Full Opinion (html_with_citations)

  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER




                                                    Electronically Filed
                                                    Intermediate Court of Appeals
                                                    CAAP-XX-XXXXXXX
                                                    28-DEC-2023
                                                    01:35 PM
                                                    Dkt. 80 SO



                             NO. CAAP-XX-XXXXXXX


                   IN THE INTERMEDIATE COURT OF APPEALS

                           OF THE STATE OF HAWAIʻI


                 STATE OF HAWAIʻI, Plaintiff-Appellee, v.
                  RAYMOND EARL ARD, Defendant-Appellant.


           APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
                         (CASE NO. 5PC051000062)


                        SUMMARY DISPOSITION ORDER
  (By:      Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

              Defendant-Appellant Raymond Earl Ard appeals from the

Circuit Court of the Fifth Circuit's June 6, 2022 "Findings of

Fact [(FOF)]; Conclusions of Law [(COL)]; and Order Denying

Defendant's Application for Conditional Release Filed June 21,

2021." 1    In his sole point of error on appeal, Ard contends the

circuit court erred in denying his application for conditional

release.




     1     The Honorable Kathleen N.A. Watanabe presided.
  NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER


          Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve the

point of error as discussed below, and affirm.

          Ard, his wife, and minor step-son moved into a rental

residence owned by Jon (Kerns) and Claudia Kerns in Waimea,

Kaua‘i in late 2004.   On the night of February 27, 2005, Ard

stabbed his step-son once in the neck and stabbed Kerns multiple

times in the chest with a three-inch paring knife.      Taken to

Kauaʻi Veterans Memorial Hospital, Kerns was pronounced dead on

arrival; Ard's step-son survived.

          Following a bench trial in 2006, the circuit court

found Ard guilty of Attempted Murder in the First Degree as to

Kerns and Ard's step-son, and not guilty of Murder and Attempted

Murder in the Second Degree.    The circuit court acquitted Ard

"on the ground[s] of physical or mental disease, disorder or

defect, excluding responsibility," and concluded Ard presented

"a risk of danger to himself and/or others and is not a proper

subject for conditional release at this time."      Hawai‘i Revised

Statutes §§ 704-408 (1993), 704-411 (Supp. 1997).      The circuit

court committed Ard "to the custody of the Director of the

Department of Health to be placed in an appropriate institution




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for care, custody, and treatment."         Ard was admitted to Hawai‘i

State Hospital the next day.

            Ard applied for conditional release on June 21, 2021,

requesting the circuit court appoint a three-panel board of

examiners to determine whether he should be granted conditional

release, and requesting conditional release "to a 24-hour group

home."    Following a hearing, the circuit court entered its

findings and conclusions, and denied Ard's application for

conditional release. 2

            To support his contention that the circuit court erred

in denying his application, Ard challenges FOF 4-6, 12-27, and

COL 3 and 5. 3   In doing so, Ard mainly claims that:          the

examiners' full opinions were not taken into consideration;

testimony was taken out of context; and the circuit court's

findings were misleading, incomplete, or inaccurate.

            Based on our review of the record, the circuit court

did not clearly err as to FOF 4-6 and 12-27 because there was

substantial evidence supporting these challenged findings.              See



      2  In 2014, this court upheld a previous denial of an application for
Ard's conditional release. State v. Ard, 134 Hawaiʻi 133,
337 P.3d 54
,
No. CAAP-XX-XXXXXXX,
2014 WL 5331918
 at *2 (App. Oct. 20, 2014) (SDO).

      3  We note Ard cites to article I, section 5 of the Hawai‘i Constitution
and the fifth and fourteenth amendments of the U.S. Constitution, but does
not raise a separate point of error asserting a constitutional violation.
See Hawai‘i Rules of Appellate Procedure Rule 28(b)(4) (requiring separate
points of error and stating "[p]oints not presented in accordance with this
section will be disregarded"). Thus, we do not further address these
citations.

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Dan v. State, 76 Hawai‘i 423, 428,
879 P.2d 528, 533
 (1994) ("A

trial court's [findings of fact] are reviewed under the 'clearly

erroneous' standard"); State v. Quiday, 141 Hawai‘i 116, 121,
405 P.3d 552
, 557 (2017) ("A finding of fact is clearly erroneous

when (1) the record lacks substantial evidence to support the

finding, or (2) despite substantial evidence in support of the

finding, the appellate court is nonetheless left with a definite

and firm conviction that a mistake has been made") (citations

omitted).

            Also based on our review of the record on appeal, the

circuit court did not err in entering COL 3 and 5 because these

conclusions were supported by the circuit court's findings and

reflect the correct application of the law.     See State v.

Locquiao, 100 Hawai‘i 195, 203,
58 P.3d 1242, 1250
 (2002)

(explaining "[t]he circuit court's conclusions of law are

reviewed under the right/wrong standard") (citations omitted);

Dan, 76 Hawai‘i at 428,
879 P.2d at 533
 ("A conclusion of law

that is supported by the trial court's findings of fact and that

reflects an application of the correct rule of law will not be

overturned") (citations omitted).

            As such, we affirm the circuit court's June 6, 2022

"Findings of Fact; Conclusions of Law; and Order Denying




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Defendant's Application for Conditional Release Filed June 21,

2021."

          DATED:   Honolulu, Hawaiʻi, December 28, 2023.

On the briefs:                        /s/ Keith K. Hiraoka
                                      Presiding Judge
Taryn R. Tomasa,
Deputy Public Defender,               /s/ Clyde J. Wadsworth
for Defendant-Appellant.              Associate Judge

Jennifer S. Winn,                     /s/ Sonja M.P. McCullen
Deputy Prosecuting Attorney,          Associate Judge
County of Kauaʻi,
for Plaintiff-Appellee.




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