State v. Brooks

Ll@§rf‘»i P;,@\RY
F0R PUBLICATIQN IN WEST'S HAWAI‘I REPGRTS AND PACIFIC REPQRTER

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAfI

---o0o---

sTATE oF HAwArI, P1aintiff-Appe11ee,

V.
DENNIs BRooKs, Defendanc-Appe11ant §§

NO. 29567

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRC-
(CR. NO. 06-l-llO4)

09 4 rim 22 water wl

JULY 22, 2010

FOLEY, PRESIDING J., FUJISE AND LEONARD, JJ.

OPINION OF THE COURT BY FOLEY, J.

Defendant-Appellant Dennis Brooks
the Judgment of Conviction and Sentence
December 9,

(Dennis) appeals from

(Judgment) filed on

2008 in the Circuit Court of the First Circuit
(circuit court).1

A jury found Dennis guilty of Kidnapping, in violation
of Hawaii Revised Statutes (Count 6);

in violation of HRS § 708-840

(HRS) § 707-720 (l993)
Robbery in the First Degree,

2005) (Count 7);
(UCPV),

(SUPP-
and Unauthorized Control of Propelled vehicle

in violation of HRS § 708-836 (Supp. 2009) (Count 8).
The circuit court sentenced Dennis to twenty years of

imprisonment for each of Counts 6 and 7 and five years of
imprisonment for Count 8, with credit for time served.

The
circuit court ordered the sentence for Count 6 to run

consecutively to the sentence for Count 7 and the sentence for

Count 8 to run concurrently with the sentences for Counts 6 and
7. Because Dennis was a repeat offender, the circuit court

sentenced him to a mandatory minimum of six years and eight

1 The Honorable Steven S. Alm presided.

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months of imprisonment on Counts 6 and 7 and one year and eight
months of imprisonment on Count 8. The circuit court also
ordered Dennis to pay restitution and a crime victim compensation
fee.

On appeal, Dennis argues that the circuit court

(l) abused its discretion in allowing the State of
Hawai‘i (State) to adduce at trial evidence of his prior f
convictions;

(2) erred in failing to instruct the jury on the
included offenses of Robbery in the Second Degree and Theft in
the Fourth Degree;

(3) erred in convicting him of Robbery in the First
Degree based on insubstantial evidence; and

(4) erred in convicting him of Class A, rather than
Class B, Kidnapping because he had released the victim, Tuan Vo
(Vo), in a safe place.

Dennis asks that we vacate his convictions and remand
his case for a new trial if we agree with his first argument or,
alternatively, vacate his convictions for Robbery in the First
Degree and Kidnapping if we agree with his second argument,
reverse his conviction for Robbery in the First Degree if we
agree with his third argument, and/or reverse his conviction for
Kidnapping if we agree with his fourth argument,

I .

A . PRETRIAL

1. Complaint

The State filed a complaint on May 30, 2006, asserting
that william Brooks (William), Dennis, and Barbara Pichay
(Barbara) had committed various offenses involving Vo. The State
alleged that on April l6, 2006, Dennis (a) intentionally or
knowingly restrained Vo with the intent to facilitate the
commission of Robbery in the First Degree or flight thereafter
(Count 6, Kidnapping); (b) used force against Vo in the course of
committing a theft while armed with a dangerous instrument, with
the intent to overcome Vo's physical resistance or physical power

of resistance (Count 7, Robbery in the First Degree); and (c)

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intentionally or knowingly exerted unauthorized control over a
propelled vehicle by operating Vo's vehicle without Vo's consent
(Count 8, UCPV).
2. Pretrial Hearing
At the May 22, 2008 pretrial hearing, the circuit court

stated the following to Dennis:

THE COURT: Okay. The other thing is that based on
certain rulings that we have, those are the ground rules at
the start. So say, for example, the fact that, you know,
you have certain other conviction [sic] for things. I'm
anticipating that both sides are going to be agreeing that
that is not admissible, not appropriate to come into the
trial. 7

But if you were to get on the stand and testify and
say something like I've never been in trouble with the
police before, no doubt the prosecutor -- I'm not saying
you‘d do that, I'm just telling you if you did that the
prosecutor would say, Your Honor, may we approach, and he
would come up here and he would say I think [Dennis] might
be giving an inappropriate picture of himself to the jurors.
And so he then would ask permission to bring in your prior
record which, in a situation like that, I should allow it.
So that's called opening the door, right, that's the legal
expression.

The State agreed that it would not introduce any of Dennis's
prior bad acts or criminal history in the State's case-in-chief.
However, the State informed the circuit court that in the event
Dennis's counsel opened the door to such evidence, the State
would ask the court to rule on the evidence's admissibility.
B. JIHRY fERI1¥L
1. Vo's Testimony
Vo testified that he was a taxi driver. On April l6,

2006, he left for work, carrying about $450 cash in his wallet,
$400 cash in his pocket, and 3,000 yen. He had his driver's
license and bank cards in his wallet. He was wearing a Rado
watch and a white gold necklace and had a cell phone with him.

He had between $l0 and $l2 in change in the ashtray in his taxi.

