State v. Kalaola

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IN THE SUPREME COURT OF THE STATE OF HAWAFI

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STATE OF HAWAFI,
Respondent/Plaintiff-Appellee

U.`H"H.z,#

VS.

€€ =m:v 51 .-'»)nv\@wg

JASON KELIIKOAIKAIKA KALAOLA,
Petitioner/Defendant-Appellant

NO. 29l63

CERTIORARI T@ THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 07-l-l337)

AUGUST l9, 20lW

MOON, C;J., NAKAYAMA, AND
RECKTENWALD, JJ.; WITH ACOBA, J., CONCURRING
SEPARATELY AND DISSENTING, WITH WHOM DUFFY, J., JOINS

OPINION OF THE COURT BY RECKTENWALD, J.

Petitioner/Defendant-Appellant Jason Keliikoaikaika

Kalaola was charged with one count of failure to disperse in

violation of HawaFi Revised Statutes (HRS) § 711-1102 (1993),1

following an incident at Aloha Tower Marketplace (ATM) in which
At trial, the

police were called to respond to an unruly crowd.

HRS § 711-1102 (1993) provides in pertinent part:

When six or more

Failure to disperse. (1)
persons are participating in a course of disorderly

conduct likely to cause substantial harm or serious
inconvenience, annoyance, or alarm, a peace officer
may order the participants and others in the immediate
vicinity to disperse.
(2) A person commits the offense of failure to

disperse if the person knowingly fails to comply with
an order made pursuant to subsection (l).

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State presented evidence concerning Kalaola’s conduct on both the
second and first floors of ATM, and argued that Kalaola’s failure
to disperse from either floor was independently sufficient to
support a conviction. The jury found Kalaola guilty, and a
timely appeal followed. On appeal, the ICA concluded that the
trial court erred in improperly instructing the jury, but held

that there was sufficient evidence to support the conviction.

State v. Kalaola, No. 29163, 2009 WL l50729l, at %2-3 (App.

May 29, 2009). Accordingly, the ICA vacated the circuit court's
judgment and remanded the case for a new trial. lQ4 at *3.
Kalaola timely petitioned this court for a writ of
certiorari to review the ICA’s June 26, 2009 judgment. In his
application, Kalaola argues that the conviction was not supported
by sufficient evidence and that, accordingly, it should be
reversed rather than remanded for a new trial. The State did not
petition this court for review of the ICA's judgment remanding to
the circuit court for further proceedings, and did not file a
response to Kalaola’s application to this court. Accordingly,
the ICA's finding of trial error with regard to the jury
instructions is undisputed. The remaining question is whether
the evidence presented at trial was sufficient to support
Kalaola’s conviction.
We hold that sufficient evidence was presented to

establish that Kalaola failed to disperse from the first floor of

ATM, but that there was insufficient evidence to establish that

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Kalaola failed to disperse from the second floor. We further
hold that the double jeopardy clause of the Hawafi Constitution
does not bar a retrial of Kalaola with regard to his alleged
failure to disperse from the first floor, for which there clearly
was sufficient evidence adduced at trial to support a conviction
under HRS § 7ll-ll02.

Although no Hawafi cases address double jeopardy in
the context of the specific factual situation at issue here, we
are guided by our prior double jeopardy cases. In a variety of
cases involving reprosecution after a jury verdict, this court
has repeatedly recognized that, as long as there was sufficient
evidence presented=to support the conviction of the defendant for
the charged offense, the double jeopardy clause bars a retrial
only when there was in fact an acquittal, whether express or
implied. Such was not the case here, since the jury convicted

Kalaola.V

we therefore vacate Kalaola’s conviction and remand for

°a new trial with regard to the events that transpired on the

first floor.
I. Background
The following facts, taken from the record on appeal
and the transcripts of the proceedings before the trial court,

are relevant to the consideration of the issues presented here.2

2 For the purposes of this analysis, we consider the evidence in the
light most favorable to the State. §gg State v. Richie, 88 Hawafi 19, 33,
960 P.2d 1227, 1241 (l998) (“Evidence adduced in the trial court must be
(continued...)

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Kalaola was charged by way of complaint with one count
of failure to disperse in violation of HRS § 711-l102(1).. The

complaint against Kalaola alleged:

On or about the 19th day of May, 2007, in the
City and County of Honolulu, State of Hawaii,

7 [Kalaola], as one (1) of six (6) or more persons
participating in a course of disorderly conduct likely
to cause substantial harm or serious inconvenience,
annoyance, or alarm, or as a person in the immediate
vicinity, failed to obey a law enforcement officer's
order to disperse, in violation of Section 711-1102(1)
of the [HRS] .

At trial, the State’s only witnesses were police
officers who encountered Kalaola at ATM on the night of the
alleged incident. For example, Officer Keani Alapa (Officer
Alapa) testified he was dispatched to ATM because of a report of
“approximately 50 people fighting.” Upon arriving at ATM,
Officer Alapa and Officer Ryan Kaio (Officer Kaio) encountered
“multiple fights going on, approximately maybe 50 to 75 people
fighting” on the second floor of ATM. Officer Alapa testified
that he observed fighting over “pretty much the whole area” of
the second floor.

Officer Alapa testified that he observed Kalaola on the
second floor “calling people out, challenging people to fight.V
Officer Alapa further testified that he addressed the “general
group” of which Kalaola was a part and ordered them to leave at

least ten times. Officer Alapa testified that Kalaola did not

2(...continued)
considered in the strongest light for the prosecution when the appellate court
passes on the legal sufficiency of such evidence to support a conviction”)
(quoting State v. Quitog, 85 HawaiH l28, l45, 938 P.2d 559, 576 (1997))
(brackets omittedY; ,

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leave at that time, but that the officers “eventually got a lot
of people to leave the second floor and (inaudible) proceed down
to the parking lot where some other incidents ignited down
there.” Officer Alapa testified that it took approximately 20
minutes before the crowd started to go downstairs, and that he
also eventually proceeded to the first floor, where he “saw
[Kalaola] again on the sidewalk.”

Sergeant Albert Lee (Sergeant Lee) testified that, when
he arrived at ATM, he saw “about 50” people “streaming out, they
were still all yelling at each other, had some small fights
breaking out.” He testified that he also saw Kalaola “streaming
out” of the second floor, yelling and swearing. Sergeant Lee
testified that he approached Kalaola and “told him to leave the
area.” Sergeant Lee further testified that, when he approached
Kalaola, Kalaola was yelling and cursing at other people in the
area, and that Sergeant Lee “had to tell [Kalaola] at least maybe
ten more times” to leave. Sergeant Lee also testified that there
were other fights breaking out in the parking lot of ATM, with
which he had to assist. He further testified that, when he came
back to the front of ATM, “there were still other people fighting
in the general area[,]” and that he again “asked [Kalaola] to
leave and he wouldn’t.” Sergeant Lee testified that he then had
Kalaola arrested for failure to disperse.

At the conclusion of the trial, the circuit court

instructed the jury, with regard to the offense of failure to

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disperse, as follows:

A person commits the offense of Failure to
Disperse if he is one of six or more persons
participating in a course of disorderly conduct likely
to cause substantial harm or serious inconvenience,
annoyance, or alarm, or he is a person in the
immediate vicinity, and he knowingly fails to comply
with a law enforcement officer's order to disperse,

There are three material elements to the offense
of Failure to Disperse, each of which the prosecution
must prove beyond a reasonable doubt.

These elements are:

1. That, on or about the 19th day of May, 2007,
in the City and County of Honolulu, State of HawaiHq
[Kalaola was one of six or more ersons artici atin

in a course of disorderly conduct likely to cause

substantial harm or serious inconvenience, annoyance

or alarm, or he was a person in the immediate
vicinity; and

2. [Kalaola] failed to comply with a law
enforcement officer's order to disperse; and

3. [Kalaola] did so knowingly.

(Emphasis added).

9 z Although Kalaola requested that the circuit court
include the statutory definition of “disorderly conduct” in the
jury instructions, the circuit court did not instruct the jury on
the definition of disorderly conduct.

The circuit court also gave the jury the following
unanimity instruction, which was based on State v. Arceo, 84

HawaFi l, 928 P.2d 843 (l996)}

The law allows the introduction of evidence for
the purpose of showing that there is more than one act
upon which proof of an element of an offense may be
based. In order for the prosecution to prove an
element, all twelve jurors must unanimously agree that

~the same act has been proved beyond a reasonable
doubt.

