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Electronically Filed
Supreme Court
SCWC-11-0001078
20-DEC-2013
08:41 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
ANTHONY SANTIAGO, Petitioner/Defendant-Appellant.
SCWC-11-0001078
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-11-0001078; CR. NO. 10-1-1319)
December 20, 2013
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY ACOBA, J.
We hold that Petitioner/Defendant-Appellant Anthony
Santiago (Petitioner or Anthony Santiago) may not be convicted of
both Robbery in the Second Degree, Hawai#i Revised Statutes (HRS)
§ 708-841 (Supp. 2013) (Count one), and Assault in the First
Degree, HRS § 707-710 (1993) (Count two), inasmuch as (1) the
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element of infliction of severe bodily injury is common to both
offenses, (2) the jury apparently relied on the same conduct of
Petitioner to satisfy this element for both offenses, (3) the
findings incorporated in the verdicts that Petitioner was
reckless in inflicting severe bodily injury for the second degree
robbery conviction but acted intentionally or knowingly in
engaging in the same conduct for the first degree assault
conviction were inconsistent, (4) consequently, pursuant to HRS §
701-109(1)(c) (1993),1 Petitioner could not be convicted of both
offenses.
We therefore reverse Petitioner’s conviction of first
degree assault but affirm Petitioner’s conviction of second
degree robbery because (1) the prosecution’s final argument
focused almost entirely on robbery, (2) there was sufficient
evidence to convict Petitioner of second degree robbery, (3)
affirming Petitioner’s conviction of second degree robbery is
consistent with the jury’s verdict convicting Kaulana Akau (Akau)
as an accomplice to the crime of robbery in the second degree,
1
HRS § 701-109(1)(c) provides in relevant part as follows:
§ 701-109 Method of prosecution when conduct establishes an
element of more than one offense.
(1) When the same conduct of a defendant may establish an
element of more than one offense, the defendant may be
prosecuted for each offense of which such conduct is an
element. The defendant may not, however, be convicted of
more than one offense if:
. . .
(c) Inconsistent findings of fact are required
to establish the commission of the offenses.
(Emphases added.)
2
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and (4) Petitioner is not prejudiced by this disposition inasmuch
as the penalties for second degree robbery and first degree
assault are the same.
Additionally, we hold that a specific unanimity
instruction was not required in this case. Also, we conclude
that Petitioner waived his argument that by instructing the jury
solely on accomplice liability for Kaulana Akau (Akau), the
Circuit Court of the First Circuit (the court)2 commented on the
evidence in violation of Hawai#i Rules of Evidence (HRE) Rule
1102 (1993).3
I.
A.
On August 3, 2010, Petitioner was driving his Toyota
truck through Waikiki, with Akau as a passenger. Petitioner
agreed to give a ride to Brad Easterling (Complainant) and
Complainant’s friend, Dustin Hernandez (Hernandez). Petitioner
did not know either one of them. Complainant and Hernandez rode
in the bed of the truck. There are several different versions of
the events that followed.
According to Complainant, he gave some marijuana to
Petitioner during the ride. Upon reaching Complainant’s
destination, Complainant and Hernandez exited the truck.
Complainant testified that he then shook hands first with Akau
2
The Honorable Karen S. S. Ahn presided.
3
See HRE Rule 1102 quoted infra.
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and then with Petitioner, both of whom were still in the truck.
While shaking hands with Petitioner, Petitioner tightly grabbed
Complainant’s hand, Complainant dropped his skateboard, and
someone took Complainant’s backpack. Complainant testified that
the truck then began moving and that he heard a person other than
the driver, say, “take off.” Complainant was then dragged for
some distance and suffered serious abrasions or burns on his left
arm, shoulder, hand, knee, and hip.
Akau testified that he did not see Complainant give
marijuana to Petitioner during the ride. After reaching
Complainant’s destination, Complainant and Petitioner left the
truck, but Akau did not recall Complainant shaking his hand.
Akau saw Complainant give what looked like a “Ziploc” bag of
marijuana to Petitioner while Complainant was standing outside of
the driver’s side door. Petitioner grabbed the bag and then
accelerated. Akau denied seeing a backpack and did not say “take
off.”
According to Petitioner, Complainant did not give him
any marijuana during the ride. Complainant did give him a small
amount of marijuana after Complainant exited the truck.
Petitioner shook hands with Complainant, but he “never pulled
him” into the truck. Akau then asked Complainant if he had any
marijuana for sale. At this point, Complainant was standing
outside the front window of Petitioner’s truck, on the driver’s
side. Complainant handed a Ziploc bag containing marijuana to
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Petitioner, which Complainant had removed from a Tupperware-type
container. Petitioner handed the Ziploc to Akau, who examined it
and then passed it back to Complainant.
Petitioner testified that Complainant and Akau were
discussing quantity and price regarding marijuana when Petitioner
received a text message from his girlfriend, which he answered.
The next thing Petitioner knew, Complainant and Akau were
struggling and Petitioner was being struck. Complainant reached
into the truck for what Petitioner thought was Complainant’s
marijuana. Petitioner did not see a backpack and did not take a
backpack from Complainant.
