NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-OCT-2026
07:59 AM
Dkt. 119 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MICAIAH H. SMITH, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and McCullen, JJ.)
Defendant-Appellant Micaiah H. Smith (Smith) appeals
from the June 24, 2024 Judgment of Conviction and Sentence;
Notice of Entry of Judgment (Judgment) entered by the Circuit
Court of the Third Circuit (Circuit Court).1
Plaintiff-Appellee State of Hawai#i (the State) charged
Smith by way of Indictment with one count of Electronic
Enticement of a Child in the First Degree (Count 1), in violation
of Hawaii Revised Statutes (HRS) § 707-756(1) (2014),2 and one
1
The Honorable Robert D.S. Kim presided.
2
HRS § 707-756 provides:
§ 707-756 Electronic enticement of a child in the
first degree. (1) Any person who, using a computer or any
other electronic device:
(a) Intentionally or knowingly communicates:
(i) With a minor known by the person to be
under the age of eighteen years;
(ii) With another person, in reckless disregard
of the risk that the other person is under
(continued...)
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count of Attempted Promoting Pornography for Minors (Count 2), in
violation of HRS §§ 705-500(1)(a)3 and 712-1215(1)(a) (2014).4
The Circuit Court held a jury trial, resulting in Smith's
conviction on both Counts. The Circuit Court sentenced Smith to,
inter alia, a ten-year prison term.
Smith raises six (6) points of error on appeal,
contending that: (1) Count 1 of the Indictment failed to give
notice of the correct state of mind for HRS § 707-756(1)(b); (2)
the Count 2 jury instructions erroneously failed to include the
phrase "pornographic for minors;" (3) the Circuit Court failed to
2
(...continued)
the age of eighteen years, and the other
person is under the age of eighteen years;
or
(iii) With another person who represents that
person to be under the age of eighteen
years;
(b) With the intent to promote or facilitate the
commission of a felony:
(i) That is a murder in the first or second
degree;
(ii) That is a class A felony; or
(iii) That is another covered offense as defined
in section 846E-1, agrees to meet with the
minor, or with another person who represents
that person to be a minor under the age of
eighteen years; and
(c) Intentionally or knowingly travels to the agreed
upon meeting place at the agreed upon meeting
time,
is guilty of electronic enticement of a child in the first
degree.
3
HRS § 705-500 provides:
§ 705-500 Criminal attempt. (1) A person is guilty
of an attempt to commit a crime if the person:
(a) Intentionally engages in conduct which would
constitute the crime if the attendant
circumstances were as the person believes them
to be[.]
4
HRS § 712-1215 provides:
§ 712-1215 Promoting pornography for minors. (1) A
person commits the offense of promoting pornography for
minors if:
(a) Knowing its character and content, the person
disseminates to a minor material which is
pornographic for minors[.]
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protect Smith's due process right to assert lack of penal
responsibility as a defense by failing to conduct a colloquy with
Smith pursuant to State v. Glenn, 148 Hawai#i 112, 468 P.3d 126
(2020); (4) Count 2 failed to allege a state of mind for the
conduct "disseminate;" (5) the Count 1 jury instructions failed
to include a state of mind for "communicate with another person;"
and (6) Smith received ineffective assistance of counsel.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve Smith's
points of error as follows:
(1) & (4) The Hawai#i Supreme Court recently reaffirmed their case law regarding challenges to convictions based
on allegedly defective charges. Relevant here, the supreme court
explained:
In a post-conviction challenge to a charge, the charge is
presumed valid and will be invalidated only if the defendant
can show (1) the charge cannot reasonably be construed to
allege a crime; or (2) the defendant was prejudiced: Under
the Motta/Wells rule, charges challenged for the first time
on appeal are presumed valid. Accordingly, we will only
vacate a defendant's conviction under this standard if the
defendant can show: (1) that the charge cannot reasonably
be construed to allege a crime; or (2) that the defendant
was prejudiced.
