State v. Arroyo

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-JUL-2021
07:56 AM
Dkt. 117 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee/Cross-Appellant
v.
RAFAEL ARROYO, Defendant-Appellant/Cross-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2PC15-1-000379(2))

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)

Defendant-Appellant/Cross-Appellee Rafael Arroyo
(Arroyo) appeals from the "Amended Judgment; Conviction and
Sentence" (Amended Judgment of Conviction and Sentence), entered
on February 5, 2019, by the Circuit Court of the Second Circuit
(Circuit Court).1 Plaintiff-Appellee/Cross-Appellant State of
Hawai#i (State) cross-appeals from the Circuit Court's "Order
Granting Defendant's Motion in Limine No. 3," entered on April
17, 2017.
On June 7, 2017, a jury found Arroyo guilty as charged
of two counts of Burglary in the First Degree in violation of
Hawaii Revised Statutes (HRS) § 708-810(1)(c) (2014) (Burglary

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The Honorable Peter T. Cahill presided.
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First)2 for incidents on May 31, 2015 (Count One), and on May 29,
2015 (Count Three).
On July 26, 2018, the Circuit Court entered judgment
sentencing Arroyo to ten years on Count One and seven years and
six months on Count Three, to run consecutively. The Circuit
Court subsequently vacated that sentence as illegal, then
reinstated it to amend Count Three to ten years of imprisonment,
to run consecutive to Count One.
On appeal, Arroyo contends that: (1) on February 5,
2019, the Circuit Court intentionally and knowingly entered an
illegal sentence and abused its judicial authority; and (2) the
Circuit Court abused its discretion in denying Motion in Limine
(MIL) No. 2 which sought to preclude admission of State's Exhibit
17, a socket wrench that was found in proximity to Arroyo when he
was arrested in the complaining witness's (CW) home, and in
giving a limiting instruction related to the socket wrench.
In its cross-appeal, the State contends the Circuit
Court erred as a matter of law in granting Arroyo's MIL No. 3 to
exclude bad acts evidence.
Upon careful review of the record in this case, the
issues raised and arguments made by the parties and the
applicable authority, we resolve Arroyo's points on appeal and
affirm. We need not reach the State's cross-appeal.
(1) Arroyo argues in his first point of error that the
Circuit Court's intentional reinstatement of the July 26, 2018
illegal sentence is unlawful and the sentence is a nullity ab

2
HRS § 708-810(1)(c) provides:
§708-810 Burglary in the first degree. (1) A person
commits the offense of burglary in the first degree if the
person intentionally enters or remains unlawfully in a
building, with intent to commit therein a crime against a
person or against property rights, and:
. . . .

(c) The person recklessly disregards a risk that
building is the dwelling of another, and the
building is such a dwelling.

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initio. In the "Court's Sua Sponte Findings of Fact; Conclusions
of Law; Order," entered on January 18, 2019, the Circuit Court
concluded that the July 26, 2018 Judgment of Conviction and
Sentence did not conform to HRS § 706-660 (2014)3 and constituted
an illegal sentence. The court vacated the illegal sentence and
ordered resentencing pursuant to Hawai#i Rules of Penal Procedure
(HRPP) Rule 35.4 On January 24, 2019, the State filed a motion
to amend the (previously vacated) July 26, 2018 Judgment of
Conviction and Sentence.
At resentencing, the Circuit Court indicated that it
would construe the State's motion to amend judgment as a motion
to reconsider the sua sponte vacatur of the July 26, 2018 illegal
sentence, reinstate it, and grant the amendment to reflect the
ten-year sentence on Count Three, as statutorily mandated. On
February 5, 2019, the court entered the Amended Judgment of
Conviction and Sentence.

3
HRS § 706-660 (2014) provides, in relevant part:

§706-660 Sentence of imprisonment for class B and C
felonies; ordinary terms; discretionary terms. (1) Except as
provided in subsection (2), a person who has been convicted of
a class B or class C felony may be sentenced to an
indeterminate term of imprisonment except as provided for in
section 706-660.1 relating to the use of firearms in certain
felony offenses and section 706-606.5 relating to repeat
offenders. When ordering such a sentence, the court shall
impose the maximum length of imprisonment which shall be as
follows:
(a) For a class B felony-ten years; and
(b) For a class C felony-five years.
(emphases added).
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HRPP Rule 35 provides, in pertinent part:
Rule 35. Correction or reduction of sentence.

(a) Correction of illegal sentence. The court may
correct an illegal sentence at any time and may correct a
sentence imposed in an illegal manner within the time provided
herein for the reduction of sentence. A motion made by a
defendant to correct an illegal sentence more than 90 days
after the sentence is imposed shall be made pursuant to Rule
40 of these rules. A motion to correct a sentence that is
made within the 90 day time period shall empower the court to
act on such motion even though the time period has expired.