After separating Complainant and Akau, Petitioner
“panicked” and drove away. After driving for some distance,
Petitioner stopped at a stop sign. At that point, Akau “lunged
over” Petitioner and “pulled fingers off the door.” Petitioner
had thought Complainant was still where he was when the car “took
off.”
Petitioner did not recall seeing a backpack. However,
he had told the police that “if there was a backpack then [Akau]
took it.” Petitioner related that following the incident he
thought that Akau “was trying to take [Complainant’s marijuana]
without paying for it.”
Respondent/Plaintiff-Appellee the State of Hawai#i
(Respondent) called the treating physician, Dr. Nip, who
testified that Complainant had suffered “road burns” to his body.
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The burns were impregnated with asphalt, gravel, and dirt. Dr.
Nip classified Complainant’s injuries as third degree burns, or
the most severe type of burn injury. Based on the degree of
burn, Dr. Nip indicated in his report to the police that
Complainant had suffered “serious bodily injury.” During his
testimony, Dr. Nip did not indicate any other basis for finding
serious bodily injury. In Dr. Nip’s opinion, Complainant
suffered “permanent disfigurement” as a result of the burns.
B.
On August 16, 2010, Petitioner was charged in a
complaint in Count one with Robbery in the First Degree, HRS §
708-840(1)(a),4 and in Count two with Assault in the First
Degree, HRS § 707-710.5 The two counts against Petitioner read
as follows:
COUNT I: On or about the 3rd day of August, 2010, in the
City and County of Honolulu, State of Hawaii, ANTHONY SANTIAGO,
while in the course of committing theft, did attempt to kill or
4
HRS § 708-840(1)(a) provides in relevant part as follows:
§ 708-840 Robbery in the first degree.
(1) A person commits the offense of robbery in the first
degree if, in the course of committing theft or
non-consensual taking of a motor vehicle:
(a)The person attempts to kill another or
intentionally or knowingly inflicts or attempts
to inflict serious bodily injury upon another[.]
. . . .
5
HRS § 707-710 provides in pertinent part:
§707-710 Assault in the first degree.
(1) A person commits the offense of assault in the first
degree if the person intentionally or knowingly causes
serious bodily injury to another person.
. . . .
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intentionally or knowingly inflict or attempt to inflict serious
bodily injury[6 ] upon Bradley Easterling, thereby committing the
offense of Robbery in the First Degree, in violation of Section
708-840(1)(a) of the Hawaii Revised Statutes.
COUNT II: On or about the 3rd day of August, 2010, in the
City and County of Honolulu, State of Hawaii, ANTHONY SANTIAGO did
intentionally or knowingly cause serious bodily injury to Bradley
Easterling, thereby committing the offense of Assault in the First
Degree, in violation of Section 707-710 of the Hawai#i Revised
Statutes.
(Emphases added.)
Akau was charged in an indictment solely as an
Accomplice to Robbery in the First Degree, HRS §§ 702-221(2)(c)
(1993),7 702-222(1)(b) (1993),8 and 708-840(1)(a). On February
15, 2011, the trials were consolidated.
C.
On September 13, 2011, the court instructed the jury as
to Petitioner, in pertinent part, as follows:
[I]n Count 1 . . . , [Petitioner] is charged with the
offense of robbery in the first degree.
. . . .
6
“Serious bodily injury” is defined as “bodily injury which creates
a substantial risk of death or which causes serious, permanent disfigurement,
or protracted loss or impairment of the function of any bodily member or
organ.” HRS § 707-700 (emphasis added). “Bodily injury” means physical pain,
illness, or any impairment of physical condition. Id.
7
HRS § 702-221(2)(c) provides in relevant part as follows:
Liability for conduct of another.
. . . .
(2) A person is legally accountable for the conduct of
another person when:
(c) He is an accomplice of such other person in
the commission of the offense.
8
HRS § 702-222(1)(b) provides in relevant part as follows:
Liability for another; complicity. A person is an
accomplice of another person in the commission of an offense
if:
(1) With the intention of promoting or facilitating the
offense, the person:
. . . .
(b) Aids or agrees or attempts to aid the other
person in planning or committing it [.]
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There are two material elements of the offense of robbery in
the first degree, each of which the prosecution must prove beyond
a reasonable doubt.
These two elements are:
1. That, on or about August 3, 2010, in the City and County
of Honolulu, State of Hawaii, the defendant, Anthony Santiago, was
in the course of committing theft; and
2. That, while doing so, [Petitioner] intentionally or
knowingly inflicted or attempted to inflict serious bodily injury
upon [Complainant].
A person commits theft if he obtains or exerts unauthorized
control over the property of another with intent to deprive the
person of the property.
An act shall be deemed in the course of committing theft if
it occurs in an attempt to commit theft, in the commission of
theft, or in the flight after the attempt or commission.
A person attempts to inflict serious bodily injury on
another if, with the intent to inflict serious bodily injury, he
intentionally engages in conduct which is a substantial step in a
course of conduct intended or known by [Petitioner] to create a
substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.
