N()'l` F()l{ I’L,YISI,,!C.~\'I`I()N IN W l'lS'l"S !:{A\\".»\I‘I REPOR'I`S AN l) P.A(`II*`](Y [KEI’()R”_I`I~S`,IH
NO. 287S4
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAlY[
CR. NO. 06-l~l807
STATE OF HAWAIl, Plaintiff~Appellee,
HENRY PONCE JAClN£g CALUCAG, JR., aka
Hank Jacinto, Defendant~Appellant
and
cR. No. 0'7¢1~0115 a ~:»:.~§
STATE OF HAWAII, Plaintiff-Appellee, V
v.
HENRY PONCE JACINTO CALUCAG, JR., aka
Hank Jacinto, Defendant~Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
SUMMARY DISPOSITION ORDER
(By: Foley, PreSiding J., FujiSe and Leonard, JJ.)
In this consolidated caSe, Defendant-Appellant Henry
Ponce Jacinto Calucag, Jr., aka Hank Jacinto, (Calucag) appeals
from the JudgmentS of Conviction and Sentence filed on
Septemher 7, 2007 in the Circuit Court of the First Circuit
(circuit court)1 in Cr. No. 06~l~l807 and Cr. No. 07-l~0ll5.
Plaintiff~Appellee State of Hawafi (State) charged
Calucag by indictment in Cr. No. 06-1-1807 with:
Count I, Identity Theft in the FirSt Degree, in
violation of HaWaii ReviSed StatuteS (HRS) § 708-
839.6(l)(b) (Supp. 2009);
Count II, Theft in the FirSt Degree, in violation of
HRS §§ 708-830.5(l)(a) (l993) and 708-830(l) (l993);
and
Count III, Forgery in the Second Degree, in violation
of HRS § 708-852 (Supp. 2009).
l
The Honorable Michael A. Town preSided.
NO"I` I?`()]l MP L}‘B.lual_C`.\'I"_l`()N ]N WI*`.S'!"S }'IA\‘\"AI‘} `REP()R"I`S AN\V) PACIFIC RP.`P()R'I`,ER.
The State also charged Calucag by indictment in Cr.
No. $7»l»GOl5 With:
Count 1, Use of a Computer in the Commission of a
Separate Crime, in violation of HRS § 708~893{1)§a) &
{2) {Supp. 2009);
Count 11, Theft in the Second Degree, in violation of
HRS §§ 708~33l{l§(b) {Supp. 2005) and 708~830(2)
(l993)'
r'
Count 111, Fraudulent Use of a Credit Card, in
violation of HRS § 708~S100il)(c} (l993);
Count 1V, 1dentity Theft in the Second Degree, in
violation of HRS § 708~839.7 (Supp. 2009);
Count V, Fraudulent Use of a Credit Card, in violation
of HRS § 708~8100(1)(c); and
Count V1, Fraudulent Use of a Credit Card, in violation
of HRS § VO8-8lOO(l)(C).
On Fehruary 27, 2007, the circuit court consolidated
Cr. Nos. 06~1~1S07 and 07~1»O115 for trial. A jury found Calucag
guilty as charged on Counts 1, 11, and 111 of Cr. No. 06~1~1807
and Counts 1, 11, 111, 1V, and V1 of Cr. No. 07-1~0115. The
circuit court declared a mistrial as to Count V of Cr. No. 07-1~
Oll§ .
On Septemher 7, 2007, the circuit court sentenced
Calucag to the following:
1n Cr. No. 06~1~1807: concurrent terms of imprisonment
of 20 years, with a mandatory minimum term of 6 years and 8
months, for Count 1; 10 years, with a mandatory minimum term of 3
years and 4 months, for Count 11; and 5 years, with a mandatory
minimum term of 1 year and 8 months, for Count 111.
1n Cr. No. 07-1-O115: concurrent terms of imprisonment
of 10 years, with a mandatory minimum term of 3 years and 4
months, for Count 1; 5 years, with a mandatory minimum term of 1
year and 8 months, for Count 11; 5 years for Count 111; 5 years,
with a mandatory minimum term of 3 years and 4 months for Count
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1V; and 5 years, for Count V1. These sentences were to be served
consecutively to the sentences imposed in Cr. No. 06~l»l807.
