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Electronically Filed
Supreme Court
SCWC-12-0000009
08-NOV-2013
10:46 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
CHAD GETZ, Petitioner/Defendant-Appellant.
SCWC-12-0000009
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000009; CR. NO. 11-1-0608)
November 8, 2013
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY POLLACK, J.
Petitioner/Defendant-Appellant Chad Getz (Getz) appeals
from the April 17, 2013 Judgment on Appeal of the Intermediate
Court of Appeals (ICA), affirming the Judgment of Conviction and
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Sentence entered by the Circuit Court of the First Circuit
(circuit court) on December 7, 2011. For the reasons stated
herein, we hold that the circuit court erred by failing to give a
specific unanimity instruction and that this error was not
harmless beyond a reasonable doubt. Accordingly, we vacate the
ICA and circuit court judgments and remand the case for a new
trial.
I.
On May 2, 2011, Respondent/Plaintiff-Appellee State of
Hawai#i (State) charged Getz with committing the offense of
Robbery in the Second Degree in violation of Hawai#i Revised
Statutes (HRS) § 708-841(1)(a).1 The State’s Complaint charged:
On or about the 21st day of April, 2011, in the City and
County of Honolulu, State of Hawai#i, CHAD GETZ, while in
the course of committing a theft from Nordstrom, Inc., did
use force against Angela Rueber and/or Jessie Saffery, a
person who was present, with intent to overcome Angela
Rueber’s and/or Jessie Saffery’s physical resistance or
physical power of resistance, thereby committing the offense
of Robbery in the Second Degree[.]
(Emphases added).
1
HRS § 708-841 (Supp. 2011) provides in relevant part:
(1) A person commits the offense of robbery in the second
degree if, in the course of committing theft or non-
consensual taking of a motor vehicle:
(a) The person uses force against the person of
anyone present with the intent to overcome that
person’s physical resistance or physical power of
resistance[.]
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Getz’s jury trial commenced on September 26, 2011.2
The State called two witnesses to testify: Nordstrom loss
prevention manager Angela Rueber (Rueber) and Nordstrom loss
prevention agent Jessie Saffery (Saffery).
Around 9 p.m. on April 21, 2011, Rueber and Saffery
were in the Loss Prevention office, located on Nordstrom’s first
floor, conducting routine surveillance of the store using the
store’s closed-circuit television system. Rueber and Saffery
observed Getz enter the store and walk down the escalator
carrying an Old Navy shopping bag. They watched as Getz selected
a Coach handbag and walked away from the handbag department. At
that point, Rueber left the security office to pursue Getz, while
Saffery remained in the office and continued watching the
monitor. Rueber and Saffery maintained communication using two-
way radios with concealed ear pieces.
After Getz selected the handbag, he placed it on his
shoulder with the Old Navy shopping bag. Saffery informed Rueber
that Getz had walked past the cash register. Rueber caught sight
of Getz heading in the direction of the exit towards the parking
garage. Rueber testified that Getz “look[ed] back a couple of
times” and “put[] the handbag over his shoulder” so that it was
“sandwiched” between the shopping bag and his back. As Rueber
followed Getz out of the exit, she had a Nordstrom salesperson
2
The Honorable Glenn J. Kim presided.
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accompany her. The salesperson was “approximately five feet
behind” Rueber as they proceeded to the exit.
Saffery testified that after she saw Getz exit the
store, she also left the Loss Prevention office and ran to assist
Rueber in apprehending Getz.
Rueber testified that after Getz exited the store, he
walked towards the stairwell. Rueber caught up to Getz at the
entrance to the stairs and told him that she was with Nordstrom
Loss Prevention and that he needed to come back into the store
with her. Getz turned to face her and responded, “[N]o, I’m not
going anywhere with you,” then turned away and continued walking.
Rueber grabbed the handbag. Getz did not let go of the bag and
began walking down the stairs, as Rueber continued to hold on to
the strap of the handbag. Rueber testified, “[W]e were playing
tug-of-war with [the strap of the handbag] and he continued to
walk down and I went down the stairs with him ‘cause I didn’t let
go of the bag.”