. . . .
As to Count 1, . . . if, and only if, you find [Petitioner]
not guilty of robbery in the first degree, or you are unable to
reach a unanimous verdict as to this offense, then you must
consider whether [Petitioner] is guilty or not guilty of the
included offense of robbery in the second degree.
. . . .
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 August 3, 2010, in the City and County
of Honolulu, State of Hawaii, [Petitioner] was in the course of
committing theft; and
2. That, while doing so, [Petitioner] recklessly inflicted
serious bodily injury on [Complainant].
. . . .
As to Count 1 . . . if and only if, you find [Petitioner]
not guilty of robbery in the second degree, or you are unable to
reach a unanimous verdict as to this offense, then you must
consider whether Defendant is guilty or not guilty of the included
offense of Theft in the Fourth Degree.
. . .
As to [Petitioner] in Count 2 . . . [he] is charged with the
offense of assault in the first degree.
. . . .
There are two material elements of the offense of assault
in the first degree, each of which the prosecution must prove
beyond a reasonable doubt.
These two elements are:
1. That, on or about August 3, 2010, in the City and County
of Honolulu, State of Hawaii, [Petitioner] caused serious bodily
injury to [Complainant]; and
2. That [Petitioner] . . . did so intentionally or
knowingly.
“Seriously bodily injury” means bodily injury which creates
a substantial risk of death or which causes serious permanent
disfigurement, or protracted loss or impairment of the function of
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any bodily member or organ.
“Bodily injury” means physical pain, illness, or any
impairment of physical condition.
. . . .
(Emphases added.)
For Petitioner, the court also instructed the jury on a
special interrogatory as follows:
Okay. If, and only if, you find [Petitioner] guilty of both
robbery in the first degree or the included offense of robbery in
the second degree in Count 1, and assault in the first degree or
the included offense of assault in the second degree or the
included offense of assault in the third degree in Count 2, then
you must answer the following questions on a special interrogatory
that will be provided to you.
1. Did the prosecution prove beyond a reasonable doubt that
[Petitioner] did not commit robbery in the first degree or in the
included offense of robbery in the second degree in Count 1 and
assault in the first degree or the included offense of assault in
the second degree or the included offense of assault in the third
degree in Count 2 as part of a continuing and uninterrupted course
of conduct?
2. Did the prosecution prove beyond a reasonable doubt that
[Petitioner] committed robbery in the first degree or the included
offense of robbery in the second degree in Count 1 and assault in
the first degree or the included offense off assault in the second
degree or the included offense of assault in the third degree in
Count 2 with separate and distinct intents, rather than acting
with one intention, one general impulse, and one plan to commit
both offenses?
Your answers to these questions must be unanimous.
(Emphases added.)
For Akau, the court instructed the jury on the charge
of Accomplice to Robbery in the First Degree and its included
offenses.9
9
The court’s instructions to the jury for Akau were, in pertinent
part, as follows:
In Criminal Number 10-1-1378, [Akau] is charged as an
accomplice to the offense of robbery in the first degree.
. . . .
There are two material elements of the charge of
accomplice to robbery in the first degree, each of which the
prosecution must prove beyond a reasonable doubt.
(continued...)
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The court gave the jury a general unanimity
instruction, but did not give the jury a specific unanimity
instruction.10
D.
1.
In final argument, the following was asserted by the
prosecution. The Complainant offered Petitioner marijuana during
the ride and then Petitioner asked the Complainant whether he was
selling any marijuana. Petitioner “robbed” Complainant of his
backpack. The Complainant testified that both the driver and the
9
(...continued)
These two elements are:
1. That, on or about August 3, 2010, in the City and County
of Honolulu, State of Hawaii, [Akau] aided or agreed or
attempted to aid Anthony Santigo in the commission of
robbery in the first degree; and
2. That [Akau] did so with intent to promote or facilitate
the commission of robbery in the first degree by Anthony
Santiago.
. . . .
. . . [I]f, and only if, you find [Akau] not guilty of
accomplice to robbery in the first degree, or you are unable
to reach a unanimous verdict as to this offense, then you
may consider whether [Akau] is guilty or not guilty of the
included offense of accomplice to robbery in the second
degree.
. . . .
There are two material elements to the charge of
accomplice to 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 August 3, 2010, in the City and County
of Honolulu, State of Hawaii, [Akau] aided or agreed or
attempted to aid Anthony Santiago in the commission of
robbery in the second degree; and
2. That [Akau] did so with intent to promote or facilitate
the commission of robbery in the second degree.
. . . .
(Emphases added.)
10
A specific unanimity instruction “advises the jury that all twelve
of its members must agree that the same underlying criminal act has been
proved beyond a reasonable doubt.” State v. Arceo, 84 Hawai#i 1, 33, 928 P.2d
843, 875 (1996).
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passenger robbed him, both struck him, and both held on to the
backpack so that the Complainant could not retrieve it.