At about 8:30 a.m., Vo picked up William and Barbara

near Lanakila Park. william and Barbara asked him to take them
to the Chinatown/downtown area to look for a friend. Vo recalled
that william sat in the front passenger seat and Barbara probably
sat in the center row behind the passenger seat. Vo drove

downtown, but William and Barbara could not find the person they

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were looking for. They asked Vo to drive them to Waianae, but Vo
declined to do so. William and Barbara then asked Vo to take
them to Ala Moana. On their way to Ala Moana, William and

Barbara saw Dennis walking on the sidewalk, and they told Vo to

y pull over and pick him up. Vo pulled up to the curb alongside

Dennis, and Barbara got out. Barbara walked with Dennis, talking
to him. Vo drove slowly alongside Barbara and Dennis for about
two minutes before they got into the van. when William and
Dennis saw each other, they bumped their fists together, called
each other "brothers," and apologized to each other about
something.

William, Dennis, and Barbara (collectively, the
passengers) told Vo they wanted to go to Barbara's aunt's house
behind the Lanakila Health Center. When they arrived, Vo parked
and the passengers got out of the van. Barbara looked for money
to pay Vo, but could not find any. The passengers got back into
the van, and Barbara asked Vo to drive to an ATM. Dennis was now
seated in the front passenger seat and william was in the center
row, behind the driver's seat. Vo drove to the Liliha Foodland.
Barbara got out of the van, while William and Dennis remained
seated. When Barbara returned to the van, the passengers told Vo
to take them back to the Lanakila area and said they would pay Vo
there.

When they arrived at their destination, Vo put the van
in park. As soon as Vo shifted into park, william put his left
arm around Vo's neck and pulled Vo back against Vo's seat.
William first put a knife about five-to-five-and-a-half-inches
long to Vo's side, and then William put the knife to the right
side of Vo's neck. Dennis held down Vo's hands. William and
Dennis asked Vo where his money was. Either William or Barbara
took Vo's wallet, and Dennis took the $lO or $l2 in change Vo had
in the ashtray in the center console of the van. William and
Dennis took Vo's driver's license out of his wallet and told Vo
that if he reported the incident to the police, his family would
be killed. Vo testified that both men made the threat and

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Dennis, more than once. Vo was married and had two daughters.
He was afraid and felt he had to do what they said.

Vo was told to put the van in reverse, but he was too
shaky. William pulled and Dennis pushed Vo back into the center
seat in the second row, between William and Barbara. Dennis got
into the driver's seat. Vo saw the knife in the console and then
saw William holding the knife.

Dennis drove the van from Honolulu to Kaneohe. In
Kaneohe, Barbara got out of the van, removed the van's dome
light, returned to the van, and sat in the front passenger seat.
They continued driving and ended up in the Pearl Harbor area. At
Pearl Harbor, the road was blocked by a military gate,2 so they
reversed and proceeded to Waianae.

On the way to Waianae, William told Vo to lie down on
the floor of the van. Vo did as he was told, lying down between
the front and center rows. William, who was still holding the
knife, took Vo's watch, necklace, cell phone, and money that was
in Vo's pocket. One of the passengers took Vo's wallet. William
told Vo to look at him, and when Vo did so, William punched him
in the face three or four times.

At some point on the way to Waianae, the van stopped
and William changed places with Dennis and became the driver.
Dennis stepped on the back of Vo's head and on Vo's back, wrapped
a tie3 around Vo's neck, and pulled Vo up with the tie, choking
him. Dennis asked Vo something along the lines of "Who's your
father?" or "Who's your daddy?" On the way to Waianae, Dennis
also punched, kicked, and stepped on Vo many times. Vo asked
Dennis to stop punching and kicking him, but Dennis continued to
do so. After Dennis choked Vo with Vo's tie, Dennis pointed the
knife at Vo.

Vo asked William to let him out of the van and told
William to take the van. Vo told William that he just wanted to

2 Dennis testified that they ended up at Pearl Harbor military base

because he did not know where he was going and Barbara told him to turn around
because they were going to pass "where the MP’s were."

3 Dennis testified that Vo was wearing a red tie at the time of the
incident. ‘

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stay alive so he could take care of his children. william said
Vo should not worry, william would not beat up Vo because william
also had children. william stated that he wanted to find a place
to get out of the van, but he did not want Vo to know where.

when the van stopped in waianae, the passengers told Vo
to stay down. Someone choked Vo with their hands, and Vo lost
consciousness. Before the passengers left the van, they told Vo
not to look up for ten minutes so he would not know in what l
direction they went after they left and not to call the police or
his family would be killed. The passengers left the van, taking
the taxi's two radios with them. A police officer arrived on the
scene seven to ten minutes later.

2. Oral Motion for Judgment of Acquittal

After Vo testified, Dennis's counsel orally moved for

judgment of acquittal, which the circuit court denied.
3. Other witnesses' Testimony

Numerous other witnesses, including Honolulu Police
Department officers and Dr. Saltman testified on behalf of the
State.

4. Dennis's Testimony
(a) Direct examination

Dennis's testimony was similar to Vo's in some
respects, but he also testified to the following. william was
Dennis's older brother. At the time of the incident, Dennis was
living in waikiki with his fiancee and some friends. william was
living in waianae with Barbara, who was william's girlfriend. A
few days before the incident, Dennis and william had gotten into
a little argument because william wanted to live with Dennis in
waikiki and Dennis told him no. Dennis testified that he did not
want william to live with him, "Just 'cause of -- from what his
background is, from what I heard of his drug action and all."
Dennis had not had any contact or communication with william from
the time of the argument to the time of the incident. Dennis and
william were not close and had not spent a lot of time together

for quite a few years.

