA also cited to State

v. Valdivia, 95 Hawaiʻi 465, 479, 24 P.3d 661, 675 (2001),

stating that this court concluded that even if a prosecutor’s

comments were improper and made in bad faith, such misconduct

was “harmless beyond a reasonable doubt because the circuit

court instructed the jury no fewer than three times that

counsels’ statements and arguments were not evidence and not to

be considered during deliberations; there was no evidence that

the jury failed to adhere to those instructions.”            Williams, SDO

at 3–4.   Similarly, although the ICA agreed the State’s comments

were improper because the fact that minor son was taken out of

Williams’s custody is unrelated to any of the elements of the

offense, as the family court had instructed the jury both before


10
      As discussed infra, an objection was not required due to the in limine
ruling precluding such references.

                                     18
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER     ***


opening statements and when issuing general jury instructions

that the attorneys’ comments were not evidence, and as the

record did not demonstrate the jury failed to adhere to these

instructions, it concluded the prosecutor’s improper comments

were harmless beyond a reasonable doubt.         See Williams, SDO at

4.

      As to the second issue, the ICA did not address whether a

proper foundation had been laid for the admission of State’s

Exhibits 3 and 4.    Instead, the ICA ruled that even if the

family court had erred in admitting the x-rays of minor son’s

femur bone into evidence, such error was harmless beyond a

reasonable doubt.    See Williams, SDO at 4.        The ICA referred to

the testimony by Dr. Doerrige, Dr. Polk, and the two nurses

regarding the extent of minor son’s injuries and the type of

distress minor son had been in upon arriving at the hospital.

See Williams, SDO at 4–5.      The ICA also stated, “X-ray results

are the type of data that doctors reasonably rely on in

rendering a diagnosis and both doctors testified as to their

observations that [minor son] suffered a fractured femur.”              Id.

      As to the third issue, Williams had argued no evidence had

been presented that he had caused bodily injury to minor son.

The ICA noted, however, that Dr. Doerrige had testified that a

broken femur is “notoriously painful” and “would cause most


                                     19
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER     ***


children to cry, and would prevent a child from sleeping through

the night, standing, or walking,” yet Williams, minor son’s sole

caretaker, had not brought him to the hospital until

approximately ten hours later.       Williams, SDO at 5.       The ICA

also referred to the evidence that Williams had appeared aloof

at the hospital despite minor son’s severe distress and pain.

Id.   Furthermore, the ICA pointed out that both Dr. Doerrige and

Dr. Polk testified that minor son’s injuries were inconsistent

with Williams’s explanation of jumping or falling off a bed.

Williams, SDO at 5-6.     The ICA also noted Dr. Doerrige’s

testimony that children do not typically learn how to jump until

over twenty-four months old, and minor son had just turned

twenty-four months old.      See Williams, SDO at 6.       Viewing such

evidence in the light most favorable to the State, the ICA

concluded that “there is sufficient evidence that Williams at

least recklessly caused [minor son] to suffer bodily injury.”

Id.

      In his certiorari application, Williams essentially

reasserts the same points of error:

           Whether the ICA gravely erred in holding that: (1) the
           prosecutor’s improper comments constituted harmless error;
           (2) the [family] court did not err in admitting the x-rays
           into evidence without the improper [sic] foundation; and
           (3) there was sufficient evidence to sustain Williams’s
           conviction.




                                     20
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER      ***


                       III.   Standards of Review

A.    Prosecutorial misconduct

                 Allegations of prosecutorial misconduct are reviewed
           under the harmless beyond a reasonable doubt standard,
           which requires an examination of the record and a
           determination of whether there is a reasonable possibility
           that the error complained of might have contributed to the
           conviction. Factors considered are: (1) the nature of the
           conduct; (2) the promptness of a curative instruction; and
           (3) the strength or weakness of the evidence against the
           defendant.

State v. Maluia, 107 Hawaiʻi 20, 24, 108 P.3d 974, 978 (2005)

(citation omitted).