The events were initiated by Petitioner when Petitioner
pulled the Complainant in toward the truck after the Complainant
shook his hand. Someone took Complainant’s backpack and then
Petitioner started hitting the Complainant. Even though
Complainant could not see very much, he was inclined to say that
it was Petitioner elbowing him. Petitioner sped away and
Petitioner did not stop the truck because Petitioner was
attempting to leave with Complainant’s backpack.
The elements of robbery were met. The defendants
inflicted or attempted to inflict serious bodily injury. The
jury had “seen the injuries of [Complainant]” and heard the
testimony of how [Complainant] suffered. The jury had also heard
from Dr. Nip on the permanence of the scars and the procedures of
grafting the skin. The state of mind of “intentional[ly] or
knowingly” was proven because, at minimum, the defendants knew
that dragging the Complainant along the side of the car would
cause serious bodily injury. This happened in the course of
committing theft or, in other words, when the defendants were
driving away with the backpack.
The injuries also showed that Petitioner caused assault
in the first degree because, as to Count 2, “of course, [the jury
had] seen the injuries, again causing assault in the first
degree.”
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2.
In his final argument, the following was argued by
counsel for Akau. Complainant gave Petitioner marijuana, but at
what point that happened is disputed. When the Complainant
alighted from the vehicle, he shook Petitioner’s hand and it was
Petitioner, not Akau, who then asked the Complainant whether
Complainant had any marijuana for sale. Petitioner then reached
over, grabbed the bag of marijuana, stepped on the gas, and “took
off” while the Complainant was hanging onto the truck.
Petitioner concocted the story about handing the bag
over to Akau. Akau did not aid or attempt to aid Petitioner in
the commission of the robbery because it was Petitioner who
grabbed the bag and it was Petitioner who was driving the truck
that caused serious bodily injury.
3.
In his final argument, the following was argued by
counsel for Petitioner. Petitioner neither stole from nor
assaulted Complainant. Rather, there were negotiations between
Akau and the Complainant. Akau was looking at the drugs while
Petitioner was texting a message. The next thing Petitioner knew
Akau and Complainant were shoving each other and Petitioner was
struck in the head. Petitioner pushed them back, panicked, and
then accelerated. Petitioner believed that the Complainant was
on the outside of the truck, but the Complainant grabbed onto the
truck in order to retrieve his marijuana. Had Complainant been
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dragged for the length and speed that Complainant asserted,
Complainant would have suffered far more serious injuries.
Complainant did not immediately ask for help or call
the police. Instead, Complainant walked back to where he was
initially dropped off and then went to a friend’s house to sleep.
Only when Complainant went to the hospital were the police
called. Petitioner’s counsel did not specifically state that
Akau was the person who committed the robbery and assault.
E.
On September 14, 2011, the jury found Petitioner guilty
of the included offense of Robbery in the Second Degree on Count
one and of Assault in the First Degree on Count two. The jury
answered both questions one and two of the special interrogatory
“Yes.” The jury found Akau guilty of the included offense of
Accomplice to Robbery in the Second Degree.
F.
The court sentenced Petitioner on both counts to
concurrent ten years of imprisonment. During sentencing, the
prosecution stated that “both the defendants as the jury had
found were involved in this particular matter . . . the jury
found them both equally as liable, one as a principal, one as an
accomplice.”11
II.
In his Application Petitioner contends the Intermediate
11
Akau was sentenced to probation and did not appeal.
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Court of Appeals (ICA) gravely erred (1) “in deciding that [a]
specific unanimity jury instruction was not necessary” and (2)
“in affirming [the court’s] instructions . . . which required
[the jury] to determine the guilt or innocence of the codefendant
strictly as an accomplice.” Petitioner requests the convictions
be vacated and the case remanded for a new trial.12
III.
A.
As to the first question, Petitioner argues that it
appears from the answers to the interrogatory that the jury
concluded Petitioner committed two separate acts resulting in two
separate injuries. This is because the jury found that the
offenses in Count one and Count two were not part of the “same
continuing course of conduct.” Petitioner maintains that,
therefore, in light of Arceo,13 a specific unanimity instruction
was necessary to ensure unanimity on the act, intent, and injury
that corresponded to each count.
12
Petitioner seeks review of the May 7, 2013 judgment of the ICA
filed pursuant to its April 12, 2013 Summary Disposition Order, affirming the
Judgment of Conviction and Sentence filed by the court on November 29, 2011.
13
Petitioner quotes Arceo as follows:
“When it appears . . . that a conviction may occur as a result of
different jurors concluding that the defendant committed different
acts, the general unanimity instruction does not suffice. To
correct any potential confusion in such a case, the trial judge
must augment the general instruction [with a specific unanimity
instruction] to ensure [that] the jury understands its duty to
unanimous agree to a particular set of facts.”
(Quoting 84 Hawai#i at 32, 928 P.2d at 874 (citing United States v. Echeverry,
719 F.2d 974, 975 (9th Cir. 1983)).)
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The ICA held that the court “did not plainly err.”14
State v. Santiago, CAAP-11-0001078, 2013 WL 1501030, at *1 (App.
April 12, 2013). This is because the prosecution “charged two
separate crimes” and “two preconditions for an Arceo unanimity
instruction are proof of two or more separate and distinct
culpable acts and submission to the jury that only one offense
was committed[.]” Id.
