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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-AUG-2026
08:52 AM
Dkt. 109 OP
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI, Plaintiff-Appellee,
v.
CODY PRESTI, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
AUGUST 31, 2026
HIRAOKA, PRESIDING JUDGE, MCCULLEN AND GUIDRY, JJ.
OPINION OF THE COURT BY MCCULLEN, J.
Self-represented Defendant-Appellant Cody Presti
appeals from the Circuit Court of the First Circuit's
November 21, 2024 "Judgment of Conviction and Sentence as to
Count 2." 1 Presti was indicted for Attempted Sexual Assault in
the First Degree and Kidnapping, but convicted by a jury of the
1 The Honorable Paul B.K. Wong presided.
FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
included offense of Unlawful Imprisonment in the Second Degree,
a misdemeanor, in violation of Hawaiʻi Revised Statutes (HRS)
§ 707-722(1) (2014 and Supp. 2015) for conduct alleged by the
complaining witness (CW) on July 28, 2023.
We affirm.
I. BACKGROUND
Presti met CW, a thirty-six-year-old citizen of the
Philippines, on Bumble, an online dating platform, while CW was
visiting Oʻahu on a tourist visa. After approximately one week
of texting on Bumble, CW agreed to go on a date with Presti on
the evening of July 28. After dinner and fireworks, CW asked
Presti to drive her home; however, Presti instead drove CW to
Round Top Drive on Puʻuʻōhiʻa, 2 allegedly to stargaze.
CW testified that when Presti stopped his car, she got
out of the car and ran down the road. Presti, who is 5'11",
chased CW, who is 5'4" and weighs approximately 120 pounds, 3
picked her up, and carried her "like a baby" back to his car.
Presti then pinned CW against the passenger-side door of his car
and tried to remove her romper. CW felt Presti's erection press
2 Puʻuʻōhiʻa is the mountain behind Honolulu popularly known as
Tantalus.
3 CW testified that she weighed 54 kilograms, which is approximately
120 pounds.
2
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against her vagina through their clothing. CW bit Presti on the
left side of the chest and ran back down the road.
A passing driver stopped to aid CW. CW went to the
driver's home, where she called the police and gave a statement.
On August 2, CW gave a second statement to a Honolulu
Police Department (HPD) detective, describing the events of
July 28.
CW identified Presti in a blind sequential
photographic lineup containing an enlargement of Presti's
driver's license photograph and five other filler mug shots from
a police database. Presti's driver's license photograph was
used because he was not in the HPD database. The photographs,
all in greyscale, were selected by one HPD officer and the
lineup was administered by a second HPD officer, who was
unfamiliar with the case and did not know that Presti was a
suspect.
Based on CW's positive identification, Presti was
arrested later that day on suspicion of Kidnapping and Attempted
Sexual Assault in the First Degree.
Presti was indicted by grand jury on one count of
Attempted Sexual Assault in the First Degree in violation of HRS
§§ 705-500 (2014) and 707-730(1)(a) (Supp. 2021) (Count 1) and
one count of Kidnapping in violation of HRS § 707-720(1)(d)
(2014) (Count 2). The circuit court set bail at $200,000.00.
3
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Presti, who testified in his own defense, denied
pinning CW to the side of his car.
After a four-day jury trial, 4 the jury returned a
unanimous verdict. The jury acquitted Presti on Count 1 and
convicted Presti of the included offense of Unlawful
Imprisonment in the Second Degree on Count 2. The same day, the
circuit court entered its Judgment of Acquittal as to Count 1
and its Judgment of Conviction and Sentence as to Count 2.
Presti was sentenced to a one-year term of imprisonment, with
credit for time already served.
Presti timely appealed to this court.
II. DISCUSSION
As discernible on appeal, Presti presents ten points
of error (POE), challenging: the photographic lineup (POE 1);
the admission of evidence (POE 3); the constitutionality of the
Hawaiʻi Attempt statute, Sexual Assault statute, and Kidnapping
statute (POE 4 and 5); alleged "overcharging" (POE 2, 6, 7, and
8); denial of a request for a bill of particulars (POE 6);
4 Before the circuit court, Presti was initially represented by counsel
from the Office of the Public Defender; however, Presti elected to proceed
self-represented on May 7, 2024. Presti later moved for appointment of new
standby counsel, which the circuit court granted.
4
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denial of a request for a jury instruction on Harassment as an
included offense (POE 9); and the setting of bail (POE 10). 5
But we first address deficiencies in Presti's briefing
before reaching the merits of his appeal.
5 As presented in his Opening Brief, Presti's ten POE are:
1 Due process violations from suggestive
photographic lineup resulting in tainted arrest leading to
improper witness testimony.
2 Indictment containing numerous misrepresentations
allowed to stand after challenged.
3 Improper testimony by initial responding officer.
4 Kidnapping statute is unconstitutionally vague as
Trial Court allowed it to be arbitrarily charged against
Defendant.
5 Attempted Sexual Assault statute is
unconstitutionally vague as Trial Court allowed it to be
arbitrarily charged against Defendant.
6 Prosecutorial practices of overcharging and
denying bill of particulars deprived Defendant of his Due
Process rights.
7 Unchecked prosecutorial discretion in charging
allows systemic overcharging, coerces pleas, and operates
without pre-appellate oversight in violation of Due Process
Principles.
8 Duplicative prosecution resulting in
multiplicitous charges in violation of Due Process and
H.R.S. 701-109(1)(e)[.]
9 Trial Court erred in refusing to give jury
instruction for harassment as lesser included offense of
unlawful imprisonment in the second degree.
10 Trial Court erred by increasing bail without
rationale, refusing to decrease bail for overly broad
reasons, and keeping bail at an amount unattainable to a
[sic] indigent Defendant.
(Some formatting altered.)
