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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              18-JUN-2020
                                                              02:10 PM



           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


         STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

                                    vs.

            YOKO KATO, Petitioner/Defendant-Appellant.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CR. NO. 13-1-1641)

                              JUNE 18, 2020

      McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
          DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

                OPINION OF THE COURT BY POLLACK, J.

          The circuit court in this case precluded the defendant

from presenting third-party culpability evidence because it

determined that the proffered evidence failed to establish a

“legitimate tendency” that the third party committed the crime.

In this opinion, we reexamine the “legitimate tendency” test in

light of the Hawaiʻi Rules of Evidence (HRE) and subsequent

decisions of jurisdictions whose decisions were considered when
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this court adopted the test.      We conclude from our review that

admissibility of third-party culpability evidence is properly

governed by HRE Rules 401 and 403, without having to also

satisfy a legitimate tendency test.        We additionally conclude

that the circuit court erred by excluding the defendant from

presenting third-party culpability evidence at trial, evidence

that was fundamentally important to the defendant receiving a

fair trial in this case.      Inasmuch as the defendant’s right to

present her defense was prejudicially affected by the circuit

court’s error, the error was not harmless beyond a reasonable

doubt.   We also address other contentions raised by the

defendant as certain of these issues may arise on remand.

          Accordingly, we vacate the conviction in this case,

and the case is remanded to the circuit court for further

proceedings consistent with this opinion.

           I.   BACKGROUND AND CIRCUIT COURT PROCEEDINGS

          Yoko Kato was arrested in connection with a stabbing

that occurred on October 25, 2013, in the Diamond Head area of

Honolulu, on the island of Oʻahu.        She was subsequently charged

by complaint in the Circuit Court of the First Circuit (circuit

court) with attempted murder in the second degree in violation

of Hawaiʻi Revised Statutes (HRS) §§ 705-500, 707-701.5,1 and


     1
          HRS § 707-701.5 (1993) provides in pertinent part as follows:
                                                           (continued . . .)


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706-656.     Kato pleaded not guilty to the charge and a jury trial

was held.2

                         A. State’s Case at Trial

                         1.    Complaining Witness

             The complaining witness (CW), a Japanese national,

testified through a Japanese-English interpreter as follows.

             In the fall of 2013, she was living in Hawaiʻi to study

English.     During this time, she met and began a romantic

relationship with David Miller, a Caucasian janitor at the

Shinnyo-en Temple that she attended.          Because she did not have a

permanent residence, she moved in with Miller for about a month

in August 2013, and Miller arranged for her to stay with his ex-

girlfriend Yoko Kato, a Japanese national, from October 12

through 13, 2013.      While staying with Kato, Kato spoke to the CW

about her past relationship with Miller.           After staying at

Kato’s house, the CW had no contact or very limited contact with

Miller and broke up with him.




(. . . continued)


             (1) Except as provided in section 707-701, a person commits
             the offense of murder in the second degree if the person
             intentionally or knowingly causes the death of another
             person.
      2
             The Honorable Karen S.S. Ahn presided over the proceedings in
this case.




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           While in Hawaiʻi, the CW used the LINE application

(LINE app), an internet application frequently used by Japanese

nationals, to communicate with friends and organize outings.               To

contact someone on the LINE app, users either put their LINE

identifications (LINE ID) directly into another user’s LINE app

or users must know the LINE ID of the other user they want to

contact.   Although the CW never gave Kato her LINE ID, Kato

contacted her on the LINE app to request that she return a key

that belonged to Miller’s bicycle.

           Shortly after moving out of Kato’s apartment, the CW

received a LINE message from an Ai Akanishi asking her to meet

and have drinks.    The CW did not know Akanishi, who claimed to

have gotten the CW’s LINE ID from “other people.”           Despite

feeling that the situation was odd, she agreed to have drinks

with Akanishi and Akanishi’s boyfriend because Akanishi said

that she was a Japanese student studying English like the CW.

The CW agreed to meet Akanishi for drinks at Akanishi’s

boyfriend’s house on October 25, 2013, on Kaunaoa Street.

           On that day, the CW biked to Kaunaoa Street to meet

Akanishi and arrived at around 9:45 p.m.         A man was sitting down

on a bench when she arrived, and he directed her, in poor

Japanese, to a dark corner where she could park her bicycle.

The man was wearing a short sleeved shirt, pants, and a baseball

hat, had brown colored arms and neck, and appeared to be Asian.

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When he asked her name, his Japanese did not sound good;

according to the CW, it was “Japanese spoken by a nonnative

speaker.”

            While the CW was walking her bike to the dark corner,

the man stabbed her multiple times in the arm, back, and abdomen

with a knife.     She screamed and began running away with the man

chasing her.    The CW ran into the Diamondhead Coffee Bean and

Tea Leaf shop, and the employees called the Honolulu Police

Department (HPD).     She was taken to the hospital, where she

spoke to HPD Officer Gilbert Trevino in Japanese.            The CW

described the clothing that the assailant was wearing, and she

told the officer the height of her attacker in centimeters,

which he converted to 5’9”.

            In an interview with Detective (Det.) Nakama on

October 27, 2013, she described the person who stabbed her as a

male.   The next day, she told Det. Nakama that the assailant

could have been a woman, and that the voice was high for a male.

            In describing her injuries, the CW stated that she

could no longer use her arm fully and still had scars from the

knife wounds and post-stabbing surgeries.3          The CW testified that

she did not believe that Miller was the individual who stabbed


      3
            Dr. David Inouye, an expert in surgery and surgery critical care,
testified that he operated on the CW’s wounds, that they were caused by a
knife, and that the wounds were life threatening.



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her because he spoke good Japanese, he did not have a motive,

and he did not fit the physical shape of the person who stabbed

her.    The CW also testified that Kato was not the person who

stabbed her.

                            2.    Other Witnesses

             Emiko Morie, a woman who lived on Kaunaoa Street,

testified through a Japanese-English interpreter that she

observed the CW arrive and begin speaking to an individual that

Morie believed was a man.         Morie stated that she saw the man

chase after the CW and fall.         When she went to investigate,

Morie testified, she discovered a flip phone where the man had

fallen.     Morie explained that she opened the phone and saw that

a call had recently been made to a contact named “David.”                She

stated that she called that contact, and a man answered and

offered to retrieve the phone within thirty minutes.              Morie said

that a middle-aged Japanese woman, whom she later identified as

Kato, approached her twenty minutes later and asked for the

phone, but she refused to give it to the woman.

             Eli Mosher, who was talking with his friend seated

outside of his church when the incident occurred, testified that

he saw the CW being chased by a man who fell down.              He stated

that the man was about 5’6” to 5’8” with medium build.               Mosher

testified that he also described the person as a male in a

written statement that he gave to police on the evening of the

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incident and when he was interviewed by Detective Nakama two

days later.   Mosher also said that the person could “possibly”

have been a woman, although he acknowledged that he was making

that statement for the very first time at trial.

          HPD Officer Jonathan Locey related that he responded

to the scene and interviewed the CW.         He explained that because

the CW could not speak Japanese, he was only able to communicate

with her through hand signals and English.         The officer

testified that, based on the CW’s statements, the suspected

assailant was a Caucasian male, wearing a white or gray T-shirt,

jeans, and a black baseball cap.         The CW never told him that the

attacker was Asian, Officer Locey stated.

          HPD Officer William Ellis testified that he was

investigating the scene of the incident when he was given a flip

phone by Morie, who told him that she found the phone in the

general area of the crime scene.         Officer Ellis said that he was

then approached by a woman who identified herself as “Yuri

Mochizuki” and claimed that she lost her phone.          The woman was

able to describe and unlock the phone, so he gave it to her, the

officer stated.    The woman did not explain to him how she lost

the phone, Officer Ellis testified, and he was unaware that the

phone was connected to the incident.         After giving her the

phone, she went into a gas station to use the restroom and did



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not return although she had been requested to do so, the officer

stated.4

           Yui Mochizuki, Kato’s roommate at the time of the

incident, testified through a Japanese-English interpreter that

she saw Kato’s ex-boyfriend Miller at the apartment drinking

beer with Kato at about 7:30 p.m. on October 25, 2013.

Mochizuki explained that she left for a party about that time

and got home around 1:30 a.m.; Kato was home and told her that

she had lost her phone that night.         Kato said that she had found

an envelope at the door earlier that night containing $60 and a

note written in Japanese with directions on where to find her

phone, Mochizuki testified.       Kato stated that she had followed

the instructions, which said to go to the Coffee Bean and Tea

Leaf shop in the Diamond Head area at 9:00 p.m., Mochizuki

testified, but when she got there, someone pushed her, causing

her phone to fall.     After being pushed, Kato said she heard a

scream and saw police officers in the area, Mochizuki stated.