During closing argument, the Deputy Prosecuting
Attorney (DPA) referred to the A;g§g instruction in arguing that
there were multiple acts to support conviction. Specifically;
-the DPA relied on the instruction to argue that “both” the events

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on the first floor and the events on the second floor could

support conviction:

In order for the Prosecution to prove an
element, all twelve jurors must unanimously agree that
the same act has been proved beyond a reasonable
doubt. 1

what this means, ladies and gentlemen, is
whenever there is more than one act upon which proof
of an element may be based.

BasicallV, ladies and gentlemen, what that means

is, number one, the incident on the second floor and,

number two, the incident on the first floor.
The incident on the second floor is when

[Kalaola] was engaging in - was calling people out and
Officer Alapa told [Kalaola] to disperse and [Kalaola]
did not so [sic].

Officer Alapa chose not to arrest [Kalaola] at
that time. He chose not to arrest anybody at that
time because he was outnumbered and it was not safe
for either him or Kaio to effectuate arrests.

Their priority at that particular point was
getting people - was to calm down the situation and
getting people to leave the second floor.

The second incident, this is the incident with
Sergeant Lee downstairs. =

s At that particular - and, ladies and gentlemen,
that (inaudible) that all twelve of you must agree
that one of these incidents happened.

Basically, you cannot (inaudible) where six of
you agree that the second floor incident happened, six
of you agree that the first floor incident happened
and [Kalaola] is guilty.

what that means is that twelve of you must agree
that the second floor incident happened or the first
floor happened or both happened.

d Ladies and gentlemen, both did happen in this
case, [Kalaola] failed to comply with Officer Alapa’s
orders to disperse on the second floor and he failed
to comply with Sergeant Lee's orders to disperse on
the first floor.[H

3 Similarly, defense counsel argued in closing that the purpose of
the Arceo instruction was to ensure unanimity with regard to the alleged
failure to disperse from the first floor versus the alleged failure to c
disperse from the second floor:

I want to bring you back to Instruction No. 17,

and that would be the instruction in which you
must unanimously agree that the same act has been
proven beyond a reasonable doubt. So I do want to
highlight that there are several allegations of what
happened and what transpired throughout the night, the
early morning of May 19th. .

There's what supposedly happened on the second
floor and there's supposedly what happened on the
first floor. You all must unanimously agree to the

(continued...)

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(Emphasis added).

On April l8, 2008, the jury found Kalaola guilty on one
count of failure to disperse. A timely appeal followed. In a
May 29, 2009 Summary Disposition Order, the ICA concluded that
the circuit court erred in (1) failing to properly instruct the
jury on the statutory definition of “disorderly conduct” and (2)
“failing to adequately instruct the jury that the ‘knowingly’
state of mind applied to all the elements of the offense.” §§a§g
V. KalaOla, NO. 29163, 2009 WL l50729l, at *2 (App. May 29,
2009). The ICA further concluded that “there was sufficient
evidence to establish each of the alternative means of committing
the offense that was presented to the jury.” lQ; Finally, thei-
ICA concluded that, assuming arguendo the case involved multiple
acts, “the circuit court gave a specific unanimity instruction
which obviated the need for an election” and “there was
sufficient evidence to prove that Kalaola engaged in conduct

constituting the charged offense.” Id. at *3. Accordingly, the

'ICA vacated the circuit court’s April l8, 2008 judgment and

remanded the case for a new trial. Id.
II. Standards of Review
A. Sufficiency of the Evidence

we review the sufficiency of evidence on appeal as

3(...continued)
exact incident in which Jason Kalaola allegedly failed
to disperse and you've got to agree upon that beyond a
reasonable doubt.

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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 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 l9, 33, 960 P.2d l227, 1241 (l998)

(quoting State v. Quitog, 85 HawaFi l28, 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." lQ4 (citation omitted).
B.' Constitutional Questions

“we review questions of constitutional law de novo,
under the right/wrongAstandard.” Jou v. Dai-Tokyo Royal State
Ins. Co., 116 HawaFi 159, 164-65, 172 P.3d 471, 476-77 (2007)
(internal quotation marks and citation omitted).

III. Discussion

A. The prosecution presented substantial evidence that Kalaola
failed to disperse from the first floor of ATM, but failed
to present substantial evidence that Kalaola failed to
disperse from the second floor of ATM

A person commits the offense of failure to disperse if
he or she (1) was one of “six or more persons [] participating in
a course of disorderly conduct likely to cause substantial harm
or serious inconvenience, annoyance, or alarm,” g; was “in the

immediate vicinity” of such a disturbance; (2) was ordered by a

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law enforcement officer to disperse; (3) failed to comply with
that order; and (4) acted knowingly with respect to the foregoing
elements. HRS § 711-1102. Accordingly, the prosecution was
required to prove the foregoing elements and state of mind beyond
a reasonable doubt. §gg State v. Assaye, 121 Hawafi 204, 216,
216 P.3d l227, 1239 (2009) (“HRS § 701-l14(1)(a) and (b) (1993)
requires proof beyond a reasonable doubt of each element of the
offense, as well as the state of mind required to establish each
element of the offense.”) (quoting State v. Manewa, 115 HawaFi
343, 357-58, 167 P.3d 336, 350-51 (2007)).

In analyzing the evidence in this case, it is important
to distinguish between “alternative means” and “multiple acts.”
In State v. Jones, 96 Hawafi 161, 183-84, 29 P.3d 351j 373-74
(2001), this court explained that “we use the term ‘alternative
means’ to describe the legal concept of statutory alternatives
for proving a single element of the offense charged.” 96 HawaFi
at 171 n.14, 29 P.3d at 361 n.14 (first emphasis in original;
second emphasis added). Put another way, an alternative means
case is one in which “a single offense may be committed in more
than one way[.]” ldy at 170, 29 P.3d at 360 (emphasis added).
Accordingly, the instant case is an “alternative meansF case in
the sense that “a single element” of the offense of failure to
disperse “may be committed in more than one wayy” i.e., where the
defendant is one of six or more persons participating in a course

of disorderly conduct, g; where the defendant is in the

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“immediate vicinity” of such a disturbance.

This is also a “multiple acts” case.4/ “Multiple acts”
refer to “separate and distinct culpable acts that could support
separate counts of an indictment or complaint[}]” but that are
submitted to the jury in a single count. ggpg§, 96 HawaFi at
169, 29 P.3d at 359 (emphasis added). Thus, in multiple acts
cases, “[e]ach ‘separate and distinct culpable act' or
‘independent incident' that may be charged as a separate count
includes the conduct, attendant circumstances, and result of
conduct that may be present.” ;dy at 171, 29 P.3d at 361.

The distinct multiple acts here are: (1) Kalaola’s
alleged failure to leave the second floor of ATM after being
ordered to do so by Officer Alapa, and (2) Kalaola’s alleged
failure to leave the first floor after being ordered to do so by
Sergeant Lee. In sum, the jury was presented with two acts,
i.e., the alleged failures to disperse on the second and first
floors of ATM, either of which could have been committed via two
statutory alternative means, i.e., participating in disorderly
conduct or being in the vicinity of disorderly conduct.

with this framework as a background, we will evaluate

4 On appeal, the State argued that “[Kalaola] was engaged in a
single violation of the statute through a continuing course of conduct
comprising failure to disperse in its totality[.]” However, in its closing
argument, the State argued that Kalaola’s failure to disperse from either
floor was independently sufficient to support a conviction. Thus, the State
did not argue that Kalaola had engaged in a continuing course of conduct

oconstituting failure to disperse, but rather argued that either of two

separate incidents, “number one, the incident on the second floor and, number
two, the incident on the first floor[,]” could support a conviction.
Accordingly, because the State argued this as a multiple acts case, we do not
consider whether Kalaola’s alleged failure to disperse could constitute a
continuing course of conduct.