On appeal, Calucag contends the circuit court
reversibly erred by
§1) admitting evidence related to Pro Network Center
because such evidence was not relevant under Hawaii Rules of
Evidence (HRE) Rules 401 and 402 and was inadmissible character
evidence under HRE Rules 403 and 404(b);
{2) denying his Motion for New Trial and for Judgment
of Acquitta1 because in Counts 1, 11, 111, and 1V of Cr. No. 07-
1-0115, the State failed to adduce substantial evidence that
Calucag used a credit card belonging to John Elwin (Elwin) and
transmitted Elwin's personal information via a computer to place
an order with a company, fraudulently used Elwin's credit card
without Elwin‘s consent, and committed the offense of forgery in
the second degree;
(3) allowing the prosecutor during closing argument to
make improper comments regarding Calucag's failure to introduce
evidence to corroborate his defense, when Calucag had no burden
to put on such evidence; and
(4) granting the State's Motion for 1mposition of
Consecutive Terms of 1mprisonment because it is unconstitutional
to impose consecutive sentences based on facts not specifically
found by a jury.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we hold that {l) the
evidence relating to Pro Network Center’s website was not
inadmissible character evidence because it was relevant to prove
Calucag's fraudulent scheme; (2) there was substantial evidence
to support the jury's verdicts; (3) the prosecutor's comments
regarding the lack of evidence were not improper because the
prosecutor did not suggest that Calucag had any burden of proof
N()'l` F(,)l‘{ PI_.`FIIIJICA'FI()N IN VVI*`,S'T‘S II.'\\?\"¢KI°I RICI’()IZ'|"S AND P.»X(Tll"l(l? IKIE¥’()IR'I`DI`R
or obligation to produce any cvidence; and {a> it was not
unconstitutional for the circuit court to impose consecutive
sentences based on facts not specifically found by the jury.
§1) Calucag contends the circuit court reversibly
erred by admitting evidence showing that the information on the
Pro Network Center website was false because such evidence was
irrelevant under HRE Rules 401 and 402 and inadmissible character
evidence under HRE Rule 404{b).
The State replies, and we agree, that the evidence was
not introduced to show Calucag‘s bad character, but to rebut
Calucag's explanation that Elwin transferred the Kalihiwai
property to Calucag in exchange for a $372,000 loan. The
evidence that the information on the Pro Network Center website
was false and that Calucag was not a successful businessman or
respected computer consultant with important connections in the
Department of Homeland Security, as the website portrayed, is
relevant because it makes it less likely that Calucag had
S372,000 to loan Elwin. The evidence makes it more likely that
Calucag intended to defraud Elwin of the Kalihiwai property and
is thus relevant to show that Calucag had the requisite criminal
intent to take unauthorized control of the property.
Calucag argues that even if the evidence were probative
of an issue that is of consequence to the determination of the
action, the circuit court should have excluded the evidence
because its probative value was outweighed by its prejudicial
impact under HRE Rule 403. He argues that the circuit court made
no effort to make this determination. We disagree.
The circuit court‘s concern about the prejudicial
effect of the evidence is reflected in its limiting instruction
to the jury, and its reiteration of that limiting instruction at
the end of the trial, that any evidence concerning Calucag‘s
prior bad acts must not be considered for the purposes of
concluding that he was "a person of bad character and, therefore,
must have committed the offenses charged in this case“ and that
NO'I` I*`(F)R `l"'{y? BLI (Tlk'l'l(`)!\" INA \W"l“jlS'}"S l'~L-'\VV.A I‘l' RE}POR'I`S ANI) P¢X(YII*`IC Rl§!"()il'l`f*lf{
the evidence should only be considered on the issue of his
motive, opportuni'y, intent, preparation, plan, knowledge,
identity, modus operandi, or absence of mistake or accident. Any
potential prejudice was cured by the circuit court's limiting
instruction.
(2) Calucag contends the circuit court reversibly
erred by denying his Motion for New Trial and for Judgment cf
Acquittal because the State failed to adduce substantial evidence
that Calucag (l} used Elwin's credit card and transmitted on a
computer Elwin‘s personal information to place an order, (2)
fraudulently used Elwin's credit card without Elwin's consent,
and (3) committed the offense of forgery in the second degree.
There was substantial evidence to support the jury's verdicts.
"'Substantial evidence' . . . is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion " §§a;e_y;_gighi§, 88
Hawafi at l9, 33, 960 P.2d l227, 1241 (l998) (internal quotation
marks and citation omitted).
Although there was no eyewitness testimony or video
footage of Calucag placing the internet order, "[i]t is a basic
rule . . . that guilt in a criminal case may be proved beyond a
reasonable doubt on the basis of reasonable inferences drawn from
circumstantial evidence. No greater degree of certainty is
required where a conviction is based solely on circumstantial
evidence rather than on direct evidence." State v. Bright, 64
Haw. 226, 228, 638 P.2d 330, 332 (l98l) (citations omitted).
First, Calucag asserts the State only showed that
someone other than Elwin used Elwin's credit card and transmitted
Elwin's personal information to place an order with The Tackeria
on a computer, but not that Calucag was the one who placed that
order.