B.
A specific unanimity instruction such as that in Arceo
was not required. In Arceo, the prosecution charged the
defendant in an indictment with Sexual Assault in the Third
Degree in Count 1 and Sexual Assault in the First Degree in Count
2. Arceo, 84 Hawai#i at 5, 928 P.2d at 47. In Count 1, the
prosecution had aggregated multiple acts of alleged “sexual
contact” from August 16, 1989 to May 4, 1990. In Count 2, the
prosecution had aggregated multiple acts of alleged “sexual
penetration” from the same time period. Id. This court held
that a specific unanimity instruction is required “when separate
and distinct culpable acts are subsumed within a single count . .
. any one of which could support a conviction thereunder” and the
14
The ICA reviewed Petitioner’s contentions under the plain error
standard because Petitioner apparently did not request an Arceo instruction at
trial. Under the plain error rule, “[t]his court has the power to take notice
of ‘plain errors or defects affecting substantial rights . . . although they
were not brought to the attention of the court.’” State v. Schnabel, 127
Hawai#i 432, 447 n.28, 279 P.3d 1237, 1252 n.28 (2012) (quoting Hawai#i Rules
of Penal Procedure (HRPP) Rule 52(b)). “This court ‘will apply the plain
error standard of review to correct errors which seriously affect the
fairness, integrity, or public reputation of judicial proceedings, to serve
the ends of justice, and to prevent the denial of fundamental rights.’” Id.
(quoting State v. Nichols, 111 Hawai#i 327, 334, 141 P.3d 974, 981 (2006)).
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prosecution has not elected the “specific act upon which it is
relying to establish the ‘conduct’ element of the charged
offense.” Arceo, 84 Hawai#i at 33, 928 P.2d at 875.
The purpose behind an Arceo instruction is to advise
the jury that, when the prosecution alleges multiple acts in
order to support a single charge, the jury must be unanimous as
to the underlying act for which the defendant is convicted.15
Id. This is because as a “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.” Id. at 30, 928 P.2d at 872
(internal quotation marks omitted). However, unlike in Arceo, the
prosecution in this case did not aggregate multiple acts under
each count to support the charge of either robbery or assault.
IV.
In order to convict Petitioner of Robbery in the Second
Degree, the jury must have found in pertinent part that (1) in
the course of theft, (2) Petitioner recklessly inflicted serious
bodily injury on Complainant.
The jury was not presented with any evidence showing
that either the elbowing, the grabbing, or the taking of the
15
However, “a specific unanimity instruction is not required if (1)
the offense is not defined in such a manner as to preclude it from being
proved as a continuous offense and (2) the prosecution alleges, adduces
evidence of, and argues that the defendant's actions constituted a continuous
course of conduct.” State v. Apao, 95 Hawai#i 440, 447, 24 P.3d 32, 39
(2001). In other words, the State may allege multiple acts in a single charge
provided that the multiple acts constitute a continuous course of conduct and
the offense may be proved as a continuous offense. Under such circumstances,
no Arceo instruction is necessary.
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backpack caused a “substantial risk of death” or “serious,
permanent disfigurement” to Complainant. Thus, the evidence at
trial established that there was only one act that created a
“substantial risk of death” or caused “serious, permanent
disfigurement” and that was dragging the Complainant on the road.
The statements made to the jury during final argument
also support the conclusion that the infliction of “road burns”
constituted the serious bodily injury element for the robbery
charge. The prosecution argued that Complainant’s “road burns”
met the element of “infliction of serious bodily injury” for the
robbery charge. The prosecution stated that an element of the
robbery charge was that Petitioner inflicted “serious bodily
injury.” In final argument, Akau’s attorney also argued that it
was the road burns that constituted the serious bodily injury for
the robbery charge. Petitioner’s attorney did not specify to
which count the road burns were attributed. He argued that the
Complainant grabbed onto the truck in order to retrieve
Complainant’s marijuana, which was not taken by Petitioner.
Based on the evidence presented at trial and statements
made during final argument, and applying a rational juror
standard,16 the jury must have concluded that the act that
Petitioner committed in which he “recklessly inflicted serious
16
This court should “‘with realism and rationality . . . examine the
record . . . taking into account the pleadings, evidence, charge, and other
relevant matter . . . [,]’” so as to determine in which act a rational jury
would have grounded its verdict. State v. Mundon, 129 Hawai#i 1, 15, 292 P.3d
205, 219 (2012) (quoting Ashe v. Swenson, 397 U.S. 436, 444, 90 S. Ct. 1189,
1194 (1970)).
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bodily injury” under the robbery charge was the “dragging [of]
Complainant along the side of the [truck].”
V.
A.
However, the jury also convicted Petitioner of Assault
in the First Degree. In order to convict Petitioner of Assault
in the First Degree, the jury must have found that Petitioner
intentionally or knowingly caused serious bodily injury to
Complainant. HRS § 707-710.