State v. Bekkum, 158 Hawai#i 507, 513, 595 P.3d 83, 89 (2026)
(citation omitted).
Here, because Smith challenges the sufficiency of the
charges for the first time on appeal, the Motta/Wells rule
applies. Therefore, the only bases for a challenge are that:
(1) the charges cannot reasonably be construed to allege crimes;
or (2) Smith was prejudiced.
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With respect to Count 1, Smith argues neither, instead
arguing that Count 1 of the Indictment failed to give notice of
the correct state of mind for HRS § 707-756(1)(b).
HRS § 707-756 includes three distinct elements with separate
mens rea requirements: (a) intentionally or knowingly
communicating with a Minor; (b) agreeing to meet the Minor
with the intent to promote or facilitate the commission of a
felony; and (c) intentionally or knowingly traveling to the
agreed meeting place at the agreed time.
State v. Alangcas, 134 Hawai#i 515, 525-26, 345 P.3d 181, 191-92
(2015).
Count 1 of the Indictment states:
On or about the 1st day of April, 2023, in the County
and State of Hawai#i, MICAIAH HOOMAIKAI SMITH, using screen
name "K," using a computer or any other electronic device,
did intentionally or knowingly communicate with Detective
John Surina, using screen name "Gillian," who represented
themselves to be a minor under eighteen years of age,
specifically representing that they were fifteen years of
age, and MICAIAH HOOMAIKAI SMITH did knowingly agree to meet
with Detective John Surina, and MICAIAH HOOMAIKAI SMITH had
the intent to promote or facilitate the commission of a
felony that is another covered offense as defined in Section
846E-1 of the Hawai#i Revised Statutes, specifically, sexual
penetration, that is, vaginal intercourse and/or cunnilingus
with a minor, who was at least fourteen years old but less
than sixteen years old, and MICAIAH HOOMAIKAI SMITH was not
less than five years older than the minor and not legally
married to the minor, which is Sexual Assault in the First
Degree, in violation of Section 707-730(l)(c), Hawai#i
Revised Statutes, and MICAIAH HOOMAIKAI SMITH did
intentionally or knowingly travel to the agreed-upon meeting
place, at the agreed-upon meeting time, thereby committing
the offense of Electronic Enticement of a Child in the First
Degree, in violation of Section 707-756(1), Hawai#i Revised
Statutes, as amended.
Smith challenges the Count 1 clause "did knowingly
agree to meet with Detective John Surina," arguing that
"knowingly" does not fulfill the "intent" state of mind specified
in HRS § 707-756(1)(b). However, the next clause states that
Smith "had the intent to promote or facilitate the commission of
a felony[.]" This language is consistent with HRS § 707-756(1)(b).
Smith further argues that Count 1 is defective because
it failed to include the state of mind for Sexual Assault in the
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First Degree, HRS § 707-730(1)(c). However, "it cannot logically
be said that specifying the particular crime intended to be
committed is, under our statutes, an essential element which must
be alleged[.]" See State v. Robins, 66 Haw. 312, 315, 660 P.2d
39, 41 (1983) (reversing dismissal of burglary indictment where
prosecution did not specify underlying felony intent). Under HRS
§ 707-756(1)(b), "agreeing to meet the Minor with the intent to
promote or facilitate the commission of a felony" does not
require actual commission of a felony. See Alangcas, 134 Hawai#i
at 526, 345 P.3d at 192. In this case, the State alleged that
Smith communicated with "Gillian" (Maui Police Department
Detective Surina) with the intent to commit Sexual Assault in the
First Degree. The elements of that second underlying offense,
including the state of mind, need not be alleged.
Smith's argument that Count 1 cannot reasonably be
construed to state an offense is without merit. Smith makes no
argument that he was prejudiced by alleged defects in Count 1.
Smith also argues that Count 2 of the Indictment failed
to allege a state of mind for the conduct "disseminate" and
therefore cannot reasonably be construed to state an offense.