Mochizuki testified that Kato told her that she believed Miller

wrote the note, which contained the words “I love you,” but Kato

was unsure because the Japanese in the letter was better than


     4
            Christopher Lam, a worker at that gas station, testified that
Kato came in to use the bathroom around 11:00 p.m. He told Kato that they
did not have a public bathroom and she left, Lam stated. Kato was wearing a
red shirt and red shorts, Lam testified, and she did not have a knife or
blood on her.



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Miller’s abilities.     Mochizuki explained that she had heard

Miller speak Japanese poorly, using only words and not complete

sentences.   Mochizuki testified that she never saw Kato with a

knife and did not see any injuries on her on October 25 or 26,

2013.

          HPD Det. Roy Nakama, the officer assigned to

investigate the case, testified that he reviewed all the reports

associated with the case and that based on the information

therein, he believed that the suspect was possibly male, slim

build, wearing dark clothes, and approximately 5’5” to 5’9” in

height.   The detective related that, during the CW’s interview,

the CW, when describing the assailant, stated that “on second

thought it could have been a female,” “possibly a male or a

female,” and that Kato might have done this to her.           The police

thereafter searched Kato’s apartment and found her flip phone

and an iPod Touch but did not recover any weapons or clothing.

When Kato was arrested, Det. Nakama related, she had a bandage

over her right knee and bruises on her left knee.           Det. Nakama

also testified that he interviewed Miller, but that he did not

consider Miller to be a suspect, did not check Miller for

physical injuries, and did not request his cell phone.

          Kristen Hamamoto, a digital forensics examiner,

testified that she found LINE app communications between the CW

and Akanishi, and between the CW and Kato, on the CW’s phone,

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but she could not determine what device the Akanishi messages

came from.    The examiner explained that she found photos of

texts from “David” on Kato’s iPhone.         Hamamoto testified that

she also found that Kato’s iPod either sent or received

communications with an email address connected to Akanishi, but

she was unable to date those messages.5

           Richard Sakurai, Anthony Loui, and Hien Ung, who were

employed at a security equipment store during October 2013,

testified that a woman, whom Sakurai and Ung identified as Kato,

came into the store in October and was interested in knives.

Ung stated that Kato purchased a knife from the store; Sakurai

and Loui testified that they could not confirm a purchase.

                      B.    Defense’s Case at Trial

           Kato called David Miller as a witness.           Although all

of Miller’s testimony was later stricken, as explained below,

Miller testified that he met the CW in March or April 2013.

Initially they were just friends but it developed into something

more serious, Miller said.       Miller testified that in August

2013, the CW had become his girlfriend and moved into his

apartment.    She had to move out on September 1, 2013, Miller


     5
            The CW testified that she had not received any messages from
Akanishi since the incident. Reyn Yoshinaga, a special agent with Homeland
Security, testified that no one with the name Ai Akanishi entered the U.S.
starting from the late 1990s.




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explained, and their relationship lasted until about mid-October

2013.   The defense asked Miller if he was aware the CW was

dating other men while he was dating her; the State objected as

to relevance and its objection was sustained.          The State

similarly objected to the defense’s next question, asking Miller

if he had seen the CW with other men, and again the objection

was sustained on relevancy grounds.         Defense counsel requested a

bench conference to explain the relevance of his line of

questioning.

          In the bench conference, defense counsel explained

that the defense was attempting to show that Kato did not have a

motive to stab the CW whereas Miller did.         Counsel argued that

Miller wanted to marry the CW and thus was angry and upset with

the CW for dating other men and leaving him, which resulted in

his stabbing her.    The State responded that Kato could not bring

up evidence of Miller’s motive under State v. Rabellizsa, 79

Hawaiʻi 347, 903 P.2d 43 (1995).         Counsel maintained that there

was a sufficient nexus under Rabellizsa because Miller was angry

and upset at the CW; the CW was saying that she loved Miller,

missed him, and wanted to see him, and “then she just blows him

off.”   And not only was Miller upset, counsel explained, but he

went through the CW’s phone, and he “saw these males’ names.”

The court asked defense counsel if Miller “said I’m going to



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kill [the CW]” and when counsel said that he had not, the court

stated “Rabellizsa, no nexus.”

          Following the bench conference, the defense attempted

to ask Miller if he had seen the CW with other men, prompting

Miller to request a break and the court to excuse the jury and

begin another bench conference.       The court returned to the

Rabellizsa issue.     The court evaluated some of the evidence to

determine if there was a nexus, noting that “nobody saw [Miller]

near the scene,” and “nobody says it was a Caucasian.”            Defense

counsel responded that the CW had identified her assailant as a

Caucasian to two different police officers.          The court replied,

“but there’s testimony that it’s an Asian person.”           The court

then stated that Miller was 5’10” while testimony indicated that

the person who assaulted the CW was 5’5” to 5’7”.           Defense

counsel stated that Miller’s build was similar to the person who

stabbed the CW, and that the estimates of the witnesses varied

from perception of height.      The court also stated that Miller

testified that he was not bothered now that the CW was going out

with other men.     Defense counsel again noted that Miller went

through the CW’s cell phone and saw numerous phone numbers of

males and was unhappy about her relationships with other men.

Additionally, counsel stated, on October 23, 2013, Miller told

Kato that the CW was having sex with other men.



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           Having “heard the evidence,” the court held that the

defense “had to have some nexus between the other guy and the

crime,” and that the court didn’t “see any here.”            The court

then turned to Fifth Amendment issues with regard to Miller’s

testimony.

           Prior to trial, Kato had filed a notice of intent

(Kato’s Motion in Limine #1) to introduce evidence that Miller

had physically abused Kato in May 2013, that Miller had been

arrested on June 24, 2013, for abuse of a family or household

member based on a different incident with Kato,6 and that Miller

had subsequently forced Kato to write a letter recanting her

abuse allegations.      Counsel explained that the defense would

elicit testimony that in September 2013, Miller had told Kato

that she ruined his life and that Miller had threatened to get

revenge on her for having him arrested for the abuse offense.

The defense’s theory was that David Miller set Kato up and was

the person who stabbed Kato or arranged it, defense counsel

explained to the court.




     6
            Miller was subsequently prosecuted for harassment, but the case
was dismissed without prejudice because of the prosecution’s failure to
secure a Japanese interpreter for Kato and for not providing the defense with
a 911 tape relating to the offense.




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           During a pretrial Hawaiʻi Rules of Evidence (HRE) Rule

104 hearing,7 Kato had called Miller to ask him questions

regarding (1) the evidence proffered in her Motion in Limine #1,

(2) questions relating to his relationships with Kato and the

CW, (3) questions relating to his Japanese proficiency, and (4)

questions relating to his motive to want to stab the CW.             Before

Miller testified, the defense argued that Miller should not be

allowed to take the Fifth Amendment on those questions because,

under State v. Kupihea, 80 Hawaiʻi 307, 909 P.2d 1122 (1996), the

chance of his prosecution for harassment, violations of a

temporary restraining order (TRO),8 or the CW’s stabbing was

“slim to none.”     The court did not issue a ruling, and Miller

was called to testify.

           Miller, with the assistance of court-appointed Fifth

Amendment counsel, exercised his Fifth Amendment rights in

response to defense counsel’s questions as to multiple matters.

The court ruled that Miller had properly asserted his Fifth

     7
           HRE Rule 104(a) (1993) provides, in relevant part:

           Preliminary questions concerning the qualification of a
           person to be a witness, the existence of a privilege, or
           the admissibility of evidence shall be determined by the
           court, subject to the provisions of subsection (b). In
           making its determination the court is not bound by the
           rules of evidence except those with respect to privileges.
      8
            A TRO had been issued against Miller, effective June 26, 2013, to
December 25, 2013, that prohibited any contact between Miller and Kato,
including texts, contact, and phone conversations. It was later amended to
allow them to be at the temple at the same time.



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Amendment privilege on questions regarding (1) June 24, 2013,

the date of his arrest for abuse of family or household member;

(2) any contact between himself and Kato from June 26, 2013, to

December 23, 2013, as that could expose him to liability for

violating the TRO; (3) and questions regarding his conversations

with the CW that involved Kato.        At this hearing, Miller

answered questions relating to his feelings towards the CW

before and after their relationship ended,9 his feelings about

the CW dating other men,10 and the CW’s two-day stay with Kato.11

Miller also testified that he carries a “quick release” knife

with a four-inch blade for work.

           But at trial, after Kato attempted to ask Miller if he

had seen the CW with other men, Miller’s court-appointed Fifth

Amendment lawyer12 informed the court that counsel would be

instructing Miller, for the first time, to exercise his Fifth


      9
            Specifically, Miller testified that he fell in love with the CW
and hoped to marry her, although he never communicated this to the CW.
Miller also testified that the CW told him that she loved him and would see
him soon, before she stopped contacting him. Miller explained that he was
not angry at the CW for ending their relationship.
      10
            Miller said that he wasn’t sure if the CW was seeing other men
but that he never saw her with other men. Miller also explained that he was
not upset about the CW dating men before him.
     11
            Miller stated that he told the CW not to tell Kato that he and
the CW were in a relationship. Miller also explained that the CW told him
that she never told Kato she was in a relationship with Miller.
      12
            Miller’s court-appointed counsel at the pretrial hearing and at
trial was the Office of the Public Defender, although different attorneys
appeared on his behalf at the two proceedings.