In final argument, the prosecution did not specify
which act constituted the assault. The prosecution merely stated
that the jury had “seen the injuries[.]” The prosecution did not
indicate what those injuries were. However, the only injury that
constituted “serious bodily injury” that was adduced in the
evidence was the “road burns.” It would seem then that the jury
had to have concluded that the act Petitioner committed that
“intentionally or knowingly caus[ed] serious bodily injury” to
Complainant under the Assault in the First Degree charge was also
the act of “dragging [] Complainant along the side of the
[truck].”
But by answering “Yes” to the second special
interrogatory question, the jury also found that Petitioner
committed robbery in the second degree and assault in the first
degree with “separate and distinct intents, rather than acting
with one intention, one general impulse, and one plan to commit
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both offenses[.]” Therefore, the jury did not find that the
offenses of robbery in the second degree and assault in the first
degree merged.
If, as the jury found, each of the offenses of robbery
in the second degree and assault in the first degree were
committed separately, each respective verdict must have rested on
an act of inflicting “serious bodily injury.” Consequently, the
jury apparently utilized the act of dragging Complainant with the
truck as the basis for its verdicts on both robbery in the second
degree and assault in the first degree.
However, conviction of both offenses based on the same
conduct is precluded by HRS § 701-109(1)(c). Under HRS § 701-
109(1)(c), when the same conduct of the defendant establishes an
element of more than one offense, the defendant may not be
convicted of both offenses if “[i]nconsistent findings of fact
are required to establish the commission of the offenses.”
B.
The jury’s verdicts in the instant case reflected the
inconsistent factual determinations that the defendant committed
the same act of dragging Complainant with his vehicle with both a
reckless (robbery second) and intentional or knowing (assault
first) state of mind. The jury’s verdict of guilty as to robbery
in the second degree required a finding that the defendant
recklessly inflicted serious bodily injury by dragging
Complainant with the truck. However, the jury’s verdict of
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guilty as to assault in the first degree necessitated a finding
that the defendant knowingly or intentionally inflicted serious
bodily injury by dragging complainant with the truck.
Because the jury’s verdict found that Petitioner
inflicted severe bodily injury both (1) intentionally or
knowingly and (2) recklessly, it contained “inconsistent findings
of fact.” Briones v. State, 71 Haw. 442, 457, 848 P.2d 966, 974
(1993) (holding that a verdict violated HRS § 701-109(1)(c)
because it found that the defendant acted with “two mutually
exclusive states of mind”); see also People v. Hoffer, 478 N.E.2d
335, 340 (Ill. 1985) (holding that the jury’s verdict was
inconsistent because “the jury concluded that the defendant
killed another[] intentionally or knowingly . . . while
simultaneously finding that defendant recklessly but
unintentionally caused the death of the victim”); Griffin v.
Parker, 593 A.2d 124, 127 (Conn. 1991) (“[T]he transgression that
caused the victim's injuries was either intentional or reckless;
it could not, at one and the same time, be both.”). Therefore,
the jury inconsistently found that Petitioner intentionally or
knowingly and recklessly inflicted serious bodily injury on
Complainant. Hence, under HRS § 701-109(1)(c), Petitioner could
not be convicted of both robbery in the second degree and assault
in the first degree. See Briones, 71 Haw. at 457, 848 P.2d at
974.17
17
Arguably, this conclusion may also be reached on other grounds.
(continued...)
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VI.
Inasmuch as Petitioner cannot be convicted of both
offenses, we are faced with the question of which count may not
survive. When faced with a situation in which a defendant was
wrongly convicted of two offenses, this court has considered
principles of equity and judicial economy in dismissing one of
the counts. In State v. Jumila, 87 Hawai#i 1, 950 P.2d 1201
(1998) overruled on other grounds by State v. Brantley, 99
17
(...continued)
It has been explained that “‘robbery appears to consist of both theft and
threatened or actual assault.’” State v. Ah Choy, 70 Haw. 618, 621, 780 P.2d
1097, 1100 (1989) (quoting Commentary to HRS §§ 708-840 and 708-841). The
assault must occur “in the course of committing theft.” See HRS § 708-840.
The legislature, “in recognition of the ‘increased risk of harm’ present in a
robbery ‘[beyond what] the sum of its simple components would seem to
indicate’ has sought to punish robbery ‘more severely than the sum of its
simple components.’” Ah Choy, 70 Haw. at 621, 780 P.2d at 1100 (quoting
Commentary to HRS §§ 708-840 and 708-841). However, the legislature “did not
intend to create an anomaly or an absurd result.” Id. at 622, 780 P.2d at
1000. Thus, in the context of a prosecution for robbery and attempted murder,
this court has held that “the legislature never intended that a defendant be
convicted of both robbery in the first degree and its component offense of
attempted murder in the absence of evidence that the defendant committed both
offenses separately in time.” Id.
In the instant case, in Count one, Petitioner was charged with
robbery in the first degree and the court instructed the jury as to the lesser
included offenses of robbery in the second degree and theft in the fourth
degree. In Count two, Petitioner was charged with assault in the first degree
and the lesser included offenses of assault in the second degree and assault
in the third degree. Under the facts of the case, there was a possibility
that the jury would find that the Petitioner committed both theft and assault,
but that the assault did not occur “in the course of committing theft.” Had
the jury made such a determination, the proper result would have been to find
Petitioner guilty of theft in the fourth degree in Count one, and assault in
Count two.