5
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A. Briefing Deficiencies
Upon careful review by this court, Presti relies upon
ninety-five different cases to support the various contentions
in his Opening Brief. Of these, Presti provides some form of
citation for only forty-one cases from which this court could
reliably identify the relied-upon authority. 6 Thus, fewer than
half of the cases relied upon by Presti contain sufficient
citations to be reliably identified by this court. Of the
remaining fifty-four cases that Presti relied upon, this court
was able, after significant time invested, to identify forty-
three cases upon which Presti may have relied through some
combination of the case name and a state, year, and quotation or
from context. The remaining eleven cases either do not exist or
lacked sufficient indicia for this court to locate the
authority.
For example, a Westlaw search for "State V Johnson,"
cited at page 15 of the Opening Brief, returns over ten thousand
results. Similarly, "Wilson V State (Ala.)," cited on pages 26-
27 of the Opening Brief, returns hundreds of results.
Conversely, a Westlaw search of "State V. Ah Mook
Sang," cited on page 24 of the Opening Brief, returns zero cases
6 In this instance, "some form of citation" means a reporter and volume
number corresponding with the case name cited. For example, "long 721 P.2D
at 493," cited at page 5 of the Opening Brief, is reliably identifiable as
State v. Long,
721 P.2d 483
(Utah 1986).
6
FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
in any jurisdiction, state or federal. Likewise, "Stroud V
people (Colo.)," cited on page 26 of the Opening Brief, return
zero appellate opinions from that jurisdiction.
Additionally, a Westlaw search of "Huihui (2024),"
cited twice on page 33 of the Opening Brief, returns
approximately fifteen state and federal cases containing
"Huihui" as a party's name, but zero from the cited year.
Presti variably cites the case as "State V.Huihui (2024)" in his
"Table of contents," which narrows the results to approximately
five Hawaiʻi cases, none of which are from 2024, and none of
which appear to support the proposition for which it was cited.
Of the eleven cases this court was unable to locate,
six cases include citations that indicate a volume and reporter
that correspond with a different case entirely:
• On page 8 of the Opening Brief, Presti relies on
"State V. Alves, 45. Haw.296," but that citation leads
to an unrelated case, State v. Pokini,
45 Haw. 295
,
367 P.2d 499
(1961).
• On page 17 of the Opening Brief, Presti relies on
"State v. Bonds,
592 N.W.2d 262
(Minn. 1999)," but
that citation leads to an unrelated case in another
jurisdiction, Jackson v. DeWitt,
592 N.W.2d 262
(Wis.
Ct. App. 1999).
7
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• On pages 28-29 of the Opening Brief, Presti relies on
"State v. Pune, 94 Hawaiʻi 200 (2000)," but that
citation leads to a table of fourteen unreported
opinions that does not include State v. Pune. A
Westlaw search of "State v. Pune" returns zero results
in any jurisdiction.
• On page 29 of the Opening Brief, Presti relies on
"State v. Eichman,
74 Wash. App. 479
,
874 P.2d 646
(1994)," but that citation leads to either an
unrelated case in another jurisdiction, McVay v. Rich,
874 P.2d 641
(Kan. 1994), or a different unrelated
case, Jones v. King County,
874 P.2d 853
(Wash. Ct.
App. 1994), which was reported in
74 Wash. App. 467
.
• On page 29 of the Opening Brief, Presti relies on
"State v. Washington,
125 Or. App. 406
,
865 P.2d 474
(1993)," but that citation leads to an unrelated case,
State v. Nilsen,
865 P.2d 474
(Or. Ct. App. 1993),
which was reported in
125 Or. App. 402
.
• On page 29 of the Opening Brief, Presti relies on
"People v. Babich,
192 Cal. App. 4th 1423
(2011)," but
that citation leads to an unrelated case, County of
Los Angeles v. Los Angeles County Employee Relations
Commission,
122 Cal. Rptr. 3d 464
(Cal. Ct.
8
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App. 2011), rev'd,
301 P.3d 1102
(Cal. 2013), which
was previously reported in
192 Cal. App. 4th 1409
.
In these instances, the relied upon authority simply
does not exist.
What is more, in some instances the proposition
purportedly supported by the citation appears contradicted by
controlling law from that jurisdiction. For example, on page 29
of the Opening Brief, Presti asserts that "In Oregon, the court
in State v. Washington,
125 Or. App. 406
,
865 P.2d 474
(1993)
acknowledged the spectrum of restraint related offenses and
upheld harassment as a valid alternative to false imprisonment
in ambiguous cases." However, Oregon courts have held that
harassment is not an included offense of kidnapping. E.g.,
State v. Branch,
636 P.2d 421, 421
(Or. Ct. App. 1981) (per
curiam) (holding "defendant's conviction for a 'lesser included
offense' of harassment (he was originally charged with
kidnapping) was not proper").
We pause to note that Presti's Opening Brief is just
the next example of the alarming rise of citations to fake cases
by attorneys and self-represented litigants in this jurisdiction
and nationally. See Stewart Yerton, AI in the Courtroom?
Complaints About Misuse by Hawaiʻi Lawyers Growing, Honolulu Civ.
Beat (July 30, 2025), https://www.civilbeat.org/2025/07/ai-in-
the-courtroom-complaints-about-misuse-by-hawaii-lawyers-growing
9
FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
[https://perma.cc/8SPS-ESCE]; see generally AI Hallucination
Cases, Damien Charlotin, https://www.damiencharlotin.com/
hallucinations/ [https://perma.cc/43MV-5EU7] (last visited
Aug. 11, 2026) (aggregating AI hallucination cases
internationally).
This court has recently sanctioned attorneys and self-
represented appellants in civil cases for citing nonexistent
authority under Hawaiʻi Rules of Civil Procedure (HRCP)
Rule 11(b)(2), made applicable through Hawaiʻi Rules of Appellate
Procedure (HRAP) Rule 2.1(a), 7 and pursuant to which citation to
nonexistent authority is sanctionable conduct under HRCP
Rule 11(c):
(b) Representations to court. By presenting to the
court (whether by signing, filing, submitting, or later
advocating) a pleading, written motion, or other paper, an
attorney or unrepresented party is certifying that to the
best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances:
. . . .