Rueber then tried to stop Getz from going down the
stairs by holding on to the bag with her right hand, putting her
left arm out in front of Getz, and grabbing the handrail with her
left hand. Getz slowed down momentarily but “broke through” her
arm with his “body weight” and continued down the stairs. Getz
and Rueber continued to hold on to the bag down three flights of
stairs, for approximately two minutes. Rueber testified that
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Getz did not run down the stairs.
While Rueber and Getz walked down the stairs, Rueber
tried unsuccessfully to pin Getz against the rail and to sweep
him off his feet by wrapping her legs between his legs to make
him lose balance. Getz “used his weight to push through [Rueber]
and continue down the stairs,” but did not punch or kick Rueber,
try to throw her off of him, or verbally threaten her.
At some point, Saffery caught up to Rueber and Getz on
the stairwell. Rueber could not remember when Saffery arrived on
the stairs. Saffery testified that she arrived when Rueber and
Getz were on the first flight of stairs. Saffery stated that
upon catching up to Rueber and Getz, she “tried to stop [Getz]
along with [Rueber], but we just kept going down the next flight
of stairs.”
Rueber testified that “somewhere between the second
landing and the third flight of stairs,” she “ripped out” the
handbag from Getz’s grip “either by my force or I pulled it
away.” She then put Getz’s hand behind his back. However, she
testified that Getz did not stop walking at that point, and they
“continued down to the third landing where it stopped.”
According to Rueber, they stopped on the third landing
when “[Saffery] arrived and [Getz] said he was going to jump over
the railing, so I grabbed onto his shirt and there was a police
officer that showed up and shouted that he better listen to me.
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And that’s when he all of a sudden became compliant.”
Rueber explained that Saffery helped her pull Getz’s
arms behind his back and recovered her handcuffs, which she had
dropped on the stairs just before Getz stopped on the third
landing. Rueber testified that she and Saffery “were trying to
get [Getz’s] arms behind his back . . . but he was obviously
resisting. And then he stopped resisting once the officer was
there.” She stated that the police officer stood “at the top of
the third flight of stairs.” However, the officer did not become
physically involved in the incident and “did not have any
involvement after that.”
According to Saffery, Getz was “detained” on the third
landing when they “actually stopped.” Saffery explained that
she, Rueber and Corpuz “ended up getting [Getz] against the
corner of the rail,” with Rueber on one side, and the salesperson
“holding [Getz’s] other arm.” After Getz was cornered, she went
to retrieve Rueber’s handcuffs.
After Getz was handcuffed, Rueber and Saffery escorted
Getz back to the Loss Prevention office. Getz walked back to the
office willingly and was cooperative. Rueber recovered the
handbag. Getz was later released by the Loss Prevention officers
to police custody.
About two minutes passed between the time Getz exited
and returned to the store. Rueber testified that throughout the
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entire event, Getz did not “put a hand” on either her or Saffery.
Saffery, on the other hand, testified that Getz “grabbed” her arm
during the two-minute period, although she did not specify when
this occurred. She also admitted that she did not mention this
in her written statement,3 and could not recall whether she
previously testified at a prior hearing that Getz had grabbed
her. Saffery testified that Getz did not kick her or threaten
her verbally, or punch or assault Rueber.
The State rested, and the defense presented no
witnesses.
B.
The court instructed the jury on the offense of Robbery
in the Second Degree as follows:
A person commits the offense of Robbery in the Second
Degree if, in the course of committing theft, he uses force
against the person of anyone present, with intent to
overcome that person’s physical resistance or physical power
of resistance.
There are two material elements of the offense of
Robbery in the Second Degree, each of which the prosecution
must prove beyond a reasonable doubt.
These two elements are:
(1) That on or about the 21st day of April, 2011, in
the City and County of Honolulu, State of Hawai#i, the
defendant was in the course of committing theft; and
(2) That while doing so, the defendant used his
force against Angela Rueber and/or Jessie Saffery, a person
who was present, with intent to overcome Angela Rueber
and/or Jessie Saffery’s physical resistance or physical
power of resistance.