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Amendment rights to any questions that would “arguably give

[Miller] a motive to assault [the CW].”         The court then held

another HRE Rule 104 hearing during a trial recess because of

Miller’s intention to exercise the Fifth Amendment to questions

he had answered at the pretrial HRE Rule 104 hearing.            Kato

argued that Miller should be forced to testify because he had

already answered these questions with counsel present and

because, under Kupihea, the chance of Miller’s prosecution for

the stabbing of the CW was remote.

          At the trial HRE Rule 104 hearing, the court overruled

Kato’s objections and allowed Miller to invoke the Fifth

Amendment on (1) “motive related questions” because Kato was

trying to blame Miller for the crime, (2) communications he had

with Kato because “it’s going to lead directly to [Miller] fixed

[the stabbing] up, allegedly,” and (3) communications with the

CW after she moved out because it would “infer that he had

communications with [the CW] up to the 24th” of October, which

could furnish a link.     The court further permitted Miller to

exercise his Fifth Amendment rights on questions he had

previously answered, including questions relating to his

feelings towards the CW before and after their relationship

ended, Miller’s feelings about the CW dating other men, the CW’s

two-day stay with Kato, and whether he owned a knife.            The court

explained its ruling by noting that Kato was trying to blame

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Miller for the stabbing, and thus any questions about his motive

could implicate him.      The court did not rule on defense’s

contention that Miller had waived his Fifth Amendment privilege

by answering those questions at the pretrial Rule 104 hearing

with appointed counsel present, instead remarking, “when there’s

a change of lawyer, are you stuck with your old assertions of

the Fifth, or are you not?       I don’t know.”

           In light of the court’s ruling, defense counsel argued

that much of the information that would be excluded by Miller

asserting his Fifth Amendment privileges could not come out

through Kato’s testimony because it would be excluded as hearsay

statements.13    Kato’s right to a fair trial would be violated

unless Miller was considered unavailable so that his statements

could come in under HRE Rule 804, defense counsel maintained.

The court reaffirmed its rulings on Miller’s Fifth Amendment

privileges but does not appear to have ruled on Kato’s argument

that eliciting the evidence through Kato would not be viable.

           After the court’s rulings to essentially preclude all

testimony from Miller related to the incident, his prior

relations with Kato, and his relationship with the CW, the court

convened the jury, and struck all of Miller’s trial testimony

     13
            Kato originally informed the court that she would testify. The
court, in rendering its ruling allowing Miller to exercise the Fifth
Amendment, stated its assumption that Kato would be able to testify as to
what Miller had told her.



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with Kato’s consent.14      Kato exercised her right to remain silent

and did not testify; according to defense counsel, Kato made

this decision because of the court rulings regarding Miller’s

exercise of his Fifth Amendment rights.

                    B. Jury Instructions and Verdict

            During the settling of jury instructions, the court

ruled that, under Rabellizsa, Kato could not argue that Miller

stabbed the CW, but Kato could argue that someone besides her

was the person who stabbed the CW.         The court explained that

there was nothing tying Miller to the scene nor did Miller match

the physical description of the assailant provided by witnesses.

In her closing argument, Kato referenced the fact that the CW

and witnesses identified a male suspect, but, complying with the

court’s ruling, Kato did not argue that it was Miller.

            The court instructed the jury on the included offenses

of attempted murder in the second degree, including reckless

endangering in the second degree.         The jury was not instructed

on accomplice liability nor did the parties raise an accomplice

liability theory in their closing arguments.15

     14
            At the close of the State’s case, Kato moved for a judgment of
acquittal; that motion was denied.
     15
            During the discussion on the defense motion for judgment of
acquittal, the court asked if accomplice liability was “involved here.” The
State responded that “it could be” and defense counsel answered “I mean,
theoretically. But even that is a stretch. . . . So either [Kato’s] the
stabber, or she’s not. She’s an accomplice, or not.”




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            During jury deliberations, the jury asked the court if

it could “consider whether someone else aided [Kato]?”             In

response, the court told the jury, “During this trial, you

received all of the evidence which you may consider to decide

this case.    You must follow all of the court’s instructions to

you.”     The jury communicated with the court again, stating,

            After deliberating yesterday afternoon and all morning, we
            are still hung almost 50/50. One major point of confusion
            is how we interpret the legalese of the charge itself on
            page 23 of our instruction [for attempted murder in the
            second degree]. Some of us feel that [Kato] is not guilty
            because there is reasonable doubt whether [Kato] actually
            held the knife and stabbed [the CW]. Others feel that
            there is proof beyond a reasonable doubt that [Kato] took
            actions to lead [the CW] to Kaunaoa St. where someone was
            waiting to stab [the CW].

            Our question is, in layman’s terms, does the charge include
            [Kato] intentionally conspiring to have [the CW] stabbed
            without actually being the stabber?

In response to the jury’s second question, the court responded

“No.”

            The jury found Kato guilty of reckless endangering in

the second degree.16     Kato was sentenced to one year

incarceration with credit for time served, with the jail

sentence stayed pending appeal.        Kato timely appealed from the

circuit court’s March 11, 2015 Judgment of Conviction and

Sentence (judgment) to the Intermediate Court of Appeals (ICA).

     16
            HRS § 707-714(1)(a) (Supp. 2012) provides as follows: “A person
commits the offense of reckless endangering in the second degree if the
person . . . [e]ngages in conduct that recklessly places another person in
danger of death or serious bodily injury[.]”




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                         II.   ICA PROCEEDINGS

          Kato raised the following four points of error on

appeal: (1) the circuit court erred in instructing the jury on

reckless endangering in the second degree as a lesser-included

offense; (2) there was not substantial evidence for the jury to

convict Kato for reckless endangering in the second degree; (3)

the court abused its discretion in failing to compel Miller to

testify over his assertion of his Fifth Amendment privileges;

and (4) the court erred in precluding Kato from adducing

evidence that Miller had a motive to commit the crime charged.

          The State acknowledged in its answering brief that it

failed to convince the jury beyond a reasonable doubt that Kato

was the person who stabbed the CW.        The State, while noting that

the jury was not instructed on accomplice liability, asserted

that it would have been improper to do so as the State did not

present accomplice evidence.      The State argued that a reckless

endangering in the second degree verdict does not require Kato

to have been an accomplice; it merely required the State to

prove that Kato had placed the CW in danger of death or serious

bodily injury.    As to Miller’s Fifth Amendment privileges, the

State noted that it did not offer him immunity and therefore the

risk of prosecution for violations of the TRO or the CW’s

stabbing was not remote under Kupihea.         Finally, the State

argued that Kato failed to present any evidence linking Miller

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to the stabbing of the CW and thus failed to show a legitimate

tendency that Miller was the assailant.

            The ICA, in its memorandum opinion,17 stated that the

State pursued a theory that Kato was the person who stabbed the

CW, but it determined that there was substantial evidence upon

which the jury could have found Kato to be an accomplice.18

Thus, the ICA concluded that it was not error for the circuit

court to instruct on reckless endangering in the second degree,

and there was sufficient evidence to support Kato’s conviction

on this offense.

            Turning to the circuit court’s allowance of Miller’s

assertion of his Fifth Amendment privilege, the ICA noted that

the privilege applies to testimony at any proceeding if it might

tend to show the witness committed a crime.           The ICA explained

that Kato attempted to introduce evidence that would show that


      17
            The ICA’s memorandum opinion can be found at State v. Kato, No.
CAAP-XX-XXXXXXX, 2019 WL 1253370 (App. Mar. 19, 2019) (mem.).
      18
            The ICA ruling on this issue states as follows:

            In this case, there was substantial evidence upon which the
            jury could have concluded that Kato, pretending to be
            someone named “Ai Akanishi,” used the LINE application to
            lure [the CW] to the Kaunaʻoa Street address where someone -
            who may or may not have been Kato herself - was waiting
            there to stab her. Jury Communication No. 2 bears this
            out, as does the extremely short time - twelve minutes -
            between the Circuit Court answering the jury’s question and
            the return of the verdict.

(Emphasis added.)




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Miller violated a TRO, violation of which was still subject to

prosecution at the time of the pretrial motions and trial, as

well as evidence that could “furnish a link in the chain of

evidence needed to prosecute him” for the CW’s stabbing.

Accordingly, the ICA held that the court did not abuse its

discretion when it did not compel Miller to answer questions

after he invoked his Fifth Amendment right against self-

incrimination.