(2) the claims, defenses, and other legal
contentions therein are warranted by existing law[.]
HRCP Rule 11(b)(2).
7 HRAP Rule 2.1(a), "Applicability of other court rules," provides:
The Hawaiʻi Rules of Civil Procedure, the Hawaiʻi
Rules of Penal Procedure, the District Court Rules of Civil
Procedure, the Rules of Circuit Courts, Hawaiʻi Family Court
Rules, Rules of the Land Court, Rules of the Tax Appeal
Court, Rules Governing Court Reporting, the Hawaiʻi
Appellate Conference Program Rules, and other rules of
court that may be adopted by the supreme court from time to
time are hereby adopted as part of these rules whenever
applicable.
10
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For example, in Keaau Development Partnership LLC v.
Lawrence, this court sanctioned an attorney $100.00 for citing a
single, nonexistent case "without first attempting to read it to
confirm his contention of its holding." 156 Hawaiʻi 179, 181,
571 P.3d 958
, 960 (App. 2025). There, this court explained that
"[a] fake opinion is not 'existing law'":
"A fake opinion is not 'existing law' . . . . An
attempt to persuade a court or oppose an adversary by
relying on fake opinions is an abuse of the adversary
system." Mata v. Avianca, Inc.,
678 F.Supp.3d 443
, 461
(S.D.N.Y. 2023) (footnote omitted). "Thus, using a fake
opinion to support an argument is a violation of [Fed. R.
Civ. P.] Rule 11(b)(2)." Wadsworth v. Walmart Inc.,
348
F.R.D. 489
, 495 (D. Wyo. 2025).
Id. at 180, 571 P.3d at 959 (footnote omitted).
We decline to make HRCP Rule 11 applicable to direct
appeals of a criminal matter — particularly where the criminal
defendant is self-represented — as it may intrude upon a
criminal defendant's rights under the Hawaiʻi Constitution,
including the privilege against self-incrimination under
article I, section 10; the right to a meaningful opportunity to
present a complete defense as assured under article I,
section 14; and the due process clause of article I, section 5.
However, in declining to make this civil rule
applicable in the direct appeal of this criminal matter, we do
not hold that the citation to nonexistent authority by a
criminal defendant is constitutionally protected as a matter of
state law. A criminal defendant has the right to receive "a
11
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meaningful opportunity to present a complete defense," which
includes "the constitutional right to present any and all
competent evidence in [their] defense." State v. Abion, 148
Hawaiʻi 445, 448,
478 P.3d 270, 273
(2020) (emphasis added)
(first quoting State v. Matafeo,
71 Haw. 183, 185
,
787 P.2d 671,
672
(1990); then quoting State v. Acker, 133 Hawaiʻi 253, 301,
327 P.3d 931, 979
(2014)). But that right does not authorize a
defendant to cite to nonexistent authority that cannot aid their
ability to present a "complete defense."
Citation to nonexistent authority undermines the
integrity of the judicial system and wastes limited judicial
resources:
Including fabricated citations . . . undermines the
integrity of the court by introducing false material into a
process grounded in truth, verified facts, and actual legal
precedent. Such conduct wastes the opposing party's time
and resources in investigating and exposing the
inaccuracies, diverting attention from the merits of the
case.[ 8] It also wastes judicial resources by requiring
judges and court staff to verify citations and address
misconduct, thereby reducing the time available to address
other matters.
Bryan v. Child Support Enf't Agency, No. SCPW-XX-XXXXXXX,
2026
WL 866894
, at *2 (Mar. 30, 2026) (order) (reviewing fabricated
citations under Rule 11 of the Hawaiʻi Family Court Rules).
Beyond the HRCP, Hawaiʻi appellate courts have
authority to impose sanctions under HRAP Rules 30 and 51 in both
8 We note that, in the instant case, Plaintiff-Appellee State of
Hawaiʻi did not bring Presti's reliance on nonexistent authority to the
court's attention in its Answering Brief.
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criminal and civil cases. HRAP Rule 30 empowers an appellate
court to sanction a party for failure to comply with the HRAP
after a meaningful opportunity to be heard:
When the brief of an appellant is otherwise not in
conformity with these Rules, the appeal may be dismissed or
the brief stricken and monetary or other sanctions may be
levied by the appellate court. . . . When a brief is filed,
an appellate court shall not dismiss an appeal, . . .
impose a monetary sanction, or strike a brief without an
opportunity to resubmit an amended brief, without prior
notice to the affected party, and without a meaningful
opportunity to be heard.
Similarly, HRAP Rule 51 authorizes this court to
sanction a party or their attorney for failure to comply with
the HRAP or the court's order:
Any attorney of record or party in a case, who fails
to comply with any of the provisions of the [HRAP], the
Hawaiʻi Electronic Filing and Service Rules, or any order of
the court shall be subject to monetary or other sanctions
by the appellate court before which such case is pending,
such sanctions to be levied by order of the appellate court
or by order of any judge or justice thereof.
And HRAP Rule 28(b)(7) requires an argument to contain
the contentions on points presented with reasons and "citations
to the authorities, statutes and parts of the record relied on":
The argument, containing the contentions of the
appellant on the points presented and the reasons therefor,
with citations to the authorities, statutes and parts of
the record relied on. The argument may be preceded by a
concise summary. Points not argued may be deemed waived.
(Emphases added.)
The requirement that argument be presented "with
citation to the authorities . . . relied on" undoubtedly
requires citation to authorities that actually exist.
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"Attorneys and pro se parties are deemed to be aware
of, and are expected to comply with, all of the provisions of
these rules." HRAP Rule 1(d).
Thus, each citation to nonexistent authority
constitutes a basis for sanction under HRAP Rules 30 and 51.