3
Saffery “wrote a report describing the events of this case right
after the police came.”
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(Emphasis added). This instruction was given by agreement
pursuant to the court’s proposed jury instructions.
During the settling of jury instructions, the
court withdrew its standard unanimity instruction, which
provided:
The law allows the introduction of evidence for the purpose
of showing that there is more than one [act] [omission]
[item] upon which proof of an element of an offense may be
based. In order for the prosecution to prove an element,
all twelve jurors must unanimously agree that [the same act]
[the same omission] [possession of the same item] has been
proved beyond a reasonable doubt.
(Brackets in original). Defense counsel objected, explaining,
“in an abundance of caution because it’s a two-minute interval I
think where the issue lies on the stairwell, I would think that,
perhaps, that the jury would have to be unanimous at what point .
. . in the entire case that the Robbery would occur at.” The
court responded that it would withdraw the instruction over
defense objection because “the alleged facts as they are in this
case, no Arceo is necessary.” The jury was not instructed that
it was required to agree unanimously as to the identity of the
person against whom Getz used force—either Rueber or Saffery.
During the State’s closing argument, the State
consistently referred to Rueber and Saffery collectively,
arguing, “They attempted to prevent Chad Getz from leaving with
Nordstrom merchandise. They resisted his ability to escape with
Nordstrom property as security.” (Emphases added). The State
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described the facts of the case, stating, “They were physically
resisting [Getz’s] ability to leave with that bag, first grabbing
the bag, then attempting to grab him, and that’s exactly the
reason why he was continuing to push down those stairs, . . .
despite having two . . . loss prevention officers hanging off of
him, trying to stop him[.]” (Emphasis added).
Accordingly, the State argued with respect to the
elements of robbery: “[Getz] was in the course of committing
theft, he used force against Angela Rueber or Jessie Saffery, and
with the intent to overcome their physical resistance or power of
resistance.” (Emphases added). The State focused specifically
on the “and/or” language of the jury instruction, and argued,
“That means you can believe he used [force] against Angela Rueber
or Jessie Saffery or both. And in reality it’s all of the
above.”
The State reiterated, “All [the law] requires is that
he used force against them with the intent to overcome their
physical . . . power of resistance,” and concluded, “The
defendant in the course of committing theft . . . encountered two
dedicated professional security officers, and when they attempted
to do their jobs, he used force to try and get past them.”
(Emphases added).
That same day, the jury returned its verdict, finding
Getz guilty as charged of Robbery in the Second Degree.
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On December 7, 2011, the circuit court sentenced Getz
to ten years of imprisonment with a mandatory minimum term of
four years as a repeat offender.4 The court reduced the
mandatory minimum term from ten years to four years based on a
finding of strong mitigating circumstances, reasoning that
“Defendant’s criminal conduct neither caused nor threatened
serious harm to anyone,” and “8 or 9 juries out of 10 would have
acquitted the defendant of Robbery and probably convicted
defendant of a lower class C theft felony.”
II.
On appeal to the ICA, Getz argued that the evidence was
insufficient to prove that he used force “with the intent to
overcome the loss prevention officers’ physical resistance or
physical power of resistance.” Getz emphasized that there was no
evidence that he punched, kicked or threatened Rueber or Saffery,
and argued that at most, he held onto the handbag and continued
walking away, which was insufficient to prove the force element
of robbery in the second degree.
The ICA rejected Getz’s argument and held that “[t]here
was substantial evidence for the jury to conclude that in the
course of committing theft of a handbag, Getz used force against
Rueber with the intent to overcome her physical resistance or
4
HRS § 706-606.5(5) (Supp. 2011) authorizes the sentencing court to
reduce the mandatory minimum term mandated in HRS § 706-606.5(1) upon a
finding of strong mitigating circumstances, which include but are not limited
to the circumstances provided for in HRS §§ 706-621 and 706-606.
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physical power of resistance in the flight after the commission
of the theft.”5 State v. Getz, No. CAAP-12-0000009, 2013 WL
1117409, at *1 (Haw. App. Mar. 18, 2013) (SDO) (emphasis added).
