State v. Sterling ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-DEC-2020
07:57 AM
Dkt. 60 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MICAH STERLING, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka and Wadsworth, JJ., and
Leonard, Presiding Judge, concurring separately)
Defendant-Appellant Micah Sterling (Sterling) appeals
from the Judgment of Conviction and Sentence (Judgment), entered
on October 26, 2017, in the Circuit Court of the First Circuit
(Circuit Court).1/ Following a jury trial, Sterling was
convicted of Assault in the Third Degree, in violation of Hawaii
Revised Statutes (HRS) § 707-712(1)(a) (2014).2/
On appeal, Sterling contends that the Circuit Court
erred in ruling that certain hearsay statements, to which the
complaining witness testified at trial, fell under the hearsay
1/
The Honorable Karen T. Nakasone presided.
2/
HRS § 707-712(1)(a) provides:
(1) A person commits the offense of assault in the
third degree if the person:
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person[.]
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exception for statements for purposes of medical diagnosis or
treatment. See Hawai#i Rules of Evidence (HRE) Rule 803(b)(4)
(2002).3/
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we affirm the
Judgment for the reasons set forth below.
I. Background
At trial, the complaining witness, Aaron Lau (Lau),
testified as follows. He is a licensed registered nurse,
certified emergency nurse, and trauma certified registered nurse,
employed in the emergency room (ER) of Queens Medical Center
(QMC). In that capacity, he assesses and treats patients and
carries out orders given by the emergency room physician. On
May 30, 2017, Lau was assigned to Rooms 4, 5, and 6, and Hallway
6 in the QMC emergency department. Lau attended to Sterling
around noon that day in Hallway 6. Lau testified in part as
follows:
Q BY [Deputy Prosecuting Attorney (DPA)]: . . . What
was [Sterling] brought into the emergency room for?
A He was brought in by ambulance after EMS was
activated because the patient was seen drinking and laying
[sic] --
[DEFENSE COUNSEL]: Objection, Your Honor.
3/
HRE Rule 803 provides, in relevant part:
The following are not excluded by the hearsay rule,
even though the declarant is available as a witness:
. . . .
(b) Other exceptions.
. . . .
(4) Statements for purposes of medical diagnosis or
treatment. Statements made for purposes of
medical diagnosis or treatment and describing
medical history, or past or present symptoms,
pain, or sensations, or the inception or general
character of the cause or external source
thereof insofar as reasonably pertinent to
diagnosis or treatment.
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A -- outside of --
THE COURT: Overruled.
A -- laying [sic] outside of Pali Longs.
While in Hallway 6, Lau performed a neurological
assessment of Sterling and checked his vital signs. In response
to the State's questions, Lau explained:
Q . . . And when you say you assessed him, how
did you assess him?
A Uh, I start by performing a neurological
assessment to see if the patient is confused or altered,
seeing if he could tell me his name, where he was, what year
it was, checking his vital signs, pupils, that kind of
thing.
Q Based on your neurological assessment, what did
-- what did you determine?
A Uh, the patient was obviously intoxicated. He
was very lethargic and obtunded. And he would wake up
briefly if I, you know, kept arousing him, but then he would
quickly fall back asleep.
Q Now could you smell the odor of alcohol?
A I could.
. . . .
Q How close were you to the defendant that you
could smell the odor of alcohol?
A I was right at his bedside. I had to look into
his eyes, had to listen to his heart, his lungs so I was
pretty much right up in his face.
Q . . . [I]s there any other assessments that you
conducted?
A I also checked his vital signs. I looked at his
eyes, his pupils. I listened to his heart and lungs,
checked his pulse, see if he could move all of his
extremities.
While Lau was assessing Sterling, Lau "tried to speak
with [Sterling] to see whether [Lau] could awaken him. Most of
the time [Sterling] would just mumble kind of incoherently and
then fall back asleep." Lau stated that "[he] smelled the
alcohol on [Sterling's] breath. [Sterling's] eyes were
bloodshot. [Sterling] was uncooperative."
After Lau assessed Sterling, the ER physician ordered
that Sterling be placed in a cervical collar for his safety,
which Lau applied. The physician also ordered a CAT scan for
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Sterling's head and neck, which Lau arranged. Lau explained that
"[a] cervical collar maintains alignment of the neck and the
spine within the neck." Lau also explained that he placed the
cervical collar on Sterling because "[t]he patient was obviously
confused. We couldn't get a story from the patient, if he had
fallen down or was just laying [sic] on the ground[,] until we
could prove with the CAT scan he had no actual injury to his
neck. So we placed a cervical collar." Lau further testified
that the CAT scan was necessary because Sterling "was obviously
confused. We didn't know if it was because of alcohol or we
didn't know if he had fallen down causing him to be confused or
both."