There can be no doubt that Presti's Opening Brief does
not comply with HRAP Rule 28(b) in multiple respects, and this
court could invoke HRAP Rules 30 and 51 to possibly sanction
Presti. 9 Nonetheless, we believe the better approach under the
circumstances here is to resolve this case as any other, with
recourse to ordinary principles of appellate review. 10
9 Regarding HRAP Rule 28(b), Presti's Opening Brief does not include,
among other things, a subject matter index or a complete table of authorities
as required under subsection (1), record citations as required under
subsection (3), or a "Standard of Review" section as required under
subsection (5).
Similarly, the points of error asserted in Presti's Opening Brief do
not readily comply with the requirements of subsection (4), in particular the
requirements to provide "where in the record the alleged error occurred" and
"where in the record the alleged error was objected to or the manner in which
the alleged error was brought to the attention of the court or agency." HRAP
Rule 28(b)(4) cautions: "Points not presented in accordance with this
section will be disregarded."
However, while noncompliance with HRAP Rule 28(b)(4) can alone be
sufficient to affirm the lower court's judgment, we endeavor to afford
"litigants the opportunity to have their cases heard on the merits, where
possible." Marvin v. Pflueger, 127 Hawaiʻi 490, 496,
280 P.3d 88, 94
(2012)
(citation modified).
10 In this regard, we find well-reasoned the approach taken by the
California Court of Appeal in JPMorgan Chase Bank, N.A. v. Buenzli,
No. C102530,
2025 WL 3675150
, at *3-4 (Cal. Ct. App. Dec. 18, 2025)
(resolving case on ordinary principles of appellate review and concluding
that citation to nonexistent authority does not constitute argument
overcoming the appellant's burden against the presumption of correctness
ordinarily ascribed to a trial court judgment).
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It is well-settled that an appellant bears the burden
of overcoming the presumption of correctness and regularity to
which a trial court's judgment is entitled:
Notwithstanding a party's right to appeal, generally
there is a presumption that a judgment by a trial court is
valid. Stafford v. Dickison,
46 Haw. 52, 62
,
374 P.2d 665,
671
(1962). Moreover, appellant bears the burden of
demonstrating his "allegations of error against the
presumption of correctness and regularity that attend the
decision of the lower court." Ala Moana Boat Owners' Ass'n
v. State,
50 Haw. 156, 158
,
434 P.2d 516, 518
(1967).
Where an appealing party fails to raise and argue a point
of error, the point may be deemed waived by the reviewing
court. [HRAP] Rule 28(b)(7) (2000).
Moyle v. Y & Y Hyup Shin Corp., 116 Hawaiʻi 388, 395,
173 P.3d
535, 542
(App. 2007), vacated on other grounds, 118 Hawaiʻi 385,
191 P.3d 1062
(2008); Territory v. Kobayashi,
25 Haw. 762, 766
(Haw. Terr. 1921) ("We necessarily approach a case with the
assumption that no error has been committed upon the trial and
until this assumption has been overcome by a positive showing
the prevailing party is entitled to an affirmance.").
To this end, it is axiomatic that this court will
"disregard a particular contention if the appellant makes no
discernable argument in support of that position." In re KAHEA,
150 Hawaiʻi 43, 50 n.9,
497 P.3d 58
, 65 n.9 (2021) (quoting
Kahoʻohanohano ex rel Kahoʻohanohano v. Dep't Hum. Servs., 117
Hawaiʻi 262, 297 n.37,
178 P.3d 538
, 573 n.37 (2008)); State v.
Bui, 104 Hawaiʻi 462, 464 n.2,
92 P.3d 471
, 473 n.2 (2004)
("Inasmuch as Defendant presents no discernable argument in
support of this contention, it is our prerogative to disregard
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
this claim." (citation modified)); Citicorp Mortg., Inc. v.
Bartolome, 94 Hawaiʻi 422, 433,
16 P.3d 827, 838
(2000) ("An
appellate court does not have to address matters for which the
appellant has failed to present discernible argument."),
overruled on other grounds by Mālama Kakanilua v. Dir. of Dep't
of Pub. Works, 157 Hawaiʻi 280,
576 P.3d 793
(2025).
As this court has explained, straying beyond the
arguments presented by an appellant impermissibly places the
court in the dual role of advocate and judge:
"It is not the obligation of this court to research and
construct the legal arguments open to parties, especially
when they are represented by counsel." Sanchez v. Miller,
792 F.2d 694, 703
(7th Cir. 1986). "To do so would not
only strain judicial resources . . . but would also
transform the [] court from its legitimate advisory role to
the improper role of an advocate seeking out the strongest
arguments and most successful strategies for a party."
Beaudett v. City of Hampton,
775 F.2d 1274, 1278
(4th Cir.
1985).
State v. Kahanaoi, No. CAAP-XX-XXXXXXX,
2012 WL 5359188, at *2
(App. Oct. 31, 2012) (SDO); Kahoʻohanohano, 117 Hawaiʻi at 308,
178 P.3d at 584 (quoting State v. Pettit,
492 N.W.2d 633, 647
(Wis. Ct. App. 1992) (explaining courts will decline to address
portions of a brief "so lacking in organization and substance
that for [the court] to decide [the] issues, [it] would first
have to develop them[,] . . . [and] serve as both advocate and
judge")).
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Conclusory arguments unsupported by legal authority
are generally insufficient to warrant vacating the lower court's
decision. See Taomae v. Lingle, 108 Hawaiʻi 245, 257,
118 P.3d
1188, 1200
(2005) ("This argument does not contain any
reasoning, supported by citations to case law or authority to
constitute a discernible argument; thus we decline to decide the
issue."); Kienker v. Bauer, 110 Hawaiʻi 97, 104 n.12,
129 P.3d
1125
, 1132 n.12 (2006) ("This argument consists of one paragraph
and neither cites law nor contains cites to the record. The
appellate courts are not obligated to search the record to
crystallize the parties' arguments. Accordingly, this argument
is not considered." (citation omitted)).