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the sufficiency of the evidence with regard to each floor.
First, we conclude that there was insufficient evidence that
Kalaola violated HRS § 711-1102 by failing to disperse from the
second floor of ATM. Officer Alapa did not testify concerning
how long Kalaola remained on the second floor after Officer Alapa
ordered the crowd to disperse, other than observing that he saw
Kalaola again on the first floor at least 20 minutes later.
Kalaola’s presence on the first floor at least 20 minutes later
indicates that Kalaola complied with Officer Alapa’s order to
disperse. Accordingly, there is not substantial evidence that
Kalaola knowingly failed to comply with Officer Alapa’s order to
disperse on the second floor of ATM.51

1 However, there was sufficient evidence that KalaolaA
violated HRS § 711-1102 by failing to disperse from the first
floor of ATM. First, there was substantial evidence as to both
of the statutory alternative means, i.e., that Kalaola was one of
“six or more persons [] participating in a course of disorderly
conduct” or that he was in the “immediate vicinity” of such a
disturbance. §§g HRS § 711-l102(l). Sergeant Lee testified that
he saw “about 50” people “streaming out” of ATM, with 8some small
fights breaking out[,]” and that he saw Kalaola “streaming out”

of the second floor, yelling and swearing. Sergeant Lee further

5 Each element of the offense must be proved beyond a reasonable
doubt. HRS § 701-l14(1)(a). Because we conclude that there was insufficient
evidence that Kalaola knowingly failed to comply with Officer Alapa's order to
disperse on the second floor, we need not address whether there was sufficient
evidence concerning each of the remaining elements as to the second floor,
including whether there was sufficient evidence of each of the statutory
alternative means.

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testified that, when he approached Kalaola on the first floor,
Kalaola was yelling and cursing at other people, and that “there
were still other people fighting in the general area[,]” when
viewed in the light most favorable to the prosecution, Sergeant
Lee's testimony is sufficient to enable a person of reasonable
caution to support a conclusion that “six or more persons [were]
participating in a course of disorderly conduct,” and that
Kalaola was either “participating” in such conduct or in the
“immediate vicinity.” §§§ HRS § 711-1l02.

Second, there is substantial evidence that Sergeant Lee
ordered Kalaola to disperse. Sergeant Lee testified that he
approached Kalaola and “told him to leave the area.” He further
testified that he “had to tell [Kalaola] at least maybe ten more
times” to leave. Accordingly, when viewed in the light most
favorable to the prosecution, Sergeant Lee's testimony provides
substantial evidence that Kalaola was ordered to disperse.' §§g
In re Doe, 95 HawaFi 183, 196, 20 P.3d 616, 629 (2001) (citation

omitted) (noting that “the testimony of a single witness, if

found by the trier of fact to have been credible, will suffice”

to provide substantial evidence).

Third, there is substantial evidence that Kalaola
failed to comply with Sergeant Lee's order, because Sergeant Lee
testified that he “had to tell [Kalaola] at least maybe ten more
times” to leave, and that he “asked [Kalaola] to leave and he

wouldn’t.” According1y, Sergeant Lee's testimony provides

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substantial evidence that Kalaola failed to leave when ordered to
do so, i.e., that he failed to comply with Sergeant Lee's order
to disperse. §§§ iQy

Finally, there is substantial evidence that Kalaola
acted knowingly with respect to the foregoing elements. “[T]he
mind of an alleged offender may be read from his or her acts or
conduct and the inferences fairly drawn from all of the
circumstances.” State v. Pudiguet, 82 HawaFi 419, 425, 922 P.2d
1032, 1038 (1996) (internal quotation marks omitted) (quoting
State v. Leung, 79 HawaiH 538, 544, 904 P.2d 552, 558 (App.
1995)). In the instant case, Sergeant Lee testified that he
approached Kalaola and “told him to leave the area,” but that
Kalaola refused. Thus, an inference may be fairly drawn from
Sergeant Lee's testimony that Kalaola both knew of the order to
disperse, and knowingly failed to comply with it.

Accordingly, there is substantial evidence that
Kalaola failed to disperse from the first floor of ATM.
B. Double jeopardy does not bar retrial of Ka1aolal

The remaining question is whether Kalaola can be
retried in these circumstances._ Kalaola initially suggested, in
his opening brief to the ICA, that he could be retried on the
“alternative theor[y]” that was supported by sufficient evidence.

However, during oral argument in this court, Kalaola suggested 1

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double jeopardy could bar retrial.‘ In view of the fact that
this issue was eventually raised by Kalaola and is discussed at
length by the dissent, we address it to provide guidance to the
circuit court. As set forth below, we conclude that double
jeopardy does not bar retrial with regard to Kalaola’s failure to
disperse from the first floor, for which there was clearly
sufficient evidence adduced to support a conviction.

1. Double jeopardy principles

The double jeopardy clause of the Fifth Amendment to
the United States Constitution provides that no person shall “be

subject for the same offence to be twice put in jeopardy of life

¢

or limb[.]” Similarly, article I, section 10 of the Hawaii

Constitution provides that no person “shall . . . be subject for

5 The question of whether double jeopardy precludes Kalaola’s
retrial was not raised by Kalaola in his briefs to the ICA or application to
this court. To the contrary, after arguing in his opening brief that there
was insufficient evidence to support the conviction in its entirety, Kalaola
then argued:

Even if, however, the State adduced sufficient
evidence for one of the alternative theories, it is
impossible to determine which alternative theory the
jury based its verdict upon because the circuit court
did not provide an interrogatory to the jury. Based
on the nature of the evidence and the arguments in the
case, it is probable that the jurors based their
decision on an alternative that was not supported by
sufficient evidence. As such, Kalaola’s rights to a
unanimous verdict and due process under article I, § 5
of the Hawaii State Constitution have been violated
and Kalaola’s conviction must remanded [sic] for trial
on the viable alternative.

Kalaola’s counsel repeated that suggestion in his opening argument
to this court, MP3: Oral Argument, Hawaii Supreme_Court, at 27:55-28:19,
29;58-30:20 (Jan. 7 2010), available at
http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc29163.html, a
position with which the State agreed, iQp at 48E5l-49:14. lt was not until
defense counsel's rebuttal closing that counsel suggested there might be a
double jeopardy issue. lQy at 59:04-1:00:17.

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the same offense to be twice put in jeopardy[.]”
This court has “described the purpose underlying the

prohibition against double jeopardy” as follows:

The underlying idea, one that is deeply ingrained in
at least the Anglo-American system of jurisprudence,
is that the State with all its resources and power
should not be allowed to make repeated attempts to
convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal
and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found
guilty.

State v. Quitog, 85 Hawai‘i l28, l40, 938 P.2d 559, 571 (1997)
(quotation marks omitted) (quoting Green v. United States, 355
U.S. 184, 187-88 (1957)).

This court has also “recognized that there are three
separate and distinct aspects to the protections offered by the
double jeopardy clause.” ldp at 141, 938 P.2d at 572. Thus,
“[d]ouble jeopardy protects individuals against: (1) a second
prosecution for the same offense after acguittal; (2) a second
prosecution for the same offense after conviction; and (3)
multiple punishments for the same offense.” lQp (citations and
quotation marks omitted; emphasis added); see also State v.
Whiting, 88 HaWaiT_356, 359, 966 P.2d 1082, 1085 (1998).
Consistent with the prohibition against reprosecution following
an acquittal, double jeopardy presents an absolute bar to retrial
where, inter alia, the defendant “has been acquitted, whether
expressly or impliedly, notwithstanding a subsequent reversal of

the judgment on appeal{,]” State v. Feliciano, 62 Haw. 637, 644,

618 P.2d 306, 311 (1980), superseded by statute on other groundsA

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as stated in State v. Rumbawa, 94 Hawafi 5l3, 517, 17 P.3d 862,
866 (App. 2001), and where “the insufficiency of evidence is such
that the appellate court finds that the government failed to
prove its case beyond a reasonable doubt[,]”_State v. Bannister,
60 Haw. 658, 660, 594 P.2d l33, 135 (1979) (quoting Burks v.
United States, 437 U.S. 1, 16 n.1O (l978)).