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On the morning of the incident, Dennis was walking to
waikiki when he heard Barbara behind him, calling his name.
Dennis kept walking, but Barbara approached him and started
talking to him. She told him that he and william should try to
"patch things up" and "get to know each other again" after all
the years they had been separated. Dennis noticed a van
following them. Barbara told him that william was sorry, was in
the van, and wanted them to forget that the argument had
occurred. Dennis finally agreed and got in the van.

Dennis sat behind the driver's seat, in the second row;
william was in the front passenger seat. william told Dennis
that he was sorry they argued and they should try to make amends.
They gave each other a sort of high five/fist thing as a peace
gesture. Barbara told Dennis they were going to her aunt's
house. Vo drove to Lanakila and stopped the van. william and
Dennis got out, and they talked about why Dennis did not want
william to live with him. Barbara said they were going to
Foodland to get money from an ATM. william and Dennis got back
in the van, switching seats, and Vo drove them to the ATM.

After Barbara went to the ATM and came back, Vo drove
the van back to Lanakila and parked. william grabbed Vo and put
the knife to Vo's side. william told Dennis to drive the van.
william tried to put Vo in the console area between the passenger
and driver's seats. Dennis did not know that william was going
to do what he did. ADennis testified he was thinking "oh, hell
no," and it "kind of tripped [him] out."

Dennis switched to the driver's seat and drove the van,
although he did not know where he was supposed to go. william
had the knife to Vo's neck. Dennis testified that "as my
knowledge of my brother's background, I didn't know what was
going to happen next." Dennis thought it was just best to
listen. He did not know what was going on behind him in the van
because the radio was on.

Dennis's counsel asked Dennis what he thought was going
on between Vo and william while they were driving by Pearl

Harbor:

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A. [DENNIS] I wasn't really thinking about them. I
was just thinking of what I was gonna do, you know what 1
mean?

Q. [DENNIS'S COUNSEL] Okay. what do you mean by
that? what were you going to do?

A. How could I get out of this situation without, you
know what I mean, either me getting hurt or somebody else, I
mean.

were you worried about your brother?

Q
A. As of what he was going to do to Mr. Vo?
Q Yeah.

A

A little because I know his background,

while driving to waianae, he could hear william talking
to Vo, but not what william was saying, and could hear william
beating up Vo. Dennis just hoped that william would not badly
hurt Vo. when asked if he was worried about how hurt Vo was,

Dennis responded:

A. [DENNIS] I was worried about him but I was more
worried about myself, you know what I mean?

Q. [DENNIS'S COUNSEL] Um-hum. Did you feel bad about
what your brother was d0ing?

A. I felt bad for Vo, but is -- you know what I mean?
My brother had the knife, what else -- what -- you know what
1 mean? I'm unarmed. what am I supposed to do here?

Dennis heard william telling Vo to take off Vo's tie,
but he did not see a tie "wrapped on or around" Vo at any time
during the incident.

As soon as Dennis parked the car in Lualualei, he said
"the keys are out on the driver's side" and walked away. He left
the keys on the ground.

Dennis testified that he did not hurt, hit, punch,
kick, or stomp Vo at any time during the incident. Dennis was
pretty sure william had done so, but Dennis had not actually seen
him do it. Dennis testified that he did not take anything from
Vo or know what was taken from Vo and william and Barbara did not
offer to give him anything. Dennis stated that when he left the
van, he felt hurt that william had put him in that situation.

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of Dennis,

Oral motion for a Hawaii Rules of
Evidence (HRE) Rule 404 ruling

(b)

After Dennis's counsel concluded his direct examination

the State moved for an HRE Rule 404 ruling:

[THE STATE]: At this time the State would ask this
court to make a ruling on 404 for the following reasons.
Based on [Dennis's] testimony, the impression that he left
with the jury is that his older brother william not only is
involved in drug activity but is, clearly, the impression
is, that he is the violent one. The impression also that
was left with the jury is that [Dennis] is not violent, he
was a non-participant, and it was his brother who was

violent. As {Dennis's counsel] should be aware right now,
[william] has no convictions for violent activity. His only
felony conviction was for a theft.

It's a Second Circuit, Maui case. [william] stole

more than $3OO of merchandise from K-Mart. That's all he

has.

[Dennis], on the other hand, has a conviction for
Robbery 1 with the use of a knife, and Robbery 2. It was
provided in discovery. I have the case number. These are
from '95 and '97, Second Circuit. The prosecutor's argument
is that he's opened the door because he left the impression
that he's not a violent guy.

THE COURT: Okay.
we would obviously object. we
[Dennis] gave no indication
just that
any

[DENNIS'S COUNSEL]:
didn't open the door at all.
that he himself is a peaceful person in general,
on this particular incident he didn't commit anything,
violent acts. That doesn't open the door to at all his
priors.

with respect to his brother, we're not claiming he has

-- we didn't put on any evidence that he has violent
convictions or criminal convictions, just that, you know,
they're brothers, they grew up together, he's seen prior
instances of violent behavior by his brother, even though
obviously not convicted.