Thus, as one appellate court has stated, "It should go
without saying that one cannot 'support claims of error with
meaningful argument and citation to authority' by citing cases
that do not exist or that do not stand for the propositions for
which they are cited." JPMorgan Chase Bank, N.A. v. Buenzli,
No. C102530,
2025 WL 3675150
, at *4 (Cal. Ct. App. Dec. 18,
2025) (quoting Allen v. City of Sacramento,
183 Cal. Rptr. 3d
654, 664
(Cal. Ct. App. 2015)).
Therefore, to the extent Presti's arguments are
supported by nonexistent authority, we consider those arguments
waived. We address Presti's remaining arguments to the extent
those arguments are discernible.
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B. Photographic Lineup (POE 1)
Presti argues the photographic lineup in which CW
identified him was impermissibly suggestive because it contained
"three identifiable factors" when compared with the five filler
photographs: (1) "the defendant photo had the lightest color
background out of all six photos used"; (2) "the defendant photo
was the only photo that featured sunglasses on the defendant[']s
head"; and (3) "the defendant photo was taken from a
significantly closer angle than the other five photos making
that defendant appear significantly larger than the five people
inside the filler photos." As such, Presti asserts that the
procedure used did not comply with HRS § 801K-2(b)(2)
(Supp. 2019), which provides, "In a photo lineup, there shall be
no characteristics of the photographs themselves or the
background context in which they are placed that makes any of
the photographs unduly stand out." (Emphasis added.) Presti
further asserts that because the identification led to his
arrest, any evidence obtained therefrom should have been
excluded as fruit of the poisonous tree.
Here, CW identified Presti in a blind sequential
photographic lineup containing an enlargement of Presti's
driver's license photograph and five other filler mug shots from
a police database. Presti's driver's license photograph was
used because he was not in the HPD database. The photographs,
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
which were all in greyscale, were selected by one HPD officer
and the lineup was administered by a second HPD officer, who was
unfamiliar with the case and did not know that Presti was a
suspect.
When the defendant challenges admissibility of
eyewitness identification on the grounds of impermissibly
suggestive pre-trial identification procedure, he or she
has the burden of proof, and the court, trial or appellate,
is faced with two questions: (1) whether the procedure was
impermissibly or unnecessarily suggestive; and (2) if so,
whether, upon viewing the totality of the circumstances,
such as opportunity to view at the time of the crime, the
degree of attention, and the elapsed time, the witness's
identification is deemed sufficiently reliable so that it
is worthy of presentation to and consideration by the jury.
State v. Walton, 133 Hawaiʻi 66, 83,
324 P.3d 876, 893
(2014)
(quoting State v. Araki, 82 Hawaiʻi 474, 484,
923 P.2d 891, 901
(1996)).
A photographic lineup does not require each photograph
to be identical; the nature of — and indeed the very premise
behind — a photographic lineup is that each individual is
distinctive enough that the perpetrator may be identified by the
victim. A photographic lineup is not impermissibly suggestive
under HRS § 801K-2(b)(2) unless "any of the photographs unduly
stand out." (Emphasis added.)
Here, the blind sequential photographic lineup was not
impermissibly suggestive. See Walton, 133 Hawaiʻi at 83,
324
P.3d at 893
. First, although the background of Presti's image
is lighter than the filler images, the filler images'
backgrounds vary in darkness such that, when viewed in context,
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Presti's image does not "unduly stand out." See HRS § 801K-
2(b)(2). Second, the presence of sunglasses does not make
Presti's image "unduly stand out" when viewed in context because
the glasses are barely visible and are otherwise
indistinguishable from Presti's hair as the image quality is low
and is presented in grayscale. See id. Third, although
Presti's head is noticeably larger than those in the filler
images, the filler images include heads that are not centered on
the camera or are tilted slightly such that, taken in context,
Presti's photograph does not "unduly stand out." See id.
Because Presti's driver's license photograph did not
"unduly stand out" from the filler photographs, the photographic
lineup was not impermissibly suggestive. See id.; Walton, 133
Hawaiʻi at 83,
324 P.3d at 893
. Accordingly, we do not reach
Presti's argument regarding fruit of the poisonous tree.
C. Admission of Evidence Without Sufficient Foundation (POE 3)
Presti challenges the circuit court's admission, over
objection, of body-worn camera footage from CW's July 28
statement to the police and HPD Officer Ryan Ariola's (Officer
Ariola) testimony regarding the classification of the case.
Regarding the body-worn camera footage, Presti
contends the video should not have been admitted because the
video was "another officer[']s body cam footage."
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
"When a question arises regarding the necessary
foundation for the introduction of evidence, the determination
of whether proper foundation has been established lies within
the discretion of the trial court, and its determination will
not be overturned absent a showing of clear abuse." State v.
Eid, 126 Hawaiʻi 430, 440,
272 P.3d 1197, 1207
(2012) (quoting
State v. Assaye, 121 Hawaiʻi 204, 210,
216 P.3d 1227, 1233
(2009)).
It appears that the basis for Presti's contention that
the body-worn camera did not belong to Officer Ariola was that
the State's Exhibit List identified Exhibit 17 as "BWC (Muniz)."
However, Officer Ariola testified that the recording originated
from his own body-worn camera and that he uploaded it himself to
HPD's secure servers. Because Presti's argument is unsupported
by the record, the circuit court did not abuse its discretion
when it admitted the recording. See
id.
Regarding the classification of the case, Presti
asserts that Officer Ariola was impermissibly permitted to
testify about whether the case should be properly classified as
Harassment or Attempted Sexual Assault on the basis that it
constituted an expert opinion.
We note that Presti's argument is one paragraph long
and contains neither citations to authority nor to the record.
See Kienker, 110 Hawaiʻi at 104 n.12,
129 P.3d at 1132
n.12
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
("This argument consists of one paragraph and neither cites law
nor contains cites to the record. The appellate courts are not
obligated to search the record to crystallize the parties'
arguments. Accordingly, this argument is not considered."
(citation omitted)).