Accordingly, the ICA affirmed Getz’s conviction.
In his Application to this court, Getz maintains that
“the ICA gravely erred in concluding that there was substantial
evidence to sustain Petitioner’s conviction for Robbery in the
Second Degree.”
III.
“[T]he right of an accused to a unanimous verdict in a
criminal prosecution, tried before a jury in a court of this
state, is guaranteed by article I, sections 5 and 14 of the
Hawai#i Constitution.”6 State v. Arceo, 84 Hawai#i 1, 30, 928
P.2d 843, 872 (1996). “‘[I]n criminal cases, this requirement of
unanimity extends to all issues which are left to the jury.’”
Id. (citing Andres v. United States, 333 U.S. 740, 748 (1948))
(brackets and ellipses omitted). “The jury must unanimously find
that each material element of the offense has been proven—the
conduct, the attendant circumstances, and the result of
conduct—as well as the mental state requisite to each element.”
5
The Honorable Craig H. Nakamura, Katherine G. Leonard, and Lisa M.
Ginoza presided.
6
Article I, section 5 provides in relevant part that “[n] o person
shall be deprived of life, liberty or property without due process of law[.]”
Haw. Const. art. I, § 5. Article I, section 14 provides in relevant part that
“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial by an impartial jury . . . . Juries, where the crime charged
is serious, shall consist of twelve persons.” Haw. Const. art. I, § 14.
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State v. Jones, 96 Hawai#i 161, 169, 29 P.3d 351, 359 (2001).
“[I]nasmuch as, pursuant to this precept of constitutional law,
an accused in a criminal case can only be convicted upon proof by
the prosecution of every material element of the crime charged
beyond a reasonable doubt, the constitutional precept also
implicates the defendant’s right to due process of law[.]”
Arceo, 84 Hawai#i at 30, 928 P.2d at 872 (quotation marks,
ellipses and citations omitted).
In Arceo, the prosecution aggregated the defendant’s
multiple acts of alleged sexual contact into one count of the
indictment and multiple acts of alleged sexual penetration into a
second count. Id. at 3, 928 P.2d at 845. On appeal, the
defendant argued in part that the prosecution was required to
identify the specific act of sexual contact and penetration for
which it was seeking the two convictions or alternatively, that
the trial court was required to instruct the jury that it must
unanimously agree on the same act(s) in reaching guilty verdicts.
Id. at 27, 928 P.2d at 869. In addressing the defendant’s
argument as a matter of first impression, the Arceo court
concluded as an initial matter that sexual assaults are not
“continuing offenses” because the applicable statutes provide
that each distinct act in violation of the statutes constitutes a
separate offense under the Hawai#i penal code. Id. at 21-22, 928
P.2d at 863-64.
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The court then found that jurisdictions “holding that
sexual assaults are not ‘continuing offenses’ appear to be in
agreement that, where evidence of multiple culpable acts is
adduced to prove a single charged offense, the defendant is
entitled either to an election by the prosecution of the single
act upon which it is relying for a conviction or to a specific
unanimity instruction.” Id. at 30-31, 928 P.2d at 872-73. The
court also reviewed a long line of federal decisions decided
outside of the context of sexual assaults, holding that a general
unanimity instruction7 is not sufficient when a “conviction may
occur as a result of different jurors concluding that the
defendant committed different acts[.]” Id. at 32, 928 P.2d at
874 (quoting United States v. Echeverry, 719 F.2d 974, 975 (9th
Cir. 1983)). “To correct any potential confusion in such a case,
the trial judge must augment the general instruction to ensure
that the jury understands its duty to unanimously agree to a
particular set of facts.” 84 Hawai#i at 32, 928 P.2d at 874
(quoting Echeverry, 719 F.2d at 975).
The Arceo court agreed with the logic of these
decisions and therefore held that
when separate and distinct culpable acts are subsumed within
a single count charging a sexual assault-any one of which
could support a conviction thereunder-and the defendant is
ultimately convicted by a jury of the charged offense, the
defendant’s constitutional right to a unanimous verdict is
violated unless one or both of the following occurs: (1) at
7
In Arceo, the jury was instructed generally that “your verdict
must be unanimous.” 84 Hawai#i at 10, 928 P.2d at 852.