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Pursuant to HRS § 706-660(1)(a), the mandatory
indeterminate sentence for Burglary First, which is a class B
felony under HRS § 708-810(3), is ten years. Hence, the Circuit
Court's imposition of seven years and six months on Count Three
constituted an illegal sentence, which no party disputes. The
court is duty-bound to correct an illegal sentence pursuant to
HRPP Rule 35. See State v. Delmondo, 67 Haw. 531, 533, 696 P.2d
344, 345-46 (1985) (holding trial court had duty to impose
mandatory minimum sentence upon defendant as a repeat offender
when that fact was made evident to the court following initial
sentencing); State v. Fry, 61 Haw. 226, 229, 602 P.2d 13, 16
(1979) ("Because both the original oral sentences and the amended
sentences did not conform to the statute, they were illegal, and
the court had the duty to correct them pursuant to Hawaii Rules
of Penal Procedure, Rule 35.") (citations omitted).
"As Rule 35 provides for the correction of an illegal
sentence 'at any time,' it is expressly not limited as to the
time when a motion to correct may be brought. The court can
always reform an illegal sentence. This is true even after the
defendant has begun to serve the void sentence." Fry, 61 Haw. at
230-31, 602 P.2d at 16 (citation omitted). Moreover, both the
United States Supreme Court and Hawai#i Supreme Court have
declared that there is no double jeopardy when an illegal
sentence is altered, even though severity of the sentence is
increased. Delmondo, 67 Haw. at 532, 696 P.2d at 345 (citing
Bozza v. United States, 330 U.S. 160, 166 (1947); Fry, 61 Haw. at
230, 602 P.2d at 16).
Here, no party filed an HRPP Rule 35 motion but the
Circuit Court sua sponte concluded as a matter of law that the
July 26, 2018 sentence was illegal and vacated it. However,
without an illegal sentence to correct, the Circuit Court
subsequently reinstated the original July 26, 2018 judgment and
then corrected the portion that was illegal, i.e., the sentence
of seven-and-a-half-years on Count Three. This was not an abuse
of discretion and there is no reason to render the entire illegal

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sentence a nullity ab initio. See Bozza, 330 U.S. at 166–67
(rejecting the "doctrine that a prisoner, whose guilt is
established by a regular verdict, is to escape punishment
altogether because the court committed an error in passing the
sentence." (citations omitted)).
The Circuit Court did not err or abuse its authority,
but rather fulfilled a duty to correct the July 26, 2018 illegal
sentence. Therefore, we do not disturb Arroyo's sentence as
corrected by the Circuit Court.
(2) Arroyo asserts in his second point of error that a
reasonable trier of fact could not possibly infer proof beyond a
reasonable doubt of an intent to commit a crime "against a
person" from the mere presence of the socket wrench within
Arroyo's proximity and, without some other circumstantial
evidence of Arroyo's intent, the socket wrench has insufficient
probative value to establish his state of mind.
In MIL No. 2, Arroyo sought to exclude evidence of a
socket wrench, which was found in proximity to Arroyo upon his
arrest on May 31, 2015, when he was found in the CW's home and in
her bed. Arroyo argued the socket wrench is irrelevant to the
issue of his intent to commit burglary, and that even if it were
relevant, it must be excluded because its probative value is
substantially outweighed by the danger of unfair prejudice. The
State argued that admission of the socket wrench would show that
Arroyo was armed when he entered the CW's home, permitting an
inference that Arroyo intended to use the weapon against the CW,
and thus entered the CW's home with intent to commit a crime
therein against her. The Circuit Court denied MIL No. 2, but
prohibited any reference to and receipt of the socket wrench into
evidence before a foundation was laid.
Prior to the start of trial on June 6, 2017, the
Circuit Court advised the parties that proximity of the socket
wrench to Arroyo would be a factor for the jury to decide and
that a limiting instruction would confine the jury's
consideration of the socket wrench to Arroyo's intent to commit a
crime against a person on May 31, 2015, only.

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For the offense of burglary, the evidence must show
unlawful entry in a building with the intent to commit therein a
crime against a person or property rights, not that a crime was
actually committed in the building. "Based on the plain language
of the statute and the historical development of the offense of
burglary, . . . in order to sustain a burglary conviction, the
evidence must show that the unlawful entry was effected for the
purpose of committing an offense against a person or property
rights." State v. Mahoe, 89 Hawai#i 284, 288, 972 P.2d 287, 291
(1998). "The intent to commit the offense must have existed at
the time the unlawful entry was made." Id. "[T]he crime
intended to be committed on the premises does not have to be
committed in order to make the act of entering or remaining the
crime of burglary, only the intent must be formed." State v.
Robins, 66 Haw. 312, 314, 660 P.2d 39, 41 (1983). Nonetheless,
[t]he law recognizes the difficulty by which intent is
proved in criminal cases. We have consistently held
that since intent can rarely be proved by direct
evidence, proof of circumstantial evidence and
reasonable inferences arising from circumstances
surrounding the act is sufficient to establish the
requisite intent. Thus, the mind of an alleged
offender may be read from his acts, conduct, and
inferences fairly drawn from all of the circumstances.
State v. Calaycay, 145 Hawai#i 186, 200, 449 P.3d 1184, 1198
(2019) (quoting State v. Kiese, 126 Hawai#i 494, 502-03, 273 P.3d
1180, 1188-89 (2012)).
A reasonable mind might fairly conclude beyond a
reasonable doubt from all the circumstantial evidence, not just
the "mere presence" of the socket wrench within Arroyo's
proximity, that Arroyo unlawfully entered the CW's house on May
31, 2015, with the intent to commit an offense against her. The
foundation for the socket wrench's existence had been laid and
the evidence received was in the context that two days prior, on
May 29, 2015, Arroyo (the CW's ex-boyfriend) had pushed his way
into the CW's house and later opened the CW's locked bedroom door
and punched her unconscious. Further, the CW testified that the
socket wrench did not belong to her. Hence, the evidence of the
socket wrench was relevant to whether Arroyo had unlawfully

