Background
Cody Presti met the complaining witness through Bumble while she was visiting Oʻahu. She testified that after a date, Presti drove her to Round Top Drive instead of taking her home, chased her when she ran from the car, carried her back, pinned her against the passenger-side door, and tried to remove her romper. She escaped, obtained help from a passing driver, and reported the incident to police.
The witness later identified Presti through a blind sequential photographic lineup. A grand jury indicted him for attempted first-degree sexual assault and kidnapping. After a four-day trial, the jury acquitted him of attempted sexual assault and convicted him on the kidnapping count of the included misdemeanor offense of second-degree unlawful imprisonment. He received a one-year prison sentence with credit for time served and appealed while representing himself.
The Court’s Holding
The Intermediate Court of Appeals affirmed. It held that the lineup was not impermissibly suggestive because differences in the photographs—including Presti’s lighter background, barely visible sunglasses, and larger head—did not make his photograph unduly stand out when the lineup was considered as a whole. The court also found a sufficient foundation for the body-camera recording because Officer Ryan Ariola testified that it came from his camera and that he uploaded it to police servers.
The court did not consider Presti’s inadequately briefed challenge to Officer Ariola’s testimony about how the case was classified, noting alternatively that Presti identified nothing in the record showing that the testimony lacked the required foundation. It further held that the prosecution acted within its charging discretion, the circuit court properly denied a bill of particulars because the requested information had been supplied through discovery and prior testimony, and harassment was not an included offense of second-degree unlawful imprisonment because harassment requires a greater mental state.
The court lacked jurisdiction to decide Presti’s constitutional challenges to the attempted-sexual-assault, kidnapping, and attempt statutes because he had been acquitted of offenses under those statutes and was not aggrieved by those acquittals. His attacks on the grand-jury probable-cause determination and his excessive-bail claim were moot. Although the record suggested that the circuit court had not properly considered his financial circumstances when setting bail, no effective relief remained because he had completed his sentence.
Key Takeaways
- Minor differences among lineup photographs do not make a lineup impermissibly suggestive unless the suspect’s photograph unduly stands out in context.
- Arguments supported by nonexistent authority may be treated as waived, and inadequately developed appellate arguments need not be considered.
- Harassment is not an included offense of second-degree unlawful imprisonment because its intent requirement is more culpable than the knowing mental state required for unlawful imprisonment.
Why It Matters
The published opinion provides guidance on photographic-lineup challenges, included-offense instructions, and the limits of appellate review following acquittal or completion of a sentence. It also emphasizes that even self-represented criminal appellants must present discernible arguments grounded in real legal authority and an adequate record.
The court declined to apply the civil sanctions rule governing fabricated citations to this direct criminal appeal, but explained that citing nonexistent authority violates appellate briefing requirements and can support sanctions under the appellate rules. Under the circumstances, however, it resolved the appeal through ordinary principles of waiver and appellate review rather than imposing sanctions.