THE COURT: Okay. I'm going to find that three
different times the defendant talked about his brother's
background. I agree with [the State] and I believe 1
explained this to your client [at the pretrial hearing] that
the door is closed right now, but if based on his testimony
he may give the wrong impression, [the State] may ask to
approach. That's exactly what happened.

1 think he's indicated that based on his brother's
background and drugs and he may be able to say it further
about drugs, I don't know about that, but that he gave the
impression that his brother's a dangerous guy and I think by
inference that he is not and so he has reason to fear him
and everything else, and the fact that he has prior
convictions for Robbery in the First Degree and Robbery in
the Second Degree, I think, are appropriate so I'm going to
allow [the State] to cross-examine him on those two.

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(c) Cross-examination

The State asked Dennis about his previous comments
regarding his fear of william. Dennis testified that he did not
know about william's conviction for felony theft. Dennis
admitted that he, himself, had a 1996 conviction for Robbery in
the First Degree (prior Robbery 1) stemming from an incident in
which he pulled a knife on a man and threatened to stab the man
and cut his throat if the man did not give him $10. Dennis also
admitted that he had been convicted in 1994 of Robbery in the
Second Degree (Robbery 11) stemming from an incident in which he
assaulted a man for $24 in cash and $26 in food stamps. The
State asked Dennis, "[J]ust to be clear, you're not telling the
jurors that you're somehow a peaceful, non-violent person, are
you?", and Dennis responded, "No, I'm not."

Dennis testified that at the time of the incident, he
weighed about 215 pounds and was about five feet, eight inches
tall. william weighed about 155 pounds and was about Dennis's
height. Dennis stated that at the time of his arrest he was
probably physically stronger than william.

Dennis admitted that although he testified he had not
seen william for several days prior to the incident, he was
actually with william and Barbara the day before the incident.
They were in a car, which Barbara was driving, when Barbara

received a traffic citation.

Dennis and the State engaged in the following exchange:

Q. [THE STATE] will you please explain to us why you
were thinking about your kids as [Vo] was getting tuned up
in the back of the van?

A. [DENN1S] Because, like 1 said, it's my brother, 1
know my brother‘s background and his attitude. 1 wouldn't
know what he would have done to me if 1 didn't help him out.

Q. So is it your testimony now that your brother made
you participate in this?

A. well, he did have the upper hand with the knife.

Q; 1s it your testimony that you were powerless
against your brother?

A. 1 was weaponless. 1 didn't have nothing to back
myself up if he came with the knife to me.

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Q. [Dennis], the only thing that your brother's been
convicted of is shoplifting at K-Mart, right?

A. Like 1 said, 1 have no idea what his record is.

Q. But your record is using a knife to rob people,
right?

A. Many years ago, yes.

Q. And also beating up people for $24 in cash and $26
in food stamps, right?

A. when 1 was 18.

Later, the State asked Dennis if while driving the van, he had
any reason to believe Vo was hurt:

A. [DENN1S] 1 could have speculated that --

Q. [THE STATE] what would that speculation have been
based on?

A. Me knowing -- being raised with my brother.
Q. That your brother's violent?

A. well, of me being raised with him while he's on
drugs.

Q. And that your brother was probably hurting [Vo] in
the back?

A. Probably.

Dennis testified that Vo and his van were left in a
dirt lot, behind some bushes. No one driving along the road
nearby could have seen Vo's van. Dennis, however, believed the
lot was safe.

(d) Recross-examination

Dennis testified that he did not run away from the van
during the incident because of what william might have done to
him and Vo. Dennis stated that his brother might have done
something to them "[b]ecause of his drug habit and as -- 1 know
as hanging around him while 1 was growing up, 1 know his
actions." when asked, "So he would not just use drugs but he
must be doing something violent, that's what you're talking
about, right?", Dennis responded, "1t could be anything." Dennis

testified, "1 know he hangs around gangs and all that . . . . You
put two and two together . . . . 1t's just he knows where 1 live
So 1 -- more worried about my fiancee and my daughter at

that time."

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4. Renewed Oral Motion for Judgment of Acquittal
After Dennis testified, his counsel orally renewed the
motion for judgment of acquittal, which the circuit court denied.
5. Hearing on Jury Instructions
On June 3, 2008, the circuit court held a hearing to
settle the jury instructions. At the start of the hearing, the
circuit court made further findings regarding its decision to
allow the State to introduce evidence of Dennis's prior

convictions;

[T]he Court wanted to place on the record the further
findings and statements regarding when [Dennis] was
testifying, that it was the Court's determination that he
gave the jury the impression of helpless victimization, and
that was based on his demeanor, his -- the impression he
created with, he's got a short haircut, he's clean-shaven,
he's got glasses, he's speaking in a meek and mild fashion.

His weight at the time, which had not been presented
to the jury, was he [sic] 215 pounds at the time of the --
of this incident, and his brother, william, was 155 pounds.

[Dennis] was five, eight. His brother's six, five
[sic].

He was saying he was fearful and scared of his
brother.

And on three occasions as part of his testimony he
talked about his brother's background in drug use and how he
gets, and how that made him scared and fearful.