B.    Admissibility of x-rays

           [D]ifferent standards of review must be applied to trial
           court decisions regarding the admissibility of evidence,
           depending on the requirements of the particular rule
           of evidence at issue. When application of a particular
           evidentiary rule can yield only one correct result, the
           proper standard for appellate review is the right/wrong
           standard. However, the traditional abuse of discretion
           standard is applied in the case of those rules
           of evidence that require a “judgment call” on the part of
           the trial court.

Kealoha v. Cty. of Hawaiʻi, 74 Haw. 308, 319-20, 844 P.2d 670,

676 (1993).   In general, “[w]hether or not an x-ray photograph

has been sufficiently verified so as to warrant its admission in

evidence is a matter within the sound discretion of the trial

judge and will be reviewed for an abuse of discretion.”            State

v. Torres, 60 Haw. 271, 276, 589 P.2d 83, 86 (1978).

C.    Plain error

      “[T]his court will apply the plain error standard of review

to correct errors which seriously affect the fairness,


                                     21
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER    ***


integrity, or public reputation of judicial proceedings, to

serve the ends of justice, and to prevent the denial of

fundamental rights.”      State v. Henley, 136 Hawaiʻi 471, 478, 363

P.3d 319, 326 (2015) (citations omitted).

                              IV.    Discussion

A.    The deputy prosecuting attorney’s elicitation of evidence
      regarding Child Welfare Services violated Williams’s right
      to a fair trial.

      Williams argues on certiorari that the deputy prosecuting

attorney’s comments in his opening statement that minor son was

“transferred to another family and reunited with his mother” and

that the jury would meet “Detective Melvin Raquedan, who assists

with the transfer of custody,” as well as “social worker Robert

Asato, who aids in the transfer from Tripler [] after [minor

son] is treated and released and how he is ultimately reunited

down the road with his mother” was prosecutorial misconduct,

requiring this court’s further review.

      “The term ‘prosecutorial misconduct’ is a legal term of art

that refers to any improper action committed by a prosecutor,

however harmless or unintentional.”         Maluia, 107 Hawaiʻi at 25,

108 P.3d at 979.11     Williams asserts the ICA erred in ruling



11
      We further stated in Maluia:

           [T]here are varying degrees of prosecutorial
           misconduct. . . . [M]ost cases . . . do not involve
                                                             (continued. . .)
                                      22
***     FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER    ***


that, even if the deputy prosecuting attorney’s comments were

improper and made in bad faith, the misconduct was harmless

beyond a reasonable doubt because the family court had

repeatedly instructed the jury that the attorneys’ statements

and arguments were not evidence and not to be considered during

(. . .continued)

            prosecutors who intend to eviscerate the defendant’s
            constitutional and statutory rights[.]

                   . . . .

                  Nevertheless, we decline to create a separate
            category of prosecutorial “mistake” or “error.” There are
            three reasons why we believe that our current method of
            analysis -- in which all improper conduct is labeled
            “prosecutorial misconduct” -- is more appropriate.

                  First, there is no need to create separate categories
            because this court already distinguishes innocuous
            prosecutorial misconduct from more serious deceitful
            behavior[.] . . . In sum, whenever a defendant
            alleges prosecutorial misconduct, this court must decide:
            (1) whether the conduct was improper; (2) if the conduct
            was improper, whether the misconduct was harmless beyond a
            reasonable doubt; and (3) if the misconduct was not
            harmless, whether the misconduct was so egregious as to bar
            reprosecution. In the course of making these three
            determinations, the seriousness of the misconduct becomes
            evident, and we need not attach a separate label for our
            disposition to be clear. Consequently, a separate label for
            “misconduct” cases and “error” cases is unnecessary.

                  Second, a finding of “prosecutorial misconduct” is
            not equivalent to a finding of “professional misconduct”
            pursuant to the Hawaiʻi Rules of Professional Conduct
            (HRPC), and a prosecutor need not face disciplinary
            sanctions merely because we have used the term
            “prosecutorial misconduct.” . . .

                  Third, we believe that separate nomenclature for
            different types of prosecutorial misconduct would lead to
            protracted litigation over semantics; this would place an
            additional burden on our courts with no corresponding
            benefit.

107 Hawaiʻi at 25-26, 108 P.3d at 979-80.

                                      23
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER      ***


deliberations, and that there was no evidence that the jury

failed to adhere to those instructions.         We agree with Williams

that the ICA erred.

