LAW a_eaaA:f->av
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
NO. 29876
lN THE INTERMEDIATE COURT OF APPEALS
oF THE STATE oF HAWA:‘I
STATE OF HAWAFI, Plaintiff-Appell€e,
v
JAMES CARVALHO APd, also known as,
"ESTRADA", Defendant-Appellant
9€=3 uv oemrmaz
APPEAL FROM THE CIRCUlT COURT OF THE SECOND ClRCUIT
(CRlMINAL NO. 07-l-O408(3)) _
SUMMARY DISPOSITION ORDER
C.J., Foley and Reifurth, JJ.)
(By: Nakamura,
Defendant-Appellant James Carvalho Apo (Apo) appeals
from the Judgment of Conviction and Sentence entered on May 7,
(circuit
2009 in the Circuit Court of the Second Circuit
court).W Apo was convicted of Kidnapping, in violation of
section 707-720(l)(d), Hawaii Revised Statutes (1993) (Section
707~720(l)(d)), and Sexual Assault in the Third Degree in
Hawaii Revised Statutes
violation of section 707-732(l)(f),
(Supp. 2008), as a young adult defendant under section 706-667,
Hawaii Revised Statutes (Supp. 2009).
Apo was sentenced to eight years in prison for the
Kidnapping conviction and four years in prison for the Sex
Assault in the Third Degree conviction, with the terms to run
In addition, Apo
and with credit for time served.
and $910.00 for fees
concurrently,
was ordered to pay restitution of $883.78,
and costs.
On appeal, Apo argues that:
(l) there was insufficient evidence to support a
conviction for a class A felony under Section 707-720(l)(d)
because the evidence established that Apo voluntarily released
. the complaining witness (CW), requiring a reduction of the
offense to a class B felony under section 707-720(3), Hawaii
Revised Statutes (l993); and
The Honorable Joseph E. Cardoza presided.
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(2) it was erroneous for the circuit court to conclude
that Kidnapping and Sexual Assault in the Third Degree did not
merge under section 701-lO9(l)(e), Hawaii Revised Statutes (l993)
(Section 701-lO9(l)(e)).
We find both points to be without merit and affirm.
I. There Was Substantial Evidence For The Circuit Court To Find
Apo Guilty Of A Class A Felony For Kidnapping
Apo contends that the circuit court should not have
found him guilty of a class A felony under Section 707-720(l)(d)
because substantial evidence demonstrated that he released the CW
voluntarily before a witness to the attack (Witness) commanded
him to get off of the CW. Kidnapping under Section 707-720(1)(d)
is reduced from a class A felony to a class B felony if the
defendant voluntarily released the victim, alive and not
suffering from serious or substantial bodily injury, in a safe
place prior to trial.W Hmm RmL STNL § 707-720(3).
Apo argues that because he voluntarily released the CW
before the Witness confronted them, Findings of Fact (FOF) 19-21
and Conclusions of Law (COL) 7-9 are clearly erroneous. We
review FOF under the clearly erroneous standard of review, while
COL are reviewed de novo. Dan v. State, 76 HawaiU.423, 428, 879
P.2d 528, 533 (1994).
Apo contends that the record shows that CW testified
that her struggle with Apo had ended when she removed her
earphones before Witness confronted them, that Witness's
testimony "merely implied that Apo released CW because Witness
told him to 'get off of the girl,'" and that Witness's testimony
"reveal[s] disparities between [his] assumptions, and what he
actually saw[.]"
Our review of the record, however, reveals substantial
evidence to support the circuit court's finding that the State
had proven beyond a reasonable doubt that Apo did not voluntarily
release the CW to a point of safety before being ordered to do
3/ For someone convicted as a Young Adult Defendant, the maximum
sentence is 8 years for a Class A felony, and 5 years for a Class B felony.
HAW. REV. STAT. § 706-667(3).
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so. A release is not voluntary when the kidnapper releases the
victim after being ordered to do so under threat by a third
party. State v. Yamamoto, 98 HawaiH 208, 220, 46 P.3d 1092,
1104 (App. 2002). Moreover, a victim has not been released to a
safe place when the kidnapper is still close enough to the victim
that he or she still poses a threat. State v. Mara, 102 HawaiH
346, 355, 76 P.3d 589, 598 (App. 2003).
Apo gave conflicting accounts of the incident. In his
initial post-arrest interview, he admitted to intentionally
tackling and restraining the CW, but claimed that his intention
had only been to hold her and touch her.y When Apo testified at
trial, however, he claimed that CW had fallen backward in
surprise, that he had only meant to "check [CW] out," and that he
had only dragged CW off of the road to get her out of harm's way.
Witness testified that he pulled his truck up to within
seven to ten feet of Apo and CW, and saw Apo "straddling on top
of [CW]" as he got out of the truck. Witness also testified that
he told Apo to "[g]et off the girl[,]" and that Apo "got up
slightly" as Witness approached, but "still had a knee on top of
[CW]." When Witness got closer, Apo "stood up more in a standup
position."