And the Court, in looking at all of this, did a 403
balancing test and it weighed the dangers of unfair
prejudice, the probative value against unfair prejudice, and
it was the Court's determination that [Dennis] was creating
a false impression with the jury that he was a helpless
victim in relation to his brother.

And this was confirmed later when, despite me giving
repeated chances to amplify on why his brother was scary or
dangerous, he never came up with a single example of saying
that he was even unaware based on [the State's] questioning
that his brother had been convicted of a felony, albeit a
nonviolent shoplifting type of case.

And in this case, that while [Dennis] did not
specifically come out and say, 1 don't have any prior
violent felonies, or the like, by his words, demeanor and
conduct he left the Court and the jury with a false
impression, i.e., that he was a passive, helpless victim in
relation to his brother.

And the Court determined that by doing so he opened
the door to the Prosecution to give a more balanced view of
his past so the jury could weigh more appropriately and
judge for themselves.

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And in this case now, we have a choice of evils
situation for the jury to consider, as well as duress.

And that, again, doing the careful 403 balancing test,
the probative nature of the evidence of his -- limited to
the two prior violent convictions, the probative value of
those outweighs the danger of unfair prejudice.

At the same time a limiting instruction will be given
to instruct the jurors on how to consider, that it's not
that [Dennis] is a person of bad character, but that it's
offered for the stated 404(b) factors, as well as to rebut
the impression that he's a peaceful, nonviolent person and a
helpless victim in this situation, if for no other purpose.

Dennis's counsel renewed his objection to the admission of the

evidence:

Again, just to point out that the Court -- as the
Court stated, there was no direct evidence by [Dennis] that
he, himself, is a peaceful, nonviolent person, but the Court
only found that there was an inference.

with respect to being a helpless victim, his testimony
was not that he's 215 pounds, his brother was 155, and he
was scared.

The point was that -- not the weight of his brother,
but the fact that his brother had possession of the knife at
the time,

Regardless of the difference in weight, knowing his
brother had a knife and he didn't have any weapon, that was
the main point of his concern with respect to his brother.

Also, we would be noting that there was no limiting
instruction given to the jury at the time the evidence was
admitted.

And, furthermore, that these two cases of robbery
against [Dennis] that were admitted took place over ten
years ago[.]

The circuit court responded:

well, 1 believe {Dennis's] testimony was that there was a
knife, he was concerned at the time and he was concerned
later on about possible retaliation, and otherwise. So it
encompassed more than just the situation at the scene.

1t was later on when presumably he . . wouldn‘t have
a knife[.]

And the Court ruled as it did based on that,

The State responded to Dennis's counsel's argument that
the circuit court had erred by failing to give the jury a timely
limiting instruction when the court admitted evidence of Dennis's
prior convictions, The State argued that the jury's recollection

of Dennis's testimony would not have "dimmed" between the time

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Dennis testified and when the jury received a limiting
instruction because no evidence had been admitted since Dennis

testified, The State maintained that a limiting instruction

given with the rest of the jury instructions would be timely.

6. Jury Instructions
As part of the jury instructions, the circuit court

gave the following instruction:

You have heard evidence that [Dennis] at another time
may have engaged in or committed other crimes, wrongs or
acts. You must not use this evidence to determine that
[Dennis] is a person of bad character and, therefore, must
have committed the offenses charged in this case.

Such evidence may be considered by you only on the
issue of [Dennis's] motive, opportunity, intent,
preparation, plan, knowledge, identity, modus operandi,
absence of mistake or accident or to rebut the suggestion or
inference that [Dennis] is a peaceful and nonviolent or a
helpless victim and for no other purpose.

7. Closing Arguments
1n the State's closing rebuttal, it argued:
well, duress does not apply.

First of all, [Dennis] by his own testimony was never
threatened by his brother.

Recall my questions of him? what did your brother do
to you. Oh, nothing. But 1 know how he is.

. 1 gave him numerous opportunities to explain how his
brother threatened him directly. He couldn't come up with a
single one.

And remember, you've heard testimony that [Dennis] has
done other things. Do not think that he is some sort of a
hapless victim who was in the wrong place at the wrong time
doing his brother's bidding.

He has committed a knife-point robbery and beaten
another person in a robbery.

This evidence can be considered by you to refute the
suggestion that somehow he was just there and caught up in
this case.

1n his closing sur-rebuttal, Dennis's counsel argued:

we know that william is dangerous. we know that.
[Dennis] testified that his brother is a drug addict. And
when he's on drugs he doesn't know what he's going to do or
is capable of doing. `

He also knows that when they were growing up, that his
brother william could be violent. 1t's a very dangerous
combination. A person who has a history of violence, and is
on drugs.

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And that's what Dennis knew about william that day.

But keep in mind what Dennis did when he was 18, 19
years old, he's in his 30’s now, 1t's over 12 years ago at
least when he made those mistakes. 1t's been 12 years.

8. Verdict

The jury found Dennis guilty of all charges.

C. POST-TRIAL

On October 7, 2008, Dennis filed a Motion for a New
Trial. Dennis argued that at trial, the circuit court
erroneously admitted evidence of his prior convictions. Dennis
maintained that he did not directly testify that he was a
peaceful person and the circuit court should not have relied on
his demeanor at trial to support its ruling. He contended the
circuit court should not have admitted the evidence, pursuant to
HRE Rules 40l, 402, and 403. Dennis also argued that the verdict
was manifestly against the weight of the evidence because there
was not a "requisite finding of a theft" by him.

