State v. Presti

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  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER 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  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER 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  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER 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  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER 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 FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER • 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  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER 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  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER 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  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER 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. 12  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER 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. 13  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER "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). 14  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER 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 15  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")). 16  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER 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. 17  FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER 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, 18  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, 19  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." 20  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 21  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"). 22  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, 23  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. Bojor