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entered and remained in the CW's residence on May 31, 2015, with
intent to commit a crime against the CW.
The Circuit Court gave a limiting instruction
immediately upon receipt of the socket wrench into evidence,5 the
sufficiency of which Arroyo never challenged in Circuit Court.
Against the backdrop of HRPP Rules 30(f) and 52,6 the Hawai#i
Supreme Court has held that:
As a general rule, jury instructions to which no
objection has been made at trial will be reviewed only
for plain error. [State v.] Pinero, 75 Haw. [282,]

5
The Circuit Court's limiting instruction was as follows:
THE COURT: Ladies and gentlemen of the jury, I
will provide you with what's called a limiting
instruction. On Exhibit 17, you may only consider
this particular physical item as it may relate to the
defendant's alleged state of mind and as it relates
only as to Count One of the charging document in which
the State alleges that the defendant committed the
offense of burglary in the first degree.
You'll be given further instructions at the end
of the case that will clear that up. But you may only
consider it for that one issue in that one count.
Thank you.
6
HRPP Rule 30 provides, in pertinent part:
Rule 30. Instructions to the jury.

. . . .

(f) Instructions and objections. .... No party may
assign as error the giving or the refusal to give, or the
modification of, an instruction, whether settled pursuant to
subdivision (b) or subdivision (c), of this rule, unless the
party objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which the party
objects and the grounds of the objection. Opportunity shall
be given to make the objection out of the hearing of the jury.
Objections made to instructions at the time they were settled
shall be deemed preserved even though not restated after the
court has instructed the jury.
HRPP Rule 52 provides:

Rule 52. Harmless error and plain error.

(a) Harmless Error. Any error, defect, irregularity or
variance which does not affect substantial rights shall be
disregarded.

(b) Plain Error. Plain errors or defects affecting
substantial rights may be noticed although they were not
brought to the attention of the court.

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291-2, 859 P.2d [1369,] 1374 [(1993)]. If the
substantial rights of the defendant have been affected
adversely, the error will be deemed plain error. Id.
Further, 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.
State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676
(1988); see also State v. Kahalewai, 56 Haw. 481, 491,
541 P.2d 1020, 1026 (1975).

State v. Nichols, 111 Hawai#i 327, 334, 141 P.3d 974, 981 (2006)
(quoting State v. Sawyer, 88 Hawai#i 325, 330, 966 P.2d 637, 642
(1998)).
Here, Arroyo did not object to the Circuit Court's
limiting instruction. In fact, both parties agreed to the
limiting instruction. Arroyo also did not object when the
Circuit Court charged the jury, or upon the court's final
instructions.
Moreover, we conclude there was no plain error in the
Circuit Court's limiting instruction regarding the socket wrench.
The limiting instruction properly confined the jury's
consideration of the socket wrench to Arroyo's state of mind as
it related to Count One for Burglary First on May 31, 2015, only.
The limiting instruction alleviated the risk of unfair prejudice
because a jury is presumed to have followed the court's
instructions. See State v. Matuu, 144 Hawai#i 510, 520, 445 P.3d
91, 101 (2019) (quoting State v. Knight, 80 Hawai#i 318, 327, 909
P.2d 1133, 1142 (1996) ("juries are presumed to ... follow all of
the trial court's instructions[.]" (ellipsis in original)).
In sum, we conclude the Circuit Court did not err in
denying Arroyo's MIL No. 2, admitting the socket wrench into
evidence, and giving the limiting instruction.
(3) We need not address the State's cross-appeal. The
State's arguments in its cross-appeal address issues related to
Count One and Count Three, and based on our rulings above
Arroyo's convictions on Count One and Count Three are affirmed.

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Therefore, the Amended Judgment of Conviction and
Sentence entered on February 5, 2019, by the Circuit Court of the
Second Circuit, is affirmed.
DATED: Honolulu, Hawai#i, July 30, 2021.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
John F. Parker,
(Law Office of John F. /s/ Katherine G. Leonard
Parker, LLC) Associate Judge
for Defendant-Appellant/Cross-
Appellee. /s/ Keith K. Hiraoka
Associate Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney,
for Plaintiff-Appellee/Cross-
Appellant.

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