      Whenever a defendant alleges prosecutorial misconduct, this

court must consider three factors: “(1) whether the conduct was

improper; (2) if the conduct was improper, whether the

misconduct was harmless beyond a reasonable doubt; and (3) if

the misconduct was not harmless, whether the misconduct was so

egregious as to bar reprosecution.”        Maluia, 107 Hawaiʻi at 26,

108 P.3d at 980.    Williams argues the deputy prosecuting

attorney’s opening statement comments were improper.            He

specifically only raises the issue of improper reference to

Child Welfare Services in the context of the opening statement.

      The deputy prosecuting attorney’s opening statement

comments were clearly improper, but we need not address whether

the ICA erred in ruling them harmless based on the family

court’s instruction to not consider them as evidence.            This is

because the deputy prosecuting attorney improperly elicited

evidence of the involvement of Child Welfare or Protective

Services in minor son’s case during the testimonies of Detective

Raquedan, social worker Robert Asato, and Dr. Doerrige,

notwithstanding the family court’s order granting a defense

motion in limine excluding any reference to an investigation and

                                     24
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER      ***


case by Child Welfare Services and any legal issues stemming

from that investigation and case.         On appeal and certiorari,

Williams did not raise this elicitation of evidence as

additional bases of misconduct.        When a defendant has not raised

misconduct on appeal, we must determine whether the misconduct

constituted plain error affecting the defendant’s substantial

rights.12

      Granted, the State was required to prove Williams was the

“parent or guardian or any other person having legal or physical

custody” of [minor son] to establish the family court’s

jurisdiction over the case.13       It is unclear why the extensive

testimony that Williams identified himself as minor son’s father

to the medical witnesses was insufficient to establish this

requirement and if not, why additional evidence could not have

been elicited from one or more of the medical witnesses.14

Especially when it chose to call Detective Raquedan and social

worker Robert Asato, the State should have been careful not to



12
      HRPP Rule 52(b) provides that “[p]lain errors or defects affecting
substantial rights may be noticed even if they were not brought to the
attention of the court.”
13
      See supra notes 2 and 3. See also HRS § 701-114(1)(c) (2014)
(requiring proof beyond a reasonable doubt of facts establishing jurisdiction
for a person to be convicted of an offense).
14
      For example, nurses Santana and Blakey and Dr. Doerrige testified
extensively regarding minor son and his father, Williams.


                                     25
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER       ***


elicit evidence regarding the involvement of Child Welfare

Services, which violated the motion in limine.          In addition, it

should not have asked Dr. Doerrige whether she had alerted

authorities to elicit her response that “Child Protective

Services” had been contacted.

      Thus, because the elicited evidentiary references to the

involvement of Child Welfare Services were improper under the

first factor of the prosecutorial misconduct analysis, we next

address whether the misconduct was harmless beyond a reasonable

doubt under the second factor.

      “Allegations of prosecutorial misconduct are [then]

reviewed under the harmless beyond a reasonable doubt standard,

which requires an examination of the record and a determination

of whether there is a reasonable possibility that the error

complained of might have contributed to the conviction.”                State

v. Pasene, 144 Hawaiʻi 339, 365, 439 P.3d 864, 890 (2019)

(citations omitted).     To address whether misconduct was harmless

beyond a reasonable doubt, we consider three prongs: “the nature

of the alleged misconduct, the promptness or lack of a curative

instruction, and the strength or weakness of the evidence

against the defendant.”      State v. Iuli, 101 Hawai‘i 196, 208, 65

P.3d 143, 155 (2003) (citations omitted).