However, “the protections of the double jeopardy clause
are not absolute.” State v. MiVazaki, 64 Haw. 611, 618, 645 P.2d
1340, 1345 (l982); see also United States v. Tateo, 377 U.S. 463,
466 (l964) (“Corresponding to the right of an accused to be given
a fair trial is the societal interest in punishing one whose
guilt is clear after he [has] obtained such a trial. lt would be
a high price indeed for society to pay were every accused granted
immunity from punishment because of any defect sufficient to
constitute reversible error in the proceedings leading to
conviction.”).7 For example, “[t]he double jeopardy clause does
not preclude retrial where a defendant was not acquitted of the
charged offense[,]” whiting, 88 HawaFi at 359, 966 P.2d at 1085,
and “imposes no limitations whatever upon the power to retry a
defendant who has succeeded in getting his first conviction set

aside[,]” for reasons other than insufficiency of the evidence,i

` 7 The dissent correctly observes that “federal precedents set forth
minimum protections, and do not control the state constitution[.]” Dissenting
opinion at 55. However, this court has cited with approval the principles
derived from each of the federal cases relied upon herein. See, e.g., State
v. Hamala, 73 Haw. 289, 293, 834 P.2d 275, 277 (1992) (quoting Tateo, 377 U.S.
at 466), overruled on other grounds by State vL Roqan, 91 Hawafi 405, 984
P.2d 1231 (1999); Feliciano, 62 Haw. at 644, 618 P.2d at 311 (citing Green v.
United States, 355 U.S. 184, 190-91 (1957)); Bannister, 60 Haw. at 660, 594
P.2d at 135 (quoting Burks, 437 U.S. at 16 n.10).

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State v. JeSS, 117 HaWafi 381, 439 n.28, 184 P.3d l33, 191 n.28

(2008) (quotation marks omitted) (quoting United States v.

DiFrancesco, 449 U.S. 117, 131 (1980)). As set forth below, such

reasons are typically referred to as “trial error.” See, e.g.,

Burks, 437 U.S. at 14-15 & n.8. (noting that reversal for trial

error “is a determination that a defendant has been convicted
through a judicial process which is defective in some fundamental
respect, e.g., incorrect receipt or rejection of evidence,
incorrect instructions, or prosecutorial misconduct”). -

In the instant case, we conclude that the lack of
substantial evidence concerning Kalaola’s failure to disperse
from the second floor of ATM does not bar remand with regard to
Kalaola’s failure to disperse from the first floor of ATM, for
which there clearly was sufficient evidence adduced at trial.

2. The jury neither expressly nor impliedly acquitted
Kalaola of the charged offense

It is clear that “a defendant may not be retried for
any offense of which he has been acquitted, whether expressly or
impliedly, notwithstanding a subsequent reversal of the judgment

on appeal.” Feliciano, 62 Haw. at 644, 618 P.2d at 311; see also

State v. Mundon, 121 HawaFi 339, 355, 219 P.3d 1126, 1142 (2009)

(“That a jury’s verdict of acquittal bars a subsequent retrial on
those same offenses is ‘perhaps the most fundamental rule in the
history of double jeopardy jurisprudence.'”) (citation and some
quotation marks omitted). In a case involving reversal of a

conviction on a lesser included offense, this court has explained

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that two rationales support the prohibition against reprosecution

following

Feliciano,

an acquittal:

First, the concept of double jeopardy is enhanced in
that after an acquittal, a defendant is freed of the
threat of renewed prosecution on the more serious
offense, Second, such a rule does not inhibit a

defendant in his decision of whether to appeal his

conviction. The Commentary to HRS [§] 701-110[U
states, “If the defendant faces reprosecution for an

offense of which he has been acquitted, he may be
unfairly hampered in his decision about whether to
contest the validity of the conviction for the lesser
offense.” Under the rule we discuss today, the
appellant would not be coerced into waiving his right
to appeal his conviction on the lesser included
offense for fear of being reprosecuted on the more
serious offense.

62 Haw. at 644, 618 P.2d at 311 (emphasis added).

In the instant case, however, there was no express jury

verdict of acquittal, Kalaola was charged with one count of

failure to disperse in violation of HRS § 711-1102(1)l and was

convicted

on that count. Although the prosecution argued that

Kalaola committed two distinct acts of failing to disperse, the

jury did not return an express verdict of acquittal with regard

HRS § 701-110 (1993) provides, in pertinent part:

when prosecution is barred by former prosecution for
the same offense. when a prosecution is for an
offense under the same statutory provision and is
based on the same facts as a former prosecution,
barred by the former prosecution under any of the
following circumstances:

(1) The former prosecution resulted in an
acquittal which has not subsequently been
set aside. There is an acquittal if the
prosecution resulted in a finding of not
guilty by the trier of fact or in a
determination by the court that there was
insufficient evidence to warrant a
conviction. A finding of guilty of a
lesser included offense is an acquittal of
the greater inclusive offense, although
the conviction is subsequently set aside
on appeal by the defendant.

it is

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to either act. Moreover, as discussed further infra, the jury’s

guilty verdict did not impliedly acquit Kalaola with regard to
his alleged failure to disperse from either floor.

In Green v. United States, 355 U.S. 184, 190-91 (1957),
which this court cited with approval in, inter alia, Feliciano,
ppg 62 Haw. at 644, 618 P.2d at 311, the United States Supreme
Court explained that, in certain circumstances, a conviction on a
lesser-included crime must, for double jeopardy purposes, be
taken as an implied acquittal of the greater charge. Consistent
with that holding, this court has concluded that “a defendant who
has been convicted of a lesser included offense than that charged

is deemed to have been acquitted of the greater charge.”

Feliciano, 62 Haw. at 644, 618 P.2d at 311; see also State v.

Pesénche.iner, 95 Hawai‘i 290, 301,` 22 P.3d 36, 97 (App. 2001)

(noting that “a criminal defendant is protected from being
retried for an offense whenever a jury ‘impliedly acquits’ him of
that offense by finding him guilty of a lesser included
offense”).

In §;§§p, the defendant was indicted on two counts, one
of which charged that he had committed arson, and one of which
charged him with murder in the first degree. 355 U.S. at 185. A
jury found the defendant guilty of arson and of the lesser-
included offense of second degree murder. ;Qy at 186. The jury
“did not find [the defendant] guilty on the charge of murder in

the first degree[,]” and “[i]ts verdict was silent on that

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charge.” ldy 0n appeal, the District of Columbia Circuit Court
of Appeals reversed the conviction for second degree murder
because it was not supported by sufficient evidence, and the case
was remanded for a new trial. lQp

On remand, the defendant was “tried again for firstj
degree murder under the original indictment.” ;Qp He raised the
defense of former jeopardy, “based [not] on his previous
conviction for second degree murder but instead on the original
jury’s refusal to convict him of first degree murder.” lQy at
186, 190 n.11. The defendant’s double jeopardy defense was
rejected by the trial court, and “a new jury found [the
defendant] guilty of first degree murder[.]” ldp at 186. On
appeal, the Court of Appeals “rejected his defense of former
jeopardy . . . and affirmed the conviction.” lgy The United

States Supreme Court granted certiorari, id., and “conclude[d]

that this second trial for first degree murder placed [the

defendant] in jeopardy twice for the same offense in violation of

the Constitution[,]” id. at 190.

In so doing, the Court noted that “[a]t [the

jdefendant's] first trial the jury was authorized to find him

guilty of either first degree murder . . . or, alternatively, of
second degree murder . . . .” Id. at 189-90 (emphasis added).

The Court concluded that, “[i]n substance the situation was the
same as though [the defendant] had been charged with these

different offenses in separate but alternative counts of the

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indictment. The constitutional issues at stake here should not
turn on the fact that both offenses were charged to the jury

under one count.” Id. at 190 n.10. The Court explained that:

[The defendant] was in direct peril of being convicted
and punished for first degree murder at his first
trial. He was forced to run the gauntlet once on that

charge and the jury refused to convict him. when
given the choice between finding him guilty of either
first or second degree murder it chose the latter. In

this situation the great majority of cases in this
country have regarded the jury’s verdict as an
implicit acquittal on the charge of first degree
murder. . . . In brief, we believe this case can be
treated no differently, for purposes of former
jeopardy, than if the jury had returned a verdict
which expressly read: ‘we find the defendant not
guilty of murder in the first degree but guilty of
murder in the second degree.’

;gp at 190-91 (emphasis added).