In any event, nothing in Hawaiʻi Rules of Evidence
(HRE) Rule 702, which governs the admissibility of expert
opinions, requires the trial court to "formally qualify a
witness as an expert in front of the jury before the witness's
testimony can properly be admitted." State v. Metcalfe, 129
Hawaiʻi 206, 225,
297 P.3d 1062, 1081
(2013). Instead, the
Hawaiʻi Supreme Court has recognized that "nothing in the HRE
would preclude the trial court from declining to qualify a
witness as an expert in front of the jury, so long as the
requisite foundation for the witness's testimony is
established." Id. at 226,
297 P.3d at 1082
.
Presti points to nothing in the record to support his
contention that Officer Ariola's testimony was not supported by
the requisite foundation. Cnty. of Hawaiʻi v. C & J Coupe Fam.
Ltd. P'ship, 119 Hawaiʻi 352, 357 n.6,
198 P.3d 615
, 620 n.6
(2008) (quoting Lanai Co. v. Land Use Comm'n, 105 Hawaiʻi 296,
309 n.31,
97 P.3d 372
, 385 n.31 (2004) (explaining that this
court "is not obligated to sift through the voluminous record to
verify an appellant's inadequately documented contentions").
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
D. Constitutionality of Hawaiʻi Attempt, Sexual Assault, and
Kidnapping Statutes (POE 4 & 5)
Presti challenges the constitutionality of HRS §§ 707-
720 (Kidnapping), 707-730 (Sexual Assault in the First Degree),
and 705-500 (Criminal Attempt), arguing that the statutes are
unconstitutionally vague. We do not reach the merits of
Presti's contentions because this court lacks appellate
jurisdiction over Presti's challenge.
"Appellate jurisdiction 'in a criminal case is purely
statutory and exists only when given by some constitutional or
statutory provision.'" State v. Baxley, 102 Hawaiʻi 130, 133,
73
P.3d 668, 671
(2003) (quoting State v. Kalani, 87 Hawaiʻi 260,
261,
953 P.2d 1358, 1359
(1998)).
HRS § 641-11 (2016), which provides the statutory
basis upon which a criminal defendant may appeal from a judgment
of the circuit court, provides, in relevant part, that "[a]ny
party aggrieved by the judgment of a circuit court in a criminal
matter may appeal to the intermediate appellate court."
(Emphasis added.)
"An aggrieved party has been defined by this court in
a civil context as 'one who is affected or prejudiced by the
appealable order.'" Baxley, 102 Hawaiʻi at 134,
73 P.3d at 672
(quoting Waikiki Malia Hotel, Inc. v. Kinkai Props. Ltd. P'ship,
75 Haw. 370, 393
,
862 P.2d 1048, 1061
(1993)). Further, under
HRS § 701-110(1) (2014) and controlling caselaw,
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
[A] defendant who has been convicted of a lesser included
offense than that charged is deemed to have been acquitted
of the greater charge. Thus[,] a defendant may not be
retried for any offense of which he has been acquitted,
whether expressly or impliedly, notwithstanding a
subsequent reversal of the judgment on appeal.
State v. Sing, 154 Hawaiʻi 377, 387,
550 P.3d 1235, 1245
(2024)
(quoting State v. Feliciano,
62 Haw. 637, 644
,
618 P.2d 306, 311
(1980)); accord, e.g., State v. Bojorquez,
538 P.2d 796, 798-99
(N.M. Ct. App. 1975) (holding defendant convicted of included
offense lacked standing to challenge statute under which the
defendant was originally charged).
Because Presti fails to show that he was prejudiced by
virtue of his acquittal of all charges under the challenged
statutes, this court is without jurisdiction to address the
substance of his arguments. See Baxley, 102 Hawaiʻi at 134,
73
P.3d at 672
.
E. Indictment (POE 2, 6, 7, and 8)
Presti asserts multiple challenges to his indictment,
including that the indictment was obtained through "false
testimony" (POE 2); that the indictment "overcharged" him based
on the facts alleged (POE 6); that the prosecution exceeded its
discretion when charging him under the circumstances of this
case (POE 7); and that the indictment improperly charged
multiple offenses arising from the same continuing course of
conduct (POE 8). It appears that the gravamen of Presti's
contentions is that the charges alleged in the indictment —
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Attempted Sexual Assault in the First Degree and Kidnapping —
were not supported by the facts of the case because there were
no allegations of sexual penetration or that sexual penetration
was possible under the circumstances.
It is well-settled that "the State has wide discretion
in bringing criminal charges." State v. Yokota, 143 Hawaiʻi 200,
206,
426 P.3d 424, 430
(2018). And, as this court has
explained, "[t]he prosecutor not only has complete discretion as
to whether to charge, he also has complete discretion as to when
charges will be filed, what charges will be filed, how many
charges will be filed, and under what statutes the charges will
be made." Naluai v. Naluai, 99 Hawaiʻi 363, 368,
55 P.3d 856,
861
(App. 2002) (quoting State v. Radcliffe,
9 Haw. App. 628,
640
,
859 P.2d 925, 932
(App. 1993)); accord Bordenkircher v.
Hayes,
434 U.S. 357, 364
(1978) ("In our system, so long as the
prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether or
not to prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in his discretion.").
First, as the Hawaiʻi Supreme Court explained in In re
Doe, "absent unusual circumstances, any defects in a pretrial
determination of probable cause are rendered moot, or are
without any effective remedy, which is much the same thing, by a
subsequent conviction." 102 Hawaiʻi 75, 78,
73 P.3d 29
, 32
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(2003) (footnote omitted). Because the jury convicted Presti of
Unlawful Imprisonment in the Second Degree and acquitted him of
Attempted Sexual Assault in the First Degree and Kidnapping, the
issue is moot. See
id.
Next, to the extent that Presti challenges his
indictment based on alleged "overcharging," the Hawaiʻi Supreme
Court recognized in State v. Modica that "[s]tatutes may on
occasion overlap, depending on the facts of a particular case,
but it is generally no defense to an indictment under one
statute that the accused might have been charged under another.