          In evaluating whether the circuit court erred in

precluding evidence of Miller’s motive to attack the CW, the ICA

stated that, in order to introduce evidence that a third person

committed the crime, there must be a nexus between the third

person and the commission of the crime, motive evidence alone

would be irrelevant and collateral. (Citing State v. Rabellizsa,

79 Hawaiʻi 347, 349-50, 903 P.2d 43, 45-46 (1995)).           The ICA

recited certain evidence proffered, namely that the CW described

her attacker as a non-native speaker of Japanese and a Caucasian

male with a height between 5’4” to 5’8” tall, and weighed the

evidence implicating Kato and tending to show that Miller was

not the stabber.    The ICA noted that there was no evidence

connecting Miller to the LINE app or to messages sent by “Ai

Akanishi,” nor was there evidence that Miller had access to

Kato’s phone.    After evaluating the evidence, the ICA held that

the evidence proffered did not have a legitimate tendency to

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show that Miller was the person who stabbed CW or that he framed

Kato for the attack.       Thus, the ICA held that the circuit court

did not err in precluding Kato from eliciting evidence of

Miller’s alleged motive to murder the CW, the ICA held.

           The ICA accordingly affirmed the judgment of the

circuit court.    Kato timely filed an application for writ of

certiorari, which this court accepted.

                    III.     STANDARDS OF REVIEW

                           A. Evidentiary Rulings

           The standard employed when reviewing the admissibility

of evidence varies with the particular evidentiary rule at

issue.   State v. West, 95 Hawaiʻi 452, 456, 24 P.3d 648, 652

(2001) (citing Kealoha v. Cty. of Haw., 74 Haw. 308, 319, 844

P.2d 670, 676 (1993)).       When a rule is amenable to objective

application such that it can result in only one correct answer

in a given situation, the lower court’s application of the rule

is reviewed under the right/wrong standard.          Id.   The evaluation

of whether evidence is “relevant” within the meaning of HRE Rule

401 (1993) falls into this category of determinations, and we

are thus not required to give weight to the trial court’s

application of the rule.       State v. St. Clair, 101 Hawaiʻi 280,

286, 67 P.3d 779, 785 (2003).




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                    B. Sufficiency of the Evidence

          Appellate courts review the sufficiency of the

evidence at trial for “substantial evidence.”          State v. Kalaola,

124 Hawaiʻi 43, 49, 237 P.3d 1109, 1115 (2010).          Substantial

evidence in this context is defined as “credible evidence which

is of sufficient quality and probative value to enable a person

of reasonable caution to support a conclusion.”          Id.   Evidence

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.

State v. Batson, 73 Haw. 236, 248, 831 P.2d 924, 931 (1992).

     C. Fifth Amendment Privilege Against Self-Incrimination

          “Whether a trial court should compel a witness to

testify over the witness’s assertion that his answer might tend

to incriminate him or her is a matter within the sound exercise

of its discretion, and is thus reviewed for an abuse of

discretion.”   State v. Kupihea, 80 Hawaiʻi 307, 312, 909 P.2d

1122, 1127 (1996) (citation omitted).

                          D. Jury Instructions

          The propriety of jury instructions, or their omission,

is a question of law reviewed de novo using the following

standard: “[w]hether, when read and considered as a whole, the

instructions given are prejudicially insufficient, erroneous,

inconsistent, or misleading.”       State v. Bovee, 139 Hawaiʻi 530,

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537, 394 P.3d 760, 767 (2017) (quoting State v. Frisbee, 114

Hawaiʻi 76, 79, 156 P.3d 1182, 1185 (2007)); Kobashigawa v.

Silva, 129 Hawaiʻi 313, 320, 300 P.3d 579, 586 (2013).

                            IV.   DISCUSSION

    A. The Circuit Court Erred in Precluding the Defense from
   Adducing Third-Party Culpability Evidence that Miller Was the
                    Person Who Assaulted the CW.

            Kato contends that there was sufficient evidence under

State v. Rabellizsa, 79 Hawaiʻi 347, 903 P.2d 43 (1995), to show

a legitimate tendency that Miller was the person who committed

the stabbing, and thus the court erred in not allowing her to

elicit testimony about Miller’s motive to assault the CW with a

knife.

            In Rabellizsa, this court considered as a matter of

first impression the admissibility of “evidence of a third

person’s motive to commit the crime for which the defendant was

charged.”   79 Hawaiʻi at 350, 903 P.2d at 46.        The Rabellizsa

court, citing a series of cases from other jurisdictions, noted

that generally motive alone is not sufficient to establish

relevance; rather, there must be a “nexus between the proffered

evidence and the charged crime.”         Id. (quoting Winfield v.

United States (Winfield I), 652 A.2d 608, 613 (D.C. 1994)

(stating that evidence must “clearly link” a third party to the

commission of the crime)).



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          The court in Rabellizsa quoted from People v. Green,

which held that, to be admissible, a third party’s motive to

commit the crime “must be coupled with substantial evidence

tending to directly connect that person with the actual

commission of the offense.”      Id. (quoting 609 P.2d 468, 480

(Cal. 1980)).    This court stated that the California Supreme

Court “[f]ollowing Green,” held in People v. Hall that “there

must be direct or circumstantial evidence linking the third

person to the actual perpetration of the crime.”           Id. (emphasis

omitted) (quoting 718 P.2d 99, 104 (Cal. 1986)).

          The Rabellizsa court additionally cited State v.

Denny, wherein the Wisconsin Court of Appeals held that, for

third-party culpability evidence to be admissible, “there must

be a ‘legitimate tendency’ that the third person could have

committed the crime.”     Id. (quoting 357 N.W.2d 12, 17 (Wis. Ct.

App. 1984) (requiring a defendant to show motive, opportunity,

and “some evidence to directly connect a third person to the

crime charged which is not remote in time, place or

circumstances” for the evidence to be admissible)).

          In light of the authority that it had reviewed, the

Rabellizsa court adopted Denny’s “legitimate tendency” test,

stating that it “comports with the relevancy test set forth in

HRE Rule 401.”    Id. at 351, 903 P.2d at 47.        Thus, while this

court recognized the applicability of HRE Rule 401 to the

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admissibility of third-party culpability evidence, such evidence

was additionally required to meet a “legitimate tendency” test.

Id.   Although the court in Rabellizsa did not specifically

define the “legitimate tendency” test, our trial and appellate

courts in applying the test have frequently required the

defendant, when offering third-party culpability evidence, to

meet varying standards, such as by showing “substantial

evidence” or “direct evidence” that the third party is “directly

connected,” “clearly linked,” or has a “nexus” to the commission

of the charged offense.”19       Here, the circuit court, as part of

its ruling on the admissibility of the third-party culpability

evidence, stated that, “But I don’t know if that’s a nexus.                  I

mean nobody saw [Miller] near the scene” and that under

“Rabellizsa, no nexus.”

            In the 25 years since Rabellizsa was decided, almost

all of the decisions underlying our holding in Rabellizsa have

been clarified or modified by subsequent caselaw in those


      19
             See, e.g., State v. Griffin, 126 Hawaiʻi 40, 54, 266 P.3d 448, 462
(App. 2011) (quoting Rabellizsa as holding that “there must be a nexus
between the proffered evidence and the charged crime” and that third-party
motive “must be coupled with substantial evidence tending to directly connect
that person with the actual commission of the offense”); State v. Peralto, 95
Hawaiʻi 1, 3 n.1, 18 P.3d 203, 205 n.1 (2001) (holding there was no trial
error relating to any alternative theory of the crime absent “evidence to
directly connect [a third party] to the crime charged” that is not remote in
time, place or circumstances (quoting Rabellizsa, 79 Hawaiʻi at 350, 903 P.2d
at 46)); State v. Kato, No. CAAP-XX-XXXXXXX, 15-17 (quoting Rabellizsa’s
recitation of the standard set forth in People v. Green).




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jurisdictions.     It is therefore appropriate to reassess our

continuing application of the “legitimate tendency” test.

            Initially, it is noted that the Rabellizsa court, in

the beginning of its analysis, set forth the following: “As

stated in People v. Green” and then quoted its standard for the

admission of third-party culpability evidence.           Rabellizsa, 79

Hawai’i at 350, 903 P.2d at 46 (quoting Green, 609 P.2d at 480).

Immediately after the quotation, the Rabellizsa court stated:

“Following Green, the California Supreme Court held that” and

then quoted from People v. Hall.          Id. (quoting Hall, 718 P.2d at

104).     However, the Hall court had overruled the Green standard

and held that it was “not to be followed.”          Hall, 718 P.2d at

104 n.3.    The Rabellizsa court did not reference the overruling

of Green, and although it did not adopt the test set forth in

Green, the passage quoted in the Rabellizsa decision has been

followed or quoted in subsequent Hawaiʻi cases that have cited

Rabellizsa.20    Further, the California Supreme Court in Hall, in

     20
            The quoted passage states as follows:

     It is settled . . . that evidence that a third person had a motive to
     commit the crime with which the defendant is charged is inadmissible if
     it simply affords a possible ground of suspicion against such person;
     rather, it must be coupled with substantial evidence tending to
     directly connect that person with the actual commission of the offense.
     . . . The rule is designed to place reasonable limits on the trial of
     collateral issues . . . and to avoid undue prejudice to the People from
     unsupported jury speculation as to the guilt of other suspects . . . .