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or before the close of its case-in-chief, the prosecution is
required to elect the specific act upon which it is relying
to establish the “conduct” element of the charged offense;
or (2) the trial court gives the jury a specific unanimity
instruction, i.e., an instruction that advises the jury that
all twelve of its members must agree that the same
underlying criminal act has been proved beyond a reasonable
doubt.
Id. at 32-33, 928 P.2d at 874-75 (emphases added). Applying this
standard, the court held that the trial court erred in failing to
give a specific unanimity instruction, and that this error
required vacating the defendant’s conviction. Id. at 33, 928
P.2d at 875.
Accordingly, “the purpose of an Arceo unanimity
instruction is to eliminate any ambiguity that might infect the
jury’s deliberations respecting the particular conduct in which
the defendant is accused of engaging and that allegedly
constitutes the charged offense.” State v. Valentine, 93 Hawai#i
199, 208, 998 P.2d 479, 488 (2000).
In Valentine, the court explained that “absent an
election by the prosecution” of the specific act upon which it is
relying to establish the conduct element of the charged offense,
“two conditions must converge before an Arceo unanimity
instruction . . . is necessary: (1) at trial, the prosecution
adduces proof of two or more separate and distinct culpable acts;
and (2) the prosecution seeks to submit to the jury that only one
offense was committed.” Id.
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In this case, Getz was charged with a single count of
robbery in the second degree, which requires proof beyond a
reasonable doubt that the defendant “use[d] force against the
person of anyone present with the intent to overcome that
person’s physical resistance or physical power of resistance.”
HRS § 708-841(1)(a).
In State v. Cordeiro, 99 Hawai#i 390, 407-08, 56 P.3d
692, 709-10 (2002), the court held that a specific unanimity
instruction was required, where the defendant was charged with a
single offense of robbery and the prosecution adduced evidence
that the defendant used force against two individuals; the
decedent and a witness. The two acts of force took place during
the same sequence of events. The witness drove the decedent and
then waited in the car while the decedent got out and spoke to
the occupant of a second vehicle parked nearby. Id. at 400, 56
P.3d at 702. The witness heard a gunshot and observed the
decedent lying by the side of the road, bleeding. Id. The
witness tried to start his car engine but the defendant ran up to
him and pointed a gun at his head, ordered him out of the car and
instructed him to dispose of the decedent’s body. Id. At trial,
the prosecution submitted to the jury that the defendant’s
alleged act of shooting the decedent or threatening the witness
could support a guilty verdict as to first degree robbery. Id.
at 407, 56 P.3d at 709. The circuit court generally instructed
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the jury that its verdict must be unanimous, but did not instruct
the jury that it was required unanimously to agree as to the
identity of the person against whom the defendant used force.
Id.
On these facts, the defendant argued that the trial
court plainly erred by failing to give a specific unanimity
instruction as to the identity of the person against whom the
defendant used force. Id. The prosecution conceded that the
trial court’s error warranted vacating the defendant’s robbery
conviction. Id. The Cordeiro court agreed with the
prosecution’s concession, finding that a
review of the record confirm[ed] that the circuit court’s
instructions were prejudicially insufficient and erroneous,
inasmuch as the prosecution (1) adduced evidence of two
separate and distinct acts that arguably supported the
requisite “use of force” by [the defendant] (i.e., shooting
[the decedent] and threatening [the witness] with a firearm)
(2) failed to make an election as to the particular act on
the basis of which it was seeking conviction, and (3)
represented to the jury that only a single offense was
committed but that either act could support a guilty verdict
as to first degree robbery.
Id. (emphases added). Thus, the court held that the “circuit
court plainly erred in failing to instruct the jury that it was
required to agree unanimously as to the person against whom [the
defendant] used force,” and vacated the defendant’s robbery
conviction. Id. at 407-08, 56 P.3d at 709-10.