HRS § 712-1215(1)(a) states that "[a] person commits the offense
of promoting pornography for minors" if, "[k]nowing its character
and content, the person disseminates to a minor material that is
pornographic for minors[.]" Count 2 of the Indictment states
that Smith "did disseminate to a minor material which is
pornographic for minors, while knowing its character and content,
specifically a digital picture of a penis[.]" The language of
the Count 2 charge is almost verbatim with HRS § 712-1215(1)(a).
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We conclude Count 2 can be reasonably construed as to allege a
crime. The indirect reference to state of mind does not, on its
own, render the charge defective. See State v. Moore, 82 Hawai#i
202, 216, 921 P.2d 122, 136 (1996). Thus, we conclude that
Count 2 of the Indictment of Smith was not deficient. Smith
makes no argument that he was prejudiced by alleged defects in
Count 2.
Accordingly, Smith is not entitled to relief based on
alleged defects in the Indictment.
(3) Smith argues that the Circuit Court: erred by not
conducting a Glenn colloquy; had a statutory duty to colloquy
Smith pursuant to HRS § 704-407.5(1)-(2) (Supp. 2020); and by not
doing so, failed to protect Smith's due process right to assert
lack of penal responsibility by failing to make sure that his
waiver of this defense was knowing, intelligent, and voluntary.
The penal-responsibility defense stands in stark contrast
from all other affirmative defenses. While other defenses
may negate a defendant's criminal liability, lack of penal
responsibility eliminates a defendant's moral culpability as
well. Moreover, unlike other affirmative defenses, a
defendant who prevails on the penal-responsibility defense
does not simply walk free – the determination of
irresponsibility becomes part of the defendant's record, and
can result in the defendant's commitment to an appropriate
institution or supervision through conditional release.
Given the significant consequences that can result, from a
practical standpoint, a determination of lack of penal
responsibility is more akin to a guilty plea than an
affirmative defense.
Glenn, 148 Hawai#i at 124, 468 P.3d at 138 (cleaned up).
When a defendant seeks to waive the penalresponsibility defense, the trial court must conduct an on-therecord colloquy to confirm the "knowing, intelligent, and
voluntary" waiver of that right. Id. The Glenn Court adopted
the New Jersey Supreme Court's approach in State v. Gorthy, 145
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A.3d 146, 157 (N.J. 2016), which outlined the following
parameters:
The court should explain to the defendant the nature and
purpose of the defense. It should generally describe the
evidence relevant to that defense, including expert opinion
that could be used to support or counter that defense. The
court should inform the defendant of his or her sentencing
exposure in the event of a conviction. It should describe
[] commitment and the other potential dispositions that are
prescribed by [HRS § 704-411] in the event of an acquittal
by reason of insanity. The court should confirm the
defendant's understanding of the insanity defense as it may
affect the outcome of the trial, defendant's risk of
incarceration and the prospect of civil commitment.
Id. at 126, 468 P.3d at 140.
If the waiver is knowing, intelligent, and voluntary,
"the trial court must respect the decision of a competent
defendant who is represented by counsel." Id.
As with other fundamental rights, the right to assert
lack of penal responsibility cannot be waived by counsel. It is
solely the defendant's prerogative. Cf., e.g., State v. Vaitogi,
59 Haw. 592, 601, 585 P.2d 1259, 1265 (1978) (guilty plea); State
v. Ibuos, 75 Hawai#i 118, 121, 857 P.2d 576, 578 (1993) (trial by
jury); Tachibana v. State, 79 Hawai#i 226, 235–36, 900 P.2d 1293,
1302–03 (1995) (right to testify); State v. Murray, 116 Hawai#i
3, 21, 169 P.3d 955, 973 (2007) (right to have each element proven to a jury beyond a reasonable doubt); State v. Hernandez,
143 Hawai#i 501, 515, 431 P.3d 1274, 1288 (2018) (no-contest
plea); State v. Torres, 144 Hawai#i 282, 284-85, 439 P.3d 234,
236-37 (2019) (right to remain silent); see also Treece v. State,
547 A.2d 1054, 1062 (Md. 1988) ("The decision is one for the
defendant to make, after proper consultation with counsel, just
as a competent defendant must, ultimately, decide the wisdom of
self-representation or of a plea of guilty.").