Similarly, in Feliciano, the defendant was charged with
attempted murder, and was found guilty of reckless endangering in
the second degree.\ 62 Haw. at 637-38, 618 P.2d at 307. This
court concluded that the conviction for reckless endangering
resulted from an erroneous jury instruction, and reversed. lgg
at 638, 618 P.2d at 308. we further held that “retrial on the
attempted murder charge [was] barred by HRS [§] 701-110.” lgg
This court noted that “[t]he jury conviction in the first trial
on the lesser included offense automatically acguitted the
appellant of the greater charge in the indictment and retrial on
the greater offense is barred.” lgg at 644, 618 P.2d at 311
(emphasis added).

Thus, the doctrine of implied acquittals has developed
primarily in the context of reviewing convictions on lesser-

included offenses. See id.; see also State v. Loa, 83 HawaiH

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335, 361, 926 P.2d 1258, 1284 (1996) (noting, where the circuit
court instructed the jury on a non-existent lesser-included
offense, “[t]he jury having acquitted [the defendant] of [the]
charge[d offense] by virtue of its verdict [of guilt on the
lesser-included offense], we hold that [the defendant] may not be
retried for it.”). The ICA has declined to extend the doctrine
of implied acquittals to other contexts. In State-v.
Pesentheiner, 95 Hawafi 290, 291, 22 P.3d 86, 87 (App. 2001),
cert. denied May 4, 2001 (no westlaw citation available;
available at htt : www.state.hi.us `ud o date2001.htm), the
defendant was charged with harassment, which required that he
have acted twith the intent to harass, annoy, or alarm any other
person[.]”* The district court, in a bench trial, found the
defendant guilty as charged, but determined that the defendant's
actions were “reckless.” lgg The ICA determined that the
district court’s ruling “demonstrates its genuine confusion as to
the intent element of the harassment charge[,]” and therefore
concluded that the conviction could not stand. lgg at 301, 22
P.3d at 97.

The defendant urged that his conviction should be
reversed. In considering whether double jeopardy would bar
reprosecution of the defendant on the theory that the district
court had acquitted him of the harassment charge by not finding

the requisite state of mind, the ICA explained:

[A]ny [] implication in this case that the court made
a finding of fact inconsistent with guilt must
founder. The court’s erroneous assumption that

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recklessness was sufficient for conviction rendered it
unnecessary, under the assumption, to go further in
considering the evidence than a finding that [the
defendant] recklessly waved his arms. Had the court
applied the correct mens ppg standard in its
consideration of the evidence, it would have been
further required to assess the weight and credibility
of [the police officer's] description of the actus
reus. As we have observed, the court’s ruling is
devoid of any mention of the issue. Under these
circumstances, we cannot sav that the court made a
definitive finding of fact. invariably inconsistent
with guilt, that might bar retria1.
Instead, having concluded that sufficient

evidence was adduced at trial to sustain the charge,
we apply the usual rule for trial error[.]

ldg (some emphasis in original and some added).

There are strong policy reasons in favor of requiring
that the trier of fact make some determination in a defendant's
favor before a reviewing court will presume an acquittal. In
addressing criticism that reversal for trial error may make it
“quite possible that the jury would have acquitted [the
defendant] if not for the trial error that required reversal,” it

has been noted that:

while estimating the impact of a trial error always
presents uncertainties, whether the result is a
conviction or an acquittal, only in the latter
situation is there concrete evidence, in the form of a

not gpilty verdict, that the jury may have resolved

factual issues in favor of the defendant's innocence.
That concrete evidence entitles the defendant to the
benefit of the doubt that conclusively presumes his

innocence, while a conviction, even where probably
influenced by trial error, offers no such starting
point for assuming the jurors would have found

defendant not guilty except for the error.

wayne R. LaFave, et al., Criminal Procedure § 25.3(b) at 631-32
(3d ed. 2007) (emphasis added).

In the instant case, as explained §gp;a, Kalaola was
not expressly acquitted by the jury. Moreover, Kalaola’s

conviction on the charge of failure to disperse cannot be assumed

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to include an implied acquittal on either of the acts offered by
the prosecution to support his conviction. Kalaola was not
convicted on a lesser-included offense, such that his conviction
must be interpreted as an implied acquittal on the greater 4
charge. §gg §;§gp, 355 U.S. at 190-91; Feliciano, 62 Haw. at
643-44, 618 P.2d at 311. In addition, the jury did not refuse to
convict Kalaola on the basis of either act, nor was the jury
required to choose between the act on the first floor and the act
on the second floor in order to convict, such that a conviction
on one must be interpreted as an implied acquittal on the other.
§g§ §;g§p, 355 U.S. at 190-91. Finally, there is no indication
that the jury “made a definitive finding of fact, invariably
inconsistent with guilt, that might bar retrial.” §gg
Pesentheiner, 95 HawaFi at 301, 22 P.3d at 97. Accordingly, the
purposes underlying the double jeopardy prohibition against
retrial following acquittal, i.e., avoiding the threat of renewed
prosecution and a chilling effect on the decision to appeal, are
not implicated in the circumstances of this case. §gg Feliciano,

62 Haw. at 644, 618 P.2d at 311. Based on the foregoing, cases

concerning implied acquittals are plainly inapposite.9

' 9 we therefore agree with the dissent's conclusion that the holdings
in Feliciano, whiting and Lgg are inapposite, dissenting opinion at 63-65,
insofar as they concerned implied acquittals in the context of lesser-included
offenses. However, this conclusion supports the inference that the doctrine
of implied acquittals does not extend to the circumstances of the instant
case. 7
Although, the dissent speculates that "it is possible that
[Kalaola] could be retried for conduct the jury had rejected as a basis for
legal liability in the first trial[,]" since "[i]t is impossible to know for
which multiple acts the jury convicted [Kalaola]," dissenting opinion at 43
(emphasis added), such speculation is insufficient to implicate the
(continued...)

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State v. Mundony 121 HawaiT.339, 219 P.3d 1126 (2009)
is not to the contrary. Mundon was charged with, inter alia, two
counts of terroristic threatening in the first degree (TT1). ;gg
at 354, 219 P.3d at 1141. The language of the indictment as to
each count was identical, and the prosecution adduced evidence as
to two separate acts of TT1 at trial. lgg However, “each
specific act was not assigned to a specific count[.]” ;gy at
355, 219 P.3d at 1142. The jury “convicted Mundon of one count
of TT1 and acguitted him of the other.” lgg at 354, 219 P.3d at
1141 (emphasis added).

This court noted that, because no specific unanimity
instruction was given, “there is a ‘genuine possibility’ that
different jurors concluded that Mundon committed different acts.”
lgg Accordingly, this court held that “the trial court plainly
erred in failing to provide such an instruction.” Lgg at 355,
219 P.3d at 1142. This court further noted that “Mundon's
conviction on one of the TT1 counts and acguittal on another
(where the specific act supporting each count was never
specified) raises double jeopardy concerns.” lgg (emphasis
added). Even assuming that the jury was unanimous as to which of

the two alleged acts formed the basis for Mundon's culpable

9(...continued)

protections of the double jeopardy clause. Nevertheless, the dissent suggests
that remand is impermissible because “it is [] entirely possible that the jury
had in effect found [Kalaola] not guilty on the act[] supported by substantial
evidence.” Dissenting opinion at 68. with all due respect, the dissent's
extension of the implied acquittal doctrine to the circumstances of the
instant case -- in which there is no basis for assuming that the jury “in
effect” acquitted Kalaola of the charged offense -- is without support in our
case law.

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conduct, “there [wasl no way to know which specific act

served as the basis for Mundon's acguittal|.]” lgg (emphasis in
original). Accordingly, if this court had remanded one of the
counts for retrial; there would be “a distinct possibility that
Mundon could be retried for an offense involving the same conduct
for which he was acquitted.” lgg Since it is well-settled that
double jeopardy bars retrial for the same offense after an
express acquittal, this court reversed Mundon's conviction. lgg

In contrast, in the instant case, Kalaola was never

acquitted by a jury for either of the two alleged acts of failure
to disperse. Thus, unlike Mundon, the retrial of Kalaola does
not present a distinct possibility that Kalaola could be retried-
for an offense for which he was previously acquitted, Moreover,
whereas the holding in Mundon relies on the well-established
proposition that double jeopardy bars retrial following an
express jury verdict of acquittal, nothing in Mundon purports to
resolve the distinct factual situation presented here, where the
jury expressly found the defendant guilty of the charged offense.