Similarly in this case, the State adduced evidence of
Getz’s use of force against two people, Rueber and Saffery,
failed to make an election as to the person against whom Getz
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used force, and represented to the jury that Getz’s use of force
against either person could support a single offense of robbery
in the second degree. With regard to Rueber, the State presented
evidence that Getz and Rueber “played tug-of-war” with the
handbag as they walked down the stairs and that Getz “used his
weight” to continue walking as Rueber attempted various maneuvers
to stop him. As for Saffery, the State presented evidence that
Getz continued to walk down the stairs as Saffery attempted to
help Rueber stop him, and that Getz “grabbed” Saffery’s arm.
The State did not elect whether it was relying on the
use of force against Rueber or Saffery to establish the requisite
conduct element. The State argued to the jury during closing
argument that because of the “and/or” language used in the jury
instruction, “[t]hat means you can believe he used [force]
against Angela Rueber or Jessie Saffery or both.” Additionally,
no specific unanimity instruction was given to the jury,
informing them that they were required to agree unanimously as to
the identity of the person against whom Getz used force.
Instead, the jury was instructed that it could return a guilty
verdict on the robbery offense if it found beyond a reasonable
doubt that “the defendant used his force against Angela Rueber
and/or Jessie Saffery, . . . with intent to overcome Angela
Rueber and/or Jessie Saffery’s physical resistance or physical
power of resistance.” (Emphases added).
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Therefore, in returning the guilty verdict as to second
degree robbery, some jurors may have believed that Getz used
force against Rueber but not Saffery, other jurors may have
believed that he used force against Saffery but not Rueber, and
still others may have believed that Getz used force against both
Rueber and Saffery. Under these circumstances, an Arceo
unanimity instruction was required to “eliminate any ambiguity
that might [have] infect[ed] the jury’s deliberations respecting
the particular conduct in which [Getz] [was] accused of engaging
and that allegedly constitute[d]” the offense of robbery in the
second degree. See Valentine, 93 Hawai#i at 208, 998 P.2d at
488. Accordingly, the circuit court erred in failing to instruct
the jury that it was required to agree unanimously as to the
person against whom Getz used force.
IV.
“This court has stated that when jury instructions or
the omission thereof are at issue on appeal, the standard of
review is whether, when read and considered as a whole, the
instructions given are prejudicially insufficient, erroneous,
inconsistent or misleading.” State v. Mark, 123 Hawai#i 205,
219, 231 P.3d 478, 492 (2010) (citing State v. Gomes, 93 Hawai#i
13, 18, 995 P.2d 314, 319 (2000)) (quotation marks and brackets
omitted). “[T]he real question becomes whether there is a
reasonable possibility that error might have contributed to
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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.” Arceo, 84 Hawai#i at 12, 928 P.2d at
854 (citing State v. Heard, 64 Haw. 193, 194, 638 P.2d 307, 308
(1981) and State v. Holbron, 80 Hawai#i 27, 32, 904 P.2d 912, 917
(1995)) (quotation marks, brackets and citations omitted).
In this case, Getz objected to the circuit court’s
withdrawal of the standard unanimity instruction. The court
responded that an Arceo instruction was not necessary based on
the alleged facts. However, Getz did not raise the lack of a
specific unanimity instruction as a point of error on appeal to
the ICA. See Hawai#i Rules of Appellate Procedure Rule 28(b)(4)
(point of error not presented on appeal in accordance with Rule
28 “will be disregarded, except that the appellate court, at its
option, may notice a plain error not presented”).
In Arceo, the court held that the circuit court’s
failure to give a specific unanimity instruction prejudiced the
defendant’s “substantial constitutional right to unanimous jury
verdicts . . . in such a manner as to give rise to plain error.”
84 Hawai#i at 33, 928 P.2d at 875. The court continued, “And
inasmuch as we cannot say that there was no reasonable
possibility that the circuit court’s error contributed to Arceo’s
convictions, we hold that the error was not harmless beyond a
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reasonable doubt.” Id. The court thus vacated Arceo’s
conviction and remanded the matter for a new trial.8 Id.