However, “the legislature did not intend to create an anomaly or
an absurd result,” and did not intend for a defendant to be convicted of both
robbery and its component offense of assault in the absence of evidence that
the defendant committed both offenses separately in time.” Id. Thus, under
the circumstances of this case, if the jury found Petitioner guilty of robbery
in the first degree or robbery in the second degree, it should not have
reached Count two, which contained “the component offense of assault.” See
id.; cf. discussion supra. Hence, arguably, “the [court’s] instruction should
have been framed so that once the jury determined that [Petitioner] was guilty
of [robbery in the first degree or robbery in the second degree], [the jury]
need not go any further with respect to the assault count.” Id. at 623, 708
P.2d at 1101. Thus, the case may also be resolved on the grounds that the
court’s erroneous instructions allowed the jury to improperly convict
Petitioner of both robbery and assault. See discussion supra.
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Hawai#i 463, 56 P.3d 1252 (2002), this court determined that the
murder conviction was a lesser included offense of the firearm
conviction and so the defendant should not have been convicted on
both counts.18
Although Jumila recognized that the usual practice was
to reverse the conviction and sentence for the lesser included
offense, it was decided that doing so would be “manifestly unfair
to the prosecution and to the public,” because murder was “an
offense of a higher class and grade.” Id. This court concluded
that the appropriate disposition was to reverse the jury’s
conviction on the firearms charge. Id. (citing State v. Luiafi,
1 Haw. App. 625, 644, 623 P.2d 1271, 1283 (1981)). Here,
however, the convictions are of equal grade. Robbery in the
Second Degree and Assault in the First Degree are both Class B
felonies, with a maximum term of ten years each. HRS §§ 708-
841(2), 707-710(2), 706-660(1). As noted, the court sentenced
Petitioner to ten years of imprisonment on both counts to run
concurrently.
If it is apparent which count of the verdict should be
dismissed, the error may be cured by reversing only that count.
In Liuafi, the ICA held that a defendant’s conviction of both
18
In Jumila, this court held that murder in the second degree was an
included offense of the charge of carrying or use of a firearm in the
commission of a separate felony, and therefore the defendant could not be
convicted of both. 87 Hawai#i at 3, 950 P.2d at 1203. This aspect of Jumila
was overruled in Brantley, which held that the legislature did not intend
murder in the second degree to be a lesser included offense of carrying or use
of a firearm in the commission of a separate felony. 99 Hawai#i at 469, 56
P.3d at 1258.
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attempted murder and the failure to render assistance to the
victim of an accident rested on inconsistent findings of fact19
and was therefore precluded by HRS § 701-109(1)(c). Liuafi, 1
Haw. App. at 643, 623 P.2d at 1282. However, it was not
necessary to reverse every count of the inconsistent verdict
“unless prejudice [was] shown.” Id. at 643, 623 P.2d at 1283.
The ICA concluded that because of “the specificity of the
instructions on the attempted murder charge, the strength of the
State’s case on that charge, and the lack of definitional
certainty on the [failure to render assistance] charge . . . the
proper disposition [was] to vacate the judgment of conviction
[only] as to [the failure to render assistance charge.]” Id.
In the instant case, Respondent’s final argument was
premised almost entirely on the theory that Petitioner was guilty
of the robbery charge. On the other hand, the prosecution
mentioned the assault charge only in passing.
Akau’s counsel also tied the serious bodily injury to
the robbery, but argued that Akau did not aid in the commission
of robbery because Akau was not driving the truck which caused
the road burns. Upholding the robbery conviction of Petitioner
would be consistent with the verdict finding Akau guilty of being
19
The ICA in Luiafi held that the jury’s verdict was inconsistent
because a defendant could only be guilty of the failure to render assistance
if he or she was “involved in an accident.” 1 Haw. App. at 642, 623 P.2d at
1282. However, by finding the defendant guilty of attempted murder, the jury
found that he had “intentionally attempt[ed] to murder a person by using [his]
vehicle as a weapon.” Id. at 643, 623 P.2d at 1282. According to the ICA,
this incident did not fall within the definition of an “accident,” and
therefore no accident occurred. Id. Thus, the ICA held that the verdict was
inconsistent. Id.
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an accomplice to robbery, in this consolidated case. Neither the
public nor the prosecution would be treated unfairly by dismissal
of the assault charge. Petitioner’s sentences were to run
concurrently, in effect one ten year sentence was imposed for
both convictions.
Because there was sufficient evidence to convict
Petitioner as to robbery in the second degree and because the
penalties for the robbery and assault convictions are the same,
it cannot be said that Petitioner would be prejudiced by
dismissal of the assault charge. See Liuafi, 1 Haw. App. at 643,
623 P.2d at 1283. Thus, the error can be remedied simply by
reversing the conviction for assault. See id.; see also
Commentary to Model Penal Code § 1.07 (noting that when a
defendant is convicted of two offenses based on inconsistent
findings of fact, “[c]ourts have long held that both convictions
cannot stand” (emphasis added)); cf. Commentary to HRS § 701-
109(1) (noting that HRS § 701-109(1) “reflects a policy to limit
the possibility of multiple convictions” (emphasis added)).