Rabellizsa, 79 Hawaiʻi at 350, 903 P.2d at 46 (emphasis added) (alterations in
original) (quoting Green, 609 P.2d at 480). The underlined clause was
                                                             (continued . . .)


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articulating a requirement that a defendant present direct or

circumstantial evidence linking the third person to the

commission of the crime, stressed that “courts should simply

treat third-party culpability evidence like any other evidence:

if relevant it is admissible (§ 350) unless its probative value

is substantially outweighed by the risk of undue delay,

prejudice, or confusion (§ 352).”         Id. at 104 (emphasis added).21

            Rabellizsa also relied on Winfield I to establish that

there “must be a nexus between the proffered evidence and the

charged crime.”     Rabellizsa, 79 Hawaiʻi at 350, 903 P.2d at 46

(internal quotations omitted) (quoting Winfield I, 652 A.2d at

613).   But upon rehearing en banc in the same case, the D.C.

Court of Appeals made clear that the test for relevance for

third-party culpability evidence is the same test as for any


(. . . continued)

applied, for example, by the ICA in State v. Griffin and nearly quoted in
full by the ICA in this case. See supra note 19.
      21
            California Evidence Code (Cal. Evid. Code) § 350 (1967) provides
that “No evidence is admissible except relevant evidence.”

            Cal. Evid. Code § 210 (1967) states that “‘Relevant evidence’
means evidence, including evidence relevant to the credibility of a witness
or hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.”

            Cal. Evid. Code § 352 (1967) provides as follows: “The
court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the
jury.”




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other crime, noting that it had “explicitly tied the relevance

standard to the usual meaning of that concept.”          Winfield v.

United States (Winfield II), 676 A.2d 1, 4 (D.C. 1996).

Further, the court in Winfield II concluded “that the phrase

‘clearly linked’ is unhelpful and should be discarded from our

lexicon of terms governing the admissibility of third-party

perpetrator evidence.”     Id. at 3.     The court explained that “[a]

requirement that evidence ‘tend to indicate some reasonable

possibility that a person other than the defendant committed the

charged offense’ sufficiently accommodates” the concern about

distracting the jury from the issue of the defendant’s guilt.

Id. at 5 (first emphasis added) (citations omitted).

          The court in Winfield II noted that a trial judge

could exclude evidence of third-party motivation “unattended by

proof that the party had the practical opportunity to commit the

crime, including at least inferential knowledge of the victim’s

whereabouts.”   Id.   However, the court explained that a

defendant did not need to place the third-party at or near the

murder scene at the relevant time given the “combined force of

the proffered circumstances.”       Id. at 6; accord Johnson v.

United States, 136 A.3d 74, 80 (D.C. 2016) (holding that

“practical opportunity” in the third-party culpability context

did not require proof actually placing the third party at or

near the crime scene).     The court also cautioned that “the trial

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court must resolve close questions of admissibility in [third-

party culpability cases] in favor of inclusion, not exclusion,”

because “[u]nduly restricting admission of third-party

perpetrator evidence would raise concerns of unequal

treatment.”22    Winfield II, 676 A.2d at 6-7; accord Turner v.

United States, 116 A.3d 894, 917 (D.C. 2015) (“[C]lose questions

of admissibility should be resolved in favor of inclusion, not

exclusion.”).

           The “legitimate tendency” analysis applied by the

Wisconsin Supreme Court in Denny has also been revisited by that

court because “it does not provide complete clarity as to the

meaning and contours of two of its prongs.”           State v. Wilson,

864 N.W.2d 52, 64 (Wis. 2015).23        While the Wilson court

reaffirmed the use of the Denny test in evaluating the

admissibility of third-party culpability evidence, it also

concluded that the “ambiguity” in the three prongs of the

“legitimate tendency” test is “understandable in light of the



     22
            Justice Nakayama’s dissent (dissent) states that the Winfield II
court reaffirmed the holding of Beale v. United States, 465 A.2d 796, 803
(D.C. 1983), cert. denied, 465 U.S. 1030 (1984), as it relates to third party
culpability evidence. Dissent at 28 n.26. However, the Winfield II court
specifically stated, “To the extent our decisions in Brown [v. United States,
409 A.2d 1093 (D.C. 1979)], Beale, and later cases, e.g., Watson v. United
States, 612 A.2d 179, 182 (D.C. 1992), impose a more exacting standard of
relevance [than FRE 401], we disavow them.” Winfield II, 676 A.2d at 5.
      23
            The Denny “legitimate tendency” test requires third-party
culpability evidence to show three prongs: (1) motive, (2) opportunity, and
(3) a direct connection to the crime. Wilson, 864 N.W.2d at 64-67.



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multitude of fact situations in which the Denny test may be

employed.”      Id.   In addition to the Wilson court’s

clarifications to the “legitimate tendency” test, the Wisconsin

Supreme Court has also curtailed its application in other

contexts:

             If we were to apply Denny’s legitimate tendency test to
             unknown, third-party evidence, the bright line test
             established in Denny would be rendered meaningless . . . .
             [W]e hold that the test is not applicable to the
             introduction of allegedly similar crime evidence that is
             committed by an unknown third party.

State v. Scheidell, 595 N.W.2d 661, 668 (Wis. 1999) (determining

that the standard for admissibility of similar crime evidence

would be governed by other crimes, wrongs, or acts evidence).

The Scheidell court opined that a defendant simply could not

establish a plausible motive for an unknown defendant and thus

would face “an insurmountable barrier to admissibility.”               Id. at

668.    The Wisconsin Supreme Court further determined that the

“legitimate tendency” test would also not apply to “frame-up

evidence,” i.e., evidence that the defendant was being framed

for the crime.        State v. Richardson, 563 N.W.2d 899, 903 (Wis.

1997).     Finally, even prior to our holding in Rabellizsa, the

Wisconsin Supreme Court had determined that proffered third-

party culpability evidence “must connect that person to the




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crime, either directly or inferentially.”          Michael R.B. v.

State, 499 N.W.2d 641, 646 (Wis. 1993) (emphasis added).24

             The Hawaiʻi Rules of Evidence “govern proceedings in

the courts of the State of Hawaii.”         HRE Rule 101 (1993).       We

have explained that “the basic precondition for admissibility of

all evidence is that it is relevant as that term is defined in

HRE Rule 401.”     Medeiros v. Choy, 142 Hawaiʻi 233, 245, 418 P.3d

574, 586 (2018) (quotations, alterations, and emphasis omitted)

(citing Commentary to HRE Rule 402 (1980)).           HRE Rule 401

defines “relevant evidence” as “evidence having any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.”         In Rabellizsa, this court

stated that “we are persuaded that the ‘legitimate tendency’

test comports with the relevancy test set forth in HRE Rule

401.”     79 Hawaiʻi at 351, 903 P.2d at 47.       However, requiring a

defendant to satisfy a “legitimate tendency” test to admit


     24
            The dissent asserts that Richardson would not apply here because
Kato was able to introduce, through Mochizuki’s testimony, evidence of the
note she argued Miller used to frame her. Dissent at 30 n.27. Kato’s
defense was that Miller committed the crime and framed her by luring her to
the crime scene by the note left at her door; however the circuit court
precluded her from arguing this defense to the jury. The dissent also argues
that this opinion does not consider language from Michael R.B. that
distinguishes “inferential” from “speculative connection.” Dissent at 30
n.27. On the contrary, we simply note that Michael R.B. does not require a
defendant to show a direct connection, but rather allows the defendant to
present third-party culpability evidence that inferentially connects the
third party to the crime.



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third-party culpability evidence exceeds the “any tendency”

threshold of HRE Rule 401, and thus the test is not fully

consistent with the Hawaiʻi Rules of Evidence.

            Accordingly, we hold that the threshold for

admissibility of third-party culpability evidence should be

understood as applying the same relevancy test that is applied

for all other evidence, whether it is offered by the State or by

the defendant.    HRE Rule 401; accord Hall, 718 P.2d at 104

(“[C]ourts should simply treat third-party culpability evidence

like any other evidence: if relevant it is admissible [] unless

its probative value is substantially outweighed by the risk of

undue delay, prejudice, or confusion [].”); Winfield II, 676

A.2d at 4 (noting that it had “explicitly tied the relevance

standard to the usual meaning of that concept” for third-party

culpability evidence); Gray v. Commonwealth, 480 S.W.3d 253, 267

(Ky. 2016) (“At its heart, the critical question for [a third-

party culpability theory of defense] is one of relevance:

whether the defendant’s proffered evidence has any tendency to

make the existence of any consequential fact more or less

probable.    And the best tool for assessing the admissibility of

[third-party culpability] evidence is the Kentucky Rules of

Evidence.” (footnote omitted)); State v. Gibson, 44 P.3d 1001,

1004 (Ariz. 2002) (en banc) (“Rules 401, 402, and 403, Arizona

Rules of Evidence, set forth the proper test for determining the

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admissibility of third-party culpability evidence.”); People v.