3. There was sufficient evidence to support Kalaola’s
conviction for failure to disperse

The reversal of a conviction for insufficiency of the
evidence constitutes a determination by the appellate court that

the defendant should have been acquitted in the trial court in

the first instance because, “as a matter of law [] the jury could
not properly have returned a verdict of guilty.” ee State v.

Bannister, 60 Haw. 658, 660, 594 P.2d l33, 135 (l979). When

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reviewing the sufficiency of evidence presented at trial, this

court has explained that:

evidence 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 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.
ggp§§, 96 Hawafi at 181, 29 P.3d at 371 (emphasis added)
(quoting Quitog_, 85 Hawai‘i at 145, 938 P.2d at 576).

In the instant casey the evidence presented at trial
was insufficient to support a conclusion that Kalaola failed to
disperse from the second floor of ATM when ordered to do so by
Officer Alapa. However, this evidentiary insufficiency does not
bar retrial of Kalaola on his alleged failure to disperse from
the first floor, for which there was clearly sufficient evidence.
Because there was “substantial evidence to support the conclusion
of the trier of fact,” i.e., that Kalaola was guilty of the
charged offense of failure to disperse, double jeopardy does not
bar retrial with regard to the events on the first floor. §gg
AL_L

In Burks v. United States, 437 U.S. 1, 5 (1978), the
United States Supreme Court considered “whether a defendant may
be tried a second time when a reviewing court has determined that
in a prior trial the evidence was insufficient to sustain the 1
verdict of the jury.” The Court analogized an appellate court’s

determination that the evidence was insufficient to support a

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conviction to a verdict of acquittal, noting:

It is unquestionably true that the Court of Appeals'
decision “represente[d] a resolution, correct or not,
of some or all of the factual elements of the offense
charged.” By deciding that the Government had failed
to come forward with sufficient proof of petitioner's
capacity to be responsible for criminal acts, that
court was clearly saying that Burks’ criminal
culpability had not been established. If the District
Court had so held in the first instance, as the
reviewing court said it should have done, a judgment
of acquittal would have been entered and, of course,
petitioner could not be retried for the same offense.
Consequently, as Mr. Justice Douglas correctly
perceived in Sapir [v. United States, 348 U.S. 373
(1955)], it should make no difference that the
reviewing.court, rather than the trial court,
determined the evidence to be insufficient. lpg
appellate decision unmistakably meant that the
District Court had erred in failing to grant a
judgment of acgpittal. To hold otherwise would create
a purely arbitrary distinction between those in
petitioner's position and others who would enjoy the
benefit of a correct decision by the District Court.

Id. at 10-11 (internal citations and footnote omitted; some

brackets in original and some added; first emphasis in original,

\

second emphasis added).

The Court further explained that “[t]he [d]ouble

[j]eopardy [c]lause forbids a second trial for the purpose of»`

affording the prosecution another opportunity to supply evidence
which it failed to muster in the first proceeding.” lgg at 11.

The Court also distinguished reversal for evidentiary

insufficiency from that for trial error:

In short, reversal for trial error, as distinguished
from evidentiary insufficiency, does not constitute a
decision to the effect that the government has failed
to prove its case. As such, it implies nothing with
respect to the guilt or innocence of the defendant.
Rather, it is a determination that a defendant has
been convicted through a judicial process which is
defective in some fundamental respect, e.g., incorrect

receipt or rejection of evidence, incorrect
instructions, or prosecutorial misconduct. when this
occurs, the accused has a strong interest in obtaining
a fair readjudication of his guilt free from error,
just as society maintains a valid concern for insuring

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that the guilty are punished.
;gg at 15 (emphasis added).

The court identified, inter alia, “the failure to
dismiss a faulty indictment[,]” “improper instruction,” “absence
of the accused during a portion of the trial;” “improper hearsay
testimony received,” and “failure to record jury instructions,”`
as trial errors. ;gg at 14 & n.8.

Relying on §p;k§, this court has determined that “[t]he
prohibition against double jeopardy applies where the reversal is
based on insufficiency of evidence[.]” Bannister, 60 Haw. at
660, 594 P.2d at 135. In Bannister, this court reversed the
defendant's conviction for first degree theft due to a lack of
admissible evidence that he had committed theft of “property or
services the value of which exceeds $200[,]” and remanded for
entry of a judgment of acquittal. ;gg at 659-60, 594 P.2d at

134-35 (quotation marks omitted). This court explained that:

Since we necessarily afford absolute finality to
a jury’s verdict of acquittal no matter how
erroneous its decision it is difficult to
conceive how society has any greater interest in
retrying the defendant when, on review, it is
decided as a matter of law that the jury could
not properly have returned a verdict of guilty.

[Burks, 437 U.S. at] 16[]. However, the prohibition
does not apply where judgment is reversed for a trial
error because the effect of the decision does not

constitute a failure of the government to prove its
case. Id. at 10[]. `

~The prohibition against double jeopardy where reversal
is based on insufficiency of evidence is absolute.

The appellate court cannot remand the case even where
a new trial appears equitable. lpg at 11 n.6[].
Furthermore, this prohibition applies only where the
insufficiency of evidence is such that the appellate
court finds that the government failed to prove its
case beyond a reasonable doubt. lpg at 16 n.10[].

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lgg at 660, 594 P.2d at 135 (emphasis added); see also State v.
Hamala, 73 Haw. 289, 293, 834 P.2d 275, 277 (1992), overruled on
other grounds by State v. Rogan, 91 Hawafi 405, 984 P.2d 1231
(1999).

In the instant case, there was substantial evidence
that Kalaola failed to disperse on the first floor. Thus, the
determination that there was not substantial evidence that
Kalaola failed to disperse on the second floor “does not
constitute a failure of the government to prove its case.” §gg
Bannister, 60 Haw. at 660, 594 P.2d at 135. To the contrary, our
conclusion demonstrates that there was “substantial evidence to
support the conclusion of the trier of fact[,]” i.e., that
Kalaola was guilty of the charged offense of failure to disperse.
_pp Qgpp§, 96 Hawafi at 181, 29 P.3d at 37l. Moreover, our
determination that there was insufficient evidence that Kalaola
failed to disperse on the second floor does not constitute a
determination that Kalaola should have been acquitted in the
trial court, since the jury could properly have returned a
verdict of guilty on the charged offense based on the events that
took place on the first floor. Our determination therefore
“implies nothing with respect to the guilt or innocence of
[Kalaola]” with regard to the charged offense of failure to
disperse. §pg §p;k§, 437 U.S. at 15.

This analysis is consistent with our holding in gppg§,

96 Hawafi at 183-84, 29 P.3d at 373-74. The defendant in Jones

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was charged with multiple counts of sexual assault relating to
the 14 year old complaining witness (Cw). 96 Hawafi at 163-64,
29 P.3d at 353-54. Each count related to a specific act of
sexual penetration or sexual contact; in other words, the State

did not rely on multiple acts of sexual conduct to support a

single count, and thus Jones was not a “multiple acts” case. lpg
at 172, 29 P.3d at 362. However, the State did rely on
alternative means of proving the consent element of each offense,
i.e., it argued both that the Cw did not consent, and that if she
did, her consent was invalid for various reasons. lpg at 164,
174, 29 P.3d at 354, 364. The circuit court instructed the jury
both on lack of consent, and on four different grounds by which
it could find that any consent by the Cw was invalid, pursuant to
HRS § 502-235. ;gg at 16446s, 29 P.3d at 354-55. A1though the
prosecution presented “considerable argument and some evidence”
regarding two of the four grounds, this court found that there
was insufficient evidence supporting any of the four grounds.

lpg at 183, 29 P.3d at 373. There was, however, sufficient
evidence to establish lack of consent by the Cw. lpg at 182j 29
P.3d at 372.