Therefore the assault conviction must be reversed.20
20
In Briones, this court held that the inconsistent verdict in that
case required a new trial. 74 Haw. at 458, 848 P.2d at 974. In Briones,
however, the defendant was convicted of both attempted murder in the first
degree and attempted murder in the second degree, see id. at 447, 848 P.2d at
970, which are subject to different statutory penalties. See HRS § 706-656.
The entry of judgment as to one count may have prejudiced the defendant
because it could not be determined which sentence was appropriate. See
Milanovich v. United States, 365 U.S. 551, 555 (1961) (holding that “setting
aside the shorter concurrent sentence [did not] suffice[] to cure any
prejudice [to the defendant],” because on remand the jury may have found her
guilty only of the crime carrying the shorter sentence).
However, Briones also cited United States v. Daigle, 149 F. Supp.
409 (D.D.C. 1957). In Daigle, the federal district court remedied an
(continued...)
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VII.
A.
With respect to the second question, Petitioner argues
that the court erred in instructing the jury solely on accomplice
liability as to Akau. In Petitioner’s version of the facts, he
maintained that he did not rob the Complainant and if there was a
robbery, it was committed by Akau. Petitioner argues that by
instructing the jury solely on accomplice liability for Akau, the
court adopted the prosecution’s version of the facts and rejected
Petitioner’s view of the case. Petitioner contends that in doing
so, the court abrogated the jury’s prerogative as the finder of
fact by precluding the jury from determining that Akau committed
the robbery. According to Petitioner, the court thus commented
on the evidence in violation of HRE Rule 1102.21
20
(...continued)
inconsistent verdict by reversing the conviction carrying the greater
statutory penalty. Id. at 414. Daigle reasoned that “the defendant was in no
[way] prejudiced” because he was subject only to a “less severe” sentence.
Id.
Unlike in Briones and Milanovich, in the instant case the
penalties for Petitioner’s two convictions are identical. Additionally,
Respondent clearly focused on the robbery charge in closing argument and
sufficient evidence existed to convict the defendant on that charge. See
Liuafi, 1 Haw. App. at 643, 623 P.2d at 1283. Therefore, unlike in Briones,
no prejudice inheres in vacating the conviction of assault in the first
degree.
Reversal of the assault conviction is also consistent with Ah
Choy. As explained supra, in Ah Choy this court held that it was error for a
court to instruct a jury that it could convict a defendant of both robbery in
the first degree and its “component offense” of attempted murder in the
absence of evidence that the defendant committed both offenses separately in
time. 70 Haw. at 622, 780 P.2d at 1101. This court therefore set aside the
defendant’s sentence with respect to the robbery conviction, but upheld the
defendant’s sentence with respect to attempted murder. Id at 623, 780 P.2d at
1101. Similarly, here, the conviction for robbery in the second degree is
affirmed, but the conviction for assault in the first degree is set aside.
21
HRE Rule 1102 states:
(continued...)
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The ICA held the court “did not plainly err when it
instructed the jury as to [Akau] solely as an accomplice.” Id.
The ICA determined that “[Petitioner] does not provide authority
. . . that it was a comment on the evidence to limit instructions
to the specific charge, nor . . . that it was plain error when
[the court] failed to, sua sponte, advance [Petitioner’s]
alternate defense theory . . . via jury instruction[,]” and
affirmed the conviction. Id.
B.
At trial, Petitioner did not object to the court’s
instructions or argue that the court’s instructions constituted a
comment on the evidence under HRE Rule 1102. Additionally,
Petitioner did not request any additional instructions reflecting
his position that although Akau was only charged as an
accomplice, Akau was solely responsible for the robbery.22
Accordingly, he waived any objection to the court’s instructions
under HRE Rule 1102. See HRE Rule 103(a).
VIII.
Based on the foregoing, the November 29, 2011 judgment
of the court and the May 7, 2013 judgment of the ICA are affirmed
in part and reversed in part. The case is remanded to the court
21
(...continued)
The court shall instruct the jury regarding the law applicable to
the facts of the case, but shall not comment upon the evidence.
It shall also inform the jury that they are the exclusive judges
of all questions of fact and the credibility of witnesses.
22
Petitioner also did not request that he be tried separately from
Akau. Rather, Petitioner stipulated to Respondent’s request to consolidate
the two trials.
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to enter an order dismissing the charge of Assault in the First
Degree, and the sentence imposed thereon, with prejudice. The
November 29, 2011 judgment of the court and the May 7, 2013
judgment of the ICA as to Petitioner’s conviction for Robbery in
the Second Degree is affirmed.
Stuart N. Fujioka, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brandon H. Ito
(on the briefs), /s/ Simeon R. Acoba, Jr.
for respondent
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
27