The CAT scan was not successfully completed. Lau
testified as follows:
Q [By DPA] . . . [W]as a CAT scan conducted on
[Sterling]?
A Uh, it was not successfully done.
Q Okay. And why not?
A Once the patient got down to CAT scan, I
received a call from the CAT scan technician stating that
they were trying to --
[DEFENSE COUNSEL]: Objection. Hearsay.
THE COURT: Overruled.
Q You can finish.
A That they were trying to pull the patient over
from the ER gurney over to the CAT scan table. But when
they did that, the patient suddenly awoke and became angry
at them, started yelling and spitting at them.
Q When you were on the phone with the CAT scan
technician, could you hear the defendant in the background?
A I could.
Q How did you know it was his voice?
A I recognized his voice from earlier and also the
CAT scan technician was saying, "Oh, you hear him yelling
back there?"
[DEFENSE COUNSEL]: Objection. Hearsay.
THE COURT: Overruled.
. . . .
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Q What kind of tone of voice was [Sterling] using?
A He was obviously very angry.
Sterling was returned to the ER, where Lau observed
that the cervical collar had been removed. Lau also observed,
from about five feet away, that Sterling was getting more
agitated and attempting to undo his pants. Based on his
experience, Lau believed that Sterling "obviously needed to
urinate, but he was getting very frustrated because he was drunk
and he couldn't figure out how to do it." Lau grabbed a pair of
gloves and a urinal bottle and then approached Sterling and said,
"I'm Aaron here, your nurse in the emergency. I'm going to help
you with the urinal bottle." Lau had not touched or reached for
Sterling, when Sterling suddenly sat up, turned toward Lau, and
punched him with a closed right fist on the left side of Lau's
"throat-neck area." Lau "immediately felt pain there" that
lasted "[a]bout 20 minutes." As Sterling continued to get more
agitated, Lau grabbed both of Sterling's wrists and pushed him
back down onto the ER gurney. Shortly after, other ER nurses,
technicians, and physicians came to assist Lau.
Sterling also testified at trial, as follows. On
May 30, 2017, he went to the Safeway by the Long's near the Pali
to get lunch. He bought a sandwich and sat down outside to eat
it. "There was a guy that came up to [Sterling,] . . . asked
[him] for some food, for some of [his] sandwich, and some money."
When Sterling said "no," the man started yelling at him, they got
into an argument, and the man started hitting Sterling. When
asked what happened next, Sterling testified: "I don't know. I
must have got knocked out or -- or something. That's all I
remember about that." Sterling next "remember[ed] some people
were asking me if I was okay and I was laid out on the ground."
Sterling did not know any of the people and assumed he was in
"the same spot."4/
4/
Sterling later testified that he did not recall being taken to
QMC, put on a gurney, "hooked up with needles," placed in a cervical collar,
or transported for a CAT scan.
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When asked what happened next, Sterling testified: "I
woke up and there was a guy with my penis in his hand, and he was
telling me that he was going to -- he was grabbing my -- my
privates and he was going to help me. And I said, [']No, get
away from me,['] and I pushed him away." Sterling did not know
who the person was, where he (Sterling) was, or what was
happening. Sterling stated that he fell back asleep. Sometime
later, "[he] woke up and there was a police officer and they told
[him] that [he] was being taken to jail pretty much."
As to whether he was drinking that day, Sterling
testified as follows:
Q And were you drinking that day?
A I don't recall.
Q You don't recall if you were drinking?
A I don't remember it.
Q You don't remember if you were drinking?
A No.
Drew Matsuura (Matsuura) also testified at trial. On
May 30, 2017, he was working as a medical scribe in the ER at
QMC. At around 1 p.m. that day, Matsuura was sitting at his
scribe station, located between Rooms 5 and 6, near Hallway 6, in
the ER. From where he was sitting, Matsuura eventually saw Lau
tending to Sterling. Matsuura was 10 to 15 feet away from Lau
and Sterling, the area was well lit, and nothing blocked
Matsuura's view. While Lau was at Sterling's bedside, Matsuura
saw Sterling sit up and, "kind of out of nowhere," turn and punch
Lau with a closed fist in the "left jaw/neck area." Matsuura
testified that he did not see Lau touch Sterling in the groin
area or in any inappropriate way before Sterling hit Lau.