On October lO, 2008, the State filed a memorandum in
opposition. On December 3, 2008, the circuit court filed
Findings of Fact, Conclusions of Law, and order Denying Defendant
Dennis Brooks' Motion for NewrTrial. The circuit court denied
the motion on the basis that it was untimely filed, under Hawaii
Rules of Penal Procedure (HRPP) Rules 33 and 45. The circuit
court alternatively denied the motion on the bases that Dennis's
“arguments in support of the motion are speculative," the
"verdict was not manifestly against the weight of the evidence,"
and a "new trial is not required in the interests of justice."

The circuit court filed the Judgment on December 9,
2008, and Dennis timely appealed.

II.
A. ADMISSIBILITY OF PRIOR BAD ACT EVIDENCE

The admissibility of evidence requires different
standards of review depending on the particular rule
of evidence at issue. State v. Pulse, 83 Hawafi 229,
246, 925 P.2d 797, 814 (i996>.

when application of a particular evidentiary
rule can yield only one correct result, the
proper standard for appellate review is the
right/wrong standard. However, the traditional
abuse of discretion standard should be applied

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in the case of those rules of evidence that
require a "judgment call" on the part of the
trial Court,

1d. at [246], 925 P.2d at [8141 (citations omitted).

"Prior bad act" evidence under [HRE] Rule
404(b) . . . is admissible when it is 1)
relevant and 2) more probative than prejudicial.
A trial Court's determination that evidence is
"relevant" within the meaning of HRE Rule 401
(l993) . . . is reviewed under the right/wrong
standard of review. However, a trial Court's
balancing of the probative value of prior bad
act evidence against the prejudicial effect of
such evidence under HRE Rule 403 . . . is
reviewed for abuse of discretion. An abuse of
discretion occurs when the court clearly exceeds
the bounds of reason or disregards rules or
principles of law to the substantial detriment
of a party litigant.

State v. Torres, 85 HawaFi 417, 42l, 945 P.2d 849,
853 (App. 1997) (footnotes[, internal quotation marks,
and citations] omitted).

State v. Cordeiro, 99 Hawafi 390, 403-04, 56 P.3d 692,
705-06 (2002) .

State V. Fetelee, ll7 HaWaf1 53, 62-63, 175 P.3d 709, 718-19

(2008).

B. GENERAL ENTITLEMENT TO INCLUDED OFFENSE
INSTRUCTIONS

1n State v. Kupau, 76 I-Iawai‘i 387, 396 n.14, 879 P.2d
492, 501 n.14 (1994), overruled on other grounds by State v.

¢

Haanaio, 94 Hawai‘i 405, 16 P.3d 246 (2001), the I-Iawaii Supreme

Court stated that

although there may be sufficient evidence to support a
guilty verdict as to a charged offense, if the weight of the
evidence is to the contrary but supports guilt as to an
included offense, the trial judge would be justified in
giving an instruction regarding the included offense[.]

1n State v. Kinnane, 79 Hawai‘i 46, 897 P.2d 973
(1995) , the I-Iawai‘i Supreme Court stated:

when a defendant in a criminal case timely asks for a
lesser included offense instruction to which he or she is
entitled, it is reversible error not to give it. On the
other hand, a trial court is not obligated to charge the
jury with respect to an included offense unless there is a
rational basis in the evidence for a verdict acquitting the
defendant of the offense charged and convicting him of the
included offense,

1ndeed, in the absence of such a rational basis in the
evidence, the trial court should not instruct the jury as to
included offenses. A fortiori, it is not error for a trial
court to refuse -- and the trial court should refrain from

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giving -- an instruction regarding an uncharged offense that
is not included, for purposes of the HawaFi Penal Code,
within the charged offense,

where there is such a rational basis in the evidence,
however, we have held that it may be plain error for a trial
court to fail to give an included offense instruction even
when neither the prosecution nor the defendant have
requested it; this is because

the trial court is the sole source of all definitions
and statements of law applicable to an issue to be
resolved by the jury. Moreover, it is the duty of the
circuit judge to see to it that the case goes to the
jury in a clear and intelligent manner, so that they
may have a clear and correct understanding of what it
is they are to decide, and he or she shall state to
them fully the law applicable to the facts. And faced
with inaccurate or incomplete instructions, the trial
court has a duty to, with the aid of counsel, either
correct the defective instructions or to otherwise
incorporate it into its own instructions. 1n other
words, the ultimate responsibility properly to
instruct the jury lies with the circuit court and not
with trial counsel.

Thus, in order to reconcile the competing

interests of the prosecution and defendants, as well
as to ensure that juries are appropriately instructed
in criminal cases, we hold as follows: The trial
judge must bring all included offense instructions
that are supported by the evidence to the attention of
the parties. The trial judge must then give each such
instruction to the jury unless (l) the prosecution
does not request that included instructions be given
and (2) the defendant specifically objects to the
included offense instructions for tactical reasons.
1f the prosecution does not make a request and the
defendant makes a tactical objection, the trial judge
must then exercise his or her discretion as to whether
the included offense instructions should be given.
The trial judge‘s discretion should be guided by the
nature of the evidence presented during the trial, as
well as the extent to which the defendant appears to
understand the risks involved.