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"[A]s with a Tachibana colloquy, the [trial] court's
only inquiry should be whether the defendant's decision to waive
lack of penal responsibility as a defense is knowing, intelligent
and voluntary – not whether it is wise." Glenn, 148 Hawai#i at
126, 468 P.3d at 140 (emphasis added). Thus, our inquiry focuses
on whether the Circuit Court adequately advised Smith of his
fundamental right to assert, or waive, this defense.
The record on appeal shows at least two instances where
the Circuit Court acknowledged Glenn. First, at trial, on the
morning of April 16, 2024, outside the jury's presence, the State
referred to the January 29, 2024 Notice of Defenses, saying,
"there had been a defense of mental disease, disorder or defect
filed." Further, "[t]he discussion with defense counsel this
morning is she does not intend to rely upon it in a formal
sense." The prosecutor voiced "concerns" over Glenn's
applicability, stating that Glenn "said if a defendant who has a
colorable defense under mental disorder or defect chooses not to
invoke it, there's a colloquy to be done about the ramifications
of those decisions." The State's position, prior to the
discussion with defense counsel, was "[Smith] should also have a
colloquy to know what the ramifications are if he was found
acquitted by version of mental disorder or defect, which is
commitment to State Hospital for the rest of his life, being
found dangerous, registration as a sex offender. All those kind
of things." The prosecutor explained, "I think there are
questions raised about how you have to colloquy the defendant or
advise him of those ramifications." The prosecutor had a copy of
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Glenn for the Circuit Court's review. The Circuit Court said,
"I'll take a look at it."
Glenn was raised a second time in the afternoon on
April 16, 2024, also outside the jury's presence. The Circuit
Court stated:
THE COURT: So let me -- I'm going to provide you with
a -- first, I read the case.
It says that, Mr. Smith, you're making a defense which
was set forth in your designation of notice of general
defenses that you are making a defense of evidence of
physical or mental disease, disorder or defect, admissible
when relevant to state of mind pursuant to Hawaii Rules of
Penal Procedure 16 (c)(3).
So in that case, basically, you're claiming an
insanity defense; that he didn't have the state of mind to
be able to formulate the requisite state of mind.
That's what you're asking. Right, counsel?
While not explicitly stated, it appears the Circuit
Court was beginning to colloquy Smith. However, defense counsel
responded, "Your Honor, we can withdraw that defense." The
Circuit Court did not proceed with a Glenn colloquy and instead
moved on to Tachibana.
"The due process guarantee of the Hawai#i Constitution
serves to protect the right of an accused in a criminal case to a
fundamentally fair trial, and central to the protections of due
process is the right to be accorded a meaningful opportunity to
present a complete defense." Glenn, 148 Hawai#i at 119-20, 468
P.3d at 133-34 (citation omitted). We conclude that the Circuit
Court erred when it failed to colloquy Smith as Glenn requires.
Accordingly, on this basis, we vacate Smith's
conviction. As our resolution of Smith's third point of error is
dispositive, we decline to reach Smith's further arguments.
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For these reasons, the Circuit Court's June 24, 2024
Judgment is vacated and this case is remanded to the Circuit
Court for further proceedings consistent with this Summary
Disposition Order.
DATED: Honolulu, Hawai#i, October 28, 2026.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Henry P. Ting,
Deputy Public Defender, /s/ Clyde J. Wadsworth for Defendant-Appellant Associate Judge
Charles E. Murray III, /s/ Sonja M.P. McCullen Deputy Prosecuting Attorney, Associate Judge
County of Hawai#i,
for Plaintiff-Appellee
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