II. Discussion
Sterling contends that the Circuit Court erred in
allowing Lau to testify to: (1) a statement made by an
unidentified declarant that Sterling had been "seen drinking
. . . outside of Pali Longs" (Statement 1); and (2) statements
made by the CAT scan technician regarding Sterling's behavior and
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demeanor during the attempted CAT scan, i.e., that Sterling
"became angry" and "started yelling and spitting at them"
(Statement 2). Sterling argues that in both instances, the
Circuit Court erroneously ruled that the statements were
admissible under the HRE Rule 803(b)(4) hearsay exception for
statements for purposes of medical diagnosis or treatment.5/
We conclude that the Circuit Court did not err in
overruling Sterling's hearsay objection to Statement 2. While
the court did not state the basis for its ruling, Lau's testimony
established that the challenged statements fell under the hearsay
exception for present sense impressions. See HRE Rule
803(b)(1);6/ see also State v. Melendez, 146 Hawai#i 391, 397, 463
P.3d 1048, 1054 (2020) (an appellate court may affirm a judgment
on any supporting ground in the record (quoting State v.
Fukagawa, 100 Hawai#i 498, 506-07, 60 P.3d 899, 907-08 (2002))).
Specifically, Lau testified to statements made by the CAT scan
technician describing Sterling's behavior while the technician
was perceiving the behavior or immediately thereafter. Indeed,
5/
During the testimony at issue, the Circuit Court did not state the
basis for overruling Sterling's hearsay objections. Prior to opening
statements, however, Sterling objected to the following anticipated hearsay
testimony by Lau, as contained in his written statement form to the police:
"[A]t about 12:13 the patient was assigned to Hallway 6 after brought in by
EMS due to being found laying in front of Pali Longs and was seen drinking
alcohol per the triage note." At that time, the Circuit Court ruled: "That
is what the court is going to allow in. . . . These are statements that Mr.
Lau is reporting, and he's allowed to report under that hearsay exception[,]"
referring to HRE Rule 803(b)(4). After further discussion, the court
clarified: "If the State can lay a foundation as to how this testimony is
reasonably pertinent to the diagnosis and treatment, then it comes in in its
entirety under . . . 803-4."
6/
HRE Rule 803 provides, in relevant part:
The following are not excluded by the hearsay rule,
even though the declarant is available as a witness:
. . . .
(b) Other exceptions.
(1) Present sense impression. A statement
describing or explaining an event or condition
made while the declarant was perceiving the
event or condition or immediately thereafter.
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Lau testified that he could hear Sterling in the background when
the technician asked, "Oh, you hear him yelling back there?"
Even if we assume that the Circuit Court erred in
admitting Statements 1 and 2,7/ we conclude that on the entire
record, such error was harmless beyond a reasonable doubt. See
State v. Jones, 148 Hawai#i 152, 170, 468 P.3d 166, 184 (2020)
("Erroneously admitted evidence is evaluated under the harmless
beyond a reasonable doubt standard." (quoting State v.
Matsumoto, 145 Hawai#i 313, 327, 452 P.3d 310, 324 (2019))
(internal quotation marks omitted)). In evaluating whether an
erroneous admission of evidence is harmless, the supreme court
has explained:
[E]rror is not to be viewed in isolation and considered
purely in the abstract. It must be examined in light of the
entire proceedings and given the effect to which the whole
record shows it is entitled. In that context, the real
question becomes whether there is a reasonable possibility
that error might have contributed to conviction . If there
is such a reasonable possibility in a criminal case, then
the error is not harmless beyond a reasonable doubt, and the
judgment of conviction on which it may have been based must
be set aside.
State v. McCrory, 104 Hawai#i 203, 210, 87 P.3d 275, 282 (2004)
(quoting State v. Gano, 92 Hawai#i 161, 176, 988 P.2d 1153, 1168
(1999)); see State v. Lora, 147 Hawai#i 298, 310, 465 P.3d 745,
757 (2020).
To establish that Sterling committed Assault in the
Third Degree, the State was required to prove that Sterling
intentionally, knowingly, or recklessly caused bodily injury to
Lau. See HRS § 707-712(1)(a). Here, the State produced
"overwhelming and compelling evidence tending to show [Sterling]
guilty beyond a reasonable doubt." State v. Texeira, 147 Hawai#i
513, 538, 465 P.3d 960, 985 (2020) (quoting State v. Rivera, 62
Haw. 120, 127, 612 P.2d 526, 532 (1980)). Lau and Matsuura both
testified that Sterling sat up in bed, turned, and punched Lau
with a closed fist in the neck-throat area. In his own
testimony, Sterling admitted pushing Lau. In addition, Lau's
7/
We do not decide whether Statement 1 fell under the hearsay
exception for statements for purposes of medical diagnosis or treatment.
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unrefuted testimony established that he sustained bodily injury,
i.e., physical pain, during the incident. See HRS § 707-700.
The jury could reasonably have inferred based on the overwhelming
evidence of Sterling's actions that he intentionally, knowingly,
or recklessly caused bodily injury to Lau.