However, there was sufficient evidence to support the
jury's conclusion that Calucag placed the order. lt was
reasonable for the jury to infer that Calucag placed the
N(_)'l"` F(.)R l"l,)`I`SI._,I(§F\"[`!()N W` PYS'I"S I‘lii»‘.l’\”`z\l‘l l{l€f’()l`{'l`$ ANI) I’!XCTII'*’!(,`. IIISI’().R'I".E"I`R
the fraudulent order was placed on June 6, 2066 {after Elwin‘s
death} for polo merchandise from The Tacheria; the polo
merchandise was shipped to the Pro Network Center address at 1750
KalaMaua Avenue, a mailbox to which Calucag and Elwin had access;
Calucag picked up the order from the mailbox in June 2006;
Calucag was a polo player; and Calucag did not tell any of
Elwin‘s friends or family members about the order when they asked
him if he had heard from or had any information about Elwin.
Second, Calucag asserts the State did not present any
direct evidence that Calucag fraudulently used Elwin's credit
card without Elwin‘s consent. However, it was reasonable for the
jury to infer from the following evidence that Calucag
fraudulently used Elwin’s credit cards when the person called
Tato's Custom Mallets and left a message checking on the order,
the caller ID provided Pro Network Center's phone number; Calucag
is the owner of Pro Network Center; the person who called and
changed Elwin's order also changed the delivery address to 1750
Kalakaua Avenue and telephone number to Pro Network Center’s
number; and the person who called Tato‘s after Elwin‘s order had
been delivered, complained about the quality of mallets because
they knew that if a mallet was too thin, it could break on impact
while used to play polo.
Finally, Calucag asserts the State did not present any
direct evidence that he committed the offense of Forgery in the
Second Degree by transferring the Kalihiwai property from Elwin's
name to his name via a fraudulent warranty deed. However, it was
reasonable for the jury to infer from the following evidence that
Calucag committed second degree forgery: Elwin's sister-in-law
testified that Elwin owned the Kalihiwai property and planned to
leave it to his daughter after his death; Elwin's brother
testified that prior to leaving for the Philippines, Elwin had
him draft plans for a house on the Kalihiwai property, got
estimates to put in a septic system and had started putting in
6
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the system, and hired a company to run utilities on the property;
Elwin’s girlfrieid testified that she had never heard him say he
wanted to sell the Kalihiwai property, the property was to go to
his daughter upon his death, and he was still planning to build a
house on the property; even as late as april 30, 2006, Elwin told
his friend that he did not want to sell the property; in his
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will, Elwin ft the property to his daughter; Calucag never gave
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thing of economic value in exchange for the property;
Calucag‘s bank records showed that from 2003 to 2006 he did not
have $370,000 available to loan Elwin; and on June 16, 2006,
Calucag told a police officer that he did not know if Elwin owed
money to anyone.
Because the jury found beyond a reasonable doubt that
Calucag was guilty of theft of the property, there was sufficient
evidence for the jury to find that Calucag, at the very minimum,
uttered a forged instrument when he filed the Warranty Deed with
the Bureau of Conveyances, an element of second degree forgery.
§me HRS § 708~852. Therefore, we hold that there was substantial
evidence to support the jury's verdict.
(3) Calucag contends the circuit court erred by
allowing the prosecutor to make improper comments regarding
Calucag's failure to introduce evidence to corroborate his
defense, when he had no burden to put on such evidence. He
argues that the prosecutor improperly shifted the burden of proof
to Calucag by stating that there was no evidence that Elwin
received any money in exchange for the Kalihiwai property.
However, the prosecutor legitimately commented on the
evidence and on reasonable inferences. The prosecutor pointed
out that there was no evidence Elwin received any tangible goods
or money from Calucag in exchange for the allegedly legitimate
transfer of Kalihiwai property. The prosecutor never made any
comments about whether or not Calucag took the witness stand to
testify on his own behalf nor did the prosecutor suggest that
Calucag had any burden of proof or obligation to produce any
7
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eviMsn3e. The prosecutor merely commented that there was no
evidence of the alleged exchange, and drew the inference from
this lack of evidence that no legitimate exchange occurred. "I'
is . . . within the bounds of legitimate argument for prosecutors
to state, discuss, and comment on the evidence as well as to draw
all reasonable inferences from the evidence." §;ate*y;MBQgan, 91
sawei:_‘;i, -z@s, /;i:z-ia, 934 1231, 1233-39 {1999> #;“
for Defendant-Appellant. ' /
Presiding Judge
Brian R. Vincent,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee. § § "'
Associate Judge