                                     26
***     FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


       Addressing the first prong, the nature of the alleged

misconduct, the evidence improperly adduced by the State that

Dr. Doerrige called “Child Protective Services” and that Child

Welfare Services had become involved in the case, which, at

minimum, implied that Dr. Doerrige, a medical expert, suspected

or found abuse, which was directly related to the central

question of whether Williams had intentionally, knowingly, or

recklessly caused minor son’s injury, and was therefore

extremely prejudicial to Williams.         As to the second prong, the

promptness or lack of a curative instruction, there was no

curative instruction.      With respect to the third prong, the

strength or weakness of the evidence against Williams, we note

the medical witnesses differed on the cause of minor son’s

injury and Dr. Happy testified on behalf of Williams that minor

son’s injuries were consistent with jumping and falling off of a

bed.   Therefore, the evidence against Williams was not so

overwhelmingly strong that there was not “a reasonable

possibility that the error complained of might have contributed

to” the conviction.      State v. Underwood, 142 Hawai‘i 317, 328,

418 P.3d 658, 669 (2018) (citation omitted).           Thus, the

prosecutor’s improper elicitation of evidence affected

Williams’s substantial rights and was not harmless beyond a

reasonable doubt.

                                      27
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER       ***


      Turning to the third factor of the prosecutorial misconduct

analysis, however, we do not find the misconduct so egregious as

to bar reprosecution.     We therefore vacate the conviction, but

remand the case to the family court for further proceedings

consistent with this opinion.

B.    There was insufficient foundation for the admission of
      State’s Exhibits 3 and 4.

      On certiorari, without identifying the x-rays he objects to

by exhibit number, Williams argues that certain x-rays should

not have been admitted in evidence due to a lack of foundation.

In his opening brief, Williams took issue with the admission of

State’s Exhibits 3, 4, 10, 11, and 12.         The family court did

not, however, actually admit State’s Exhibits 10, 11, and 12, x-

ray images of minor son’s left leg taken at Wahiawa General

Hospital, into evidence.      Dr. Doerrige testified, without

defense objection, that these were x-rays of minor son’s left

femur fracture taken at Wahiawa General Hospital and what they

depicted was consistent with her diagnosis and examination of

minor son.    When they were offered into evidence, however, the

family court sustained the defense’s objection based on lack of

foundation.    The State then indicated it would offer them later

subject to linkage, but they were never proffered again.                Thus,

we only address the admission of State’s Exhibits 3 and 4.



                                     28
***     FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER     ***


       On certiorari, Williams asserts the State failed to

authenticate the x-rays as those of minor son.            Williams asserts

the family court’s error in admitting the x-rays cannot be

considered harmless error because the admission of the x-rays

depicting a broken and realigned femur substantially prejudiced

him.   He also asserts the visual evidence of a broken bone was

graphic and pulled at the emotions of the triers of fact and

prejudiced his right to a fair and impartial jury under article

I, section 14 of the Hawaiʻi Constitution and the Sixth Amendment

to the United States Constitution.

       The State appears to concede a lack of foundation, as it

does not argue a proper foundation had been laid for the

admission of State’s Exhibits 3 and 4; it only argued that their

admission was harmless beyond a reasonable doubt, as later

concluded by the ICA, but we proceed to address whether there

was sufficient foundation for the admission of State’s Exhibits

3 and 4.

       State’s Exhibits 3 and 4 would have been admissible as a

“record of regularly conducted activity” pursuant to HRE Rule

803(b)(6) if sufficient foundation was laid as to their

authenticity by “the testimony of the custodian or other

qualified witness, or by certification that complies with rule

902(11) or a statute permitted certification[.]”            There was no

                                      29
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


certification, and Dr. Polk was not a “custodian” of records of

Tripler.   The issue therefore is whether Dr. Polk could be

deemed an “other qualified witness” for purposes of laying a

foundation for admission of the x-rays from Tripler.

      In State v. Fitzwater, 122 Hawaiʻi 354, 227 P.3d 520 (2010),

this court stated:

                 A person can be a “qualified witness” who can
           authenticate a document as a record of regularly conducted
           activity under HRE Rule 803(b)(6) or its federal
           counterpart even if he or she is not an employee of the
           business that created the document, or has no direct,
           personal knowledge of how the document was created. As one
           leading commentator has noted:

                 ... The phrase “other qualified witness” is
                 given a very broad interpretation. The witness
                 need only have enough familiarity with the
                 record-keeping system of the business in
                 question to explain how the record came into
                 existence in the ordinary course of business.
                 The witness need not have personal knowledge of
                 the actual creation of the documents or have
                 personally assembled the records. In fact, the
                 witness need not even be an employee of the
                 record-keeping entity as long as the witness
                 understands the entity’s record-keeping system.