Under those circumstances, the matter is necessarily and
traditionally subject to the prosecuting attorney's discretion."
58 Haw. 249, 251
,
567 P.2d 420, 422
(1977) (citations omitted).
The record shows that CW alleged that, on the evening
of July 28, CW asked Presti to take her home, but he instead
took her up Puʻuʻōhiʻa, where he tried to rape her. On these
allegations, as found by the grand jury, 11 Presti could properly
11 No transcript of the grand jury testimony appears in the record on
appeal. See HRAP Rules 10(b)(1)(A) (requiring the appellant to request
transcripts "[w]hen an appellant desires to raise any point on appeal that
requires consideration of the oral proceedings before the court appealed
from"), 11(a) ("It is the responsibility of each appellant to provide a
record, as defined in Rule 10 of these Rules and the Hawaiʻi Court Records
Rules, that is sufficient to review the points asserted and to pursue
appropriate proceedings in the court or agency appealed from to correct any
omission.").
"The burden is upon appellant in an appeal to show error by reference
to matters in the record, and he [or she] has the responsibility of providing
(continued . . .)
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
be charged with Attempted Sexual Assault in the First Degree and
Kidnapping. See HRS §§ 705-500, 707-730(1)(a), 707-720(1)(d).
That he could also have been charged with lesser offenses, such
as Unlawful Imprisonment in the Second Degree or Harassment, as
argued by Presti, does not mean that the State abused its
prosecutorial discretion when it sought an indictment against
Presti for the charged offenses. See Modica,
58 Haw. at 251
,
567 P.2d at 422
.
Finally, to the extent Presti challenges his
indictment because "the entire case was based upon one
continuing course of conduct as such the prosecution should have
never been allowed to charge multiple offenses," the argument is
without basis in law. HRS § 701-109(1) (2014) "explicitly
provide[s] that a defendant may be charged with multiple
offenses arising from the same conduct even when he or she
cannot be convicted of more than one offense." Yokota, 143
Hawaiʻi at 207,
426 P.3d at 431
. The State could properly charge
Presti with both Attempted Sexual Assault in the First Degree
and Kidnapping, even if those charges arose from the same
continuing course of conduct. See
id.
(. . . continued)
an adequate transcript." Bettencourt v. Bettencourt, 80 Hawaiʻi 225, 230,
909
P.2d 553, 558
(1995) (quoting Union Bldg. Materials Corp. v. Kakaako Corp.,
5
Haw. App. 146, 151
,
682 P.2d 82
, 87 (App. 1984)).
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Based on the foregoing, the State did not abuse its
discretion when charging Presti, and the circuit court did not
abuse its discretion by denying Presti's motion to dismiss the
indictment thereupon. See Naluai, 99 Hawaiʻi at 368,
55 P.3d at
861
.
F. Bill of Particulars (POE 6)
Presti argues the circuit court abused its discretion
when it denied his requests for a bill of particulars because
the denial violated his right to be sufficiently informed to
prepare for trial.
The denial of a request for a bill of particulars is
reviewed for abuse of discretion. See State v. Masuda-Mercado,
157 Hawaiʻi 116, 125,
575 P.3d 749
, 758 (2025) (citing State v.
Valenzona, 92 Hawaiʻi 449, 452,
992 P.2d 718, 721
(App. 1999)).
A bill of particulars is "a 'formal, detailed
statement of the claims or charges brought by a . . .
prosecutor'" that "[m]uch like an indictment . . . provides
notice and 'is designed to enable the defendant to prepare for
trial and prevent surprise.'"
Id.
(first quoting Bill of
Particulars, Black's Law Dictionary (12th ed. 2024); then
quoting State v. Reed, 77 Hawaiʻi 72, 78,
881 P.2d 1218, 1224
(1994), overruled on other grounds by State v. Balanza, 93
Hawaiʻi 279,
1 P.3d 281
(2000)).
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When a trial court "is of the opinion that the accused in
any criminal case has been actually misled and prejudiced
in the accused's defense" by the charging document, HRS
§ 806-47 (2014) permits the court to order the prosecution
to file a bill of particulars on "matters in regard to
which the court finds the defendant should be informed."
Id.
Presti moved pro se for a bill of particulars on
May 10, 2024, over eight months after his August 28, 2023
arraignment. 12 Presti does not show he was prejudiced by an
unfair surprise or otherwise show that his defense was impeded
by a lack of information. Instead, the record shows, and Presti
does not appear to contest, that Presti "ha[d] the benefit of
both discovery and prior testimony of the witnesses that detail
the facts underlying the offenses charged against him." "A bill
of particulars is not required if the information requested by
the defendant has been provided in some other satisfactory
form." State v. Corder, 121 Hawaiʻi 451, 454,
220 P.3d 1032,
1035
(2009) (citing Reed, 77 Hawaiʻi at 78,
881 P.2d at 1224
).
Accordingly, the circuit court did not abuse its
discretion when it determined that Presti had received the
requested information in a satisfactory form. See
id.
12 Hawaiʻi Rules of Penal Procedure Rule 7(g) provides in relevant part:
"The court may direct the filing of a bill of particulars. A motion for a
bill of particulars may be made before arraignment or within 10 days after
arraignment or at such other later time as the court may permit."
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G. Jury Instructions (POE 9)
Presti argues the circuit court improperly denied his
request for a jury instruction on Harassment under HRS § 711-
1106 (2014) as an included offense of Unlawful Imprisonment in
the Second Degree "where the restraint is momentary, lacking
violence, threats, or prolonged holding." This argument is
without basis in law.
Presti relies on three cases from other jurisdictions
to show that those jurisdictions have recognized Harassment as
an included offense of other restraint-based crimes such as
Unlawful or False Imprisonment: "State v. Eichman,
74 Wash.
App. 479
,
874 P.2d 646
(1994)"; "State v. Washington,
125 Or.
App. 406
,
865 P.2d 474
(1993)"; and "People v. Babich,
192 Cal.
App. 4th 1423
(2011)."