Kupau, 76 HawaFi 394-96, 879 P.2d 499-501 (citations,
footnotes, internal quotation marks, and brackets omitted)
(emphasis in original).

79 HawaFi at 49-50, 897 P.2d at 976-77 (internal quotation
marks, citations, footnotes, and brackets omitted; emphasis in
original).

C. SUFFICIENCY OF THE EVIDENCE

The appellate court reviews the sufficiency of evidence

on appeal as follows:

[E]vidence adduced in the trial court must be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence to
support a conviction; the same standard applies whether the

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case was before a judge or jury. The test on appeal is not
whether guilt is established beyond a reasonable doubt, but
whether there was substantial evidence to support the
conclusion of the trier of fact.

State V. RiChie, 88 HaWafi 19, 33, 960 P.2d 1227, 1241 (1998)

(quoting State v. Quitog, 85 HawaFi 128, 145, 938 P.2d 559, 576
(1997)). "'Substantial evidence' as to every material element of

the offense charged is credible evidence which is of sufficient

quality and probative value to enable a person of reasonable

caution to support a conclusion." Richie, 88 HawaFi at 33, 960

P.2d at 1241 (internal quotation marks and citation omitted).
D. SENTENCING

A sentencing judge generally has broad discretion in
imposing a sentence. The applicable standard of review for
sentencing or resentencing matters is whether the court
committed plain and manifest abuse of discretion in its
decision. Factors which indicate a plain and manifest abuse
of discretion are arbitrary or capricious action by the
judge and a rigid refusal to consider the defendant's
contentions. And, generally, to constitute an abuse it must
appear that the court clearly exceeded the bounds of reason
or disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.

State v. Mundon, 121 HawaiH.339, 349, 219 P.3d 1126, 1136 (2009)

(quoting State v. Kahapea, 111 Hawafi 267, 278, 141 P.3d 440,
451 (2006)).
E. JURY INSTRUCTIONS

The standard of review for a trial court‘s issuance or
refusal of a jury instruction is whether, when read and
considered as a whole, the instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading. Erroneous instructions are presumptively
harmful and are a ground for reversal unless it
affirmatively appears from the record as a whole that the

error was not prejudicial. 1n other words, error is not to
be viewed in isolation and considered purely in the
abstract.

State v. Kassebeer, 118 HawaiT_493, 504, 193 P.3d 409, 420
(2008) (internal quotation marks, citations, and brackets
omitted) (quoting State v. Mainaaupo, 117 Hawafi 235, 247, 178
P.3d l, 13 (2008)).

The standard of review for jury instructions that were
not objected to at trial was clarified in State v. Nichols, 111
HawaFi 327, 141 P.3d 974 (2006), where the Hawafi Supreme Court

held that

although as a general matter forfeited assignments of error
are to be reviewed under [Hawafi Rules of Penal Procedure

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(HRPP)] Rule 52(b) plain error standard of review, in the
case of erroneous jury instructions, that standard of review
is effectively merged with the HRPP Rule 52(a) harmless
error standard of review because it is the duty of the trial
court to properly instruct the jury. As a result, once
instructional error is demonstrated, we will vacate, without
regard to whether timely objection was made, if there is a
reasonable possibility that the error contributed to the
defendant's conviction, i.e., that the erroneous jury
instruction was not harmless beyond a reasonable doubt.

;dL at 337, 141 P.3d at 984 (footnote omitted). Thus, the
appellant must first demonstrate instructional error by rebutting
the "presumption that unobjected-to jury instructions are
correct." 1Q4 at 337 n.6, 141 P.3d at 984 n.6; accord State v.
Eberly, 107 HaWaFi 239, 250, 112 P.3d 725, 736 (2005). If the
appellant is able to rebut this presumption, the burden shifts to
the State to prove that the error was harmless beyond a

reasonable doubt because

[e]rroneous instructions are presumptively harmful and are a
ground for reversal unless it affirmatively appears from the
record as a whole that the error was not prejudicia1.
However, error is not to be viewed in isolation and
considered purely in the abstract. 1t must be examined in
the light of the entire proceedings and given the effect
which the whole record shows it to be entitled.

Nichols, 111 Hawafi at 334, 141 P.3d at 981 (brackets in
original omitted) (quoting State v. Gonsalves, 108 Hawafi 289,
293, 119 P.3d 597, 601 (2005)).

III.

A. PRIOR BAD ACTS EVIDENCE

Dennis contends the circuit court abused its discretion
in allowing the State to adduce at trial evidence of his prior
convictions.