In accordance with Arceo, subsequent cases finding that
the trial court erroneously failed to give a specific unanimity
instruction have applied plain error, vacated the conviction, and
remanded for a new trial. See Cordeiro, 99 Hawai#i at 408, 56
P.3d at 710 (“Because the circuit court’s insufficient jury
instructions prejudiced Cordeiro’s substantial constitutional
right to a unanimous jury verdict, the error was ‘plain’.”);
State v. Kassebeer, 118 Hawai#i 493, 511, 193 P.3d 409, 427
(2008) (“Under Arceo and its progeny, it was plain error for the
circuit court not to issue a specific unanimity instruction to
the jury”).
Accordingly, pursuant to Arceo, the circuit court’s
failure to give a specific unanimity instruction in this case
constituted plain error. As to whether there was a reasonable
possibility that the error contributed to the conviction, Getz’s
alleged culpable conduct occurred within two minutes and involved
both Rueber and Saffery. Absent a specific unanimity
instruction, the jurors may not have been in agreement over the
identity of the person against whom Getz used the requisite
force.
8
The court found that because the “evidence adduced at trial was
clearly sufficient to support Arceo’s convictions, double jeopardy concerns
are not implicated by a new trial.” Id. at 33 n.40, 928 P.2d at 875 n.40.
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Furthermore, as the circuit court recognized in the
sentencing phase of this case, “Defendant’s criminal conduct
neither caused nor threatened serious harm to anyone.” The
circuit court found that “8 or 9 juries out of 10 would have
acquitted the defendant of Robbery and probably convicted
defendant of a lower class C theft felony.”
Based on the above, there is at least a reasonable
possibility that the circuit court’s error in failing to give a
specific unanimity instruction contributed to Getz’s conviction.
Therefore, the error was not harmless beyond a reasonable doubt,
and Getz’s second degree robbery conviction must be vacated and
the case remanded to the circuit court for a new trial.
V.
In light of the remand, we address the sufficiency of
the evidence supporting Getz’s conviction. See State v. Kaulia,
128 Hawai#i 479, 496, 291 P.3d 377, 394 (2013) (“The Double
Jeopardy Clause bars retrial of a defendant where reversal is
based on the insufficiency of the evidence.”); Arceo, 84 Hawai#i
at 33 n.40, 928 P.2d at 875 n.40 (“Because our disposition of the
present appeal is grounded in ‘trial error’ and the evidence
adduced at trial was clearly sufficient to support Arceo’s
convictions, double jeopardy concerns are not implicated by a new
trial.”).
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“‘In reviewing the legal sufficiency of the evidence on
appeal, the test is whether, viewing the evidence in the light
most favorable to the State, substantial evidence exists to
support the conclusion of the trier of fact.’” Kaulia, 128
Hawai#i at 496, 291 P.3d at 394 (quoting State v. Lubong, 77
Hawai#i 429, 432, 886 P.2d 766, 769 (App. 1994)).
In this case, Getz used his body weight to continue
walking down the stairs while Rueber and Saffery attempted to
stop him, and held onto the handbag when Rueber attempted to pull
it away from him. Rueber testified that Getz was “obviously
resisting” while she and Saffery attempted to detain him, and
Saffery testified that Getz grabbed her arm. Although Getz
appears to have used minimal force, when viewing the evidence in
the light most favorable to the State, there was sufficient
evidence adduced to support his conviction. State v. Chen, 77
Hawai#i 329, 338, 884 P.2d 392, 401 (App. 1994) (“‘Issues going
to reasonable doubt are generally matters for the fact finder to
determine.’”) (quoting State v. Gabrillo, 10 Haw. App. 448, 457,
877 P.2d 891, 895 (1994)) (brackets and ellipses omitted).
Accordingly, double jeopardy concerns are not
implicated by remanding the case for a new trial based on the
circuit court’s failure to give a specific unanimity instruction.
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VI.
Based on the foregoing, we hold that the circuit court
plainly erred by failing to instruct the jury that it was
required to agree unanimously as to the person against whom Getz
used force. We therefore vacate the ICA and circuit court
judgments and remand the case for a new trial.
Summer M.M. Kupau, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
James M. Anderson,
for respondent /s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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