As explained above, those cases do not exist; further,
the "supported" propositions of law appear erroneous. E.g.,
Branch,
636 P.2d at 421
("[D]efendant's conviction for a 'lesser
included offense' of harassment (he was originally charged with
kidnapping) was not proper."). Accordingly, we disregard as
waived Presti's arguments to the extent they are supported by
nonexistent authority and only address his remaining arguments
to the extent those arguments are discernible.
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An offense is an included offense, and a criminal
defendant may be convicted thereof, if:
(a) It is established by proof of the same or less than
all the facts required to establish the commission of
the offense charged;
(b) It consists of an attempt to commit the offense
charged or to commit an offense otherwise included
therein; or
(c) It differs from the offense charged only in the
respect that a less serious injury or risk of injury
to the same person, property, or public interest or a
different state of mind indicating lesser degree of
culpability suffices to establish its commission.
HRS § 701-109(4) (Supp. 2018). Presti has not shown that any of
these subsections apply.
In particular, we note that an offense may not be an
included offense under HRS § 701-109(4)(c) if it requires a
"mental state greater than or different from that which is
required for the charged offense." State v. Kaeo, 132 Hawaiʻi
451, 461,
323 P.3d 95, 105
(2014) (internal quotation marks
omitted) (quoting State v. Alston,
75 Haw. 517, 534
,
865 P.2d
157, 166
(1994)). A conviction for Unlawful Imprisonment in the
Second Degree requires proof that the criminal defendant
"knowingly restrain[ed] another person." HRS § 707-722(1). A
conviction for Harassment requires proof of "intent to harass,
annoy, or alarm any other person" through statutorily defined
conduct. HRS § 711-1106(1).
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Harassment is not an included offense of Unlawful
Imprisonment in the Second Degree under HRS § 701-109(4)(c),
because intent, which is required for a Harassment conviction,
is a greater mental state than knowing, which is required for a
conviction for Unlawful Imprisonment in the Second Degree. HRS
§§ 702-204 (2014), -208 (2014); see State v. Kupau,
63 Haw. 1,
6
,
620 P.2d 250, 253
(1980) (holding "harassment has a greater
mental state than assault in the third degree" because
"[h]arassment requires a state of mind that has the intent to
harass, annoy or alarm, while assault requires a mental state
that is intentional, knowing or reckless"); State v. Burdett,
70
Haw. 85, 88-89
,
762 P.2d 164, 166-67
(1988) (holding harassment
"has a more culpable mental state than terroristic threatening
in the first degree" because the latter "requires a mental state
that is intentional or reckless").
Because Presti was not entitled to a jury instruction
on Harassment as an included offense of a charged crime, the
circuit court's denial of Presti's request was not error.
H. Excessive Bail (POE 10)
Finally, Presti challenges the imposition of bail in
the amount of $200,000.00, arguing the circuit court "failed to
consider [his] inability to pay, his familial ties to the
island, his having employment available outside of jail, his
having housing available outside of jail, and the fact that the
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
prosecution failed to show the fair likelihood of conviction."
The State acknowledges that the circuit court "failed to
adequately analyze Presti's financial circumstances" but asserts
that, while remand for a redetermination of bail would have been
appropriate under this court's recent opinion in State v.
Carter, 154 Hawaiʻi 96, 104,
546 P.3d 1210
, 1218 (App. 2024),
"there is no meaningful remedy at this point, because Presti is
no longer in custody for this case."
In Carter, this court explained that where the trial
court found that bail could be properly denied but nonetheless
"decided to set cash bail as an alternative, it was required to
exercise its discretion in accordance with the law governing
setting the amount of cash bail, i.e. HRS § 804-9 [(Supp. 2019)]
and its requirement that the amount be 'reasonable.'" Id.
Because the circuit court did not adequately consider the
financial circumstances of the defendant, which is "a key
component of setting cash bail under HRS § 804-9," the circuit
court abused its discretion. Id. at 102, 104, 546 P.3d at 1216,
1218.
Here, although it appears that the circuit court did
not consider Presti's financial circumstances, which would be
reversible error under Carter, see id., we do not reach the
issue because Presti's contentions as to pre-trial bail are moot
as Presti has been convicted and has served the full term of his
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FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
sentence, see Murphy v. Hunt,
455 U.S. 478, 481-82
(1982) ("It
would seem clear that under this general rule [the criminal
defendant]'s claim to pretrial bail was moot once he was
convicted. The question was no longer live because even a
favorable decision on it would not have entitled [the criminal
defendant] to bail. For the same reason, [the convicted
defendant] no longer had a legally cognizable interest in the
result in this case." (footnote omitted)).
As a matter of Hawaiʻi law, "there is no independent
basis for dismissing the criminal charges against [a criminal
defendant] based on his claim of excessive bail." State v.
Visintin, 142 Hawaiʻi 126, 143,
414 P.3d 178, 195
(App. 2018),
aff'd in part and vacated in part, 143 Hawaiʻi 143,
426 P.3d 367
(2018); accord White v. Wilson,
399 F.2d 596, 598
(9th Cir.
1968) (recognizing that "it has not been held that [excessive
bail] is a constitutional basis for invalidation of a
conviction" under the Eighth and Fourteenth Amendments of the
United States Constitution).
Accordingly, Presti's excessive bail claim is moot
because it "has lost its character as a present, live
controversy" and "the reviewing court can no longer grant
34
FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
effective relief." See Kahoʻohanohano, 114 Hawaiʻi at 332, 162
P.3d at 726 (citation modified).
III. CONCLUSION
Based on the foregoing, we affirm the circuit court's
November 21, 2024 "Judgment of Conviction and Sentence as to
Count 2."
On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
Cody Presti,
Self-represented /s/ Sonja M.P. McCullen
Defendant-Appellant. Associate Judge
Brian R. Vincent, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.
35View PDF inline▼
Case Information
- Decision Date
- August 31, 2026
- Citation
- Status
- Precedential