"Relevant evidence" is "evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." HRE Ru1e 401. Genera1ly, all
relevant evidence is admissible. HRE Rule 402. However, HRE

Ru1e 404 (Supp. 2009) provides in relevant part:

Ru1e 404. Character evidence not admissible to prove
conduct; exceptions; other crimes, (a) Character evidence
generally, Evidence of a person's character or a trait of a
person’s character is not admissible for the purpose of
proving action in conformity therewith on a particular
occasion, excepts

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(1) Character of accused. Evidence of a pertinent
trait of character of an accused offered by an accused, or
by the prosecution to rebut the same;

(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith. 1t may, however, be admissible where such
evidence is probative of another fact that is of consequence
to the determination of the action, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
modus operandi, or absence of mistake or accident. 1n
criminal cases, the proponent of evidence to be offered
under this subsection shall provide reasonable notice in
advance of trial, or during trial if the court excuses
pretrial notice on good cause shown, of the date, location,
and general nature of any such evidence it intends to
introduce at trial.

in state v. clark, 33 Hawai‘i 289, 300-01, 926 P.2d
194, 205-06 (1996), the HawaFi Supreme Court stated:

The list of permissible purposes in Rule 404(b) is not
intended to be exhaustive "for the range of relevancy
outside the ban is almost infinite." E.w. Cleary, McCormick
on Evidence § 190, at 448 (Cleary ed. 1972). 1n United
States v. Miller, 895 F.2d 1431 (D.C. Cir. 1990), cert.
denied, 498 U.S. 825, 111 S. Ct. 79, 112 L. Ed. 2d 52
(1990), the United States District Court of Appeals for the
District of Columbia explained:

[Ru1e 404(b)] was intended not to define the set of
permissible purposes for which bad-acts evidence may
be admitted but rather to define the one impermissible
purpose for such evidence, "Only one series of
evidential hypotheses is forbidden in criminal cases
by Rule 404: a [person] who commits a crime probably
has a defect of character; a [person] with a defect of
character is more likely than [people] generally to
have committed the act in question " 2 J. weinstein &
M. Berger 1 404(8) at 404-52. 1n other words, under
Rule 404(b), any purpose for which bad-acts evidence
is introduced is a proper purpose so long as the
evidence is not offered solely to prove character.

The Government's right to introduce bad-acts evidence
for purposes other than showing a defendant's criminal
propensity is by no means unlimited. But the limits
derive from the "general strictures limiting
admissibility such as Rules 402 and 403," not from
Rule 404(b). Huddleston [v. United States, 485 U.S.
681, 688], 108 S. Ct. [1496] at 1500 [, 99 L. Ed. 2d
771 (1988)].

Id. at i436.
See also State v. Arakawa, 101 HawaiU.26, 34, 61 P.3d 537, 545
(App. 2002) (internal quotation marks and citation omitted)
("[T]he supreme court [has] observed that the list of permissible
purposes enumerated in HRE Rule 404(b), such as motive and

intent, was not intended to be exhaustive.").

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Further, in State v. Steger, 114 Hawafi 162, 158 P.3d
280 (App. 2006), this court stated:

In ruling on whether to admit evidence under HRE Rule

404(b), the trial court must consider a variety of factors.
State v. Robinson, 79 Hawafi 468, 471, 903 P.2d 1289, 1292
(1995). These include: ’

the strength of the evidence as to the commission of
the other bad acts, the similarities between the
[other] bad acts [and the charged crime], the time
that has elapsed between the [other] bad acts [and the
charged crime], the need for the evidence, the
efficacy of alternate proof, and the degree to which
the evidence will probably rouse the jury to
overmastering hostility.

Id.

lQ; at 172, 158 P.3d at 290.

1n Kassebeer, 118 HawaFi at 507, 193 P.3d at 423, the
Hawafi Supreme Court stated that the use of the word "may" in
"HRE Rule 404(b)'s directive that evidence of a prior bad act
'may' be admissible . . . was intended to trigger an inquiry
under HRE Rule 403, . . . which provides in relevant part that,
'[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice.'"

1. Steger Factors

The first Steger consideration is "the strength of the
evidence as to the commission of the other bad acts." 114
Hawafi at 172, 158 P.3d at 290. The evidence of Dennis's other
bad acts is strong, as it is undisputed that Dennis had the prior
Robbery 1 and Robbery 11 convictions in the Circuit Court of the
Second Circuit. As for the second Steger factor, "the
similarities between the [other] bad acts [and the charged
crime]," id;, the Robbery in the First Degree in the instant case
clearly was similar to the prior Robbery 1 and Robbery 11 charges
because all three offenses involved robbery. Further, Dennis
used a knife in the prior Robbery 1 case and in the instant case.

The fourth Steger factor, the "need for the evidence,"
114 HawaiYi at 172, 158 P.3d at 290, mitigates in favor of
admitting the prior convictions. 1n the instant case, the
circuit court found that at trial, Dennis opened the door to the

State's introduction to the evidence because

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while [Dennis] did not specifically come out and say, 1
don't have any prior violent felonies, or the like, by his
words, demeanor and conduct he left the Court and the jury
with a false impression, i.e., that he was a passive,
Vhelpless victim in relation to his brother.

The circuit court found that Dennis created that false impression
by testifying "he was fearful and scared of his brother" and
testifying three different times about "his brother's background
in drug use and how [his brother] gets, and how that made him
scared and fearful." The circuit court further found that the
evidence of Dennis's prior convictions was necessary to give the
jury "a more balanced view of [Dennis's] past so the jury could
weigh more appropriately and judge for themselves." we agree
that the evidence was needed to counterbalance the impression of
himself Dennis created at trial. Dennis testified as follows:

(1) He did not want william to live with him "[j]ust
'cause of -- from what his background is, from what 1 heard of
his drug action and all."

<2) when william put the knife te ve~e eide end tei