Primo, 753 N.E.2d 164, 168 (N.Y. 2001) (“‘Clear link’ and

similar coinages, however, may be easily misread as suggesting

that evidence of third-party culpability occupies a special or

exotic category of proof.       The better approach, we hold, is to

review the admissibility of third-party culpability evidence

under the general balancing analysis that governs the

admissibility of all evidence.”); Tibbs v. State, 59 N.E.3d

1005, 1011 (Ind. Ct. App. 2016) (“Evidence which tends to show

that someone else committed the crime makes it less probable

that the defendant committed the crime and is therefore relevant

under [Evidence] Rule 401” (alteration in original)).

            Thus, when a defendant seeks to introduce third-party

culpability evidence, the defendant must initially clear no

higher hurdle than that set by HRE Rule 401.25           The lack of a

“direct” link does not mean that the evidence is not relevant

under HRE Rules 401.      A defendant need not place the third party

at or near the scene of the crime; it is sufficient for

      25
            To the extent that Rabellizsa and any other decision of this
court or the ICA have held that defendants must show that the third-party is
“directly connected to the commission of the charged offense” or that the
third party has a “nexus” or “direct link” to the offense, such tests are
superseded by this opinion. See Rabellizsa, 79 Hawaiʻi at 350-51, 903 P.2d at
46-47; Peralto, 95 Hawaiʻi at 2 n.1, 18 P.3d at 204 n.1. Likewise, we reject
the formulation set forth in Griffin, 126 Hawaiʻi at 54, 266 P.3d at 462, that
evidence of third-party motive “must be coupled with substantial evidence
tending to directly connect that person with the actual commission of the
offense,” as inconsistent with HRE Rule 401.




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relevancy considerations that the defendant has provided direct

or circumstantial evidence tending to show that the third person

committed the crime.       See HRE Rule 401.      Further, we agree with

the Washington D.C. Court of Appeals that a trial court should

resolve a close question of admissibility in favor of the

defendant.     Winfield II, 676 A.2d at 6-7.

            In this case, significant evidence was presented that

had a tendency to show that Miller was the person who committed

the offense against the CW.        Three different witnesses, the CW,

Morie, and Mosher testified that they saw a male either stab or

chase the CW.     Officer Locey believed, based on the CW’s

statements in the coffee shop, that he was looking for a

Caucasian male.      At trial, the CW explained that her assailant

spoke poor Japanese.       Kato proffered evidence that Miller was a

Caucasian male, a non-native speaker of Japanese, and close in

height to the person who did the stabbing as described by the

CW.   The CW was stabbed with a knife; Kato showed that Miller

carried a “quick release” knife for work, which indicates his

access to and familiarity with knives.           Through Mochizuki’s

testimony, Kato showed that Miller was together with Kato

immediately before the offense.         Also through Mochizuki, Kato

established her suspicions that Miller arranged to have her near

the crime scene through the note she believed he had written.

From Morie’s testimony it can be inferred that Miller was likely

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the man called shortly after the CW was stabbed and that when he

told Morie that he would retrieve the phone, Kato arrived

instead.   This gives rise to a strong inference that Miller was

in direct contact with Kato shortly after the CW was stabbed.

           Additionally, based on Miller’s testimony at the

pretrial Rule 104 hearing, Kato showed that Miller had

previously dated the CW, wanted to marry her, and had not wanted

to end his relationship with the CW.        Further, the defense

proffered that Kato’s testimony would show Miller had gone

through the CW’s phone and found text messages to other men and

told Kato about this on October 23, 2013, that he informed Kato

the CW was having sex with other men, and that he was “angry and

upset at [the CW].”     Miller’s testimony and the defense’s

proffer underscored Miller’s anger toward CW and provided a

motive for him to want to physically assault the CW.           Also, at

the pretrial HRE Rule 104 hearing, defense counsel stated that

Kato was prepared to testify that she believed Miller was

setting her up in revenge for ruining his life by having him

arrested for physically assaulting her.

           The proffered evidence had a tendency, either directly

or circumstantially, to implicate Miller as the person who




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stabbed the CW.26     In fact, the evidence at trial alone so

strongly indicated that Miller was the perpetrator of the

stabbing that this course of events is manifested in the jury

communications to the court, acknowledged by the State in its

answering brief, recognized by the ICA in its memorandum

opinion, and reflected in the jury’s verdict.27           Applying HRE

Rule 401, there was ample evidence that had a tendency to show

that Miller was the person who assaulted the CW, which

indisputably was a fact of consequence to the determination of

the action.    Further, the evidence adduced also readily

satisfied the “legitimacy tendency” test applied by the circuit

court and was improperly excluded on this basis.28


     26
            The evidence also allows an inference that Kato and Miller were
working in tandem, with Miller committing the stabbing and Kato aiding Miller
in committing the offense.
     27
            As stated, the jury specifically asked the court whether it could
“consider whether someone else aided [Kato],” and they were told in response
to follow the court’s instructions. The jury next informed the court that
“there is reasonable doubt whether [Kato] actually held the knife and stabbed
[the CW]” and that “others feel that there is proof beyond a reasonable doubt
that [Kato] took actions to lead [the CW] to Kaunaoa St. where someone was
waiting to stab [the CW].” The jury then asked “does the charge include
[Kato] intentionally conspiring to have [the CW] stabbed without actually
being the stabber?” The court responded “no” to the jury’s second question.
            Also, as noted, the State acknowledged in its answering brief
that it had “failed to prove beyond a reasonable doubt that [Kato] was the
stabber and inflicted bodily injury upon [the CW].” Likewise, the ICA noted
that someone other than Kato might have been the CW’s assailant.
     28
            The dissent cites other evidence in the record that, in its view,
refutes the relevancy of the third-party culpability evidence: for example,
Miller said that he was not angry when the CW stopped contacting him, he
never spoke to her about marriage, and he did not find out that the CW was
seeing other men during or after their relationship. Dissent at 35 n.33.
But it is not the trial court’s responsibility in determining the relevancy
                                                             (continued . . .)


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            Once a defendant has cleared the threshold of HRE Rule

401, the court must still evaluate whether the proffered

evidence is “substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”         HRE Rule 403 (1993).

            In this case, the probative value of the proffered

evidence was indisputably not substantially outweighed by the

danger of unfair prejudice, confusion of the issues, misleading

the jury, or by considerations of undue delay or waste of time.

See HRE Rule 403.     The excluded evidence was of fundamental

importance to the jury in its determination of the charge in

this case and deprived Kato of a fair trial.           The circuit court

erred in precluding Kato from introducing third-party

culpability evidence and in foreclosing defense counsel from

arguing in closing argument that Miller assaulted the CW or

framed Kato for the attack.       The error prejudicially affected


(. . . continued)

of evidence to weigh conflicting evidence, whether such evidence is in the
form of testimony or an offer of proof. Additionally, the dissent concludes
that “Miller, at 5’10”, is much taller than the suspect.” Dissent at 33.
However, the CW on the night of the incident told Officer Trevino, who was
Japanese speaking, the height of her attacker in centimeters, which the
officer converted to 5’9”. Further, Mosher testified that the suspect was
5’6” to 5’8”. Again, as further discussed in Part IV.B, infra, it is not the
function of the trial court to resolve such factual disputes in determining
the admissibility of third-party culpability evidence.




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Kato’s right to present her defense and to a fair trial, and it

was clearly not harmless beyond a reasonable doubt. See State v.

DeLeon, 143 Hawaiʻi 208, 218-19, 426 P.3d 432, 442-43 (2018)

(holding trial court’s exclusion of specific instances of

victims’ prior violent acts when there was actual dispute as to

who was the first aggressor was not harmless error).29

  B. The Circuit Court and the ICA Improperly Weighed the Third-
            Party Culpability Evidence Proffered by Kato.

           Both the circuit court and the ICA, in reaching the

erroneous conclusion to exclude third-party culpability

evidence, improperly weighed the evidence offered by the defense

to support its admission.       During pre-trial hearings and at

trial, Kato proffered evidence that Miller was a Caucasian male,

a non-native speaker of Japanese, and was 5’10”.            Kato also

elicited testimony from witnesses that the CW’s assailant was a

Caucasian male, a non-native speaker of Japanese, and around

     29
            The dissent misapprehends the holding of this opinion, contending
that our decision would allow “third-party motive evidence alone” to
establish relevancy. Dissent at 2, 26, 33. Instead, our opinion applies HRE
Rule 401’s relevancy standard to proffered third-party culpability evidence
in the same manner as that rule applies to all other evidence. It rejects
the higher burden adopted in Rabellizsa, which is not consistent with the
Hawaiʻi Rules of Evidence. Evaluating the admissibility of third-party
culpability evidence under HRE Rules 401 and 403 is not a “flimsy standard,”
as characterized by the dissent, dissent at 32, as emphatically demonstrated
by HRE Rules 401 and 403’s uniform applicability to all other forms of
evidence and upon which our courts rely upon to provide fair and efficient
trials. Finally, the dissent maintains that it is disingenuous for this
opinion to not cite other jurisdictions that have held third-party motive is
relevant only when there is additional evidence to connect the third person
to the crime. Dissent at 26-27. As stated, we do not hold that evidence of
a third party’s motive on its own will ipso facto allow admissibility of such
evidence, instead HRE Rule 401 and Rule 403 govern.