                 There is no requirement that the records have
                 been prepared by the entity that has custody of
                 them, as long as they were created in the
                 regular course of some entity’s business.

                 The sufficiency of the foundation evidence
                 depends in part on the nature of the documents
                 at issue. Documents that are “standard records
                 of the type regularly maintained by firms in a
                 particular industry may require less by way of
                 foundation testimony than less conventional
                 documents proffered for admission as business
                 records.”

           5 Joseph McLaughlin, Weinstein’s Federal Evidence §
           803.08[8][a] (2d ed. 2009) (footnotes omitted).




                                     30
***     FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER    ***


122 Hawaiʻi at 366, 227 P.3d at 532 (footnote omitted) (ellipsis

in original).

      Dr. Polk had apparently worked for Tripler as a resident

for four years in the late 1970s, but there was no foundation

laid sufficient to render him an “other qualified witness” as to

Tripler’s x-rays.     In addition, the ICA’s statement that “[x]-

ray results are the type of data that doctors reasonably rely on

in rendering a diagnosis and both doctors testified as to their

observations that [minor son] suffered a fractured femur” as a

basis for its conclusion that the admission of the x-rays was

harmless does not go to the issue of whether sufficient

foundation had been laid for their admission, but only as to a

basis for expert testimony pursuant to HRE Rule 703 (1984).15

      Thus, insufficient foundation was laid for the admission of

State’s Exhibits 3 and 4.       Because we vacate the conviction on

other grounds, we need not address whether the admission of

these x-rays was harmless.




15
      HRE Rule 703 provides in relevant part:

            The facts or data in the particular case upon which
            an expert bases an opinion or inference may be those
            perceived by or made known to the expert at or before the
            hearing. If of a type reasonably relied upon by experts in
            the particular field in forming opinions or inferences upon
            the subject, the facts or data need not be admissible
            in evidence.

                                      31
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER      ***


C.    Williams’s conviction was supported by substantial
      evidence.

      Because the defense raised the issue of sufficiency and we

have decided the prosecutorial misconduct was not of the nature

that precludes reprosecution, we must address the third issue on

certiorari.     Namely, we address whether there was sufficient

evidence despite trial error to support the conviction on the

charge of assault in the third degree.           See State v. Davis, 133

Hawaiʻi 102, 120, 324 P.3d 912, 930 (2014) (“[A] reviewing court

is required under article I, section 10 of the Hawaiʻi

Constitution to address a defendant’s express claim of

insufficiency of the evidence prior to remanding for a new trial

. . . .”).

      An appellate court reviews the sufficiency of evidence on

appeal as follows:

                   [E]vidence adduced in the trial court must be
             considered in the strongest light for the prosecution when
             the appellate court passes on the legal sufficiency of such
             evidence to support a conviction; the same standard applies
             whether the case was before a judge or jury. The test on
             appeal is not whether guilt is established beyond a
             reasonable doubt, but whether there was substantial
             evidence to support the conclusion of the trier of fact.

State v. Richie, 88 Hawaiʻi 19, 33, 960 P.2d 1227, 1241 (1998)

(alteration in original) (citation omitted).            “‘Substantial

evidence’ as to every material element of the offense charged is

credible evidence which is of sufficient quality and probative

value to enable a person of reasonable caution to support a
                                      32
***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


conclusion.”   Id. (internal quotation marks and citation

omitted).

      For the reasons explained by the ICA in Section II.C above,

the conviction of assault in the third degree was supported by

substantial evidence.     Therefore, the third issue on certiorari

lacks merit.

                             V.   Conclusion

      For the reasons explained above, we vacate the family

court’s March 28, 2017 final judgment, as well as the ICA’s

September 25, 2018 judgment on appeal, and remand this case to

the family court for further proceedings consistent with this

opinion.

Lesley N. Maloian,                 /s/ Mark E. Recktenwald
for petitioner
                                   /s/ Paula A. Nakayama
Stephen K. Tsushima,
for respondent                     /s/ Sabrina S. McKenna

                                   /s/ Richard W. Pollack

                                   /s/ Michael D. Wilson




                                     33