Sterling argues that the admission of Statement 1 was
not harmless because it supported Lau's opinion that Sterling was
intoxicated at the hospital, which in turn supported Lau's
testimony that Sterling had been uncooperative and had struck
Lau. Sterling further contends that the admission of Statement 1
"demeaned [his] credibility as it contradicted his claim that he
did not recall drinking that day[.]"8/
To the extent that evidence of Sterling's "drinking" on
the day of the incident, as referenced in Statement 1, affected
his or Lau's credibility, the record reveals that the jury heard
compelling independent evidence of such drinking from Lau. See
State v. Crisostomo, 94 Hawai#i 282, 290, 12 P.3d 873, 881 (2000)
(ruling that any error in admitting alleged hearsay statements
was harmless because they were cumulative of other admissible
testimony). In examining Sterling, Lau smelled alcohol on his
breath; Lau also observed that Sterling's eyes were bloodshot, he
was lethargic, obtunded and uncooperative, and he was falling
asleep and mumbling incoherently. Later, Lau observed that
8/
Sterling also asserts that Statement 1 constituted evidence of a
prior, criminal, bad act (drinking in public), and the jury could have
considered it propensity evidence. This argument was not raised below and is
thus deemed waived. See State v. Gonzalez, 128 Hawai #i 314, 317, 288 P.3d
788, 791 (2012) (noting that failure to properly raise issue at trial level
precludes party from raising that issue on appeal (quoting State v. Kikuta,
125 Hawai#i 78, 89, 253 P.3d 639, 650 (2011))); HRE Rule 103(a)(1).
Similarly, Sterling now contends that the admission of Statement 1 violated
his right to confrontation and "may have influenced [his] decision to
testify." However, Sterling did not raise these objections when Statement 1
was offered during trial, and they are thus deemed waived See Kobashigawa v.
Silva, 129 Hawai#i 313, 322, 300 P.3d 579, 588 (2013). In addition, Sterling
did not establish on the record that he decided to testify at least in part
based on the Circuit Court's ruling as to Statement 1. Cf. State v. Schnabel,
127 Hawai#i 432, 439, 450, 279 P.3d 1237, 1244, 1254 (2012) (concluding that
the trial court's error in admitting evidence infringed on the defendant's
right to testify, where defense counsel stated on the record that the
defendant had decided not to testify based in part on the court's ruling).
Given the record and the circumstances of this case (see infra), we further
conclude there was no plain error.
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Sterling was getting more agitated while attempting to undo his
pants to urinate, and when Lau tried to assist Sterling, Sterling
struck him. Sterling did not deny that he was drinking on the
day of the incident; rather, he testified that he did not recall.
Considering the entire record in this case, we conclude there is
no reasonable possibility that the admission of Statement 1
contributed to Sterling's conviction.
Sterling argues that the admission of Statement 2 was
not harmless because it supported the credibility of Lau's
account of Sterling's angry and violent behavior and thus Lau's
claim that Sterling "had struck him unprovoked." Sterling
further asserts that the admission of Statement 2 undermined his
credibility by contradicting his claim that "he was basically
unconscious through most of his time at the hospital and that the
only reason he reacted adversely to Lau was because Lau was
touching his penis."9/
The record reveals, however, that the jury heard
compelling independent evidence of Sterling's behavior from Lau
and Matsuura, both of whom testified that Sterling had punched
Lau with a closed fist in the neck-throat area. See Crisostomo,
94 Hawai#i at 290, 12 P.3d at 881. In addition, Lau testified
that he had not touched or reached for Sterling when Sterling
suddenly sat up and struck Lau. Matsuura corroborated Lau's
account, stating that he did not see Lau touch Sterling in the
groin area or in any inappropriate way before Sterling hit Lau.
Considering the entire record, we conclude there is no reasonable
possibility that the admission of Statement 2 contributed to
Sterling's conviction.
Accordingly, any error of the Circuit Court in
admitting Statements 1 and 2 was harmless beyond a reasonable
doubt.
9/
Sterling also argues that Statement 2 constituted evidence of "a
prior bad act that was admitted substantively without a limiting
instruction[,]" and the admission of Statement 2 violated his right to
confrontation. Neither argument was raised below and is thus deemed waived.
Given the record and the circumstances of this case (see infra), we further
conclude there was no plain error.
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III. Conclusion
For these reasons, we affirm the Judgment of Conviction
and Sentence, entered on October 26, 2017, in the Circuit Court
of the First Circuit.
DATED: Honolulu, Hawai#i, December 23, 2020.
On the briefs: /s/ Keith K. Hiraoka
Associate Judge
Jon N. Ikenaga,
Deputy Public Defender,
for Defendant-Appellant. /s/ Clyde J. Wadsworth
Associate Judge
Donn Fudo,
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee.
CONCURRING OPINION BY LEONARD, PRESIDING JUDGE
I concur in the result.
/s/ Katherine G. Leonard
Presiding Judge
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