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5’7” to 5’9” in height.       In explaining its ruling to deny the

admission of the third-party culpability evidence, the circuit

court stated that no one saw Miller at the scene, there was

testimony that the assailant was Asian while Miller is

Caucasian, Miller was not bothered by seeing the CW with other

men, and Miller was around 5’10” tall.         Similarly, in affirming

the circuit court’s ruling that Kato’s proffered evidence did

not show that Miller committed the crime, the ICA stated that

the CW would have recognized Miller’s voice if he was the

assailant, Miller was not connected to the LINE app, no evidence

showed that Miller had possession of Kato’s phone, and Kato gave

an inconsistent story to her roommate about losing her phone.

          In Holmes v. South Carolina, the United States Supreme

Court considered an evidentiary rule adopted in South Carolina

caselaw that excluded third-party culpability evidence “where

there is strong evidence of [a defendant’s] guilt, especially

where there is strong forensic evidence.”         547 U.S. 319, 329

(2006) (alteration in original).         The Supreme Court noted that,

under South Carolina’s rule, “if the prosecution’s case is

strong enough, the evidence of third-party guilt is excluded

even if that evidence, if viewed independently, would have great

probative value[.]”     Id.    The Court observed that the logic of

South Carolina’s rule required evaluating the State’s evidence,

which cannot be done without making the type of factual findings

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of credibility and reliability of the evidence, traditionally

reserved for the trier of fact.          Id. at 330.

             Just because the prosecution’s evidence, if credited, would
             provide strong support for a guilty verdict, it does not
             follow that evidence of third-party guilt has only a weak
             logical connection to the central issues in the case.

Id.    Without considering challenges to the reliability of the

State’s evidence, the Supreme Court held that “no logical

conclusion” could be reached regarding the strength of the

defense’s evidence, nor could the State’s evidence be accurately

assessed, especially when the State’s evidence had not been

conceded.      Id. at 331.    The Court hypothesized that an inverse

rule, i.e., one requiring the State to show that its evidence

against the defendant is not countered by evidence showing that

the defendant is not guilty, would be equally illogical.               Id. at

330.

             The Holmes court concluded that basing the

admissibility of a defendant’s third-party culpability evidence

solely on the strength of the State’s evidence is “arbitrary,”

and does not “rationally serve” the goal of third-party

culpability rules.       Id. at 330-31.      Thus, the Supreme Court held

that South Carolina’s rule violated a defendant’s right in a

criminal case to have a “meaningful opportunity to present a

complete defense.”       Id. at 331.

             The very concern raised in Holmes, namely the ability

of a defendant to introduce third-party culpability evidence on

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its own merit, was present in this case.          Here, the circuit

court and the ICA, when evaluating whether Kato’s proffered

evidence and the evidence adduced during trial had a “legitimate

tendency” to show that Miller was the person who assaulted the

CW, both incorrectly weighed and relied on evidence tending to

show that Miller was not the assailant.

            The circuit court credited the State’s evidence

showing that the assailant was female, Asian, and shorter than

Miller.30   In so crediting the State’s evidence, the circuit

court necessarily determined that Kato’s evidence showing that

the assailant was male, white, around the same height as Miller,

and spoke poor Japanese and was a nonnative speaker of Japanese

was not credible.     The ICA similarly evaluated the State’s

evidence, crediting Miller’s testimony that he had not used the

LINE app and determining that Miller was not the CW’s assailant

because the CW would have recognized him.          In so concluding, the

ICA necessarily gave no weight to Kato’s proffered evidence that

Miller had access to her phone and thus her LINE app, ignored

the CW’s testimony that Kato was not the individual who stabbed

her and that the assailant was not a native Japanese speaker,
     30
            The circuit court also credited Miller’s testimony that he was
not upset at the CW despite (1) Miller’s testimony that he had wanted to
marry the CW and that she just stopped contacting him without telling him
that they were officially breaking up, and (2) proffered defense evidence
that Miller had found text messages to other men on the CW’s phone, Miller
knew she was having sex with other men, and Miller was upset and angry at the
CW.



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and rejected all the evidence from witnesses whose description

of the assailant did not match Kato.        Because much of the

State’s evidence was not conceded and by selectively crediting

evidence, the circuit court and the ICA made determinations that

should have been reserved to the jury for its consideration.

Holmes, 547 U.S. at 330; see also State v. Aplaca, 96 Hawaiʻi 17,

25, 25 P.3d 792, 800 (2001) (holding that the circuit court

erred by not submitting the question of the victim’s age and the

defendant’s knowledge of the victim’s age to the jury); State v.

Tamura, 63 Haw. 636, 637-38, 633 P.2d 1115, 1117 (1981) (per

curiam) (“The jury, as the trier of fact, is the sole judge of

the credibility of witnesses or the weight of the evidence.”).

          When a court excludes a defendant’s third-party

culpability evidence based solely on the weight of the State’s

evidence tending to show that there was not a third-party

perpetrator, its decision arbitrarily excludes such evidence and

violates a defendant’s right to have a “meaningful opportunity

to present a complete defense.”       Holmes, 547 U.S. at 331.

Because the circuit court and the ICA impermissibly rejected

Kato’s proffered evidence based on the State’s contested

evidence that Miller did not match the height, race, sex, and

Japanese fluency of the assailant, each court erred in the

manner that it evaluated the admissibility of the third-party

culpability evidence.     The circuit court’s error in excluding

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the evidence prejudicially affected Kato’s right to a fair trial

and was not harmless beyond a reasonable doubt.           See State v.

Pulse, 83 Hawaiʻi 229, 248, 925 P.2d 797, 816 (1996) (holding

that the exclusion of competent testimony that infringed upon a

constitutional right of the accused was presumptively

prejudicial and was not harmless error).31

  C. The Circuit Court Utilized the Proper Standard and Did Not
  Abuse Its Discretion in Evaluating Miller’s Invocations of His
                     Fifth Amendment Privilege.

            Article I, section 10 of the Hawaiʻi Constitution,

which is virtually identical to the Fifth Amendment to the

United States Constitution,32 provides in pertinent part that “no

person shall . . . be compelled in any criminal case to be a

witness against oneself” (Fifth Amendment privilege).             Haw.

Const. art. I, § 10.      The Fifth Amendment privilege applies to

any testimony an individual gives, whether at the person’s own


     31
            The dissent argues that the circuit court and the ICA did not
selectively credit the State’s evidence and that this opinion relies on
defense counsel’s offer of proof instead of evidence in the record. Dissent
at 35 n.34. The evidence was not in the evidentiary trial record because the
circuit court excluded it after improperly weighing the State’s evidence
against the defense’s proffer. The requisite record for admission of the
evidence was established in accordance with HRE Rule 103(a)(2) (Supp. 2012),
which provides as follows: “In case the ruling is one excluding evidence, the
substance of the evidence was made known to the court by offer or was
apparent from the context within which questions were asked.” Kato’s counsel
stated to the circuit court the underlying bases for the admissibility of the
third-party culpability evidence.

     32
            The Fifth Amendment to the United States Constitution provides in
relevant part, “No person shall . . . be compelled in any criminal case to be
a witness against himself[.]” U.S. Const. amend. V.




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criminal proceedings or at the proceeding of another.             State v.

Kupihea, 80 Hawaiʻi 307, 313, 909 P.2d 1122, 1128 (1996).

            In evaluating the extent of a witness’s Fifth

Amendment privilege, this court has stated that the privilege

does not protect against “remote possibilities [of future

prosecution] out of the ordinary course of law” but is instead

“confined to instances where the witness has reasonable cause to

apprehend danger from a direct answer.”          Kupihea, 80 Hawaiʻi at

313, 909 P.2d at 1128 (alteration in original) (first quoting

Territory of Hawaii v. Lanier, 40 Haw. 65, 72 (Haw. Terr. 1953);

and then quoting Hoffman v. United States, 341 U.S. 479, 486

(1951)).    The privilege against self-incrimination “extends not

only to answers that would in themselves support a conviction,

but to those that would furnish a link in the chain of evidence

needed to prosecute.”      Id. at 313, 909 P.2d at 1128 (quoting

Lanier, 40 Haw. at 72).