we then phrased the issue as follows: “in an

alternative means case where it is impossible to tell which
alternative the juryfs verdict is based upon, does due process

require that each of the alternative means presented to the jury

be supported by legally sufficient evidence?” Id. at 178, 29

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P.3d at 368. we considered, but rejected, the approach taken by
the United States Supreme Court in Griffin v. United States, 502
U.S. 46 (1991), where the Court held that due process did not
require that each alternative presented to the jury be supported
by sufficient evidence, since it could be assumed that the jury
had rejected any alternative that was not so supported. lpg at
178-81, 29 P.3d at 368-71. we concluded that “unanimity is not
required where alternative means of establishing an element of an
offense are submitted to the jury, provided that there is no
reasonable possibility that the jury’s verdict was based on an

alternative unsupported by sufficient evidence.” Id. at l81, 29

YP.3d at 371 (emphasis in original);

we emphasized that the trial court had instructed the
jury that it could find that the consent element was satisfied if
any one of four alternative theories of ineffective consent was
established by the State, and observed that based on that
instruction being given, “the jurors understandably might believe

that there must be some evidence to support that theory.” Id. at

183, 29 P.3d at 373 (quoting Commonwealth v. Plunkett, 664 N.E.2d

833, 837 (Mass. 1996)). we also noted that “there was §ppp
evidence and argument to the jury supporting some of the grounds
of ineffective consent[,]” QQQ§§, 96 HawaFi at 167, 178, 29 P.3d
at 357, 368 (emphasis in original), but that “the evidence
adduced in support of those grounds was legally insufficient[,]”

id. at 178, 29 P.3d at 368. Thus, we concluded that “the

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instruction as to ineffective consent prejudicially affected
Defendant’s right to due process[,]” and added that “the
erroneous jury instruction regarding ineffective consent was not
harmless because there was a reasonable possibility that the
verdict was based on an alternative that was unsupported by
legally sufficient evidence.” _lpg

In sum, this court determined that:

(1) the jury was instructed that it could convict
Defendant based on the absence of consent pp any of
the four grounds of ineffective consent; (2) there was
a reasonable possibility that the verdict was based
upon at least one of the four grounds of ineffective

consent, and (3) there was legally insufficient

evidence to support any of the four grounds of
ineffective consent presented to the jury.

lpg (first emphasis in original, second emphasis added).

Accordingly, we determined that the defendant's
conviction could not stand. lpg However, despite determining
that there was a “possibility that the verdict was based on an
alternative means of establishing guilt not supported by legally
sufficient evidence,” this court concluded that “the double
jeopardy clause does not bar retrial on the means of establishing
guilt for which there was sufficient evidence presented at trial”
because “the error in this case was trial error.” lpg at 184
n.30, 29 P.3d at 374 n.30.

It is well-settled that, even where this court finds
trial error, “challenges to the sufficiency of the evidence must
always be decided on appeal. This is because ‘the [d]ouble
[j]eopardy [c]lause bars retrial of a defendant once a reviewing

court has found the evidence at trial to be legally insufficient

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to support a conviction.’” ,State v. Malufau, 80 HawaFi 126,

132, 906 P.2d 612, 618 (1995), vacated in part on other grounds

on reconsideration, 80 Hawaii 126, 134-38, 906 P.2d 612, 620-24
(1995). Although this court determined that there was trial
error in pppp§, double jeopardy would have barred retrial had
this court found that “the evidence at trial [was] legally
insufficient to support a conviction.” .pppg§ 96 Hawafi at 184
n.30, 29 P.3d at 374 n.30. Thus, pgpp§ is not distinguishable on
the ground that the outcome was based on trial error.”

A careful reading of this court’s discussion of double

jeopardy in Jones is instructive:

The double jeopardy clause bars retrial of a defendant
once a reviewing court has found the evidence at trial
to be legally insufficient to support a conviction.
However, retrial is not barred when the reviewing
court reverses a case due to trial error, such as
erroneous jury instructions, Although our holding in
this case is based, in part, on our conclusion that
the jury instruction regarding ineffective consent
raised the possibility that the verdict was based on
an alternative means of establishing guilt not
supported by legally sufficient evidence, it is
undisputed that there was legally sufficient evidence
of the other alternative of establishing guilt and,
thus, the error in this case is trial error.

m The dissent maintains that “the instant case hinges on the
prosecution's failure to adduce sufficient evidence, and not on the court’s
failure to properly instruct the jury.” Dissenting opinion at 49 (emphasis
added). The dissent further asserts that “because the basis for reversal fin
Jones] was ‘trial error’ and not insufficiency of the evidence, double
jeopardy was not implicated[.]” Dissenting opinion at 49.

, However, the instant case does not “hinge on” insufficiency of the
evidence to any greater extent than Jones. It is undisputed that trial error
occurred in the instant case, insofar as the circuit court failed to properly
instruct the jury. Although the dissent attempts to discount the presence of
trial error in this case by apparently contending that the disposition in
Jones is proper only where insufficiency of the evidence occurs as a direct
result of trial error, dissenting opinion at 53-54, nothing in this court’s
analysis in Jones requires such a result. Moreover, the dissent does not
explain why requiring a nexus between trial error and insufficiency of the
evidence is necessary in light of the principle that, so long as there was
sufficient evidence presented to support a conviction, double jeopardy bars
retrial only when there was an acquittal, whether express or implied.

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Accordingly, the double jeopardy clause does not bar
retrial on the means of establishing guilt for which
there was sufficient evidence presented at trial.

lpg at 184 n.30, 29 P.3d at 374 n.30 (citations omitted)
(emphasis added). 8
This court’s reasoning indicates that because there was

sufficient evidence of one of the alternative means of
establishing guilt but insufficient evidence of the other, the
error in pppp§ was properly analyzed under the double jeopardy
principles applicable to trial error. Put another way, the
double jeopardy clause was not implicated because there was
sufficient evidence “to support a conviction.”“ lpg; see also
Arceo, 84 HawaFi at 33 n.40, 928 P.2d at 875 n.40. Similarly
here, the double jeopardy clause is not implicated with regard to
Kalaola’s failure to disperse from the first floor of ATM since
there was sufficient evidence to supp6rt a conviction based on
those acts,

Arceo is not to the contrary. Arceo was charged with

n we respectfully disagree with the dissent's attempt to distinguish
Jones on the ground that, in Jones, the prosecution charged each act or
incident in a separate count, and “the jury’s decision as to each act was
readily discernable.” Dissenting opinion at 51. Although there was no basis
by which to confirm the jury’s verdict as to each alternative means in Jones,
we nevertheless remanded the defendant's case for retrial on the alternative
means that was supported by sufficient evidence. 96 HawaFi at 184, 29 P.3d
374. Thus, for double jeopardy purposes, confirmation as to the basis for the
jury’s verdict is not required where there is substantial evidence to support
a conviction. §pg lp at 184 n.30, 29 P.3d at 374 n.30 (noting that, when`
reviewing a conviction for sufficiency of the evidence, we consider whether
the evidence was “legally insufficient to support a conviction”); see also
Arceo, 84 HawaFi at 33 n.40, 928 P.2d at 875 n.40. The dissent provides no
explanation for its contrary assertion that double jeopardy bars remand in the
instant case, but “did not present any risks to the double jeopardy rights of

' the defendant in Jones|,]” dissenting opinion at 52 (emphasis added), despite

the fact that there was “a genuine possibility that the jury may have
acquitted” the defendant in Jones of the alternative means that were remanded.

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one count of sexual assault in the third degree (Count I), and
one count of sexual assault in the first degree (Count II). 84
Hawafi at 2-3y 928 P.2d at 844-45. Count 1 involved multiple
acts of “sexual contact” between Arceo and his six-year-old son
(the minor). I_d_._ at 3¥4, 923 1§.2@1 at 345-46. count 11 involved
multiple acts of “sexual penetration” with the minor. lpg

At trial, the minor testified inconsistently concerning
the number of sexual assaults he was subjected to. lpg at 24
n.25, 928 P.2d at 867 n.25 (“the [m]inor purported to recall
seven separate, distinct, and specific sexual assaults”); lpg at
10, 928 P.2d at 852 (the minor acknowledged telling a detective
“that his father had touched him approximately twelve times”).‘
with regard to Count I, the minor testified at trial that
“[Arceo] put his penis on mine” “I think once.” lpg at 8, 928
P.2d at 850. The minor clarified, “[m]aybe it’s more or maybe
it’s once.” The minor further testified that Arceo “put his
penis” on the minor's back, lpg at 9, 928 P.2d at 851. with
regard to Count II, the minor testified that “[Arceo p]ut his
finger in my butt” “[t]wice I think[,]” and that t[Arceo] put his
penis in my butt[.]” lpg The minor further testified that Arceo
touched the minor's penis with his mouth “[t]wice, I think.” lpg
at 9, 928 P.2d at 851. On cross-examination, the minor
acknowledged telling a detective “that his father had touched him
approximately twelve times, but that, at trial, he could only

guess as to the number of separate instances because he could not

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presently remember.” Id. at 10, 928 P.2d at 852 (emphasis ~

added).
This court held, inter alia:.

that when separate and distinct culpable acts are
subsumed within a single count charging a sexual
assault-any one of which could support a conviction
thereunder-and the defendant is ultimately convicted
by a jury of the charged offense, the defendant's
constitutional right to a unanimous verdict is
violated unless one or both of the following occurs:
(1) at or before the close of its case-in-chief, the
prosecution is required to elect the specific act upon
which it is relying to establish the “conduct” element
of the charged offense; or (2) the trial court gives
the jury a specific unanimity instruction, i.e., an
instruction that advises the jury that all twelve of
its members must agree that the same underlying
criminal act has been proved beyond a reasonable

doubt.
lpg at 32-33, 928 P.2d at 874-75 (footnote omitted).