CW's testimony acknowledges that Witness was present in
the area when she stood up. While she did not testify to hearing
Witness yell at Apo before Apo released her, her testimony is
largely consistent with Witness's testimony, and supports the
circuit court's evident conclusion that her headphones were on at
the time that Witness directed Apo to "[g]et off the girl."
Based on our review of the testimony and the record, we
conclude that there was substantial evidence to support FOF 19-21
and COL 9-11.
II. The Circuit Court Did Not Err In Concluding That Sexual
Assault And Kidnapping Do Not Merge
Apo contends that it was error for the circuit court to
conclude that the charged offenses of Kidnapping and Sexual
§/ Apo's audio recorded post arrest interview was played for the
judge at trial,
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Assault did not merge under Section 701-109(1)(e). A defendant
may not be convicted of more than one offense if "[t]he offense
is defined as a continuing course of conduct and the defendant's
course of conduct was uninterrupted, unless the law provides that
specific periods of conduct constitute separate offenses." HAw.
RmL STNL § 701-109(1)(e).
Apo asserts that the circuit court erroneously relied
on State v. Molitoni, 6 Haw. App. 77, 711 P.2d 1303 (1985) in
arriving at COL 18 because that case interprets the distinctly
different merger defense set out in section 701-109(1)(a), Hawaii
Revised statutes (secti.on 701-109(1)(.;-1)).$/ citing state v.
Padilla, Apo argues that the circuit court also erred by failing
to adopt specific findings or conclusions demonstrating that the
court applied the merger doctrine, and in failing to analyze
whether there was but "one intention, one general impulse, and
one plan," or not. 114 Hawafi 507, 517, 164 P.3d 765, 775 (App.
2007) .
While apparently conceding that Kidnapping is not an
included offense of Sexual Assault under Section 701-109(1)(a),
Apo argues that his merger claim arises under Section 701-
109(1)(e), which, he contends, is "distinctly different from the
included-offense-analysis" in Mblitoni, State v. Horswill, 75
Haw. 152, 857 P.2d 579 (1993), State v. Hoopii, 68 Haw. 246, 710
P.2d 1193 (1985), and State v. Decenso, 5 Haw. App. 127, 681 P.2d
573 (1984). According to Apo, Molitoni's included offense
analysis under Section 701-109(1)(a) is distinctly different from
the continuing course of uninterrupted conduct analysis under
Section 701-109(1)(e), and cannot support a conclusion of no
merger. The court's analytical error, according to Apo, was
compounded by its failure to make any specific findings or
conclusions demonstrating that the court properly applied the
merger doctrine, As a result, Apo contends that his conviction
for both offenses violated his due process right to a fair trial
and the double jeopardy clause. We disagree.
i/ In raising his merger defense to the circuit court, Apo explicitly
referenced Section 701-109(1) (a) , while never referencing Section 701-
109 (1) (e) .
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The section in question provides:
(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:
(e) The offense is defined as a continuing course of conduct and
the defendant's course of conduct was uninterrupted, unless the
law provides that specific periods of conduct constitute separate
offenses.
HAw. Rsv. STAT. § 701-109(1)(e).
Section 701-109(1)(e) "does not apply where a
[defendant's] actions constitute separate offenses under the
law." Hoopii, 68 Haw. at 251, 710 P.2d at 1197. ln Hoopii, the
supreme court held that the appellant had committed and completed
the act of Kidnapping at the moment he restrained the victim by
abducting her, putting her in his van, and driving away. Any
restraint that continued throughout the subsequent rape, the
supreme court further held, was not necessary to the perpetration
of the Kidnapping. Id.
Here, as in Hoopii, Sexual Assault and Kidnapping are
separate crimes. Apo completed the crime of Kidnapping when he
restrained CW and dragged her behind the rock wall. He completed
the crime of Sexual Assault when he grabbed CW's genital area.
Apo also had different intentions behind each crime. He grabbed
CW's genital area in order to make sexual contact. He dragged
her behind the rock wall because he did not want to be seen by
passers by.
Apo's conviction does not violate the double jeopardy
clauses of the United States or Hawafi State Constitutions.
U.S. Const. amend. V; Haw. Const. art. I, § 10 ("nor shall any
person be subject for the same offense to be twice put in
jeopardy"). "lf two different offenses are charged and each
involves different acts, they are not the 'same offense' and do
not implicate the constitutional prohibition against double
jeopardy." Decenso, 5 Haw. App. at 135, 681 P.2d at 580.
ln Decenso, this court held that it was not double
jeopardy for the defendant to be tried for Kidnapping and Sexual
Abuse because each crime involved different acts. Id. Here, as
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in Decenso, Kidnapping and Sexual Assault involve different acts.
As such, Apo's conviction for both crimes did not violate double
jeopardy.
III. Conclusion
For the foregoing reasons, we affirm the May 7, 2009
Judgment of Conviction and Sentence finding Apo guilty of
Kidnapping and Sexual Assault in the Third Degree.
DATED: Honolulu, Hawafi, July 30, 2010.
On the briefs:
Karen T. Nakasone, Chief Judge
Deputy Public Defender, *”“
for Defendant-Appellant. ` /C>.%»/’
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorne§’/
County of Maui,
for Plaintiff-Appellee. Associate Judge