            Kato argues that the circuit court incorrectly used a

“possibility of prosecution standard” in assessing Miller’s

invocation of the privilege instead of the “reasonable cause to

apprehend danger from a direct answer” standard.33           Kato also

contends that there was no indication that the State would

charge Miller for the CW’s stabbing or prosecute Miller for the
     33
            Although we resolve this case on other grounds, we address this
issue in light of the possibility that it may arise again on retrial.



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abuse charge or any TRO violations, and thus he should not have

been permitted to exercise his Fifth Amendment rights.

          During the HRE Rule 104 hearing at trial, the circuit

court allowed Miller to exercise his Fifth Amendment privilege

on questions regarding his previous relationship with Kato and

his communications with her from August to October 2013, because

Miller could still be prosecuted for the abuse charge as it was

dismissed without prejudice and could be charged with violating

the TRO as it did not expire until December 25, 2013.            The court

also allowed Miller to invoke the privilege with regard to

questions that could have shown that Miller was angry at the CW

for ending their relationship or dating other men and relating

to communications he had with the CW after the end of their

relationship that would show he knew the whereabouts of the CW.

The court stated that answering questions about communications

with Kato was going to “lead directly to” Miller arranging the

stabbing and that answering questions about post-relationship

communications with the CW would show that he knew her

whereabouts near the time of the incident, which would furnish a

link in the chain of prosecution.

          Thus, the circuit court applied the correct legal

standard in assessing Miller’s invocation of the Fifth Amendment

privilege.   The court also did not abuse its discretion in

concluding that Miller had reasonable cause to apprehend danger

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from answers to questions regarding his previous relationship

with Kato and communications with Kato from August to October

2013, as Miller was still subject to prosecution for the abuse

incident and for violation of the TRO.          Additionally, the court

did not abuse its discretion in concluding that answers

regarding motive to harm the CW and communications with the CW

after the end of their relationship may have furnished a link in

a chain of prosecution by showing that Miller had the motive and

opportunity to assault the CW.        Accordingly, the circuit court

did not err in its rulings on Miller’s exercise of his Fifth

Amendment privilege, which were properly affirmed by the ICA.34




     34
            At trial, Kato argued that Miller had waived his Fifth Amendment
privilege, and Kato briefly references this circumstance in her Application:
“Miller had answered a number of questions after the first 104 hearing and
then changed his positions during the second 104 hearing.” The circuit court
did not rule on whether Miller had waived the privilege. On remand, if
Miller again asserts his privilege to questions that he answered at his
pretrial Rule 104 hearing, the court will need to address whether Miller
waived his Fifth Amendment privilege under HRE Rule 511 (1993):

           A person upon whom these rules confer a privilege against
           disclosure waives the privilege if, while holder of the
           privilege, the person or the person’s predecessor
           voluntarily discloses or consents to disclosure of any
           significant part of the privileged matter. This rule does
           not apply if the disclosure itself is a privileged
           communication.

See also Naipo v. Border, 125 Hawaiʻi 31, 36, 251 P.3d 594, 599 (2011)
(a witness voluntarily waives the privilege if the witness is
“expressly advised of the privilege and testifies without asserting the
privilege”).



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 D. The Circuit Court Did Not Plainly Err in Failing to Give an
                Accomplice Instruction to the Jury.

            On appeal, Kato argues that, based on the jury

instructions given, she could only have been found guilty of

reckless endangering in the second degree if the jury found her

to be the principal actor, i.e., the person who committed the

stabbing.    As the State only pursued a theory of principal

liability and no accomplice instruction was given, Kato contends

that she should not have been found guilty of reckless

endangering in the second degree as the jury did not find her to

be the principal actor.     This raises the question as to whether

the circuit court plainly erred in not giving an accomplice

instruction to the jury.

            “[I]t is the duty of the trial court to ensure that

the jury is properly instructed.”        State v. Kikuta, 125 Hawaiʻi

78, 90, 253 P.3d 639, 651 (2011).        In reviewing an omitted or

flawed jury instruction, “we will vacate, without regard to

whether timely objection was made, if there is a reasonable

possibility that the error contributed to the defendant’s

conviction, i.e., that the erroneous jury instruction was not

harmless beyond a reasonable doubt.”        DeLeon, 131 Hawaiʻi at 479,

319 P.3d at 398 (quoting State v. Nichols, 111 Hawaiʻi 327, 337,

141 P.3d 974, 984 (2006)).




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             “The Hawaii and the federal Constitutions as well as

our rules of penal procedure clearly require that appellants be

informed of the charges against them.”          State v. Soares, 72 Haw.

278, 281, 815 P.2d 428, 430 (1991) (citing Haw. Const. art. I, §

[14]; U.S. Const. amend. VI; Hawaiʻi Rules of Penal Procedure

Rule 7(d); State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242

(1977)).35

             This court has held that a defendant does not need to

be charged as an accomplice to permit the giving of an

accomplice instruction.       State v. Apao, 59 Haw. 625, 645, 586

P.2d 250, 263 (1978) superseded by statute on other grounds as

stated in Briones v. State, 74 Haw. 442, 456 n.7, 848 P.2d 966,

973 n.7 (1993) (holding that under the facts of the case, it was

not error for the court to instruct on accomplice liability);

State v. Fukusaku, 85 Hawaiʻi 462, 486, 946 P.2d 32, 56 (1997).

However, charging a defendant as a principal is not necessarily

sufficient to provide the defendant with adequate notice of the

charges as constitutionally required.         Soares, 72 Haw. at 281,

815 P.2d at 430; State v. Toma, No. SCAP-XX-XXXXXXX, at 5, 2015

WL 9303983, at *17-18 (Dec. 21, 2015) (mem.) (Pollack, J.,

dissenting) (“[I]t does not follow that charging a defendant as

     35
            See Haw. Const. art I, § 14 (“In all criminal prosecutions, the
accused shall enjoy the right . . . to be informed of the nature and cause of
the accusation . . . .”); U.S. Const. amend. VI (same).




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a principal provides a defendant sufficient notice that he or

she must also be prepared to defend against an accomplice theory

of liability.”); see Fukusaku, 85 Hawaiʻi at 486, 946 P.2d at 56

(discussing facts and circumstances of the case to determine

whether the defendant had sufficient notice of the nature of the

charges).

            In this case, Kato was not charged as an accomplice in

the alleged commission of the attempted murder offense, and thus

she did not receive any notice that the evidence at trial may

subject her to a conviction based upon accomplice liability.

Additionally, it is undisputed that the State’s evidence was

directed at proving that Kato was the person who stabbed the CW

and the State did not present an accomplice theory of liability.

Thus, the court did not plainly err in not submitting an

accomplice instruction to the jury.

            Kato contends, however, that she was convicted as an

accomplice, and not as a principal, despite the fact that the

jury was not instructed on accomplice liability.           While there

are certainly indications in the record that the jury may have

concluded that Kato acted as an accomplice and not a principal,

it is not necessary for this court to resolve whether the




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possibility of such a determination prejudiced Kato in light of

our disposition of this case on other grounds.36

                              V.    CONCLUSION

            For the foregoing reasons, the ICA’s April 18, 2019

Judgment on Appeal and the circuit court’s March 11, 2015

judgment are vacated, and this case is remanded to the circuit

court for further proceedings consistent with this opinion.


Myron H. Takemoto                          /s/ Sabrina S. McKenna
for petitioner
                                           /s/ Richard W. Pollack
Stephen K. Tsushima
for respondent                             /s/ Michael D. Wilson




      36
            Kato also contends that there was not substantial evidence for
the jury to convict her of reckless endangering in the second degree. Our
caselaw has established that this offense can be a lesser-included offense of
attempted murder. State v. Samonte, 83 Hawaiʻi 507, 541, 928 P.2d 1, 35
(1996). Appellate courts review the sufficiency of the evidence at trial for
“substantial evidence.” State v. Eastman, 81 Hawaiʻi 131, 135, 913 P.2d 57,
61 (1996).
            Looking at the evidence in the most favorable light to the
prosecution, there is substantial evidence for the jury to conclude that Kato
lured the CW to the location where she was attacked. State v. Vliet, 91
Hawaiʻi 288, 293, 983 P.2d 189, 194 (1999) (“[T]his court, in passing upon the
sufficiency of the evidence, must view the evidence in the light most
favorable to the prosecution . . . .”). Messages retrieved on Kato’s phone
provide evidence that she either operated the “Ai Akanishi” LINE ID or was in
contact with “Ai Akanishi.” Kato thus would have been able to contact the CW
as “Ai Akanishi” or would have been able to provide the CW’s LINE ID to “Ai
Akanishi.” Kato was identified near the scene of the attack when she sought
to retrieve the phone that had apparently been dropped there by the
assailant. This evidence is of sufficient quality and probative value to
allow the jury to find that Kato recklessly placed the CW in danger of death
or serious bodily injury. See HRS § 707-714(1)(a). Accordingly, there was
substantial evidence to support Kato’s conviction for reckless endangering in
the second degree.




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