Accordingly, this court concluded that the trial court
erred in failing to give the jury a specific unanimity
instruction, and that the error was not harmless beyond a
reasonable doubt. lpg at 33, 928 P.2d at 875. we therefore~
“vacate[d] Arceo’s judgment of conviction and remand[ed] the
matter for a new trial[.]” lpg we further concluded that,
“[b]ecause our disposition of the present appeal is grounded in
‘trial error’ and the evidence adduced at trial was clearly
sufficient to support Arceo’s convictions, double jeopardy

concerns are not implicated by a new trial.” Id. at 33 n.40, 928

'P.2d at 875 n.40 (emphasis added).

Our opinion in Arceo clearly states that we found the
evidence presented at trial sufficient to support “Arceo's

convictions[,]” 84 Hawafi at 33 n.40, 928 P.2d at 875 n.40

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(emphasis added), and did not address whether there was
sufficient evidence to support each and every act presented to
the jury.” There is no indication that this court concluded,
based on the minor's equivocal testimony, that there was
substantial evidence to support, for example, the twelve acts of
sexual contact the minor reported to the detective, lp. at 10,
928 P.2d at 852, more than one incident of Arceo putting his
penis on the minor's penis, lpg at 8, 928 P.2d at 850, more than
one incident of Arceo putting his finger in the minor's “butt,”
lpg at 9, 928 P.2d at 851, or more than one incident of fellatio,

id. at 9, 928 P.2d at 851.B

n we therefore respectfully disagree with the dissent's contention
that this passage in Arceo indicates that “this court had determined that each
of the underlying acts it had discussed as supporting the convictions rested
on substantial evidence.” Dissenting opinion at 47-48 (emphasis added). In
support of this assertion, the dissent contends that this court discussed
“each individual act as it related to the elements of the two charged
offenses[,]” thereby “leav[ing] no question that there was substantial
evidence . . . as to each underlying act[.]” Dissenting opinion at 40
(emphasis in original). However, the dissent's assertion is incorrect,
insofar as this court merely discussed five types of “prohibited conduct,” as
opposed to the seven acts argued by the dissent, Arceo, 84 HawaFi at 14-15,
928 P.2d at 856-57. The dissent also cites to a stipulation by the
prosecution that the indictment against Arceo “covered ‘all alleged sexual
assaults of [the minor witness] by [the defendant] during the»specified
period[.]'” Dissenting opinion at 38 (brackets in original) (some quotation
marks omitted) (quoting Arceo, 84 Hawafi at 24, 928 P.2d at 866). However,
the stipulation concerning the indictment was made “to avoid double
jeopardy[,]” Arceo, 84 HawaiH at 6, 928 P.2d at 848, since defense counsel
was concerned that the minor “made at least nine separate allegations of
sexual abuse” during his grand jury testimony, lpg at 5, 928 P.2d at 847, and
“testified on two_different occasions that there were 12 separate instances”
of sexual assault, lpg at 7, 928 P.2d at 849. Thus, the parties' stipulation
in Arce0 does not suggest that this court found that each of the seven acts
the minor testified to at trial were supported by substantial evidence.

n The dissent correctly notes that “the law regarding testimony on
dates, times, and places, is a separate area of law and does not go to the
sufficiency of the evidence.” Dissenting opinion at 46 n.10. However, the
minor's testimony in Arceo went beyond the mere inability to recall those
details, and instead extended to an inability to recall whether distinct
culpable acts had even occurred on more than one occasion. 84 Hawafi at 8-
lO, 928 P.2d at 850-52.

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In the instant case, the evidence presented at trial
concerning Kalaola’s conduct on the first floor of ATM was
clearly sufficient to support a conviction for failure to
disperse. Accordingly, the double jeopardy clause is not
implicated with regard to Kalaola’s failure to disperse from the
first floor of ATM, since there was sufficient evidence to
support a conviction based on that act.“

However, double jeopardy precludes the State from again
seeking a conviction of Kalaola based on his failure to disperse
from the second floor of ATM. In order to obtain a conviction on
retrial based on that act, the prosecution would necessarily be
required to introduce additional evidence beyond that presented
in the first trial. In the circumstances of this case, where the
prosecution specifically argued that Kalaola’s conduct on the
second floor could independently support conviction, allowing the
prosecution an opportunity to present necessary evidence that it
“failed to muster in the first proceeding” would implicate double
jeopardy, §gp Qplpgg, 85 HawaFi at 140, 938 P.2d at 571 (“[t]he
Double Jeopardy Clause forbids a second trial for the purpose of

affording the prosecution another opportunity to supply evidence

“ The dissent asserts that “the prosecution is in a position, and
has been since before Arceo was decided, to avoid this problem by either 1)
presenting each act as a separate charge or 2) electing the specific act upon

which it is seeking a conviction.” Dissenting opinion at 71. However, as we
noted in Arceo, requiring either a unanimity instruction or an election “is
not intended . . . to encourage the bringing of multiple charges when, in the

prosecutor's judgment, they are not warranted. The criteria used to determine
that only a single charge should be brought[] may indicate that the election
of one particular act for conviction is impractical.” 84 HawaFi at 31, 928
P.2d at 873 (quoting State v. Petrich, 683 P.2d 173, 178 (wash. 1984),
overruled on other grounds by State v. Kitchen, 756 P.2d 105, 107 (wash.
19a8)). 1

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which it failed to muster in the first proceeding. This is
central to the objective of the prohibition against successive

trials.”) (quoting Green, 355 U.S. at 187); cf. Jones, 96 HawaFi

at 184 n.30, 29 P.3d at 374 n.30 (“the double jeopardy clause
does not bar retrial on the means of establishing guilt for which
there was sufficient evidence presented at trial”).
IV. Conclusion
lt is undisputed that trial error occurred in the

instant case, insofar as the circuit court failed to properly
instruct the jury concerning l1) the statutory definition of
“disorderly conduct” and (2) the applicability of the “knowingly”
state of mind to each element of the offense of failure to
disperse. State v. Kalaola, No. 29163, 2009 wL 1507291, at *2
(App. May 29, 2009). The two remaining questions are whether the
evidence was sufficient to support Kalaola’s conviction, and
whether retrial is permissible under the double jeopardy clause
of the HawaFi Constitution. we hold that sufficient evidence

was presented at trial to establish that Kalaola failed to

b disperse from the first floor of ATM, but not from the second.

Because we hold there was sufficient evidence to support
Kalaola’s conviction with regard to his conduct on the first
floor of ATM, there was sufficient evidence “to support the
conclusion of the trier of fact” that Kalaola had committed the
charged offense. _pg pgpg§, 96 HawaFi at 181, 29 P.3d at 371.

Thus, the double jeopardy clause does not bar retrial with regard

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to that conduct.
Accordingly, we affirm the judgment of the ICA, and

remand the case for further proceedings consistent with this

opinion. 2 ‘ g

Henry P. Ting, Deputy §§ &V£>tf\M$Lm41 ix

,Public Defender for

respondent/defendant-

appel lant h M/u/L ¢(

Anne K. Clarkin, Deputy
Prosecuting Attorney
for petitioner/
plaintiff-appellee

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